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Tuesday, March 31, 2015

Ind. Gov't. - Two former Indiana Supreme Court justices speak out on RFRA

In Indiana Forefront today, Ted Boehm writes in part:

Indiana’s business and civic leaders have spoken loudly and clearly: we need to fix this RFRA mess, and fix it now. The Star’s front page editorial has it right: adding sexual orientation to the list of groups protected by Indiana’s Civil Rights Law is the only way to demonstrate to the nation that we are in step with the times. * * *

Thanks to the latest gerrymander, we have overwhelming Republican majorities in both houses. It is up to the legislative leadership to marshal sufficient Republican support to join with Democrats to get this job done.

Pressing for this needed legislation will no doubt put leadership at odds with many members of the Republican caucuses that selected them. But some issues require taking a stand whatever the cost in a party caucus or at the polls. This is one of those issues, and it affects all Hoosiers. Conventions, business headquarters, and big time events produce revenues that support schools and infrastructure all over Indiana.

Ordinary citizens can help. Communicate your concern to your legislators. Your support will make it easier for legislators to do the right thing. Don’t let the General Assembly undo the years of investment and progress that we’ve enjoyed.

From an Indianapolis Star story this afternoon by Kristine Guerra and Tim Evans:
Frank Sullivan Jr., who served on the Indiana Supreme Court from 1993 to 2012, said RFRA was a "code for 'we need to deny gay and lesbians the civil rights they are asserting.'"

He said that is obvious because the same people — including lawmakers and lobbyists — who were pushing for the failed constitutional ban on same-sex marriage are now behind the RFRA law. In his recollection of the past four decades, infringement of religious freedom has not been an issue in the state.

"I view this as being a purely political issue," he said.

Posted by Marcia Oddi on Tuesday, March 31, 2015
Posted to Indiana Government

Ind. Decisions - Ruling yesterday by Federal Judge Sarah Evans Barker means three Dearborn Co. judges may face jury trial

Here is the press release the ILB received today from Attorney Matthew W. Lorch:

Indiana Judges Discriminated Against Deaf Citizen

Indianapolis, IN – A federal court has ruled that three Indiana judges discriminated against a deaf citizen, Steve Prakel, who sought to attend court proceedings involving his mother. Prakel wanted to attend his mother’s court hearings. He requested that the courts provide interpreters. However, despite his multiple requests, the judges refused to provide interpreters for Prakel.

As a result, Prakel filed a lawsuit alleging that the judges discriminated against Prakel in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The defendants moved to throw out Prakel’s case on the ground that he was not a litigant, juror, or witness involved with his mother’s hearings.

The United States District Court rejected that argument and decided that the judges’ refusal to provide interpreters discriminated against Prakel on the basis of disability.

The three Indiana judges will now face a trial by jury, in which the jury will determine whether the judges were deliberately indifferent to Prakel’s requests for access. The United States Department of Justice filed an amicus brief on Prakel’s behalf in this matter.

Here is yesterday's 45-page opinion from the SD Indiana.

Posted by Marcia Oddi on Tuesday, March 31, 2015
Posted to Ind Fed D.Ct. Decisions

Law - "AG Holder announces new limits on civil asset forfeitures"

On Jan. 16th, the ILB posted this entry quoting a Washington Post story, headed "AG Holder today barred local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred."

From about half-way through a new WAPO story today, by Robert O'Harrow Jr:

The policy guidance issued Tuesday focuses on IRS and Justice agents who made seizures relating to cases involving alleged “structuring,” the practice of intentionally limiting the size of bank transactions to avoid taxes or to hide ill-gotten funds. It is a felony offense to structure financial transactions.

Studies have found that enforcement efforts involving the seizure of bank accounts have often swept up criminals and innocent alike — including small-business owners who sometimes make multiple cash deposits for convenience and security rather than for illegal reasons.

Posted by Marcia Oddi on Tuesday, March 31, 2015
Posted to General Law Related

Ind. Gov't. - "Pence Seeks RFRA Followup Making Clear Indiana Does Not Discriminate"

Eric Berman of WIBC has just posted a comprehensive story covering Gov. Pence's press conference this morning and the responses of Democratic leaders Rep. Pelath and Sen. Lanane. Here from the conclusion:

The governor also won't say whether the followup bill will clarify the status of local ordinances in Indianapolis and other cities which offer such protections. Opponents charge the RFRA law overrides those ordinances, while supporters say they're misreading the law. Pence says his sole focus is on making clear that discrimination won't be tolerated.

Pelath and Lanane endorse the call to add gays and lesbians to the civil rights law, but they say it should be in addition to repeal of RFRA, not instead of. Lanane says Democrats would "take a look at" the proposal. But he says he has doubts about the religious-freedom bill even if protections for gays and lesbians were ironclad. He questions whether the law and its federal and state counterparts adequately define what constitutes religious belief. And he objects to Indiana's inclusion of protections for businesses, along the lines of last year's Hobby Lobby decision from the Supreme Court.

With the wording of the followup bill still undetermined, Pence's goal of passing a fix by the end of the week appears unlikely. Legislators' only remaining session day this week is Thursday -- it would require a two-thirds vote in both houses to suspend normal procedures and pass the bill in a single day. Calling the House and Senate into session Wednesday would conflict with committee hearings on other bills. And legislators had already announced a four-day Easter weekend, because out-of-town legislators are losing their hotel rooms to Final Four visitors.

Pelath and Lanane say unless Republicans change their mind and endorse repeal, the process shouldn't be rushed. Pelath says the followup bill needs careful review to ensure it doesn't have to be fixed a second time.

Posted by Marcia Oddi on Tuesday, March 31, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 19 NFP memorandum decisions)

For publication opinions today (5):

In Berthal O. Williams and Patricia Williams v. The Indiana Rail Road Company, a 41-page, 2-1 opinion, Judge Pyle writes:

This appeal involves an “indenture” or agreement—dating back to 1901—between property owners and a railroad company. The indenture gave the railroad company a right to build and maintain a dam and the resulting accumulation of water on the landowners’ property at a depth of fourteen to twenty feet so that the railroad could use it for railroad purposes. More than 100 years later, subsequent property owners—Berthal O. Williams (“Berthal”) and Patricia Williams (“Patricia”) (collectively “the Williamses”)—attempted to enforce that indenture with a subsequent railroad—the Indiana Rail Road Company (“IRR”)—and argued that IRR had breached the indenture. IRR moved for summary judgment, arguing that: (1) the 1901 indenture between the original parties was merely a personal obligation and not a covenant that ran with the land; (2) even if it was, the express terms of the indenture did not impose a duty on it to maintain the pond at a specified depth; and (3) even if the indenture so required maintenance of a specific pond depth, the Williamses could not enforce it against IRR because any alleged breach occurred before the Williamses purchased the property, causing any such covenant to cease running with the land. The trial court summarily granted IRR’s summary judgment motion.

The Williamses now appeal that order and argue that the trial court erred by granting summary judgment to IRR because none of IRR’s proposed arguments support that judgment. Because we conclude that the indenture was a covenant running with the land, that the terms set forth in the indenture required IRR to maintain the dam and the water level at a specified depth, and that the indenture contained a covenant, perpetual in nature, that did not cease upon a prior breach, we conclude that the trial court prematurely granted summary judgment. Accordingly, we reverse the trial court’s judgment and remand for further proceedings. * * *

Friedlander, J., concurs.
Mathias, J., dissents with separate opinion. [which begins, at p. 40 of 41] I respectfully dissent. I believe that the resolution of this case is to be found in the plain language of the indenture itself. * * *

This language grants to the railroad the right to construct and maintain a dam sufficient to acquire an accumulation of water of a depth not less than fourteen but not more than twenty feet. It imposes no duty or obligation to do so.

In County of Lake and the Lake County Plan Commission v. Alan J. Pahl and Roderick Pahl, a 27-page opinion involving interpretation of a zoning ordinance.

In Rapkin Group, Inc., as a minority member on behalf and for the benefit of The Eye Center Group, LLC, and Surgicenter Group, LLC v. Cardinal Ventures, Inc., et al. , a 13-page opinion, Judge Mathias writes:

Rapkin Group, Inc. (“Rapkin”) appeals the order of the Delaware Circuit Court
granting summary judgment in favor of Cardinal Ventures, Inc. (“Cardinal”), in
a shareholder derivative suit brought by Rapkin on behalf of The Eye Center Group, LLC (“ECG”) and Surgicenter Group, LLC (“SCG”) against Cardinal,
in which Cardinal was alleged to have breached a fiduciary duty and committed
constructive fraud upon ECG and SCG. On appeal, Rapkin claims that genuine
issues of material fact precluded the grant of summary judgment. We reverse and remand.
In Jacqueline A. Jackson v. State of Indiana , a 9-page, 2-1 opinion, Judge concludes:
The State did not present sufficient evidence to show that Jackson violated the conditions of her probation. We hold that the trial court erred when it revoked Jackson’s probation. Reversed.

Mathias, J., concurs.
Bradford, J., dissents with separate opinion. [which begins, at p. 8] Because I believe that the State presented sufficient evidence to prove that Jackson violated the terms of her probation, I respectfully dissent from the majority’s conclusion otherwise.

In Wenzel Williams v. State of Indiana, a 13-page opinion, Judge Robb writes:
Following a jury trial, Wenzel Williams was convicted of two counts of dealing in cocaine, both Class B felonies. He raises four issues on appeal: (1) whether the trial court abused its discretion by denying Williams’s motion for continuance on the morning of his jury trial; (2) whether the trial court abused its discretion by limiting Williams’s cross-examination of the State’s confidential informant; (3) whether the trial court abused its discretion by allowing a police officer to testify that he witnessed Williams participate in a drug transaction; and (4) whether the State committed prosecutorial misconduct during closing argument. Concluding none of Williams’s issues require reversal, we affirm. * * *

As an initial matter, the State asserts that Williams failed to preserve his claim of prosecutorial misconduct. The State cites Delarosa v. State, which declares that “[t]o preserve a claim of prosecutorial misconduct, a defendant must object and request an admonishment. If the defendant is not satisfied with the admonishment, the defendant must move for a new trial.” 938 N.E.2d 690, 696 (Ind. 2010); accord Ryan, 9 N.E.3d at 667. Because Williams did not seek an admonishment or a mistrial, the State believes Williams’s claim is forfeited. We cannot agree. Williams did object to the prosecutor’s statement during closing argument, and the trial court overruled that objection. It makes absolutely no sense for the State to say a defendant must request an admonishment and a mistrial after having been told by the trial court that no misconduct occurred. Statements in Delarosa and Ryan that requests for an admonishment and a mistrial are necessary to preserve a claim of prosecutorial misconduct presuppose that an objection is sustained and the trial court would actually have entertained a request for an admonishment. Put simply, Williams’s overruled objection is sufficient to preserve his prosecutorial misconduct claim. * * *

Conclusion. We conclude the trial court did not abuse its discretion by denying Williams’s motion for continuance, limiting cross-examination of Swaim, or allowing a witness to testify that he saw a drug transaction. Further, William’s alleged prosecutorial misconduct claim does not constitute reversible error.

NFP civil decisions today (4):

John Mark Nipp v. Amy Elizabeth Nipp (mem. dec.)

SVT, LLC d/b/a Ultra Foods v. Benny Becchino (mem. dec.)

In Re the Adoption of H.J.S., J.H.S. and P.L.S. v. B.M.C. and A.J.S. (mem. dec.)

Beverly R. Newman, Ed.D. v. Meijer, Inc. (mem. dec.)

NFP criminal decisions today (15):

Rodney L. Blakely v. State of Indiana (mem. dec.)

Amanda R. Lee v. State of Indiana (mem. dec.)

Tyree Hill v. State of Indiana

John Randall Portis v. State of Indiana (mem. dec.)

Shamus L. Patton v. State of Indiana (mem. dec.)

Monica McCall v. State of Indiana (mem. dec.)

Gregory A. Caudle v. State of Indiana (mem. dec.)

Jeremy Ryan v. State of Indiana (mem. dec.)

Brandon Scroggin v. State of Indiana (mem. dec.)

Bradley Hunt v. State of Indiana (mem. dec.)

Rodney S. Perry, Sr. v. State of Indiana (mem. dec.)

Henry Gooch v. State of Indiana (mem. dec.)

Sylvester Dunn v. State of Indiana (mem. dec.)

Michael J. Weis v. State of Indiana (mem. dec.)

Loyd Allen Sands v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, March 31, 2015
Posted to Ind. App.Ct. Decisions

Law - “How Does a Bail Bondsman Work?”

In this installment of Slate’s podcast about work, host Adam Davidson talks with veteran New York bail bondsman Ira Judelson. The half-hour interview is really interesting.

Posted by Marcia Oddi on Tuesday, March 31, 2015
Posted to General Law Related

Ind. Decisions - "State may still have financial responsibility in State Fair stage collapse, COA rules"

Yesterday's 2-1 Court of Appeals opinion in In re: Indiana State Fair Litigation: Polet, et al. v. Mid-America Sound, et. al. (ILB summary here) is the subject of several stories today.

The AP reported in a brief story:

The state may be legally liable for responsible for some legal damages faced by a company that provided the rigging for a stage that collapsed at the Indiana State Fair in 2011, the Indiana Court of Appeals ruled Monday.

The decision said Marion County Superior Court Judge Theodore Sosin failed to articulate why he had granted summary judgment to the Indiana State Fair Commission in March 2014 after Mid-America Sound Corp. argued that the state was financially responsible by contract for the cost of its defense and any judgments against it.

Attorney General Greg Zoeller said Monday's ruling means the state could be liable for an undetermined amount, inconsistent with the financial limits specified in the Tort Claims Act that limits the state's payout. Zoeller said he plans to appeal the case to the Indiana Supreme Court. [ILB: Here is the AG's news release.]

"Our position is, Indiana law is clear that the state cannot indemnify a private party, nor was there any agreement here to do so, and we will continue to fight the stage rigging contractor's attempt to shift its legal responsibility for the State Fair tragedy onto the public," he said in a statement.

Jill Disis of the Indianapolis Star reports:
When a stage collapsed in 2011 at the Indiana State Fair, the state paid out $11 million to 56 injured victims and the estates of the seven people who were killed.

But the state's financial liability for the tragedy might be far from finished, the Indiana Court of Appeals ruled Monday.

The 2-1 opinion reverses a lower court ruling that said the state could be excused from damage claims against a sound company being sued for the collapse. The case's latest turn in court could place the determination of whether the state has additional financial responsibility in the hands of a Marion County jury.

Attorneys for Mid-America Sound Corp., which supplied the stage materials for the fatal Aug. 13, 2011, production, argued that the state was obligated to help pay liability costs based on the terms of its contract with the company.

The state argued that expectation was unfair, and claimed state officials never willingly entered such an agreement with Mid-America Sound.

In March 2014, Marion Superior Judge Theodore Sosin agreed with the State Fair Commission, ruling that Mid-America Sound could not shift its liability to the state.

But the appeals court decision overturns that ruling, saying that Mid-America Sound can use its indeminification argument in trial court. That decision potentially holds the state accountable for financial liabilities beyond what it has already paid. * * *

Attorney General Greg Zoeller said in a statement the state would appeal the latest ruling to the Indiana Supreme Court. It has 30 days to file a petition to do so.

"My office put the victims first by fully paying out the state's maximum $5 million liability," Zoeller said. "As the guardian of tax dollars, the state is adamant that it will not and cannot assume the current and future legal bills of this private company for the company's conduct." * * *

The state was recently the subject of another lawsuit heard before the Indiana Court of Appeals. In that case, attorneys for the only victim to not accept settlement money from the state asked the court to throw out the law that limites the amount of damages the state can give out after a tragedy. In January, the court upheld the $5 million cap as constitutional.

This Jan. 20, 2015 ILB post discusses that Jan., 2015 opinion, J.P. et al. v. Mid American Sound, et al.

In addition, the ILB has a special category, "Stage Collapse," listing all ILB posts on this topic. Of particular interest in the current case is this ILB post from August 9, 2012, concerning the status of invoices in the state contracting sysytem/

Posted by Marcia Oddi on Tuesday, March 31, 2015
Posted to Ind. App.Ct. Decisions | Stage Collapse

Ind. Gov't. - Amended fenced hunting bill will move to Senate 2nd reading calendar

Updating this ILB post from March 9th, headed "'Fenced hunting fight should end' - but where is the option?" Ryan Sabalow of the Indianapolis Star reports today on the latest version of the bill (HB 1453), as it was agreed to yesterday by the Senate Natural Resources Committee. Some quotes from the long story:

The bill's agricultural and business boosters, including representatives for Indiana's nearly 400 deer farms, touted new changes to House Bill 1453 as a way to satisfy critics who worry that interstate shipments in trophy deer could spread disease to Indiana.

Critics also argue that one Indiana preserve owner already has been accused of illegally drugging his trophies.

"I think this bill does a really nice job addressing those concerns," said Rep. Sean Eberhart, R-Shelbyville, the bill's primary sponsor in the House.

However, opponents of captive-deer hunting testified Monday that they would accept no compromises.

To them, high-fence hunting is appalling and should be illegal in Indiana. Opponents that included wildlife advocates, animal-rights activists, environmentalists and hunter associations testified that the bill opens the door for what they call "canned hunting" to expand and thrive.

"This doesn't regulate the practice," said Jeff Wells, president of the Indiana Conservation Officer Organization. "It deregulates the practice."

Wells was in charge of a team of state and federal wildlife officers whose investigation led to a conviction in one of the nation's most egregious captive-deer cases.

In 2005, Wells' team testified in federal court that Peru, Ind., hunting preserve owner Russ Bellar had been selling hunts to wealthy clients in pens so small that conservation officers called them "killing pens." Bellar also was accused of using illegal drugs on his deer. Jurors were shown video footage of a hunter shooting one of Bellar's deer that appeared drugged. * * *

The committee's vote sets the stage for a definitive vote in 2015 on whether the controversial practice of high-fence hunting will become officially legal in Indiana.

Last year's bill failed to advance in the full Senate by just one vote.

For nearly a decade, annual legislation that would formally legalize captive deer hunting has failed to advance in the General Assembly. * * *

[A]fter Bellar pleaded guilty in 2005, the Indiana Department of Natural Resources tried to shut down the state's hunting preserves, saying they were unethical and posed a disease threat to wild deer.

Bruce and other preserve owners sued.

The matter was tied up in court, and the fenced hunting ranches that stayed in business were allowed to sell hunts without oversight from the DNR, whose conservation officers enforce hunting laws.

The Indiana attorney general's office this month challenged an appellate court ruling that found the DNR had overstepped its authority.

The challenge before the Indiana Supreme Court is pending, but it could be withdrawn if the Senate passes HB 1453.

Here is a long list of earlier ILB entries on this topic.

Posted by Marcia Oddi on Tuesday, March 31, 2015
Posted to Indiana Government

Monday, March 30, 2015

Ind. Gov't. - "Needle exchange bill advances in Indiana House" but faces veto threat

Maureen Hayden, CNHI, reports this evening in a long story in the New Albany News & Tribune:

INDIANAPOLIS — Half of Indiana’s 92 counties — now at risk for an HIV outbreak like the one that’s hit Scott County — could launch emergency programs that give needles to intravenous drug users under a measure advancing in the Indiana House.

But the proposal, aimed as a proactive measure to curb the spread of the virus that causes AIDS, faces a veto threat from Republican Gov. Mike Pence.

The measure, crafted by the Republican Public Health Committee Chairman Ed Clere, New Albany, would let local health officials adopt a needle-exchange program like the one that Pence authorized last week when he declared a health emergency in Scott County. The bill is limited in scope: The trigger that would allow local health departments to implement such programs is their rate of hepatitis C, a potentially lethal blood-borne virus that, like HIV, is commonly transmitted through sharing of contaminated needles and through sexual contact.

“We have an opportunity in these communities to keep them from becoming the next Scott County,” Clere said.

Health experts consider hepatitis C to be a key indicator of increased risk for HIV, and the two viruses are closely tied. Scott County had one of the largest increases in hepatitis C cases in Indiana in the three years preceding the current outbreak of HIV that’s been linked to IV drug use. * * *

Current law in Indiana bars needle exchanges for illegal drug users; it’s a crime to possess a hypodermic needle with intent to inject an illegal drug.

Clere’s measure would allow local health departments to work around that law in the event of a health emergency. Under the measure, the local health departments in 23 counties with the worst hepatitis C rates would be allowed to launch emergency needle programs as soon as the legislation is passed if their local doctors determine it’s needed to curb the spread of hepatitis C and HIV.

An additional 23 counties with high hepatitis C rates could also start such programs, after meeting additional conditions, including first holding a public hearing on the issue.

No state funding could be used to finance such a program and only nonprofit organizations approved by local health departments could dispense the needles to drug users.

The measure was passed by the Public Health Committee on Monday, with support from Republicans with high-risk counties in their districts.

“This puts the decision-making in the hands of local health officials, which is where it needs to be,” said Rep. Steve Davisson of Salem. * * *

Clere’s measure faces a veto threat from Pence, who’s had a long-standing opposition to needle-exchange programs that exist in 33 states. Pence has said he opposes them as a part of his “anti-drug” policy but so far has declined to explain why.

Last week — in announcing his decision to allow Scott County to implement a needle exchange program under his 30-day emergency order — Pence also threatened to kill any legislative measure that would expand such a program statewide.

In response to the threat, Clere narrowed his proposal to apply only to counties that face the highest risk of an HIV outbreak like the one in Scott County. But even the narrower proposal would face resistance from Pence, according to Joey Fox, Pence’s legislative liaison at the Indiana State Department of Health.

Clere’s frustration was evident Monday.

“I’m not sure where the goal post is now. It seems to keep moving,” he said.

The measure was added in committee to another health bill, SB 461.

Posted by Marcia Oddi on Monday, March 30, 2015
Posted to Indiana Government

Ind. Law - More on: RFRA: An analysis, and a comparison with its federal counterpart

On Friday the ILB wrote:

Matt Anderson, a civil trial lawyer with Wruble & Associates in South Bend, has written a post for his blog, IN Advance, that addresses many of the inquiries the ILB has been receiving.
Friday seems long ago now, at that time that had been little dispassionate analysis of the law itself, and Matt jumped in with some great work.

ABC Indianapolis reporter Jordan Fischer did an interview with Matt today.

Also today, Matt has posted a long follow-up entry on his blog, headed "Indiana’s RFRA – A Second Look." It begins:

I would like to thank everyone who took the time to read my post on Friday regarding Indiana’s Religious Freedom Restoration Act. I was not expecting such high readership but it seems that several people had the same questions I did. I have been reviewing the comments – which pro or contra have been predominantly constructive and civil – as well as following the news and recent developments, including Gov. Pence’s appearance on This Week and his plan to clarify INRFRA.

There are several issues and questions surrounding this law and based on a survery of questions I have received, I will attempt to address a few as the day goes on.

Posted by Marcia Oddi on Monday, March 30, 2015
Posted to Indiana Law

Ind. Gov't. - Dunes Pavilion project detailed, ready for scrutiny; a marina in the mix? [Updated]

Updating this March 25th ILB post, which includes a link to the Pavilion Partners LLC lease with IDNR, plus the prospectus and proposal, Carole Carlson of the Gary Post-Tribune has this long, informative Sunday story. Some quotes from the lengthy story:

While critics say the lease deal for the renovation and operation of the Indiana Dunes State Pavilion leaves the door to future improvements, state officials defended the process as open and fair.

In advance of an April 6 open house that offers renderings of the $3 to $4 million renovation project of the iconic dunes landmark, the Department of Natural Resources published a lengthy FAQ on its website to quell concerns. It also released a copy of the lease and the developers' original proposal.

"We're hoping people will see the proposal and get their questions answered," said Phil Bloom, DNR spokesman.

What has drawn concern is a new beachfront building — a three-story 30,000-square-foot banquet center adjacent to the Pavilion. The Porter County chapter of the Izzak Walton League opposes construction of the structure.

"We're looking at it with a fine-tooth comb, making sure they've done everything proper," said Jim Sweeney, chapter president. "If they haven't, we'll see them in court."

While not proposed at this time and not part of the lease arrangement, the developers are considering the development of a marina as part of a later phase. They say, in their proposal, they're interested in examining the possibility of lodging.

Sweeney said his group supports the Pavilion renovation, but said the state request for proposals didn't specify a stand-alone conference center. He worries it will be the first of other beach intrusions. * * *

Bloom said the possibility of an additional structure was mentioned in the state prospectus. The configuration of structural pillars — 15 feet apart in each direction inside the Pavilion — make it unsuitable for a public event or banquet, the DNR says. The ability to conduct meetings and weddings is considered critical for the facility to be financially viable year-round, according to the DNR.

The state advertised its request for proposals in 2011, detailing its expectations. It wanted a full-service restaurant and banquet facility, merchandise sales, a snack bar and showers. In the end, only two proposals gained consideration. The prospectus said the the project could include "other appropriate facilities that would be compatible and enhance the operation." * * *

According to the terms of the lease, the state will charge a minimum rental fee of $18,000 a year. After it's been opened for two years, the state will receive 2 percent of the gross receipts from food, alcohol, souvenirs, and other revenue. Patrons of the restaurant and banquet center will have to pay the park entry fee, as well.

Pavilion Partners have the option of two 15-year extensions. In its 2012 proposal, the developers estimated gross profits of $3.7 million during the first year and $4.8 million by year 10.

Also in its 26-page proposal, developers said one of its operator's intentions would be the development of a marina. They acknowledged a study would be required to determine if it's appropriate for the area and what impact it would have. * * *

The DNR distanced itself from a marina in a statement from Bortner who said: "DNR decided to not negotiate any provision for a marina at this time.If it is ever decided that a marina would be of benefit to Hoosiers, the lease agreement would need to be amended," he said.

Pavilion Partners proposal did not include a hotel, but it did say: "the developers are interested in exploring lodging opportunities at a later date."

The proposal said the restored Pavilion will house a second-floor restaurant and bar with seating for 120 people. The year-round restaurant would also offer entertainment and window views of Lake Michigan and the dunes.

A rooftop terrace will house a small bar, along with outdoor dining for 200 people. .It could also be used for viewing special events such as meteor showers, eclipses and star-gazing. * * *

Developers say their design is in keeping with state and federal guidelines for historic preservation. They say the new addition is designed to contrast the style of the Pavilion, "thus not confusing the public as to what is historic and what is not." The new addition with its large curved roof is intended to represent the surrounding sand dunes.

[Updated April 6th] Another story on the Dunes Pavilion update, this one from Rob Earnshaw of the NWI Times, headed "Dunes pavilion team's mission to make park year-long experience." Each successive story gleans new information ... This story concludes:
The DNR will host an open house to showcase plans for the project from 5 to 6:30 p.m. Monday, April 6th at the Indiana Dunes Visitor Center, 1215 N. Ind. 49, Porter. More information and a link to the project can be found at www.in.gov/dnr.
ILB: That is today, so additional reports may follow.

Posted by Marcia Oddi on Monday, March 30, 2015
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending March 27, 2015

Here is the Clerk's transfer list for the week ending Friday, March 27, 2015. It is one page (and 4 cases) long.

No transfers were granted last week.

Two earlier orders granting transfer were vacated:

Posted by Marcia Oddi on Monday, March 30, 2015
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decisions)

For publication opinions today (2):

In In re: Indiana State Fair Litigation: Polet, et al. v. Mid-America Sound, et. al., a 31-page, 2-1 opinion, Judge May writes:

For many years, the Indiana State Fair Commission (“the Commission”) used equipment leased from Mid-America Sound (“Mid-America”) to produce outdoor concerts, including one on August 31, 2011, where a number of people were killed or injured when a stage at the Indiana State Fair collapsed. Lawsuits followed, and Mid-America asserted cross-claims or third-party claims seeking indemnification from the Commission. The Commission moved for summary judgment on the question whether it must indemnify Mid-America, arguing the indemnity provisions in their agreements were unconscionable; violated the Indiana Tort Claims Act, Ind. Code ch. 34-13-3; could not be applied retroactively; and were outside the Commission’s authority. The trial court granted the Commission’s motion but did not articulate the basis for its decision. As the Tort Claims Act does not apply and there are genuine issues of fact regarding the validity and enforceability of the indemnification agreement, we reverse and remand for trial. * * *

The Commission characterizes the indemnity provision in the case before us as retroactive because the indemnity provisions were printed on an invoice, and the invoice was not provided to the Commission until after Mid-America had rendered its services and after the stage collapse. However, the Commission reviewed and signed the invoices Mid-America submitted after the state collapse, and it paid Mid-America.

The designated evidence of the parties’ course of dealings gives rise to a genuine issue whether the application of the indemnity provision may fairly be characterized as “retroactive,” and summary judgment therefore could not properly be granted on that ground. Before the stage collapse, the Commission agreed to continue the parties’ longstanding course of dealing, which had for years included indemnity terms on invoices not submitted until after the Fair. * * *

The Commission next argues the indemnity provisions were unconscionable. The Commission characterizes the indemnification provision as something Mid-America “slipped in” in 2003, (Commission’s Br. at 3), and as being “tucked into the middle of small boilerplate print on the back of the invoice,” (id. at 4). We cannot find, as a matter of law, this indemnification provision was unconscionable. * * *

Nor was the Commission entitled to summary judgment on the ground it “did not knowingly and willingly agree to indemnification.” (Commission’s Br. at 14.) In light of the ample evidence it reviewed, audited, approved, and paid the invoice at issue, and numerous similar invoices over the years, summary judgment on the ground the Commission was unwilling to agree to indemnification or did not know it was doing so was error. * * *

Even if there was a valid indemnity agreement, the Commission argues, it cannot be enforced because the Commission, as a government entity, cannot enter into such an agreement. It relies on the Indiana Tort Claims Act (ITCA) and the Appropriations Clause of the Indiana Constitution. * * *

The Commission argues the ITCA applies to this contract action because the indemnity clause is in fact “a means of shifting tort liability to Indiana taxpayers,” and only the legislature “decides the terms of potential taxpayer exposure to civil damages suits.”[7] * * *

The record before us does not reflect the Commission’s enabling statute or its own rules concerning contracts prohibit indemnification agreements, and it is clear the legislature knows how to limit or proscribe indemnity provisions when it wants to do so. See, e.g., Ind. Code § 8-2.1-26-5 (prohibiting indemnification agreements in motor carrier transportation contracts with regulated public utilities), and Ind. Code § 13-23-13-10 (prohibiting indemnification agreements in agreements by owners or operators of underground storage tanks who are liable to the state for the costs of corrective action). * * *

Conclusion. There are genuine issues of fact regarding the validity and enforceability of the indemnification provisions in the vouchers Mid-America submitted to the Commission and the Commission reviewed and paid, and the Commission is not shielded by the ITCA. Summary judgment for the Commission was therefore error, and we accordingly reverse and remand for trial.

Friedlander, J., concurs.
Vaidik, C.J., dissents with separate opinion. [that begins at p. 23] * * * The majority reverses the trial court’s grant of summary judgment in favor of the Commission, finding that there are genuine issues of material fact as to the validity and enforceability of the indemnification clauses. Given that the purported indemnification clauses were located on the backside of unsigned invoices, I have serious doubts as to whether there was an enforceable contract between Mid-America and the Commission. But I respectfully dissent from the majority’s opinion because, taking substance over form, I believe that this case is nothing more than Mid-America’s attempt to shift tort liability to the Commission—a tort in contract’s clothing, if you will. I would find that the Commission has immunity from Mid-America’s claims against them since this is the type of action contemplated by the Indiana Tort Claims Act (ITCA) and the Commission is a governmental entity. * * *
____________
[7] The Commission also argues at some length that a document it refers to as the “Professional Services Contract Manual,” (Commission’s Br. at 28), prohibits state entities from entering into indemnification agreements. That manual does not appear to be in the record before us, and a web address to which the State directs us returns this result: “Error - Page Not Found. The Indiana Department of Administration has made major improvements to our site!” http://www.in.gov/ai/errors/idoa_404.html (last visited January 2, 2015). We are therefore unable to address that argument.

ILB observation: At the end of this Oct. 10, 2011 post, the ILB, citing several Indiana federal opinions, asked:
If the state lottery is a quasi-public entity, and thus not an arm of the State of Indiana, is it entitled to sovereign immunity? Several recent federal court decisions have said "no."
In Paul D. Mobley v. State of Indiana, a 12-page opinion, Chief Judge Vaidik writes:
Paul D. Mobley appeals his conviction for Class A misdemeanor patronizing a prostitute. Mobley argues that the evidence is insufficient to sustain his conviction or, in the alternative, that the State failed to rebut his defense of entrapment. We find that the evidence is sufficient to prove that Mobley knowingly agreed to pay an undercover detective $20 to perform fellatio on him. We also conclude that according to the Indiana Supreme Court’s recent decision in Griesemer v. State, --- N.E.3d ---, 2015 WL 970660 (Ind. 2015), because a reasonable trier of fact could have found the State proved, beyond a reasonable doubt, that the police did not induce Mobley, his entrapment defense fails. We therefore affirm his conviction for Class A misdemeanor patronizing a prostitute.
NFP civil decisions today (8):

Eric D. Smith v. The Marion County Prosecutor's Office, Terry R. Curry, John G. Baker, Margrett Robb, Justice May, Justice Mathias, Justice Sullivan, Sr., and The Indiana General Assembly (mem. dec.)

S.B. v. C.B. (mem. dec.)

Nathan Ferguson and Deanna Ferguson v. Shiel Sexton Company, Inc. d/b/a Shiel Sexton; WR Dunkin & Son Inc.: Lynch Harrison & Brumleve, Inc.; Alt & Witzig Engineering et al (mem. dec.)

David R. Ulrich and Marcia K. Ulrich v. Brad R. Minear and Miranda G. Minear (mem. dec.)

In the Matter of D.P. & C.H., Children Alleged to be Children in Need of Services, T.P. Mother v. The Ind. Dept. of Child Services (mem. dec.)

Louis Ridgeway v. Richard Jacobs (mem. dec.)

In Re: The Guardianship of A.M. v. Shapree Bailey v. Blanche Meriweather and Douglas Meriweather (mem. dec.)

In the matter of the Donald L. Colbert Living Trust dated 5-27-2008 created by Settlor, Donald L. Colbert, Barbro Colbert v. Katherine Colbert Kraek (mem. dec.)

NFP criminal decisions today (5):

Leroy D. Brown v. State of Indiana (mem. dec.)

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

Darrell Dewayne Carter v. State of Indiana (mem. dec.)

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

Antonio D. Walker v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, March 30, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions "Court of Appeals rules for Long Beach homeowners" [Updated]

LBLHA, LLC, Margaret L. West, and Don H. Gunderson v. Town of Long Beach, Indiana, Alliance for the Great Lakes and Save the Dunes, Long Beach Community Alliance, Patrick Cannon, et al., a Court of Appeals opinion issued March 26th, is the subject of a brief story posted last evening in the Michigan City News-Dispatch. Some quotes:

LONG BEACH — The Indiana Court of Appeals has ruled in favor of Long Beach property owners along Lake Michigan who claim the Town of Long Beach acted unconstitutionally to take their beach property.

In a 3-0 decision last week, the Appellate Court reversed summary judgments by La Porte County Circuit Court Judge Thomas Alevizos in December 2013 and April 2014 and sent the dispute back to his court. The Appellate Court also allowed the state, or appropriate state officials, to be a party or parties to the lawsuit.

In essence, the appellate court revived all property claims by the private beachfront owners and allowed them to proceed with their lawsuit against the town. If they prevail, the town could be held legally liable for damages.

Alevizos' two decisions had upheld the town's definitions of what constituted private and public property, and the boundary between them, along the stretch of beach in Long Beach.

In his ruling, Alevizos cited the court case United States v. Carstens, which says, "According to the Indiana 'public trust doctrine,' the beach area between the ordinary high watermark (581.5 feet) and the edge of the water of Lake Michigan is public land not owned by any person, entity or municipality."

Alevizos later clarified he is not qualified to determine ownership of the land between the water's edge and the ordinary high water mark, saying it is a matter that must be handled by the Indiana Legislature or an appellate court in a case in which the state is a party.

As plaintiff, the Long Beach Lakeshore Homeowners Association (LBLHA) contended the boundary between public land and private land along the beach should be the water's edge – the line at which the water usually stands when undisturbed. The owners say their property deeds and plats support their contention that their property extends at least to the water's edge.

The property owners have contended that through such measures as newsletters and the Town Council's resolutions, the Town of Long Beach has put itself at the risk of liability for compensating the property owners.

Stewards of Our Shores, a nonprofit organization maintained by LBLHA, said Thursday's appeals court ruling stands as "a cautionary tale," both for municipalities and for anyone who uses the lakefront without concern for trespassing.

Here is a long list of ILB posts on Lake Michigan shorefront property rights.

[Updated on April 6th] On April 3rd the News Dispatch posted a second story, by Jessica O'Brien, that reported:

LONG BEACH — In response to an article in The News-Dispatch on March 30 that announced a ruling in favor of Long Beach homeowners – based on a news release received from an organization called Stewards of Our Shores – the Long Beach Community Alliance issued a release of its own saying the idea of the previous story was misleading.

While the article said the Indiana Court of Appeals has ruled in favor of Long Beach property owners on Lake Michigan, the court case is far from over. That decision, said Patrick Cannon of the Long Beach Community Alliance, simply means the state must be made a party in the case that had previously been appealed.

However, a second lawsuit has already been filed by the plaintiffs in that case listing the state as a party. That case is scheduled to go before Judge Richard Stalbrink in La Porte County Superior Court No. 2 for a hearing later this month.

This ongoing court battle began with a suit filed years ago in which the Long Beach Lakefront Homeowners Association and two individual property owners fought the town of Long Beach over where their property line was officially drawn.

Homeowners on the lake believe their property extends at least to the Lake Michigan water line. The rest of the town of Long Beach, however, argues that property lines end at the ordinary high water mark, or an elevation of 581.5 feet.

La Porte County Circuit Court Judge Thomas Alevizos already ruled on this case in 2013 – ruling against the Long Beach beachfront homeowners. This resulted in the case being appealed and the second court case being filed.

The Long Beach Community Alliance, which has been included as an interested party in both cases, issued a statement which stated, "We would like to go on the record as being highly critical of the beachfront residents who comprise the membership of the Long Beach Lakefront Homeowners Association for their recklessness in misleading The News-Dispatch regarding the true ruling of the appellate court in a legal action pending before the courts."

"The State of Indiana has clearly gone on record in the second court case as opposing the assertions of ownership of the beachfront plaintiffs and maintains that the beachfront is not privately owned but rather owned by the state in trust and for the benefit of all citizens," according to the news release.

Both sides made statements in regards to wanting the matter to be settled for the benefit of the entire community.

Posted by Marcia Oddi on Monday, March 30, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Some weekend reactions to, and stories on, the RFRA controversy

A statement from Indiana University President Michael A. McRobbie this weekend begins:

"The recent passage of the Indiana Religious Freedom Restoration Act has brought significant negative attention to the state of Indiana throughout the nation and indeed the world, because the law is widely viewed as signaling an unwelcoming and discriminatory atmosphere in our state.

"While Indiana University hopes that the controversy of the past few days will move the state government to reconsider this unnecessary legislation, the damage already done to Indiana’s reputation is such that all public officials and public institutions in our state need to reaffirm our absolute commitment to the Hoosier values of fair treatment and non-discrimination.

An editorial from The Charlotte Observer this weekend, headlined " Indiana shows what not do do: N.C. also eyeing so-called religious freedom bill," concluded:
The fallout in Indiana was immediate. Salesforce, a $4 billion company, said it would “dramatically reduce our investments in Indiana.” The NCAA, which is holding the Final Four in Indianapolis next weekend, suggested it would reconsider holding future events there. The state’s largest convention – Gen Con – said it would consider moving. The Disciples of Christ may move its 2017 convention. And Yelp’s CEO said the company would not expand in states with such laws.

That’s progress of a sort. Nineteen states passed similar bills over the past 20 years with little fanfare. The outrage we’re seeing in Indiana shows the new awareness of LGBT equality.

Does North Carolina really want to go down this road? Do we want to sanction discrimination by letting anyone deny service to whomever they please? Do we want to jeopardize conventions, job growth and the ability to recruit?

Arizona was going to last year, but under pressure from the NFL and others, Gov. Jan Brewer vetoed the bill. If it reaches his desk, Gov. Pat McCrory should do the same here.

Katie Sanders of PolitFact,in a long, good column Sunday headed "Did Barack Obama vote for Religious Freedom Restoration Act with 'very same' wording as Indiana's?" concluded:
Pence played defense Sunday, saying, that sexual orientation "doesn’t have anything to do with" the Religious Freedom Restoration Act," adding that "then state-Sen Barack Obama voted for (the Religious Freedom Restoration Act) when he was in the state Senate of Illinois. The very same language." A spokeswoman for Pence did not respond.

The vote is clear enough, as is the name of the bill, but Pence’s explanation is an oversimplification of the purpose of the law then and the motivation of some pushing the law now.

Proponents of this law are pushing the measure as a way that businesses can seek protection "for refusing to participate in a homosexual marriage." Whether that argument will win in the courts is up for debate. That was far from an intent of Illinois’ law, or the others passed more than 15 years ago.

As for the language itself, Pence is incorrect to say the language is the same. Some pro-LGBT rights groups say the outright inclusion of a corporation or company as a "person" is overly broad, though the true impact will likely only really be settled when matters are sent to a court.

Overall, Pence’s claim is partially accurate but misses important context. We rate it Half True.

Judd Legum of ThinkProgress writes today:
The Indiana law differs substantially from the federal Religious Freedom Restoration Act, signed by President Clinton in 1993, and all other state RFRAs.

There are several important differences in the Indiana bill but the most striking is Section 9. Under that section, a “person” (which under the law includes not only an individual but also any organization, partnership, LLC, corporation, company, firm, church, religious society, or other entity) whose “exercise of religion has been substantially burdened, or is likely to be substantially burdened” can use the law as “a claim or defense… regardless of whether the state or any other governmental entity is a party to the proceeding.”

Every other Religious Freedom Restoration Act applies to disputes between a person or entity and a government. Indiana’s is the only law that explicitly applies to disputes between private citizens. This means it could be used as a cudgel by corporations to justify discrimination against individuals that might otherwise be protected under law. Indiana trial lawyer Matt Anderson, discussing this difference, writes that the Indiana law is “more broadly written than its federal and state predecessors” and opens up “the path of least resistance among its species to have a court adjudicate it in a manner that could ultimately be used to discriminate…”

This is not a trivial distinction. Arizona enacted an RFRA that applied to actions involving the government in 2012. When the state legislature tried to expand it to purely private disputes in 2014, nationwide protests erupted and Jan Brewer, Arizona’s Republican governor, vetoed the measure.

Thirty law professors who are experts in religious freedom wrote in February that the Indiana law does not “mirror the language of the federal RFRA” and “will… create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.”

Various federal courts have differing interpretations of the scope of the federal RFRA. The Indiana law explicitly resolves all those disputes in one direction — and then goes even further.

This is evident in Section 5 of the Indiana law which provides protections to religious practices “whether or not compelled by, or central to, a system of religious belief.” So entities can seek to justify discriminatory practices based on religious practices that are fringe to their belief system.

Beyond the differences between the Indiana law and other states, many of the other states that have a RFRA also have a law that prohibits discrimination based on sexual orientation. Indiana does not have one. * * *

Claiming that the Indiana law is just like the laws in 19 other states, however, is simply not true. Other states are following Indiana’s lead and broadening the language of the law.

Why the change? Beyond the substance, the politics of the RFRA has become much different. When the federal law was signed in 1993, it was thought “to be about benign and relatively uncontroversial matters, such as allowing Muslim jail inmates to wear closely trimmed beards, or assuring that churches could feed homeless people in public parks.” Today, Indiana’s law is driven “by the politics of anti-gay backlash. Their most ardent supporters come from an increasingly angry, marginalized, and shrill subset of Christian conservative activists.”

Dave Bangert's column today in the Lafayette Journal & Courier concludes:
Should those other 19 states be subjected to boycotts, too? Take that up with the convention bureaus and Chambers of Commerce in St. Louis or Chicago or Orlando.

Right now, the "Yeah, but, what about them?" defense isn't going to deflect attention from next weekend, when Easter and the NCAA Final Four alternate days in Indianapolis. And, yes, the NCAA has joined the line in questioning Indiana's intent.

This one belongs to you and yours, Gov. Pence.

It didn't have to be this way. There were plenty of red flags before Senate Bill 101 cleared the General Assembly by wide margins — and not just from people who, as state Sen. Brandt Hershman, R-Buck Creek, put it in social media posts over the weekend, have agendas.

Among the loudest of those warnings, the Indiana Chamber of Commerce outlined how perceptions of the measure would be taken in the business and convention community, in and out of the state.

These were smart people. These weren't people chanting their agendas in the Statehouse rotunda. These were traditional allies of the GOP supermajority in the House and Senate. These were people who would have taken the governor's phone call and explained calmly what they saw coming. And it wouldn't have just been about which bakers wouldn't decorate which cupcakes for which wedding.

Maybe they were all misinformed, as the governor says.

But as Statehouse Republicans are finding out, the standard for a nationwide indictment of Indiana isn't that high, even if charges of institutional discrimination would never produce a conviction stemming from Senate Bill 101.

So now, Pence is open to clarification.

The General Assembly tried the clarification route early in 2014, too, when House Republicans tried to head off mounting criticism about House Joint Resolution 3, the proposed constitutional ban on same-sex marriage and similar unions. The bill — inexplicably intended to supplement a constitutional amendment question on a statewide ballot — accomplished only one thing: The more you have to explain that something isn't discriminatory, the shakier its premise.

That's shaping up to be the case with Indiana's version of the Religious Freedom Restoration Act this year. The only difference then was that discussion came before the governor's signature.

Pence says he has no desire to add sexual orientation as a protected class in the state's civil liberties laws. "That's not on my agenda," Pence said Sunday on ABC. So what sort of clarification does he have in mind that won't send Indiana spinning even worse? That's a good question.

Pence and Statehouse Republicans should have seen this coming. They didn't. And the state is paying for it.

So now, what confidence is there that the governor can do damage control, instead of just more damage?

Posted by Marcia Oddi on Monday, March 30, 2015
Posted to Indiana Government

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

From Sunday, March 29, 2015:

From Saturday, March 28, 2015: From Friday afternoon, March 27, 2015:

Posted by Marcia Oddi on Monday, March 30, 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 3/30/15):

Thursday, April 2

Next week's oral arguments before the Supreme Court (week of 4/6/15):

Thursday, April 9

Friday, April 10 Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/30/15):

Monday, March 30

Wednesday, April 1

Next week's oral arguments before the Court of Appeals (week of 4/6/15):

Wednesday, April 8

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, March 30, 2015
Posted to Upcoming Oral Arguments

Sunday, March 29, 2015

Ind. Courts - Judicial Center's Legislative Update: 11th and 12th weekly installments

Here is the 12th (ILB missed highlighting the 11th installment, sorry) weekly installment of the Indiana Judicial Center's Legislative Update for the 2015 legislative session. This was the fourth week for bills to be considered in the 2nd house committee. Two weeks remain.

The ILB found the discussion at the March 27th meeting of the House Judiciary Committee on SB 523 to be particularly interesting. This is the bill relating to the Marion County Small Claims Courts.

The ILB wrote at length on March 5 on major issues facing the Marion County Small Claims Courts, some of which were first reported in 2011.

Posted by Marcia Oddi on Sunday, March 29, 2015
Posted to Indiana Courts

Ind. Gov't. - Some bills the ILB is following, no endorsements intended [Updated]

Some bills the ILB is following:

Senate Bills in HouseHouse Bills in Senate

Posted by Marcia Oddi on Sunday, March 29, 2015
Posted to Indiana Government

Ind. Gov't. - "What the 'religious freedom' law really means for Indiana"

Supplementing the two earlier ILB posts this morning ("What is needed to fix SEA 101" and "Illinois law on religious objection balanced by discrimination ban"), Stephanie Wang of the Indianapolis Star has a good story today in the Indianapolis Star that concludes:

[W]ith Indiana not having a statewide nondiscrimination law that protects sexual orientation and gender identity, the RFRA issue has become tightly intertwined with LGBT issues.

That's what makes Indiana's RFRA distinct from the federal law and versions in 19 other states.

Consider Illinois, our neighboring state that also has a RFRA.

Illinois' RFRA was approved in 1998. But Illinois also passed a same-sex marriage law in 2013 that codifies equal status and protection for couples and their families.

Illinois' Religious Freedom and Marriage Fairness Act at the same time preserved religious rights by explicitly saying religious officials would not be required to solemnize any marriages that went against their beliefs, nor would religious facilities be required to hold such marriage ceremonies.

"What we want," said Wilson, who suggested those religious exemptions to the law, "is people to be able to go forward in society, especially when there is a great social change like marriage, just to know how they're going to live together in peace."

"With a RFRA," she explained, "you have to litigate all the way through to figure out if you've won. People don't have clarity until after the fact where their rights begin and the other guy's rights end."

During RFRA discussions in Indiana, state Republican leaders have dismissed statewide class protection for sexual orientation or gender identity. In most cities, there are no local laws that require equal treatment of gay people. That means discrimination on the basis of sexual orientation has never been expressly prohibited in most of Indiana.

After exposing the gap in LGBT protections and the political unwillingness to close it, Indiana's RFRA debate begins for some to look like a pre-emptive move to block social currents. And therein lies the questions over intent.

Indiana is just one year removed from a battle to block marriage equality, and where the right for same-sex couples to marry was only won by a court ruling overturning a longstanding ban.

It is telling to opponents of the religious freedom act that the law was driven mostly by the same conservative Christians who lost their fights against marriage equality. It's also telling, opponents say, that one of the law's primary sponsors, Republican state Sen. Scott Schneider, has touted the notion — which will be an issue for the court to settle — that Indiana's RFRA could exempt Christian businesses from having to provide wedding services to gay couples.

To some, that sounds like legalized discrimination. To others, it's protecting religious rights.

If you're wondering why RFRA does not realistically revive fears of racial discrimination by private businesses, look no further than the U.S. Constitution, federal and state equal protection laws and lots of case precedent. But LGBT rights don't have such broad and explicit protections.

In the few Hoosier cities with nondiscrimination laws, legal experts predict protecting LGBT rights will stand as a compelling government interest.

But for the state as a whole, is it a compelling interest? Or, in the state of Indiana in 2015 and beyond, will protecting LGBT rights be seen as violating someone else's religious rights?

Posted by Marcia Oddi on Sunday, March 29, 2015
Posted to Indiana Government

Ind. Gov't. - "Illinois law on religious objection balanced by discrimination ban"

Kim Geiger of the Chicago Tribune wrote yesterday in a story that begins:

When Indiana Gov. Mike Pence signed a new state law that allows people and companies to claim a religious objection to doing business with same-sex couples, he pointed to Illinois and Kentucky, saying he was simply bringing the state in line with its neighbors.

But the Republican governor left out an important fact. While Illinois does have a law that gives special protections to religious objectors, it also bans discrimination based on sexual orientation. Indiana, on the other hand, has no such ban.

Posted by Marcia Oddi on Sunday, March 29, 2015
Posted to Indiana Government

Ind. Law - What is needed to fix SEA 101, the Indiana's new RFRA, other than repealing it?

What is needed to fix SEA 101, other than repealing it? Two things:

First, to the new RFRA itself, add the Lanane amendment, wich failed in the Senate. It would add a new subsection (b) to the first section of the law, which details the applicability of the law, to clarify that:

(b) This chapter does not apply to:
(1) IC 22-9-1 (Indiana civil rights law); or
(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.
This change would mean that RFRA does not override local nondiscrimination ordinances or the statewide civil rights law.

But what about the rest of the State, where there is no local nondiscrimination ordinance that includes gays? And what about the now national perception of Indiana as intolerant?

The answer would be to amend the Indiana civil rights act itself, IC 22-9-1, to insert the words "sexual orientation" into the phrase "race, religion, color, sex, disability, national origin, ancestry, or status as a veteran," wherever it appears.

Posted by Marcia Oddi on Sunday, March 29, 2015
Posted to Indiana Government | Indiana Law

Friday, March 27, 2015

Ind. Law - RFRA: An analysis, and a comparison with its federal counterpart

Matt Anderson, a civil trial lawyer with Wruble & Associates in South Bend, has written a post for his blog, IN Advance, that addresses many of the inquiries the ILB has been receiving, including:

The post ends with the new Indiana law, and the federal law, for a side-by-side review.

=============

ILB: Another law to look at, and compare, is the Illinois RFRA, from 1998.

Also of interest is this quote from a March 1, 2014 Washington Post article:

How many states already provide heightened protection for the exercise of religion? The answer? Thirty-one, 18 of which passed state laws based on the 1993 federal Religious Freedom Restoration Act. The protections in an additional 13 states came through court rulings.

"These state RFRAs were enacted in response to Supreme Court decisions that had nothing to do with gay rights or same-sex marriage," explained University of Virginia law professor Douglas Laycock in an e-mail. "And the state court decisions interpreting their state constitutions arose in all sorts of contexts, mostly far removed from gay rights or same-sex marriage. There were cases about Amish buggies, hunting moose for native Alaskan funeral rituals, an attempt to take a church building by eminent domain, landmark laws that prohibited churches from modifying their buildings – all sorts of diverse conflicts between religious practice and pervasive regulation."

A new political fight has emerged in part because some of these more recent proposals are shifting the definition of when citizens can opt out on religious grounds. The federal law says that the government may not pass a law that “substantially burdens a person’s exercise of religion.” But now some businesses -- including the ones who are challenging the Affordable Care Act's contraception coverage mandate in the Supreme Court -- are arguing that they don't have to meet this substantial-burden test.

Posted by Marcia Oddi on Friday, March 27, 2015
Posted to Indiana Law

Ind. Law - Indiana's RFRA and the perception of intolerance

The ILB has received questions about how the new RFRA would work in practice. The ILB has asked several respected attorneys the same questions. The answer: No one is really willing, or able, to give a conclusive answer. It all depends on whether there are challenges to, or under, the new law, how those challenges manifest themselves, and what the Indiana courts decide.

Meanwhile, the very act of passing the law has labeled Indiana nationally as intolerant. A quote from a Bloomington Herald-Times story today:

Bloomington Mayor Mark Kruzan on Thursday afternoon chided the state for passing the bill, while also praising the city’s reputation for diversity.

“For those who know Bloomington to be the welcoming community it is, we will be fine,” Kruzan wrote in an email. “But businesses, investors and visitors not familiar with our progressiveness may well paint Indiana with a broad brush to our detriment. I share Indianapolis Mayor (Greg) Ballard’s concern that state government is sending the exact wrong message to the rest of the country.”

Jeb Conrad, president and CEO of the Greater Bloomington Chamber of Commerce, said he’s heard similar concerns from the local firms he represents.

“Anecdotal discussions with our members indicate they’ve been very frustrated with how Indiana looks as a state,” Conrad said. “We hope it doesn’t have the unintended consequences of a change in business procedure. ... It’s not making Indiana look very favorable with respect to the future. It’s sad and frustrating.”

It does not help that our Governor, who announced earlier this week that he was eager to sign the bill into law, held the signing ceremony in private and won't reveal who attended. [Here is a photo.] As the Indianapolis Star reports:
His office [did release a photo, but] then declined to identify those in the photo.

The photo includes Pence sitting at his desk, surrounded by 18 others. The legislation’s primary sponsors – Sen. Scott Schneider, Sen. Dennis Kruse, and Rep. Tim Wesco – are pictured. So, too are several Franciscan monks, nuns, and orthodox Jews. One of the monks appears to be Fr. David Mary Engo of the Franciscan Brothers Minor in New Haven. He testified in favor of the bill during legislative hearings.

But according to people who attended, there were dozens of others present as well, perhaps as many as 80 total.

Another photograph, posted on Twitter by the American Family Association of Indiana’s Micah Clark, shows Pence at his desk surrounded by a different group. They include the state’s three most prominent lobbyists on conservative social issues: Clark, the Indiana Family Institute’s Curt Smith, and Advance America’s Eric Miller.

Those three, with their connections to a vast network of conservative churches, led a failed effort last year to ban same-sex marriage in Indiana’s constitution. The governor has tried to distance the religious freedom legislation from that issue.

Terrence McCoy of the Washington Post has a long story today headed "How Hobby Lobby paved the way for Indiana’s ‘religious freedom’ bill." A quote:
[The bill] shows once again that the impact of Supreme Court rulings can go well beyond the legal confines of a particular decision and reverberate politically — and that even when a ruling is narrowly framed, the uses made of it can be quite broad.

“Our decision in these cases is concerned solely with the contraceptive mandate,” Justice Samuel A. Alito Jr. wrote in the Hobby Lobby case. Yet it fueled support for a measure involving sexual orientation in Indiana and elsewhere.

Indiana State Sen. Scott Schneider (R), who introduced the religious freedom bill at the end of last year, cited the Hobby Lobby ruling as inspiration. “In reviewing that court ruling, it became clear that Indiana’s laws were not reflective of federal law,” he said in a statement in December. “This bill, which I plan to author this session, would match federal law.”

That was exactly what concerned Ginsburg. When you endow for-profit organizations with the same religious rights as an individual, it’s done regardless of the “impact that accommodation may have on third parties who do not share the corporation owner’s religious faith.” And for some, it doesn’t take a lot of imagination to conjure up the resulting possibilities.

See also Sheila Kennedy's column in Indiana Forefront, which begins:
Hoosiers who want to discriminate against their LGBT neighbors can already do so with impunity–Indiana’s civil rights laws do not protect gay citizens. Same-sex marriages may be legal in Indiana, but gay Hoosiers can still be denied services, refused employment and/or fired just for being gay. So to the extent that SB 101 is intended to protect those who discriminate against gays, it’s totally unnecessary. Unless, of course, our lawmakers want to “send a message.”
Finally, for those who want to read SEA 101 for themselves, here is the Enrolled Act. You can also read it via the IndyStar.

Posted by Marcia Oddi on Friday, March 27, 2015
Posted to Indiana Law

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

For publication opinions today (1):

In Jimmy Wallen, Jr. v. State of Indiana, a 3-0 opinion, Judge Riley writes:

Appellant-Defendant, Jimmy Wallen, Jr. (Wallen), appeals his conviction of theft, a Class D felony, Ind. Code § 35-43-4-2 (2013). We affirm.

Wallen raises one issue on appeal, which we restate as follows: Whether the trial court abused its discretion by giving an improper jury instruction. * * *

Based on the foregoing, we conclude that the trial court abused its discretion in tendering the jury instruction; however, such error was harmless in light of the evidence of Wallen’s guilt.

Vaidik, C. J. concurs
Baker, J. concurs in result with separate opinion [that concludes] I believe that the jury instruction in this case is appropriate and accurate, and part ways with the majority’s conclusion that it was erroneous. I agree with the result reached by the majority, however, and would likewise affirm Wallen’s conviction.

NFP civil decisions today (2):

In Re Matter of: Ta.A., Tr.A., and A.M. (Minor Children): R.A. v. The Indiana Dept. of Child Services and Lake Co. Court Appointed Special Advocate (mem. dec.)

Jack L. Yant, III v. Barry L. Payne (mem. dec.)

NFP criminal decisions today (4):

Steve Delp v. State of Indiana (mem. dec.)

William Eugene Dager v. State of Indiana (mem. dec.)

Michael Thompson v. State of Indiana (mem. dec.)

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

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

Thursday, March 26, 2015

Ind. Decisions - Supreme Court, 3-2, vacates transfer grant and reinstates 2-1 COA decision

In a 3-2 order filed March 24th and posted this afternoon re Robert L. Dixon v. State of Indiana, a case argued Dec. 18th before the Court, the Court vacates its grant of transfer:

Accordingly, the order granting transfer is VACATED, and transfer is hereby DENIED. The decision of the Court of Appeals, published as Dixon v. State, 14 N.E.3d 59 (Ind. Ct. App. 2014), is hereby REINSTATED as Court of Appeals authority. * * *

Rush, C.J., and Dickson and Rucker JJ., concur.
David and Massa, JJ., dissent from the denial of transfer and would adopt the Court of Appeals’ dissenting opinion.

Posted by Marcia Oddi on Thursday, March 26, 2015
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Gov't. - "Purdue sued over Amazon textbook deal"

Steven Porter and Joseph Paul report today in the Lafayette Journal & Courier in a story that begins:

An Ohio-based association of campus retail stores wants more detail about a business deal struck last year between Purdue University and online retail powerhouse Amazon, which opened its first brick-and-mortar store earlier this semester on the West Lafayette campus.

Located in Krach Leadership Center, Amazon's on-campus store serves as a pickup and drop-off spot for textbooks and other merchandise students order online.

Purdue President Mitch Daniels announced during a ribbon-cutting ceremony in February that preliminary numbers suggest students have saved more than 40 percent through the partnership.

The National Association of College Stores Inc. — a nonprofit trade organization representing more than 3,000 campus retail stores worldwide — requested and obtained a copy of the agreement university officials signed with Amazon, but multiple pages in the document had been redacted.

The university, which is a public agency, asserted that the materials were redacted because they constitute trade secrets under Indiana's public records law.

The association, however, disagrees, claiming in a lawsuit filed Tuesday in Tippecanoe Superior Court 2 that the redacted materials constitute public records that the university must release upon request.

The story links to an earlier, Nov. 24, 2014 opinion of the Indiana Public Access Counselor that includes:
Purdue has not withheld the entire document in this case and rightfully so. Public-private contracts should be scrutinized in the light of day. However, given that contracts may contain confidential information, Indiana law allows for redaction. It may possibly be the University’s determination the information they deem as a trade secret is erroneous, but this Office cannot decide that particular issue based on the information provided.
More from today's story:
Steve Schultz, who serves as legal counsel for the university, responded to questions from the Journal & Courier in writing, citing Britt's opinion.

"We have not yet seen the complaint and, in general, do not comment on pending litigation," he wrote. "That being said, our contract with Amazon explicitly states that the contract contains information Amazon considers to be trade secret."

It would be a violation of state law for the university to divulge such secrets, Schultz added.

Schneider said he was surprised that Britt's opinion was based on a review of the redacted agreement, rather than a complete copy.

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

Ind. Gov't. - "Pence signs Religious Freedom Restoration Act" [Updated]

Here is Niki Kelly's report today in the Fort Wayne Journal Gazette and this quote goes to the crux of the matter:

Sen. Dennis Kruse, R-Auburn, says he authored the measure in reaction to the federal Hobby Lobby case where the U.S. Supreme Court ruled a religious company couldn't be forced to provide birth control.

But it also follows a long battle on same-sex marriage equality in Indiana, and many consider the bill to be a consolation prize of sorts to religious conservatives.

Opponents are concerned it legalizes discrimination against gays and lesbians - especially allowing businesses to refuse service based on sexual orientation.

Indiana has no state no civil rights protections for sexual orientation so this type of discrimination can happen legally today.

But 12 cities have local human rights ordinances that do protect gays and lesbians. The question is whether those ordinances are superseded by a person or business' religious beliefs.

[Update] ILB: Here is Senate Enrolled Act 101, effective July 1. Notice that Sec. 2 states [ILB emphasis]:
A governmental entity statute, ordinance, resolution,executive or administrative order, regulation, custom, or usage may not be construed to be exempt from the application of this chapter unless a state statute expressly exempts the statute, ordinance, resolution, executive or administrative order, regulation, custom, or usage from the application of this chapter by citation to this chapter.

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

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (2):

In LBLHA, LLC, Margaret L. West, and Don H. Gunderson v. Town of Long Beach, Indiana, Alliance for the Great Lakes and Save the Dunes, Long Beach Community Alliance, Patrick Cannon, et al., a 30-page opinion, Judge Brown writes:

LBLHA, LLC, Margaret L. West, and Don H. Gunderson (collectively, the “Lakefront Owners”) appeal orders of the trial court dismissing all counts of their complaint against the Town of Long Beach, Indiana (the “Town”) and other intervenor defendants, raising several issues. We find dispositive at this stage in the proceedings whether the State of Indiana or appropriate State officials as individuals in their official capacity should have been added or joined as a party or parties to the proceedings prior to the rulings on the Lakefront Owners’ claims. We reverse and remand. * * *

In sum, we conclude the State of Indiana or appropriate State officials as individuals in their official capacity should have been added or joined as a party or parties to the proceedings prior to the rulings on the parties’ respective summary judgment motions and, accordingly, we reverse the court’s entry of summary judgment with respect to Counts I through IV of the Lakefront Owners’ complaint. We also find the court was without authority to enter an order as to Count V on April 24, 2014. After the State of Indiana is given the opportunity to present its position with respect to its ownership interest or the interest of the public in or to the disputed beach area, the trial court may rule on the parties’ summary judgment motions or proceed to trial with respect to one or more of the Lakefront Owners’ claims. We express no opinion regarding the allegations under any of the counts of the Lakefront Owners’ complaint or arguments set forth in the parties’ summary judgment materials or on appeal by the parties or amici curiae with respect to the Lakefront Owners’ claims.

Conclusion. For the foregoing reasons, we reverse the court’s December 26, 2013 order entering summary judgment with respect to Counts I through IV of the Lakefront Owners’ complaint, reverse the court’s April 24, 2014 order with respect to Count V, and remand to allow the addition of the State of Indiana or appropriate State officials as individuals in their official capacity as a party or parties, and for further proceedings consistent with this opinion.

ILB: The above case on Lake Michigan shorefront property rights is one which the ILB has been following since its inception. See this list of posts.

In Marvin Crussel v. State of Indiana , a 12-page opinion, Judge Pyle writes:

Marvin Crussel (“Crussel”) appeals, following a bench trial, his conviction for Class B misdemeanor reckless driving.1 Crussel concedes that he drove at an unreasonably high rate of speed but argues that we should reverse his conviction because the evidence presented was insufficient to show endangerment. Concluding that the trial court, acting as factfinder, could have reasonably inferred that Crussel’s act of driving ninety-one miles per hour in a fifty-five mile-per-hour zone at around 10:30 p.m. in the dark of night on a portion of a country road that had houses and cross streets endangered the safety and property of others, we affirm his conviction. * * *

Crussel’s argument—which in essence challenges the significance applied to the evidence of the circumstances surrounding his act of recklessly driving at an unreasonably high rate of speed—is nothing more than an invitation to reweigh the evidence, which we will not do.

NFP civil decisions today (2):

A.A. v. A.S. (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of C.S. (Minor Child); J.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (6):

Malaysia D. Lockhart v. State of Indiana (mem. dec.)

Juan Humberto Lara-Molina v. State of Indiana (mem. dec.)

Antwain Bateman v. State of Indiana (mem. dec.)

Eugene Bowers v. State of Indiana (mem. dec.)

Scotty Johnson v. State of Indiana (mem. dec.)

Dillon Wayne Steinert v. State of Indiana (mem. dec.)

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

Ind. Decisions - On rehearing, Supreme Court strikes "first clause of footnote 3"

In First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Ind., in his Official Capacity, on Behalf of the Ind. Dept. of Insurance, a 2-page, 5-0 opinion on rehearing, Justice Rucker writes:

The Commissioner of the Indiana Department of Insurance (“Commissioner”) seeks rehearing of this Court’s opinion in which we determined a petitioner seeking judicial review of an agency decision must file the agency record as defined by the Administrative Orders and Procedures Act and that the failure to do so results in dismissal of the petition. See American Title Ins. Co. v. Robertson, 19 N.E.3d 757 (Ind. 2014). * * *

In his Petition for Rehearing, the Commissioner takes issue with the first clause of the footnote contending, “the Court’s judgment reversing the trial court for failing to dismiss the First American petition for judicial review appears inconsistent with its summary affirmance of the Court of Appeals concerning the timeliness of the Commissioner’s hearing order and First American’s failure to exhaust administrative remedies.” Pet. for Reh’g at 1. According to the Commissioner, “there is substantial tension, if not outright conflict, among these statements.” Id. at 3. We agree and therefore grant rehearing to delete the first clause of footnote three. In all other respects the original opinion is affirmed.

ILB: See the Nov. 13, 2014 opinion.

Posted by Marcia Oddi on Thursday, March 26, 2015
Posted to Ind. Sup.Ct. Decisions

Law - "Legislation to Curb Civil Forfeiture Advances in States ;" Indiana update

From the WSJ Law Blog, a short article by Jacob Gershman. Some quotes:

Georgia lawmakers are set to vote on legislation intended to rein in the state’s civil forfeiture procedures, part of a national push for more scrutiny and limits on asset-seizure programs that law enforcement officials say help curb drug crimes but critics say are prone to abuse.

The Republican-led Senate in Georgia could vote on HB 233 as early as Thursday, officials said. It passed the House unanimously earlier this month. Republican Gov. Nathan Deal has said the state should consider revising its forfeiture laws. A spokeswoman for his office said the governor doesn’t comment on pending legislation.

The bill would require that annual standardized reports on agency forfeitures be posted online; require that district attorneys use the money they seize for “official prosecutorial purposes,” and subject law enforcement to more rigorous auditing, according to a Atlanta Journal-Constitution report.

More sweeping legislation curbing civil forfeiture also just passed the New Mexico Legislature and awaits the governor’s signature. That measure would give more rights to innocent owners, require that forfeiture hearings take place only following convictions, and mandate that seized proceeds be deposited into a state general fund rather than prosecutor-controlled accounts.

Critics of civil forfeiture laws say the power to seize assets from people never charged with a crime encourages law enforcement agencies to “police for profit” and lacks safeguards to protect the innocent.

ILB: Senator Hershman has a limited bill, SB 388, now in House Judiciary, that would require:
Reporting of property forfeiture. Requires the Indiana prosecuting attorneys council to make an annual report to the legislative council concerning civil forfeitures conducted in Indiana, and requires the state police department to annually report to the legislative council the amount of money it has received from the federal government as the result of a forfeiture conducted by the federal government.
For more, see this Feb. 22nd ILB post as a starting point. In addition, our Supreme Court, on March 24th, in Sargent v. State, reversed a civil forfeiture on a 3-2 vote.

Posted by Marcia Oddi on Thursday, March 26, 2015
Posted to General Law Related

Ind. Gov't. - "Scott County sheriff fears losing a generation to drugs, HIV" [Updated]

A powerful story from Maureen Hayden, CNHI, in the Rushville Republican (here via Ind. Econ. Digest). Some quotes:

INDIANAPOLIS - After 13 years in the military - most of them with a special operations team that pursued terrorist targets around the world - Dan McClain was ready to come home to rural Scott County and raise his family.

He soon discovered, he said, “It’s not what it used to be.”

Now the county sheriff, McClain finds himself amid the largest single HIV outbreak in the state’s history. A growing number of inmates in his jail are diagnosed with HIV, the virus that causes AIDS.

Every one of 55 newly confirmed cases of HIV in Scott County - more are pending confirmation - is linked to intravenous drug users who shared needles while injecting a highly addictive painkiller called Opana.

The cause of the scourge is well known to those who live in Scott County, as health officials scramble to control the crisis.

But just last week, McClain and his deputies came upon a flophouse where a group of addicts was shooting drugs into their veins.

“Everybody knew of the risk,” he said, “but that’s the nature of addiction - that they just don’t care.” * * *

Why Scott County has become the epicenter of a growing health crisis is something that McClain and other local leaders are trying to figure out.

Their community is poorer and less educated, with fewer work opportunities, than most of the state. It has ranked 92nd among Indiana’s 92 counties on the state Health Index for six years, put at the bottom of the list by childhood poverty, lack of healthcare access and other factors.

“We’re like many rural communities in Indiana. You drive through our small towns and see a lot empty storefronts,” McClain said. “Too many people here just feel hopeless.” * * *

The drugs aren’t new. About a decade ago, law enforcement in Scott County and throughout Indiana saw growing abuse of the prescription painkillers hydrocodone and oxycodone. As manufacturers changed those drugs to make them harder to inject, addicts just turned to other opiates.

The surge in drug use lead to a surge in crime. McClain’s jail is so crowded with addicts that he’s farmed out prisoners to neighboring county jails.

Now he faces a public health crisis, as well.

An immediate worry for McClain is how to pay the medical costs of the newly infected, HIV-positive inmates. He had 10 confirmed cases last week, with more expected. And those are just the ones he could convince to get tested. Others are likely infected but refuse the test.

McClain worries not just about them but their families. Most HIV cases involve people in their 20s and 30s. Many have children. Two cases involve pregnant women.

“I worry about the lost generation,” he said. “A lot of people we’ve arrested have kids who are now being raised by their grandparents. We’re going to have whole generation of children who don’t know what it means to be raised by their parents.”

[Updated] See also this long story in the March 25th Chicago Tribune.

[Updated at 10:17, 3/16/15]
Some new tweets from reporter Hayden:

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

Courts - "Negative Yelp, Angie’s List reviews prompt dog obedience business to sue"

Interesting story yesterday by Justin Jouvenal of the Washington Post; a quote:

Lawsuits over negative reviews have risen in recent years with the popularity of sites such as Yelp, Angie’s List and TripAdvisor that allow users to rate and provide feedback on businesses. The reviews have become an increasingly important factor for companies, generating new customers — or sending them fleeing.

In 2012, a D.C.-based contractor sued a Fairfax woman for $750,000 over her one-star takedown of his work on her home. And the Virginia Supreme Court is expected to decide soon whether Yelp will be required to turn over the names of anonymous users who disparaged Alexandria’s Hadeed Carpet Cleaners. First Amendment advocates are watching that case closely.

Posted by Marcia Oddi on Thursday, March 26, 2015
Posted to Courts in general

Courts - Is this case "Better Call Saul" in real life?

On March 24th the NY Times Science Section had a story by George Johnson titled "When Science Is Lost in a Legal Maze." It began:

In a saner world, where science and the law meshed more precisely, a case like Firstenberg v. Monribot would have been dead on arrival in court. But that is not what happened.

Earlier this month, five years after the lawsuit was filed, the New Mexico Court of Appeals upheld a lower court’s ruling that Arthur Firstenberg, an outspoken opponent of wireless technology, could not seek $1.43 million in damages from his neighbor, Raphaela Monribot, for damaging his health by using her iPhone and a Wi-Fi connection.

Later in the story:
A self-described sufferer of a medically unrecognized condition called electromagnetic hypersensitivity, he was already known in Santa Fe for his unsuccessful effort to block the installation of Wi-Fi in the city library and other public places.

When I heard that Mr. Firstenberg, who lives a couple of miles from me, was filing a tort claim seeking damages for what amounted to electromagnetic trespassing, I assumed the case would be quickly dismissed. Instead, in 2010, it entered the maze of hamster tubes that make up the judicial system.

If you haven't been watching Better Call Saul, it is the prequel to Breaking Bad, telling the early story of the young lawyer Jimmy who later becomes "Saul." It is a great show, do watch it in order.

Posted by Marcia Oddi on Thursday, March 26, 2015
Posted to Courts in general

Wednesday, March 25, 2015

Ind. Decisions - Supreme Court decides one today

In Dustin E. McCowan v. State of Indiana, an 11-page, 5-0 opinion, Justice Massa writes:

Among the most fundamental precepts of American criminal justice is that the accused is presumed innocent until proven guilty beyond a reasonable doubt. Today we examine our holding in Robey v. State, 454 N.E.2d 1221 (Ind. 1983), and state unequivocally and prospectively that it is the absolute right of every criminal defendant to receive the following jury instruction upon request: “The presumption of innocence continues in favor of the defendant throughout the trial. You should fit the evidence to the presumption that the defendant is innocent if you can reasonably do so.” In this case, however, the jury instructions adequately encompassed these principles, which was the minimum required by prior precedent, and thus the trial court’s failure to use this precise language was not error. * * *

Two passages of our ruling in Robey have proven to be in conflict. The first mandated the trial court include, upon request, a jury instruction as to the presumption of the accused’s innocence continuing throughout the trial, and that the jury should fit the evidence to a theory of innocence if it was reasonable to do so. The second then undid this seemingly bright line rule, in favor of a flexible standard requiring that the jury instructions as a whole must discuss the same principles. Today we resolve that conflict in favor of the rule. We do not believe, however, that the trial court in this matter committed an abuse of discretion in providing jury instructions which satisfied the flexible standard of Robey, given the previous ambiguity in the law. In all other respects, we summarily affirm the holding of our Court of Appeals below, pursuant to Indiana Appellate Rule 58(A)(2).

Posted by Marcia Oddi on Wednesday, March 25, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Open house scheduled for Dunes pavilion project

Updating a number of earlier ILB posts on the Indiana Dunes Pavilion projects, here are some quotes from today's IDNR news release:

The Department of Natural Resources has scheduled an open house on April 6 to introduce plans for adaptive reuse of the pavilion at Indiana Dunes State Park.

The open house will be from 5-6:30 p.m. (CDT) at the Indiana Dunes Visitor Center, 1215 N. State Road 49, Porter, IN, 46304. The center is north of the Indiana Toll Road and Interstate 94, and south of Indiana Dunes State Park and U.S. 20.

DNR staff will be available to provide an overview of the pavilion’s history and answer questions related to the process used for selecting Pavilion Partners, LLC, to design the project and operate it through a public/private partnership.

“We have waited a long time to find the right partner to restore this iconic building to its original glory,” said Dan Bortner, director of the DNR Division of State Parks. “We look forward to seeing the Indiana Dunes State Park Pavilion alive with people – not just in summer but year- round.”

Pavilion Partners, LLC, will be on hand with information and timelines related to the project. This will include designs for a new concession area, a pavilion rooftop restaurant, new restrooms with showers and family dressing rooms for beachgoers, and a conference/banquet center.

The open house will provide an opportunity to talk one-on-one with DNR staff and Pavilion Partners and ask questions or offer suggestions.

The news release links to a quite informative and responsive 5-page FAQ on the project, access it here.

The ILB hopes shortly to post links to the Pavilion Partners LLC lease with IDNR, plus the prospectus and proposal. [Updated: Here it is now, a 95-page pdf document, so somewhat slow loading.]

Additionally, according to the release, renderings/drawings of the planned convention center will be available at the open house scheduled for April 6.

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

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 11 NFP memorandum decisions)

For publication opinions today (6):

In Norris Avenue Professional Building Partnership v. Coordinated Health, LLC, a 16-page opinion, Judge Najam writes:

Norris Avenue Professional Building Partnership (“Norris”) appeals the trial court’s judgment for Coordinated Health, LLC (“Coordinated Health”) on Norris’ complaint for breach of a lease agreement. Norris raises a single issue for our review, namely, whether the trial court erred when it concluded that Coordinated Health did not breach the lease agreement. We reverse and remand with instructions.
In In the Matter of the Termination of the Parent-Child Relationship of J.W., Jr., A.W., and D.D., Minor Children, T.D., Mother, and J.W., Sr., Father v. Ind. Dept. of Child Services, an 11-page opinion, Judge Najam writes:
T.D. (“Mother”), and J.W., Sr. (“Father”) (collectively, “the Parents”) appeal the trial court’s termination of their parental rights over J.W., Jr., Z.W., and D.D. (“the Children”). The Parents raise a single issue for our review: whether the statutory waiting period under Indiana Code Section 31-35-2-4(b)(2)(A)(iii) is tolled during any period in which the Indiana Department of Child Services (“DCS”) fails to provide or otherwise make services available to a parent prior to seeking the termination of that parent’s parental rights. On this question of first impression, we hold that Indiana Code Section 31-35-2-4(b)(2)(A)(iii) simply requires the DCS to demonstrate compliance with the statutory waiting period—namely, that a child has been removed from a parent for fifteen of the most recent twenty-two months immediately prior to the termination hearing. That statute does not condition the waiting period on whether the DCS provided or otherwise made available any type of services to the parent. As such, we affirm the trial court’s termination of the Parents’ parental rights.
In April Goodwin, Tiffany Randolph, and Javon Washington v. Yeakle's Sports Bar and Grill, Inc., a 13-page opinion, Judge Najam writes:
This case presents yet another opportunity for Indiana’s appellate courts to clarify the Indiana test for determining whether a duty exists in a negligence action, an issue that has created confusion at every level of our judiciary. There are two tests in Indiana. First, if a duty is well-established in our case law, and the case before the court is substantially similar to that case law, then that duty applies. If, on the other hand, the case before the court presents facts and circumstances that have not been addressed in prior decisions of Indiana’s appellate courts, then in determining whether a duty exists, we must balance the three factors articulated in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991), including the reasonable foreseeability of harm to the person injured. * * *

Here, the Bar’s sole contention in its summary judgment motion was that it did not owe a duty to protect the Appellants from Carter’s criminal acts because they were not reasonably foreseeable. But, as our supreme court has held, reasonable foreseeability does not determine duty where, as here, the duty is well-established. See Yost, 3 N.E.3d at 515; Bartolini, 799 N.E.2d at 1053; Sharp, 790 N.E.2d at 465. The Bar owed the Appellants a duty to protect them from the foreseeable criminal acts of third parties. As such, the Bar cannot satisfy its burden to affirmatively negate the duty element of the Appellants’ negligence claims. See Hughley, 15 N.E.3d at 1003. Thus, the trial court erred when it entered summary judgment in favor of the Bar, and we reverse and remand for further proceedings.

In The Peoples State Bank v. Benton Township of Monroe County, Indiana, a 20-page opinion, Judge Bailey writes:
The Peoples State Bank (“the Bank”) appeals the denial of its motion to correct error, which challenged a grant of summary judgment in favor of Benton Township of Monroe County, Indiana (“Benton Township”) upon the Bank’s collection complaint. The Bank presents a single, consolidated issue for review: whether summary judgment was improvidently granted to Benton Township as opposed to the Bank, upon the trial court’s conclusion that a loan transaction was void. We affirm. * * *

The purported contract executed by a township employee in contravention of statutory requirements is invalid. The Bank may not pursue additional equitable remedies against Benton Township, beyond the partial settlement agreement. Accordingly, the trial court properly granted summary judgment to Benton Township as opposed to the Bank.

In Larry Bell v. State of Indiana, an 11-page opinion, Judge Mathias concludes:
The trial court did not abuse its discretion by admitting into evidence Bell’s outof-
court statement that he was able to “read” people. This statement was not
hearsay because it was the statement of a party opponent, namely Bell himself.
It was relevant and not unfairly prejudicial. Nor was Bell’s statement
inadmissible character evidence. Lastly, even if we agreed with Bell that the
statement was inadmissible, any error in the admission of the statement would
have been harmless given the evidence regarding C.M.’s inability to be aware
that Bell was engaging in sexual intercourse with her. Affirmed.
In Chelsea Taylor v. State of Indiana, a 12-page opinion, Judge Bailey writes:
Chelsea Taylor (“Taylor”) appeals her conviction for Neglect of a Dependent, as a Class A felony. Taylor presents three issues for review, one of which is a challenge to the sufficiency of the evidence. Concluding that the State did not present sufficient evidence of probative value, we reverse. * * *

The inference-stacking without establishment of a predicate fact, which the prosecution invited and the State deems sufficient to withstand appeal, is not constitutionally adequate. The State failed to adduce sufficient proof to support Taylor’s conviction for Neglect of a Dependent.

NFP civil decisions today (5):

In the Matter of the Termination of the Parent Child Relationship of: A.B., Minor Child, N.S., Father v. The Indiana Department of Child Services (mem. dec.)

In the Matter of the Commitment of Z.P., Z.P. v. Memorial Hospital (mem. dec.)

In the Matter of the Trust of H. Paul Lauster, Deceased, and Mary E. Lauster, Deceased, Christopher D. Lauster v. John M. Lauster and David P. Lauster (mem. dec.)

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

W.W. V. B.W. (mem. dec.)

NFP criminal decisions today (6):

Robert A. Ottomanelli v. State of Indiana (mem. dec.)

Adris Bailey v. State of Indiana (mem. dec.)

Todd Dayon Covington Jr. v. State of Indiana (mem. dec.)

Jonathon Hug v. State of Indiana (mem. dec.)

Luis Mandujano v. State of Indiana (mem. dec.)

Bayley Joy Smith v. State of Indiana (mem. dec.)

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

Environment - More on wind turbines and Indiana bats

The ILB has had a number of posts on this topic, here are some of them.

Today JD Supra has an article by Rafe Petersen of Holland & Knight LLP, titled "Court Upholds Endangered Species Act Incidental Take Permit for Windfarm," that begins:

On March 17, 2015, Judge Leon of the United States District Court for the District of Columbia issued a memorandum opinion upholding the United States Fish and Wildlife Service's (USFWS) issuance of an incidental take permit for the killing of endangered Indiana bats at the Buckeye Wind Power Project in Ohio. The plaintiffs, Union Neighbors United, a non-profit corporation that was formed to address issues relating to the siting of industrial wind turbines, challenged the USFWS finding that the permit will, to the maximum extent practicable, minimize and mitigate the impacts on the bats.

The Indiana Bat was placed on the Endangered Species Act (ESA) list of "endangered" species in 1967 due to large decreases in population size and an apparent lack of winter habitat. It is currently facing additional threats related to "white nose syndrome", which is disease of hibernating bats that has been associated with steep population declines.

Posted by Marcia Oddi on Wednesday, March 25, 2015
Posted to Environment

Ind. Decisions - "Supreme Court Rules Indiana Schools Not Required to have Free Bus Service"

That is the headline to this brief story in the TriState Homepage:

A huge shift could be coming to how our Indiana kids get to school. In fact, some school districts might scrap bus service altogether.

In a unanimous ruling, the Indiana supreme Court overturns a lower court's decision that claimed charging bus fees was unconstitutional. Therefore, it states districts are not required to provide free bus service to all students.

The high court says "the framers did not intend for every aspect of public education to be free."

Some cash strapped districts around the state have suggested the possibility of ending bus service as a way to close large budget deficits.

The Indianapolis Star has a longer story here.

The Supreme Court opinion, issued yesterday, is Lora Hoagland, On Behalf of Herself and All Others Similarly Situated v. Franklin Township Community School Corp.

Posted by Marcia Oddi on Wednesday, March 25, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "Dyer dentist seeking more than $15 million in lawsuit against state"

The ILB has updated its March 23rd post with a copy of the 12-page, 12/31/14 opinion by Judge McCarty in Atcha v. Ind. Prof. Lic. Agency, that concluded:

For all the foregoing reasons, the Final Order of the Indiana State Board of Dentistry in the administrative proceedings entitled In the Matter of the License of Irfan A. Atcha, DDS, Cause Number 2012 ISDS 0005 is hereby REVERSED and set aside as contrary to a constitutional right and privilege pursuant to Ind. Code § 4-21.5-5-14(d).

Posted by Marcia Oddi on Wednesday, March 25, 2015
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Supreme Court: Ball State can detain transcripts"

That is the headline to a story yesterday in the Muncie Star-Press, reported by Seth Slabaugh. Some quotes some the long story:

MUNCIE – The Indiana Supreme Court has ruled that Ball State University does not have to turn over the official college transcript of a student who left the school with an unpaid tuition balance exceeding $9,000.

“We asked the court to take a look at the ... question of whether or not colleges and universities have a common law lien over the transcript of a student who fails to pay ... loans, tuition or fees, and the court agreed that in fact there is a common law lien,” BSU attorney Jim Williams told The Star Press on Monday. “This is an important part of the toolbox any college or university in Indiana uses to collect outstanding debt.” * * *

The University of Indianapolis and Butler, Indiana Wesleyan and Taylor universities became “friends of the court” who joined Ball State in pressing its position.

The Supreme Court also ruled that Ball State could not be “dragged ... by the heels” into divorce court as a party to a dispute between a mother and a father over their child’s higher education expenses. Such disputes are becoming more common. * * *

Williams has compared a common law lien to a mechanic’s lien. “The mechanic has a lien on the car until the bill is paid,” he told The Star Press last year. “Technically, the mechanic can withhold the car until the bill is paid.”

The Supreme Court unanimously ordered the trial court to dismiss Ball State from the divorce action. Ball State’s appeal of the trial court’s decision had been dismissed earlier by the Indiana Court of Appeals, after which BSU appealed to the Supreme Court.

Michael Reilly, director of the American Association of Collegiate Registrars and Admissions Officers, told The Star Press it is very common for schools to place holds on transcripts.

“It really is one of the most significant incentives for students to pay their debt,” Reilly said.

Noting that Irons was unable to enroll at IU Northwest without her Ball State transcript, Reilly said, “The receiving side is requiring it, too, so it happens on both ends. One reason the receiving schools needs the transcript is to verify that a student has left the other school in good standing, he said.

ILB: Here is the March 18th opinion in Ball State University v. Jennifer Irons; In Re the Marriage of: Jennifer Irons and Scott Irons.

Posted by Marcia Oddi on Wednesday, March 25, 2015
Posted to Ind. Sup.Ct. Decisions

Tuesday, March 24, 2015

Ind. Gov't. - "Indiana religious freedom act: Does it protect faithful or legalize prejudice?"

Harry Bruinius has this story today in The Christian Science Monitor. A quote:

Over a decade ago, many liberal states, including Connecticut, Illinois, and Rhode Island, passed their own versions of the 22-year-old federal Religious Freedom Restoration Act. Overall, at least 19 states have passed similar bills, since the federal law does not apply to the states, the US Supreme Court ruled in 1997.

But since last year, the Supreme Court’s Hobby Lobby decision has changed the bipartisan tenor of the law. The nation’s highest court used the federal religious freedom statute to rule that closely held corporations with religious objections to contraceptives were exempt from the Obamacare provision requiring their coverage. Since then, conservatives have seen state religious freedom laws as a means to combat the expanding definition of marriage, as well as other hot-button social issues.

“If we truly are doing things unto the Lord, our business can be ... a church or sanctuary,” argued Indiana Republican Rep. Bruce Borders on the House floor Monday, bringing up the question of the anesthesiologist. “People deserve protection in their businesses as well, not just on Sunday morning.”

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

Ind. Gov't. - Still more on: Changes to limit public access to records law buried within massive "Education deregulation" package

Updating this ILB post from earlier today, Lauryn Schroeder of the AP reports in a story headed "Search fee for records to be removed from bill":

INDIANAPOLIS - Lawmakers say a provision that would allow government entities to charge a searching fee for records requests that take longer than two hours to fulfill will be removed from a proposal.

House Education Committee members heard testimony Tuesday about a bill that aims to aims to simplify school management by cutting obsolete and duplicate rules in education.

The current version would also change how public records are handled by all types of Indiana agencies, not just schools, sparking mixed reviews from open-records advocates.

Bill sponsor Rep. Tony Cook, a Cicero Republican, says he plans to remove the $20 search fee and all other changes to the Public Record Act in a future amendment.

Good news! As the ILB wrote earlier:
The language changing the public records law has been in the bill since introduction, a bill which the synopsis labels "Education deregulation." The changes to the public records law, however, would apply across-the-board, and this inclusion in a law otherwise dealing with education might be called log-rolling by some.

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

Ind. Courts - Complying with the revisions to Administrative Rule 9 - Q & A #7

[The ILB has created a new category, "Adm. Rule 9 Questions," which will give you direct access to all the Q&A on this topic.]

Responses are from Maggie Smith, Frost Brown Todd LLC, who serves on the Court's Committee on Rules of Practice and Procedure.

Q1: Are medical records entitled to be filed on green paper as a matter of right?

Q1 SHORT ANSWER: Mostly no. Certain types of medical records are declared confidential by statute, which would allow exclusion under A.R. 9(G)(2)(b) as a matter of right. But the vast majority of medical records are not deemed confidential by any state statute and, therefore, the only way to exclude them would be via the four-part process in AR 9(G)(4). (See effect of HIPAA below.)

Q1 LONG ANSWER: The statute many attempt to use to support a broad-based assertion of confidentiality for medical records is Ind. Code §5-14-3-4(a)—part of the Access to Public Records Act—which provides, “The following public records … may not be disclosed by a public agency, unless access to the records is specifically required by a state or federal statute or is ordered by a court under the rules of discovery … (9) Patient medical records and charts created by a provider ….”

BUT … 5-14-3-4(a)(9) says only that “the following public records … may not be disclosed by a public agency.” So this statute does not broadly declare that all medical records are confidential. Instead, it presumes that medical records are “public records” and only prevents a “public agency” from disclosing them, and even then allows them to be disclosed when “ordered by a court under the rules of discovery.” Therefore, 5-14-3-4(a)(9) is not a statute declaring medical records to be confidential in litigation between private parties and a litigant would need some other statute declaring medical or health records to be confidential in order to invoke 9(G)(2)(b).

The following is a sampling of Indiana statutes that do declare certain types of medical records confidential or identify certain circumstances where medical records will be confidential:

But to date, no one has been able find a state statute which declares all medical/health records to be categorically confidential. And the existence of such a statute seems very unlikely given the number of specific statutes declaring something confidential. All these statutes would be unnecessary if there was a single, categorical statute.

If someone knows of such a statute, please let us know so we can pass it along to the readers.

In summary, if one of the above statutes declares the specific type of medical record confidential, then exclusion is automatic under A.R. 9(G)(2)(b) and all a party need to do is file the AR 9(G)(5) Notice on white paper citing the statute, and then file the medical records on green paper.

But for the majority of medical records that are filed in Indiana courts, the only way to exclude them from public access and file on green paper would be via the four-part process in AR 9(G)(4).

Q2: What role does HIPAA play as far as confidentiality in state court judicial proceedings?

Q2 SHORT ANSWER: HIPAA protects privacy interests in Protected Health Information, but does not declare all medical records confidential in all situations so the answer is, “it depends.”

Q2 LONG ANSWER: In most court proceedings, it is unlikely that HIPAA will provide the grounds for green paper filings.

In most cases, the medical records will have been obtained by a valid, signed release from the patient. In this circumstance, HIPPA does not prohibit anything regarding future disclosure. Thus, the only way to exclude them from public access and file on green paper would be via the four-part process in AR 9(G)(4).

If the medical records were obtained via 45 C.F.R. § 164.512(j) (“Uses and disclosures to avert a serious threat to health or safety”), such as, for example, guardianship proceedings, disclosure is permitted. If these records do not involve mental health records, then only way to exclude them from public access and file on green paper would be via the four-part process in AR 9(G)(4).

If medical records are obtained via subpoena or some other court-ordered mechanism, 45 C.F.R. § 164.512(e) still allows those medical records to be used in litigation and only requires the party seeking the record to seek a “qualified protective order” which “(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and (B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.”

But as we know, the Indiana Supreme Court has declared that a protective order only governs the exchange of information between the parties during discovery and does not govern what is thereafter filed in open court. Therefore, the parties must use the four-part test in AR 9(G)(4) to exclude the records.

Note that this approach—not automatic exclusion even though the HIPAA Qualified Protective Order was issued—is consistent with how federal courts treat medical records. For example, the court in Karpenski v. American General Life Companies, LLC, 2013 WL 5588312 (W.D. Wash. 2013), noted that the HIPAA Qualified Protective Order issued during discovery did not govern whether the documents would thereafter be filed under seal. Instead, to seal documents filed in federal courts, “the party must articulate compelling reasons supported by specific factual findings, that outweigh the general history of access and the public policies favoring disclosure, such as the public interest in understanding the judicial process.” The Karpenski court ultimately concluded that the overall protections in HIPAA provided the “compelling reasons” needed to seal documents. Cf. Womack v. Delaware Highlands AL Services Provider, LLC, 2012 WL 1033384 (D. Kan. 2012).

Posted by Marcia Oddi on Tuesday, March 24, 2015
Posted to Adm. Rule 9 Questions

Ind. Decisions - A commentary on today's Court of Appeals opinion

Defense attorney Cara Wieneke offers this commentary today:

Kolyann Williams v. State: a textbook lesson on why you MUST always make an Article 1, Section 11 claim with your 4th Amendment claim.

Today's opinion on rehearing from the Indiana Court of Appeals is a great reminder to practitioners that when raising a claim under the Fourth Amendment, it is imperative to also raise a separate claim under Article 1, Section 11 of the Indiana Constitution. Our courts have made clear that Indiana's search and seizure provision is not treated identical to its federal counterpart. The U.S. Supreme Court's decision in Heien has no impact on a defendant's claim under

Indiana constitutional law. Had Williams made a separate claim under Article 1, Section 11 of the Indiana Constitution in this case, he may have been successful. Finally, merely mentioning Article 1, Section 11 as part of your Fourth Amendment argument is not enough; a full analysis of the claim must be laid out separately from the Fourth Amendment argument.

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

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 3 NFP memorandum decisions)

For publication opinions today (1):

In Kolyann Williams v. State of Indiana, a 6-page opinion, Judge Bradford writes:

On December 9, 2014, in a published opinion, we reversed Appellant-Defendant Kolyann Williams’s conviction for Class A misdemeanor marijuana possession. Williams v. State, 22 N.E.3d 730 (Ind. Ct. App. 2014). We reversed Williams’s conviction on the basis that the traffic stop that led to the discovery of marijuana in his possession was based on the police officer’s mistaken belief that an infraction had occurred. Id. at 735. Appellee-Plaintiff the State of Indiana now petitions for rehearing, arguing that the United States Supreme Court’s recent decision in Heien v. N. Carolina, 135 S. Ct. 530 (2014), requires a different result. Heien held that reasonable mistakes of law, as well as fact, can give rise to reasonable suspicion under the Fourth Amendment. Id. at 536. Because we agree with the State, we grant its petition for rehearing and affirm the judgment of the trial court. * * *

In conclusion, while we agree that Williams was committing no infraction at the time he was stopped by Officer Packard, Officer Packard had a reasonable belief that he was, thereby justifying the stop. Consequently, the evidence seized as a result of the stop need not be suppressed. We grant the State’s petition for rehearing and, reversing our prior disposition, affirm the judgment of the trial court.

NFP civil decisions today (0):

NFP criminal decisions today (3):

Kenneth W. Gibbs v. State of Indiana, et al. (mem. dec.)

Mark A. Hensley v. State of Indiana (mem. dec.)

Lisa Jacksen v. State of Indiana (mem. dec.)

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

Ind. Decisions - Supreme Court issues five opinions today

In Lora Hoagland, On Behalf of Herself and All Others Similarly Situated v. Franklin Township Community School Corp., an 18-page, 5-0 opinion, Justice David writes:

After a budget deficit, Franklin Township Community School Corporation decided to discontinue transportation services to and from school for the majority of its public school students. A class action suit was brought by the parents of students who attend public schools in Franklin School Corporation. The plaintiffs sought a declaratory judgment that discontinuing transportation is prohibited under the Indiana Constitution. * * * IND. CONST. art. 8, § 1. However, the express terms of the Education Clause grant the duty of developing a system of common schools to the General Assembly. Therefore, the body of law that establishes our system of common schools is based upon the policy decisions of our legislature. This Court has neither the ability nor the duty to establish requirements for this system of common schools, aside from determining when an action clearly violates a constitutional mandate. In the case before us today, we find no constitutional requirement for school corporations to provide transportation to and from school. Since Franklin School Corporation did not violate a constitutional mandate, we affirm the trial court’s grant of summary judgment in favor of Franklin School Corporation. * * *

Conclusion. We summarily affirm the Court of Appeals in holding that the Indiana Tort Claims Act was inapplicable to Hoagland’s constitutional claim. We also summarily affirm the Court of Appeals in holding that the Education Clause does not provide a private right of action to pursue monetary damages. We now hold that Article 8, Section 1 of Indiana’s Constitution does not mandate school corporations to provide transportation to and from school. Accordingly, we affirm the trial court’s grant of summary judgment in favor of Franklin School Corporation.

Rush, C.J., Dickson and Massa, J.J., concur.
Rucker, J., concurs in result only.

Detona Sargent v. State of Ind., and the Consolidated City of Indianapolis/Marion Co., and the Indianapolis Metro Police Dept, an 11-page, 3-2 opinion, Justice Rucker writes:
On cross-motions for summary judgment the trial court deemed a vehicle forfeited and awarded the same to the Indianapolis Metropolitan Police Department. However the undisputed facts disclose the vehicle’s owner is entitled to possession. We therefore reverse the judgment of the trial court. * * *

By failing to demonstrate that Sargent was “in possession” of the vehicle as contemplated by Indiana Code section 34-24-1-1, the State was not entitled to forfeiture of the vehicle. The trial court thus erred by entering summary judgment in the State’s favor and denying Sargent’s motion.

Conclusion. We reverse the judgment of the trial court and remand this cause with instructions to enter an order granting summary judgment in Sargent’s favor.[3]

Rush, C.J., and Dickson, J., concur.
David, J., dissents with separate opinion in which Massa, J., joins.
Massa, J., dissents with separate opinion.

David, J., dissenting.
I respectfully dissent, as Detona Sargent had constructive possession of her 1996 Buick Century when she stole four iPhones from her employer on September 16, 2011. This Court has long held that, in order to prove constructive possession, the State must show that the defendant has both the intent and capability to maintain “dominion and control” over the property in question. See, for example, Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999). Though at the time of the thefts Sargent was not physically occupying her vehicle, she exerted “dominion and control” over the Buick, as evidenced by her instruction to her co-worker to return the vehicle by the end of her shift so she could drive home. Thus, she constructively possessed the Buick. * * *

Massa, J., dissenting.
Notwithstanding my admiration for the majority’s desire to do justice in this case, I fully join Justice David’s dissent. I write separately to offer an additional comment about discretion. * * *

This overreach has now, it seems, prompted our Court to grant some modest, almost equitable, relief to the excessively punished thief via the possible return of a twenty-year-old Buick. It brings to mind the often quoted maxim that hard cases make bad law. * * *

Our Constitution and statutes vest police and prosecutors with great power to initiate proceedings that can ultimately deprive liberty and divest property where certain crimes are proven. State and federal legislative bodies have provided the special tools of RICO and forfeiture largely to target organized crime and narcotics trafficking.4 These tools are not without their critics, and their misuse invites further scrutiny. Moreover, when authorities overreach, the judiciary is tempted to impose remedies that do justice in a particular case but may do harm to the law over time.

The answer, sometimes, to Rolfe’s truism about hard cases, is to not bring them in the first place.
______________
[3] Because we resolve this case on other grounds we decline to address Sargent’s statutory construction or Indiana constitutional claim.

In In the Matter of: Christopher A. Hollander, a 5-page per curiam opinion in an attorney disciplinary action, the Court writes:
We find that Respondent, Christopher A. Hollander, engaged in a course of attorney misconduct in connection with his efforts to patronize a prostitute. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least one year without automatic reinstatement.

[ILB: The opinion is worth reading in full]

In Drakkar R. Willis v. State of Indiana, a 5-page, 5-0opinion, Justice Rucker writes:
In sum, at best the record shows that Willis was running in a field near a recreation center sometime after the burglar alarm was activated. To be sure this conduct may have been considered suspicious, and perhaps Willis may even have had the opportunity to interfere with the possession and use of the recreation center without the owner’s consent. But “[a] reasonable inference of guilt must be more than a mere suspicion, conjecture, conclusion, guess, opportunity, or scintilla.” Mediate v. State, 498 N.E.2d 391, 393 (Ind. 1986); see also Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001) (“An inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture or possibility.” (quotation and alteration omitted)). It appears to us that the evidence in this case is insufficient to sustain Willis’ conviction for criminal trespass.

Conclusion. We reverse the judgment of the trial court.

In Charles Moore v. State of Indiana, a 16-page, 5-0 opinion, Justice David writes:
Charles Moore was charged with the murders of Alejandro Tinoco and Jazmin Conlee. After Moore was found guilty of both murders, the jury recommended a sentence of life without the possibility of parole for the murder of Conlee. Moore was ultimately sentenced to sixty-five years for the felony murder of Tinoco and life without parole for the murder of Conlee. Moore appealed solely on the basis that there was insufficient evidence for his convictions. Specifically, Moore asserts that the incredible dubiosity rule should be applied. The incredible dubiosity rule allows the court to impinge upon the jury’s assessment of witness credibility when the testimony at trial is so contradictory that the verdict reached would be inherently improbable. For the incredible dubiosity rule to apply, the evidence presented must be so unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone. Moore argues the application of this rule is warranted because no reasonable jury could have found him guilty beyond a reasonable doubt given the inconsistent testimony among three of the State’s primary witnesses. We disagree. Here, direct and circumstantial evidence was presented through the testimony of multiple witnesses and the presentation of physical evidence. This evidence was sufficient for a reasonable jury to find Moore guilty beyond a reasonable doubt for both murders. Under the facts of this case, the incredible dubiosity rule is inapplicable, and the jury’s verdict must stand. Moore’s convictions and sentence are affirmed. * * *

The incredible dubiosity rule is inapplicable in the present case and cannot serve as grounds for overturning the jury’s verdict. Furthermore, based upon the evidence presented at trial, a reasonable jury could have found each element of murder and felony murder beyond a reasonable doubt. Accordingly, there was sufficient evidence for Moore’s convictions. The convictions and sentences entered by the trial court are affirmed.

Posted by Marcia Oddi on Tuesday, March 24, 2015
Posted to Ind. Sup.Ct. Decisions

Law - "Ted Cruz and Paul Ryan Forgot This Key Detail About Running for President"

Remember the 2013 COA opinion where the LaPorte County Convention and Visitors Bureau had held a press conference unveiling their new brand name, but when they went to register the domain name the next day, someone had beat them to it? So the Bureau sued, and lost.

Mother Jones has a May 16th story that begins:

There's a long checklist of tasks a politician must complete before she or he can run for president. You've got to court the top political consultants to your cause. Wine and dine at party fundraisers in New Hampshire. Familiarize yourself with all 99 damned counties in Iowa. Maybe write a book. But in the modern age, securing an online presence is near the top of the list.

The first thing candidates have to do to stake their claim on the internet is purchase all relevant web domain names, including any combination of the candidate's name and the election year.

Posted by Marcia Oddi on Tuesday, March 24, 2015
Posted to General Law Related

Ind. Gov't. - "HIV testing can be hard to come by in many areas"

Maureen Hayden of CNHI reports that:

INDIANAPOLIS — At the epicenter of the largest outbreak of HIV in state history, one of the first barriers that health officials face is finding out who’s infected.

Testing for the virus that causes AIDS has emerged as a critical issue in Scott County. Local doctors say residents who need to be tested are afraid of the stigma associated with the disease, or of finding out the results.

Even if they are so inclined, those most in danger of contracting the virus find their options for testing are limited. * * *

Public health experts have described it as the worst single outbreak of HIV in Indiana history.

But its spread is obscured by a lack of testing.

Of Indiana’s 92 counties, only 23 have centers where people enrolled in Medicaid or who have no insurance can be tested for HIV at little or no cost.

Scott County’s health department doesn’t offer state-funded tests for HIV. * * *

[Dr. Shane Avery, a local physician] said one of his patients drove 60 miles round-trip last week to the nearest facility.

Travel wasn’t the only problem. As the patient sat in a crowded waiting room, her name was called. So was the reason for her visit, Avery said, in apparent violation of federal health privacy rules.

Avery said he worries that word of that encounter will spread and make people who’ve been exposed to the virus even more reluctant to be tested.

“The stigma of HIV is huge,” he said. “And in a small town, it’s even worse. Once you have it, you’re afraid that everybody knows it.”

The lack of resources in rural communities reflects a larger issue, said Rep. Tim Brown, R-Crawfordsville, an emergency room physician and former chairman of the House Public Health Committee.

“It’s not a testing problem, it’s a cost problem,” Brown said. “County health departments have been coming to us for years, telling us they don’t have enough money.”

Each HIV test costs providers about $70 to administer the screening and verify the results. Many rural health departments don’t have the financial resources to offer the test for free.

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

Ind. Gov't. - "Crossing the Line -- Governor's veto"

Dan Carden of the NWI Times had an interesting article last weekend, part of a series comparing Indiana and Illinois laws and customs:

This week: Governor's veto.

As the Indiana General Assembly works toward its April 29 adjournment, lawmakers soon will begin sending piles of legislation to Gov. Mike Pence to be signed into law or rejected with a veto.

Look for Pence to sign just about everything he's presented, since his veto power is extremely weak compared to most other governors.

The Indiana House and Senate can enact a law despite the governor's objection with the approval of just a simple majority (50 percent plus one) in each chamber — the same number of legislators required to pass the proposal in the first place.

In Illinois, it takes a three-fifths majority in each chamber to override a governor's veto.

Gov. Bruce Rauner also has reduction veto authority, enabling him to cut specific spending items from the state budget, and an amendatory veto, allowing him to change the text of legislation and send it back to the General Assembly for further consideration.

ILB: Certainly a lot of legislative power is given to the Illinois Governor in their constitituion...

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

Courts - "Number of Courts Rejecting Insurance Adjuster Negligence Claims Grows"

Some quotes from an article by Steven Pitt in Claims Journal:

The majority of courts that have considered the question of whether an independent insurance adjuster can be held liable for negligence to policyholders arising from the administration of claims have rejected the cause of action of adjuster negligence. Until recently, 13 jurisdictions had found that insurance adjusters did not owe independent duties to policyholders (Alabama, Arizona, California, Florida, Mississippi, Missouri, Nevada, New York, North Carolina, Pennsylvania, South Carolina, Texas and Vermont). * * *

More recently, in Lodholtz v. York Risk Services Group, Inc., 2015 WL 542815 (7th Cir. 2/11/15), interpreting Indiana law, the Seventh Circuit U.S. Court of Appeals predicted that under Indiana law a claim adjuster owed no legal duty to the insured. * * * This conclusion comported with the general principles of Indiana agency law under which found that an agent (the insurance adjuster) was not liable for the actions taken on behalf of the principal (insurance company). The Court noted that its decision comported with the logic underlying insurance liability in Indiana. In Indiana, insurer liability for negligence was premised on the unique nature of insurance contracts. Because the insurance adjuster was not a party to the contract, the only adjuster liability was premised on the adjuster’s contract with the insurance company and not the insured and was therefore limited to the insurance company. The Court concluded that the relationship between the adjuster and the insured was sufficiently attenuated by the insurer’s control over the adjuster to be an important factor that militated against imposing a further duty on the adjuster being owed to the insured. Because the adjuster was not a party to the insurance contract, the adjuster was not subject to any implied covenant of good faith and fair dealing owed to the insured.

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

Ind. Gov't. - More on: Changes to limit public access to records law buried within massive "Education deregulation" package

This bill, SB 500, is being heard today in the House Education Committee. As the ILB reported in this March 15th post, SECTION 14 would:

... allow government agencies to charge a fee to members of the public, the media and anyone else for a public records request that takes more than two hours to fulfill. The measure would allow a governmental office to charge the hourly salary of the employee handling the search or $20 per hour, whichever is less.
See this follow-up post, also from March 15th.

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

Ind. Gov't. - "Who's in charge? Misguided effort to channel government power"

HB 1351 is currently in the Senate Tax & Fiscal Policy Committee and has not been scheduled for a hearing as of this date. The ILB last wrote about it on Feb. 3rd, in a post titled "Update on - Senate committee to consider 'no more stringent' on steriods bill."

On March 19th the Fort Wayne Journal Gazette had an editorial headed "Who's in charge? Misguided effort to channel government power."

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

Ind. Courts - Boyer Appointed New Allen Superior Court Small Claims Court Magistrate

From the news release:

Fort Wayne, Ind. – Thomas P. Boyer has been named the newest Magistrate Judge of the Allen Superior Court Small Claims Division. Boyer replaces Magistrate Jerry Ummel, who recently announced his retirement after 27 years on the bench. 17 candidates were interviewed.

“The Small Claims Division handles 26,000 new filings every year,” said Allen Superior Court Judge Craig J. Bobay. “Handling that many cases in a timely and efficient manner is a continuous challenge. To find a candidate as experienced as Tom Boyer is of enormous benefit to Small Claims and to the people it serves.”

Boyer currently serves as a Magistrate for the Allen Superior Court Family Relations Division, where he has been on the bench since 1999. Prior to becoming a judicial officer, Magistrate Boyer was a founding partner in the law firm of Avery Boyer & VanGilder.

Earlier ILB post about the vacancy here, from Feb. 25th.

Posted by Marcia Oddi on Tuesday, March 24, 2015
Posted to Indiana Courts

Monday, March 23, 2015

Ind. Gov't. - More on: BMV higher-ups allegedly knew the fees were wrong, but hushed it up and lied under oath [Updated]

In response to the Sunday Indianapolis Star story (which was quoted in this ILB post), the Indiana BMV has put out a two-page, single-spaced document alleging that: "there are certain factual errors and omissions that must be pointed out for Hoosiers to be able to make their own informed judgments about the story."

You may read it for yourself.

[Updated 3/24/15] Several ILB readers have observed that the BMV Fact Sheet is most interesting in the issues it chooses not to address.

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

Ind. Gov't. - Even more on: Is the General Assembly subject to the public records law?

This March 18th ILB post exclusively reported that the Chief Counsel to the House Republican Caucus had on March 16th denied the second, more specific request filed by the Energy and Policy Institute, a request refined, per the earlier PAC option, to identify the emails sought with "reasonable particularity," and that this new request had been met with a 3-page March 16th response from the Chief Counsel to the House Republican Caucus, again denying the request, asserting broadly that the Access to Public Records Law does not apply to the General Assembly.

Today the Energy and Policy Institute and the Citizens Action Coalition, by their attorney, William Groth, have submitted a new formal public access complaint against Rep. Koch and the House Republican Caucus:

The Respondents, Representative Eric Koch and the Indiana House Republican Caucus, by their officers, agents, and representatives, violated the Indiana Access to Public Records Act on March 16, 2015 by denying the Complainants' enclosed public records request on the grounds, inter alia, that it is "not reasonably particular" because "the request covers over six months of time and numerous entities, names, and phrases," and that it requests "work product" of the "individual members and partisan staffs of the General Assembly," without explaining how the requested records are "work product." (See Attached Exhibits A-B).

Contrary to the Respondents, the Complainants' public records request is reasonably particular because it provides the Respondents with enough information to enable them to search for, locate, and retrieve the requested records, and, pursuant to the Public Access Counselor's instructions regarding requests for email communications, the request names a specific sender, recipient, and date frame. Furthermore, emails from outside groups to legislators are not, as a matter of law and statutory construction, "work product" of the legislators and! or their partisan staffs in that, among other reasons, they were not collected or prepared in anticipation of litigation.

While the Respondents additionally asserted that they are not subject to the Indiana Access to Public Records Act, this assertion has already been considered by the Public Access Counselor in 15-FC-69, dated March 6, 2015. The Complainants thus only seek the Public Access Counselor's opinion regarding the work product and reasonable particularity grounds cited by the Respondents in support of their denial.

The Complainants seek priority status for this complaint pursuant to 62 lAC 1-1-3(3) because the records are sought, inter alia, for the purpose of presenting them to the public in legislative proceedings regarding House Bill 1320 and similar related legislation. [ILB emphasis]

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

Ind. Gov't. - "Lawmakers encourage `delicate balance' on public access"

That is the headline to Chelsea Schneider's Sunday story in the Evansville Courier & Press. Some quotes:

Indiana has a state law governing the release of public documents.

But is the Indiana General Assembly required to follow it when requests are made for a lawmaker’s correspondence? The answer varies, depending on who you ask.

The question arose this month after the Indiana House Republican Caucus declined to fulfill a request for emails and other records between a state lawmaker and energy companies regarding a bill he proposed.

The caucus’ lawyer told the Energy and Policy Institute, which was seeking the documents, that House tradition and case law in Indiana found the state’s Access to Public Records Act didn’t apply to the body.

“In determining the rules of its proceeding, the House has a long history of treating all correspondence as confidential,” according to the letter sent by the caucus’ chief counsel, Jill Carnell, and reported by the Indiana Law Blog.

Luke Britt, the state’s Public Access Counselor, disagreed in an opinion he issued after the Energy and Policy Institute submitted a complaint to his office over the denial of records. But lawmakers on both sides of the aisle say messages among lawmakers and constituents need to be handled with care.

The correspondence could have provided insight to the energy bill filed by state Rep. Eric Koch, who heads the House’s Utilities, Energy and Telecommunications Committee.

The story continues:
But House Speaker Brian Bosma said a keystone of the General Assembly is open communication with constituents, and that lawmakers can turn into a “point of last resort” when family tragedies or dire circumstances occur.

When asked if the same exception should be made for correspondence among lawmakers and registered lobbyists, Bosma said he didn’t know how the General Assembly could make that distinction.

Tom LoBianco of the IndyStar wrote today in a story headed "Sunshine Week filled with lessons for Indiana," that:
Last week was Sunshine Week — the week dedicated to getting more information out from the darkness and to the public — and here’s how some Indiana politicians responded:
  • House Republicans decided that state lawmakers are flatly exempted from public records laws — meaning their communications on public equipment, while earning a public salary, are likely to stay private as long as they like.

  • And Gov. Mike Pence said he might release his calendar, maybe. His staff has denied a previous request, and previous Indiana governors have hidden behind a court ruling saying they are under no obligation to release their calendars. (Governors in many other states, including Massachusetts and Maryland, have regularly released calendars in response to public records requests.)
* * *

Consider this: Former Florida Gov. Jeb Bush publicly released his emails from his time as governor two months ago. A noble gesture, to be sure, but also one largely mandated by law: Florida’s public records laws are probably the most comprehensive in the nation.

In other words, his emails were going to make it into the public light anyway. And, because most good Florida politicians know their emails are “public records” that can actually be obtained by the public, most keep any wild or inflammatory statements out of email.

Contrast that with Indiana, where state officials rarely have to give out internal communications. Emails obtained by The Associated Press in 2013 contained some absolute doozies specifically because Indiana politicians assume their email communications are not public.

Statements from then-Gov. Mitch Daniels suggested that his staff “disqualify the propaganda” in Indiana university courses, specifically liberal Howard Zinn’s writings. And then- Superintendent of Public Instruction Tony Bennett wrote extensively, in email, about his efforts to change Christel House Academy’s “A-F” letter grade from a “C” to an “A”.

If Indiana had Florida-style public access laws, it’s virtually guaranteed that politicians wouldn’t put such things in their emails. But when those emails are publicly exposed, they tend to be much more candid.

ILB: Maybe, maybe not, re some lawmakers exercising more caution if they knew their emails would be public. Consider what some politicians have put in tweets...

Posted by Marcia Oddi on Monday, March 23, 2015
Posted to GA and APRA | Indiana Government

Ind. Courts - More on: "Disciplinary commission recommends action against Floyd County Prosecutor over David Camm case" And who should pay?

Supplementing Thursday's story from WDRB Louisville was this long Friday story by Grace Schneider of the Louisville Courier Journal. Some quotes:

State officials allege that Floyd County Prosecutor Keith Henderson violated rules of professional conduct by attempting to secure a book deal about the David Camm triple-murder case — and later by seeking taxpayer money to fund his defense after state investigators launched an ethics probe.

On Thursday, the Indiana Supreme Court Disciplinary Commission accused Henderson of lying about the book deal, then being deceitful in seeking taxpayer funds to pay for his ethics defense.

The commission asked the Indiana Supreme Court to discipline Henderson for professional misconduct and force him to pay restitution and other costs. The complaint is the first step in a continuing process to resolve the matter.

Henderson, who was re-elected last November, said he disagrees with the commission's finding and is glad the issues will get a hearing. "I don't believe there was any impropriety," he said.

The 25-page complaint, however, is a resounding rebuke to a prosecutor who has vigorously denied any wrongdoing. He also repeated his assertion that he thought it was proper for Floyd County government to pay $27,539.55 to defend him against the grievance.

Many county residents wondered whether the ethics probe had been dropped because such inquiries remain confidential unless the commission decides to file a complaint, as it did in this case. The issue was last mentioned at a Floyd council meeting in October 2012.

ILB: SB 507, which is now in the House Judiciary Committee, would appear to be relevant to cases such as this. The digest:
Attorney and judicial discipline complaints. Permits a prosecuting attorney and a county public defender (including a contract 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.
Another might be the Antonio Smith v. State of Indiana case, which is pending before the Supreme Court. This was a Nov. 24, 2014 COA opinion which included at footnote 2: "Thus, we direct the Clerk of this Court to send a copy of this opinion to the Disciplinary Commission. We also note that instances of prosecutorial misbehavior continue to come before us on appeal notwithstanding our admonishments."

Posted by Marcia Oddi on Monday, March 23, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 5 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (2):

In re the Paternity of G.S.; A.H. (Mother) v. D.S. (Father) (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: B.H. (Minor Child), and E.C. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

Antonio Johnson v. State of Indiana (mem. dec.)

Jerome Seward v. State of Indiana (mem. dec.)

Steven W. Slater, Jr. v. State of Indiana (mem. dec.)

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

Ind. Courts - "Dyer dentist seeking more than $15 million in lawsuit against state"

The NWI Times reported March 21st:

HAMMOND | The owner of Dyer Family Dentistry is seeking more than $15 million from the state of Indiana and some of its regulatory bodies claiming they unjustly tried to keep him from doing business as a licensed dentist.

A Chicago law firm representing dentist Irfan Atcha filed the lawsuit in federal court Friday against the state, the Indiana Professional License Agency, the Indiana State Board of Dentistry and others, including Cindy Vaught, the state dentistry board's director. * * *

The lawsuit said that Atcha had developed an "All-on-4" implant technique, which it claims was unique to the Northwest Indiana region and was a "significant advancement" over traditional methods of teeth replacement and implantation.

Atcha advertised to the public, but on March 16, 2012, the state board filed a formal administrative complaint against Atcha claiming alleged multiple violations of its advertising regulations, according to the lawsuit.

The lawsuit said the board wrongfully found Atcha had violated some advertising regulations and on Nov. 19, 2013, placed him on probationary status. On Dec. 31, 2014, the Marion County Superior Court found the actions of the state defendants were unconstitutional and violated Atcha's First Amendment rights, according to the lawsuit.

The suit claims the defendants have no actual evidence Atcha misled or deceived anyone. It claims the state was trying to protect the market share of other dentists in an scheme to deprive Atcha of the right to do business and enrich a competitor. The lawsuit said as a direct result of the alleged "constitutional deprivation, Atcha has suffered economic and non-economic losses."

The ILB has checked the Marion County docket and located Atcha v. Ind. State Bd. of Dentistry (49D03-1312-MI-044739). It appears that Marion Superior 3 Judge Patrick McCarty presided, and that an order signed and filed Dec. 31, 2014 was issued Jan. 8, 2015.

The ILB hopes to post a copy of the Marion Superior Court order... [Update] Here it is, the 12-page opinion by Judge McCarty in Atcha v. Ind. Prof. Lic. Agency.

In addition, the ILB has obtained a copy of the complaint filed Friday in the ND Indiana.

Posted by Marcia Oddi on Monday, March 23, 2015
Posted to Indiana Courts

Ind. Gov't. - "Local corrections funds in doubt: House and Senate at odds on money needed"

Niki Kelly wrote in a lengthy story in the Sunday Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – The enthusiasm for a major shift away from jailing low-level offenders to local treatment and supervision instead is clear at the Statehouse.

But will the money be there when the budget is finalized at the end of April?

It is the final question in a criminal justice overhaul that has been in the works for five years.

“I can’t for the life of me believe it’s going to be funded the way it needs to be,” Allen Superior Court Judge Fran Gull said. “This is expensive work we are doing. If the goal is to keep people locally, they have to give us resources.”

Gov. Mike Pence’s initial budget proposal contained no new money for community corrections or other local treatment programs.

Instead, he focused on building prisons – exactly the opposite of what lawmakers wanted when they passed the criminal code reform in 2013. The initiative was phased in, and judges are now starting to sentence for crimes committed under the new regime. * * *

[This year's] House Bill 1006 provides the framework to help local communities absorb thousands of low-level offenders who will no longer go to the Indiana Department of Correction.

Many of these offenders have drug addictions, mental illnesses or both, Gull said.

The bill establishes the Justice Reinvestment Community Grants Program, to be administered by the Indiana Judicial Center. Grants can be used to help develop alternatives to incarceration at the county and community levels but can’t be spent on capital projects.

The money behind the bill is in the state budget. House Republicans set aside $30 million for the reinvestment grants in fiscal year 2016 and $50 million in fiscal year 2017.

One goal is to have all counties participating in community corrections by 2020. Currently, 84 counties do. The eight that do not include Kosciusko County in northeast Indiana.

Rep. Greg Steuerwald, R-Danville, said that as many as 6,300 inmates will now be handled on the local level. And programs must be in place to help counties.

“Without funding, it’s just not going to work. It’s just that simple,” he said.

The $80 million in the House Republican budget is almost guaranteed to go down in the Senate version when it is unveiled April 9 by Senate Appropriations Chairman Luke Kenley, R-Noblesville.

He said he felt the House put full funding in pretty quickly, and he will likely look at a slower, phased-in approach.

“It’s a sea change in terms of where your prisoners are going to be – whether they are actually going to be a prisoner or not. But it’s going to take time for this to roll out,” Kenley said. “We’re going to fund where we think the situation will be for the next two years. At the end of that time, we’ll see how much we are doing and whether the demand is greater.”

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

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

Here is the Clerk's transfer list for the week ending Friday, March 20, 2015. It is two pages (and 26 cases) long.

Three transfers were granted last week. All involved transfers with opinions:

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

Courts - More on: Wisconsin voter ID law petition is pending before the SCOTUS; why that is important in Indiana [Updated]

Updating this ILB post from Friday, the SCOTUS this morning denied the petition/ Here is Richard Wolf's USA Today story, headed "Supreme Court lets Wisconsin voter ID law stand." It begins:

WASHINGTON -- The Supreme Court refused Monday to hear a major challenge to Wisconsin's voter ID law, delivering a victory to Republicans who favor tougher election laws.

The decision is a setback for civil rights groups that contend the law could disenfranchise hundreds of thousands of residents who lack proper ID — particularly racial minorities, seniors, students and people with disabilities.

And it turns both sides' sights on Texas, where a similar statute is pending before a federal appeals court. Eventually, the justices are considered likely to resolve the festering issue.

Election law scholar Rick Hasen writes in a post titled "A Blessing in Disguise? The Supreme Court’s Refusal to Hear Wisconsin Voter ID Case."

[Updated] See this coverage by Warren Richey of The Christian Science Monitor.

Posted by Marcia Oddi on Monday, March 23, 2015
Posted to Courts in general

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

From Sunday, March 22, 2015:

From Saturday, March 21, 2015: From Friday afternoon, March 20, 2015:

Posted by Marcia Oddi on Monday, March 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 3/23/15):

Next week's oral arguments before the Supreme Court (week of 3/30/15):

Thursday, April 2

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/23/15):

Monday, March 23

Thursday, March 26

Next week's oral arguments before the Court of Appeals (week of 3/30/15):

Monday, March 30

Wednesday, April 1

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, March 23, 2015
Posted to Upcoming Oral Arguments

Sunday, March 22, 2015

Ind. Gov't. - BMV higher-ups allegedly knew the fees were wrong, but hushed it up and lied under oath

That is the take-away from the very long and devastating investigative story by Tim Evans and Tony Cook in today's Sunday Indianapolis Star. Here are just a few quotes, with emphasis added by the ILB, from the story's introduction:

Top officials at the Indiana Bureau of Motor Vehicles knew for years they were likely gouging Hoosier motorists with tens of millions of dollars in excessive and illegal fees for driver's licenses and other services.

But those officials chose to ignore or cover up the overcharges rather than refund the extra money and adjust to significant budget losses, an Indianapolis Star investigation has found.

The Star's investigation shows that numerous officials — including former BMV Commissioner R. Scott Waddell and his chief of staff — knew about potential overcharges for years. Yet in sworn testimony last year Waddell, claimed the mere possibility that the state might be overcharging customers was news to him and the entire agency.

"We were completely blindsided by it," he said.

State officials have portrayed the overcharges as an innocent mistake, but emails obtained by The Star show that two years before Waddell claimed the agency was blindsided, he received a spreadsheet from a deputy BMV director identifying 17 overcharges.

Additionally, one of Waddell's top deputy commissioners testified in a pending lawsuit that he urged Waddell and then-Chief of Staff Shawn Walters to conduct an independent audit of the bogus fees.

He said they refused.

One official said the BMV — which, like other state agencies at the time, was under pressure from then-Gov. Mitch Daniels to return cash to the treasury — did not want to refund the ill-gotten money because it would require a budget cut.

It's hard to overstate the gravity of those decisions.

Every day they hesitated to fix the problem, the BMV overcharges averaged more than $23,000, all of it coming directly out of Hoosier motorists' pockets. That's about $1,000 an hour, every hour of every day, for two long years.

By the time someone blew the whistle and a class-action lawsuit was filed in 2013, the state had over-billed Hoosiers more than $60 million going back to 2007.

It's being paid back now. But there's no indication in the records examined by The Star that BMV leadership had any intention of fixing the fees until backed into a corner by the lawsuit. Instead, they hushed their internal critics, insisting the fees were accurate, despite the findings of a yearlong study.

Though discussed within the BMV, the overcharges didn't come to light publicly until the first class-action lawsuit was filed in March 2013 by Irwin Levin of the Indianapolis law firm Cohen & Malad. Only then did the BMV approve an audit of its fees. And it was months later, after the audit confirmed that many fees were, indeed, higher than allowed by law, that the agency finally fessed up to its price gouging and began to pay back motorists.

The full extent of the damage is not yet known. A second lawsuit alleges as much as $38 million more was wrongfully charged. The BMV is fighting that claim, but if true it would bring the total overcharges to about $100 million.

Despite all of this, no one from the state or BMV has apologized to customers. No one has taken responsibility or offered a clear explanation of what really happened. And no one has been publicly disciplined or fired.

On the contrary, several of the agency officials who shrugged their duties to uphold Indiana law remain at the BMV or in other state jobs. * * *

Current and former BMV officials declined to comment for this story. But more than a thousand pages of internal BMV documents, email messages and sworn video depositions examined by The Star offer a rare glimpse into the inner workings of the BMV's many political appointees as they grappled with internal reports of overcharges.

Before the overcharge debacle, the BMV appeared to be an amazing success story.

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

Ind. Gov't. - "Yorktown changes ordinance after ACLU case"

As the ILB reported in these posts from Oct. 1 and Oct. 3, 2014, federal district court Judge Richard Young on Sept. 30th, 2014 granted summary judgment to the Citizens Action Coalition (CAC) in their lawsuit challenging the constitutionality of the Town of Yorktown's ordinance: Whether the prohibition of door-to-door canvassing and solicitation after the hour of 9:00 p.m. or sunset, whichever is earlier, comports with the First Amendment.

Corey Ohlenkamp reports today in the Muncie Star-Press:

YORKTOWN – A lawsuit over door-to-door solicitation regulations has cost Yorktown around $90,000, and ultimately resulted in the town's ordinance being changed anyway. * * *

In October 2014, the U.S. District Court Southern District of Indiana granted a motion for summary judgment by the Citizens Action Coalition, and banned Yorktown from enforcing the ordinance that allowed solicitors "until dusk."

The town was ordered to pay $62,000 by the court, and additional fees and costs raised the total to almost $90,000. The payout by the town was handled in the January Yorktown Town Council meeting. * * *

Several audience members at the March meeting were taken aback by the amount of money that the town was fined for during the case. That reaction was also expressed by council member Rick Glaub.

"It was obviously an expensive mistake," said Glaub, who said he had reservations about fighting the CAC in the first place.

Council member Bob Ratchford, who was president at the time of the lawsuit, reminded the public that the actions taken by the town were on the recommendation of both the town's legal advisers, town manager and police chief when the issue first arose.

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

Environment - Still more on: Who approved stealth project to build banquet center on Dunes State Park prime beachfront? Who knew?

Updating two earlier ILB entries, the most recent from March 14th, Amy Lavalley of the Gary Post-Tribune reported March 19th in a long story headed: "Dunes state park pavilion partners say they're sensitive to concerns: Critics slam plan for 'giving up public land to a private concessionaire.'” Here are some quotes:

The partners behind the group renovating the pavilion at Indiana Dunes State Park and building an adjacent conference/banquet center include Porter County's former Republican Party chairman and the operators of County Line Orchard.

Deb Butterfield, spokeswoman for Pavilion Partners LLC, laid out on Thursday who's behind the partnership. The project has drawn criticism from the Porter County chapter of the Izaak Walton League because of plans for a banquet center on a public beach. * * *

Pavilion Partners will release drawings of the three-story, 30,000-square-foot banquet and conference center the week of March 30, and was planning a public meeting for input on the plans when the weather improves, Butterfield said.

"There was no intent on our part to be secretive about anything. We just weren't ready," she said, adding the renderings will let people "really envision how wonderful the project will be." * * *

Pavilion Partners formed a public/private partnership with the state park to renovate the pavilion. Some of that work, including new bathrooms in a separate building, will be complete by Memorial Day weekend, the start of the beach season.

Those plans include a snack bar and a fine-dining restaurant, which will have a liquor license.

Also part of the plan, and the part that's garnered criticism, is the banquet/conference facility, which is scheduled to be complete in the spring of 2016 and also will have a liquor license. The total cost of all the work is $3 million to $4 million; no tax dollars are being used.

Jim Sweeney, president of the Porter County chapter of the Izaak Walton League, has said the new building, "is giving up public land to a private concessionaire." * * *

The request for proposals for renovation of the pavilion, which went out three years ago and was provided by Phil Bloom, director of communications for the Indiana Department of Natural Resources, does not specify another structure but notes respondents "will be allowed the opportunity to propose limited additional developments and services. The IDNR is open to other possibilities proposed by the operator; however additional items in proposals submitted may or may not be considered in the lease negotiations." * * *

Chesterton attorney Michael Sawyier represented a local group that also put out a proposal to renovate the pavilion.

"Our proposal was to carry out this project under the auspices of a wholly public charity," he said. "The thing that galls me, and should gall anyone, is that the request for proposals never permitted any additional structure as Pavilion Partners is proposing. No one was talking about a convention center next to the pavilion when we were involved three years ago, and I'm very curious about when this idea emerged." * * *

Sweeney [of the Izaak Walton League] also has said he's concerned that opening the beach in the state park to private development could set a precedent to open up other beach land for development.

Posted by Marcia Oddi on Sunday, March 22, 2015
Posted to Environment

Friday, March 20, 2015

Courts - Failure to read electronic docket causes AT&T lawyers to miss essential deadline

"AT&T lawyers don’t read court docket, can’t appeal $40M patent verdict: Missed the deadline to appeal 2014's biggest win for a 'non-practicing entity,'" is the headline to this story today in ArsTechnica, reported by Joe Mullin, that begins:

A missed deadline means that AT&T lawyers can’t appeal a $40 million patent verdict against the telecom giant. Patent-holding company Two-Way Media LLC scored a $27.5 million verdict against AT&T last year following a jury trial in the Western District of Texas. The verdict, which got bumped up to $40 million after interest was added, was the largest patent verdict of the year for a non-competitor case.

AT&T's lawyers at Sidley Austin want to appeal the case, but they can't because they blew a key deadline, according to a ruling (PDF) yesterday from the US Court of Appeals for the Federal Circuit.

After the verdict came out, AT&T's attorneys filed four motions for judgment as a matter of law, or JMOL motions. Such motions are common after trial. Three of AT&T's four JMOL motions were filed under seal. The judge denied the orders and sent out "notices of electronic filing" (NEF) labeled “ORDER GRANTING [] Motion For Leave to File Sealed Document.”

In other words, those three electronic notices didn't clearly state that the orders had been denied, just that they could be filed under seal. It's the denial of the motion that starts the clock ticking for appeal.

AT&T's lawyers say they didn't realize their motions were actually denied until January 15, 2014, after the appeal period expired. They asked for an extension, but the judge refused. That ruling has now been upheld by an appeals court, so unless AT&T can get an en banc rehearing or attention from the Supreme Court—both major longshots—AT&T's case is over now.

Even though the electronic notice didn't give AT&T lawyers the heads-up they wanted, if they had actually checked the docket, they would have seen their motions were denied and the case was over. The notices were also sent to no fewer than 18 attorneys, and the orders were downloaded by legal assistants onto the law firm's internal system—but apparently no one read them.

Finally, the court issued properly labeled notices for the fourth unsealed motion and the bill of costs—two additional indications that the motions had been decided and the time to mount an appeal was upon them.

More from the story:
"In this era of electronic filing... we find no abuse of discretion in a district court’s decision to impose an obligation to monitor an electronic docket for entry of an order which a party and its counsel already have in their possession and know that the clerk at least attempted to enter," wrote Circuit Judge Kathleen O'Malley.

The appeals panel split 2-1, with Circuit Judge Timothy Dyk issuing a dissenting opinion.

Here is the opinion.

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

Courts - Wisconsin voter ID law petition is pending before the SCOTUS; why that is important in Indiana

Rick Hasen of Election Law Blog had a post yesterday headed: "DOJ’s Silence on the Wisconsin Voter ID Case Before SCOTUS." Some quotes:

Linda Greenhouse joins the chorus of people calling for the Supreme Court to agree to hear Frank v. Walker, the Wisconsin voter id case, up for a Supreme Court conference vote on Friday. * * *

Within the voting rights community, the decision to seek cert. in the Wisconsin case is controversial. To win, it requires the Court to either expand the scope of the Voting Rights Act section 2 in the vote denial cases or to reinvigorate the equal protection clause in the context of voting rights beyond that which the Court did in the Crawford v. Marion County case.

Crawford, like Frank, came up from the 7th Circuit as a horrible opinion from a Seventh Circuit judge. I wrote an oped in the Washington Post urging the Supreme Court to take the case. It did, and the Supreme Court made things worse. Crawford was essentially a green light for ever more restrictive voter id laws.

Why should now be different? The Frank decision is also horrible. But the judge who wrote the horrible Crawford opinion in the Seventh Circuit, Judge Posner, had a revelation that voter id laws were about voter suppression rather than fraud prevention. Judge Posner wrote a fiery dissent in the Wisconsin case now, and the 7th circuit [corrected] divided 5-5 on whether to rehear the Wisconsin case en banc. Those supporting the cert. petition in the Wisconsin case, like Linda Greenhouse, are betting that Justice Kennedy and/or Chief Justice Roberts will have a similar revelation on voter id. That’s a big, big bet.

Here is a snippet from the lengthy Linda Greenhouse article in the NY Times Hasen references:
The challenge to the Wisconsin law is the first of the current round of cases to reach the Supreme Court after a full trial and appellate review; the appellate process is still continuing in the Texas case, Veasey v. Abbott, and in a case from North Carolina, League of Women Voters v. North Carolina. The Wisconsin case, Frank v. Walker, is worth attention on multiple levels. For a start, there is the question of timing. The window is closing with surprising speed for the Supreme Court to say something definitive about voter ID laws before the 2016 election. Cases the justices accept from now until the end of the current term won’t be heard until next fall; hot-button cases heard then probably won’t be decided until the late spring or early summer of 2016. The time to start thinking about the rules under which the 2016 election will be conducted, in other words, is now.

Then there is the Supreme Court’s own history with the voter ID issue. Seven years ago, in Crawford v. Marion County Election Board, the court rejected a constitutional challenge to Indiana’s voter ID law in an opinion by Justice John Paul Stevens. The vote was 6 to 3. The Indiana law was new and had not yet taken effect. In fact, the whole idea of requiring voters to prove their identity with a government-issued photograph was new; only Georgia and Indiana had enacted such a law. The argument of the Indiana plaintiffs was that the law would arbitrarily disenfranchise qualified voters who lacked the required identification, and that the burden would fall disproportionately on voters who were poor, elderly, or members of racial minorities. In addition, they maintained, there was no evidence that in-person voter fraud was a problem in the first place.

In his opinion, Justice Stevens acknowledged the weight of the plaintiffs’ arguments but found that “the evidence in the record is not sufficient” to strike down the statute. The usually astute justice grew up as a close observer of Chicago politics and perhaps was induced by that background to assume that no matter how remote the prospect of voter fraud, any effort to deter it was better than no effort.

Another usually astute judge who was fooled by the high-minded sounding rationale for voter ID laws was Richard A. Posner of the United States Court of Appeals for the Seventh Circuit. Unlike Justice Stevens, who retired in 2010, Judge Posner is still sitting. In 2007, he wrote the appeals court decision that the Supreme Court affirmed, upholding Indiana’s law. But in a 2013 book, Reflections on Judging, he wrote that he had been wrong. “I plead guilty,” he wrote, for having failed to see the law “as a means of voter suppression rather than of fraud prevention.”

Judge Posner’s apologia would be just so much spilled milk if not for the opportunity that came his way in the Wisconsin case — Wisconsin, like Indiana, being in the Seventh Circuit. Wisconsin is one of 17 states that enacted voter ID laws following the Supreme Court’s Indiana decision. A federal district judge in Milwaukee, Lynn Adelman, declared the law unconstitutional in a decision last April that found the Wisconsin law substantially more onerous than the one the Supreme Court had upheld in the Indiana case.

A three-judge panel of the Seventh Circuit overturned that decision in October. Judge Posner, calling the panel’s ruling a serious mistake, argued for a rehearing by the full 10-member appeals court, but his motion failed on a 5-to-5 tie. In a 31-page opinion, signed by the four other judges who sought rehearing, Judge Posner laid out the case against the Wisconsin law.

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

Ind. Decisions - Supreme Court answers certified question from federal bankruptcy court

In In the Matter of Dennis Alan Howell, a 7-page, 5-0 opinion, Chief Justice Rush writes:

Indiana law exempts life insurance policies from debtors’bankruptcy estates when the named beneficiary is “the spouse, children, or any relative dependent upon” the debtor. That language undisputedly requires that relatives other than spouses and children must be dependent on the debtor for the exemption to apply, but whether that requirement also applies to spouses and children is less clear.We accepted a certified question asking us to construe whether the “dependent upon” phrase modifies only “any relative,” or also “spouse” and “children.” The statutory language and structure standing alone are inconclusive, but all of the relevant interpretive canons indicate that we should construe “dependent upon” to modify only “any relative.” Accordingly, spouses and children need not be the debtor’s dependents for the exemption to apply. * * *

We conclude that under Indiana Code section 27-1-12-14(e), the statutory phrase “dependent upon such person” does not modify “spouse” or “children,” but only “any relative” named as beneficiary of a life-insurance policy. Any potential as-applied constitutional problems arising from that statutory directive may be addressed case by case, as Foster contemplates.

Posted by Marcia Oddi on Friday, March 20, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 14 NFP memorandum decisions)

For publication opinions today (2):

In AM General, LLC v. James A. Armour , a 13-page, 2-1 opinion, Judge May writes:

AM General LLC appeals summary judgment for James A. Armour. As AM General designated evidence to refute Armour’s contentions in its response to Armour’s motion for summary judgment, the summary judgment was in error. We reverse and remand for trial. * * *

Friedlander, J., concurs.
Vaidik, C.J., dissents with opinion. [which begins, at p. 8, and concludes]Contrary to the majority’s position, the fact that the Employment Agreement does not specify how the LTIP payment was to be made is not an issue of fact. In fact, neither party disputes it. Rather, it is a question of law. And because a promissory note is not a payment absent an express agreement to that effect and there is no express agreement here, AM General’s Note to Armour is not a payment pursuant to the Employment Agreement. I would therefore affirm summary judgment in favor of Armour.

In Robert L. Holleman v. State of Indiana , a 9-page opinion, Judge May writes:
In 1976, Robert Holleman committed felony murder. He was sentenced to life in prison. Holleman had parole hearings in 1996, 2000, 2005, and 2010, and was denied release each time. Holleman underwent psychiatric and psychological assessments in 1997. The parole board did not seek a more current report on Holleman’s psychological condition before the 2010 hearing, and a 2013 report indicated Holleman had progressed in some areas that were of concern in 1997. Holleman argues on appeal the parole board should have ordered an updated report and should have allowed Holleman to attend his public parole release hearing. * * *

As Holleman has not demonstrated an updated mental health evaluation could have affected the Board’s determination he should be denied parole because of the “Nature and Seriousness of the Crime (Seriousness of the Offense),” any error was harmless. We accordingly affirm.

Vaidik, C.J., concurs.
Barnes, J., concurs with separate opinion. [which begins at p. 8; some quotes] I write separately to express my opinion that, in a circumstance such as this, common sense and an overall aura of the concept called “justice” calls for a special look at this type of prisoner.

Holleman is a lifer. That is, he was sentenced to an indeterminate term of life in prison with the possibility of parole before the revisions to our sentencing scheme in 1977 and 1978 took effect and abolished such sentences. As we were reminded in oral argument, there are less than 200 of these prisoners remaining in the Department of Correction. Most are over sixty years of age, and more than a few are considerably older than that.

The point is that, in my opinion, when one of these prisoners comes to a parole hearing, the least the parole board could do would be to have a psychological report on the prisoner that is relatively recent. * * *

I do not mean to suggest that any time a parole hearing is held for one of these prisoners that an exhaustive psychological report must be compiled. But I do think the parole board should do better than it did here.

NFP civil decisions today (5):

Frank A. Workman, M.D. v. Ann O'Bryan (mem. dec.)

Douglas Thompson v. Cheryl Majchrowicz and Amy Bensema, Individually and as Personal Representatives of the Estate of Beverly Jean Thompson, Deceased (mem. dec.)

Arnel J. Gallanosa, D.D.S. v. Indiana State Board of Dentistry (mem. dec.)

Mario L. Sims, Sr., and Tiffiny Sims v. John Tiffany (mem. dec.)

Thomas Campbell v. Indiana Department of Correction (mem. dec.)

NFP criminal decisions today (9):

Daniel L. Spells v. State of Indiana (mem. dec.)

Lamont Payne v. State of Indiana (mem. dec.)

Aguila Antwon Binion v. State of Indiana (mem. dec.)

Billy G. Luke v. State of Indiana (mem. dec.)

Spencer Robert Norvell v. State of Indiana (mem. dec.)

Anthony Jefferson v. State of Indiana (mem. dec.)

Joel Frazier v. State of Indiana (mem. dec.)

Senaca V. Lapsley v. State of Indiana (mem. dec.)

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

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

Thursday, March 19, 2015

Ind. Courts - "Disciplinary commission recommends action against Floyd County Prosecutor over David Camm case"

Travis Kircher has the breaking story for WDRB Louisville. Some quotes:

An ethics commission is asking the Indiana Supreme Court to discipline Floyd County Prosecutor Keith Henderson for his handling of the high-profile David Camm murder case.

In a complaint filed on Thursday, the Indiana Supreme Court Disciplinary Commission accused Henderson of "professional misconduct" for allegedly violating portions of the Indiana Rules of Professional Conduct when he secured a deal to write a true-crime book about the Camm case after Camm's second trial, while the case was still in the appeals process.

The story links to the WDRB copy of the 27-page complaint filed by the Commission with the Supreme Couyrt.

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

Ind. Decisions - Supreme Court decides one late today, re involuntary commitment

In In the Matter of the Civil Commitment of T.K. v. Dep't of Veterans Affairs, an 8-page, 5-0 opinion, Justice Dickson writes:

T.K. challenges the sufficiency of the evidence supporting his involuntary civil commitment. He was committed following a hearing on October 18, 2013. To obtain an involuntary regular commitment of an individual, a "petitioner is required to prove by clear and convincing evidence that: (1) the individual is mentally ill and either dangerous or gravely disabled; and (2) detention or commitment of that individual is appropriate." Ind. Code § 12-26-2-5(e) (2012). The trial court's order of commitment declared that, by clear and convincing evidence, T.K. was mentally ill and both dangerous and gravely disabled. The Court of Appeals affirmed in a memorandum decision. In the Matter of the Civil Commitment of T.K., No. 49A02-1310-MH-878, 3 N.E.3d 1090 (Ind. Ct. App. Jan. 30, 2014) (table), clarified on reh'g, 10 N.E.3d 100 (Ind. Ct. App. Apr. 3, 2014) (table). We now grant transfer and reverse. * * *

T.K. made no physical outbursts, destroyed no property, did not put himself or others in actual danger with idiosyncratic behavior, and was not at risk of suffering a lack of food, clothing, or shelter. Instead, at best, the evidence suggests that T.K.'s loud, boisterous, and rude public behavior harmed his reputation and made others not want to be around him. That is not sufficient evidence to support a civil commitment on grounds of grave disability.

Clear and convincing evidence was not presented at T.K.'s civil commitment hearing to establish that he was either dangerous or gravely disabled, and we thus hold that the civil commitment of T.K. was improper and is hereby reversed.

Posted by Marcia Oddi on Thursday, March 19, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Judicial Technology Oversight Committee (JTOC) meeting tomorrow at 1:30

The Judicial Technology Oversight Committee was created by a 2013 authorizing statute found at IC 33-23-17. The prestigious 11-member commission, whose membership is set by the statute (it includes members of the general assembly, judges and others) has the following responsibilities:

(1) Conduct a continuous study of information technology
applications for Indiana's judicial system, including an analysis
of appropriate and equitable funding, automated recordkeeping
fees and record perpetuation costs, and their allocation between
state and local governmental entities.
(2) Develop a long range strategy for technology and
automation in Indiana's judicial system, including:
(A) establishing plans for funding and implementing
technology and automation;
(B) making recommendations to the division of state court
administration for the establishment of a pilot program
concerning electronic filing;
(C) allowing public court records to be available on the
Internet;
(D) studying the appropriate use of private sector vendors
that offer similar interfacing or complementary systems; and
(E) studying any other issues the committee considers
appropriate.
(3) Make recommendations to the supreme court concerning the
implementation of policies, standards, and rules that promote
the effective use of technology and automation in Indiana
courts.
(b) The committee may employ an independent consultant to
assist with its study.
The Judicial Technology Oversight Committee is meeting tomorrow at 1:30. The ILB has seen a copy of the agenda, but has not seen the meeting posted anywhere. The location is the Govt Center, Conference Room A.

Here are the agenda items from the copy I saw:

No minutes or reports of the JTOC have ever been made public, to the ILB's knowledge. There does not appear to have been a meeting since June 23, 2014.

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

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (4):

In Indiana Alcohol and Tobacco Commission v. Lebamoff Enterprises, Inc. , a 28-page opinion, Judge Bradford writes:

Title 7.1 of the Indiana Code sets forth statutory restrictions relating to the sale of alcoholic beverages within the State of Indiana. Title 7.1 differentiates between the available permits for the sale of liquor, beer, and wine. With respect to the sale of wine, Title 7.1 further differentiates between various types of available permits. The General Assembly has crafted different rules and regulations for each of the available permits. These rules and regulations allow the permit holder to complete certain actions and restrict the permit holder from completing certain actions. The General Assembly has stated that the classifications and differentiations made in Title 7.1 are real and are substantially related to the accomplishment of the purposes of this title. As such, one can reasonably presume that the level of care undertaken by the General Assembly in differentiating between the rules and regulations that apply to the different types of permits indicates that the General Assembly intended for the rules and regulations relating to each individual type of permit to be read alone, and not for any differences between the rules and regulations relating to the different types of permits to be harmonized with each other upon review.

In the instant matter, Appellant-Respondent the Indiana Alcohol and Tobacco Commission (the “ATC”) determined that Appellee-Petitioner Lebamoff Enterprises, Inc. (“Lebamoff”), which holds a liquor dealer’s permit, had violated the applicable rules and regulations relating to the home delivery of wine. Lebamoff sought judicial review of the ATC’s interpretation in the trial court which, upon review, held in favor of Lebamoff. The ATC appealed. Concluding that the ATC’s interpretation of the applicable rules and regulations was reasonable and did not amount to an improper exercise of the ATC’s rulemaking function, we reinstate and affirm the ATC’s final order. * * *

Applying only the provisions relating to a liquor dealer’s permit, we conclude that the ATC’s interpretation of the relevant statutory authority was reasonable. We further conclude that the ATC’s order did not reflect an improper attempt to create an agency rule, but rather was a proper exercise of the ATC’s adjudicatory function. As such, we reinstate and affirm the ATC’s final order.

The judgment of the trial court is reversed and the matter remanded to the trial court with instructions.

In Parviz Jahangirizadeh v. Fatemeh Pazouki, a 12-page opinion, Judge Barnes writes:
Parviz Jahangirizadeh appeals the trial court’s dismissal of his motion to set aside the final decree dissolving his marriage to Fatemeh Pazouki. We affirm.

The restated issue before us is whether the trial court properly refused to set aside the parties’ dissolution decree based upon an allegation that Pazouki had failed to disclose marital assets prior to the decree’s entry. * * *

The trial court properly refused to set aside the parties’ dissolution decree, and it was not required to give Jahangirizadeh an opportunity to amend his motion to set aside. We affirm.

In Johnny Gomillia v. State of Indiana , a 5-page opinion, Judge Barnes writes:
Here, there is no evidence that Gomillia knew the statements were false. In fact, Detective Woods testified it is a commonly held belief that the absence of a witness means the dismissal of a case. See Tr. p. 76. Without any evidence suggesting Gomillia knew the statements were false, there is insufficient evidence to establish that he knowingly or intentionally attempted to induce Gaines not to testify by false statement.

Conclusion. Because the State did not establish that Gomillia knew the statements were false when he made them, the State failed to prove the attempted obstruction of justice charge. We reverse.

In Cody Rutledge v. State of Indiana, a 20-page opinion, Judge Brown writes:
Cody Rutledge appeals his convictions for operating a vehicle while intoxicated as a class D felony and driving while suspended as a class A misdemeanor and his status as an habitual substance offender. Rutledge raises two issues which we consolidate and restate as whether the trial court abused its discretion by admitting certain evidence. We affirm. * * *

We cannot say that the trial court abused its discretion in overruling Rutledge’s objections, based upon the Fourth Amendment to the United States Constitution or Article 1, Section 11 of the Indiana Constitution, to the admission of evidence obtained after the encounter with Deputy Hurst.

NFP civil decisions today (2):

In re Paternity of D.A. and A.A.: Scott Christopher Adkins v. Mendi Marie McQueen (mem. dec.)

In Re: the Marriage of: Shawn Lucas v. Ashley Lucas (mem. dec.)

NFP criminal decisions today (7):

Agnes E. Ande v. State of Indiana (mem. dec.)

Robert P. Stoppenhagen v. State of Indiana (mem. dec.)

Javon Crockett-Berry v. State of Indiana (mem. dec.)

Anthony Henderson v. State of Indiana (mem. dec.)

Arturo Estrada-Medina v. State of Indiana (mem. dec.)

Washawn Jones v. State of Indiana (mem. dec.)

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

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

Courts - More on "Does NCAA Ban On Paying Student Athletes Violate Federal Law?"

Updating this ILB post from March 17th previewing the oral argument that day before the 9th Circuit, How Appealing has compiled links to coverage of the argument, plus the link to the video of the argument. And here is an additional story, from Ross Todd of The Recorder.

Posted by Marcia Oddi on Thursday, March 19, 2015
Posted to Courts in general

Ind. Gov't. - RFRA: "The lawyers will all get some really sweet lake homes out of this" writes one columnist

This morning the local news is Tom Davies' AP story headed "Opponents of Indiana religious objections bill say it could threaten rules on church day cares." Some quotes:

Some Indiana lawmakers are questioning whether safety regulations approved last year for church and home day cares could be threatened if a proposal to extend greater protections for religious objections becomes state law.

Supporters of the Republican-backed measure say they don't believe those day care standards are at risk, although courts could ultimately decide whether they violate religious liberties.

Democratic Rep. Vanessa Summers of Indianapolis said social conservatives who long fought those regulations will cite religious freedoms in trying to have them overturned.

"I do believe this is just another way for them to get around protecting children in day cares," said Summers, who was an advocate over several years of setting standards for church and home child care operations.

The law approved by legislators last year requires day cares that receive taxpayer money meet safety and nutritional standards and follow limits on the number of children each caretaker can oversee at one time.

The religious objections bill could be voted on by the House next week after it cleared the Senate on a party-line vote last month.

Dave Bangert, in his Lafayette Journal Courier column yesterday, headed "Religious freedom bill winners? Lawyers," began with:
What was the upshot of Monday's House committee hearing on Indiana's proposed religious freedom bill?

The lawyers will all get some really sweet lake homes out of this.

Cut through the competing rallies at the Statehouse. Cut through the complaints about a living Constitution and a living Bible and how each threatens some fundamentalist core. And cut through the sermons about matters of conscience versus invitations for discrimination — take your pick — by way of four hours of testimony before a House Judiciary Committee sent Senate Bill 101 to the full House on a 9-4, party-line vote.

Here's a fact: For a crowd that simply hates judges to decide law, the folks sending an Indiana version of the Religious Freedom Restoration Act closer to a final vote are doing a great job of pushing matters that direction.

The 7th Circuit had an important RFRA decision March 9th in the case of Official Committee of Unsecure v. Jerome Listecki. Giving a good idea of the complexity of this area, see this lengthy analysis of the case by Prof. Marci A. Hamilton, described as one of the leading church/state scholars in the United States, in a column March 19th in Justia's Verdict, headed "The Seventh Circuit Injects Common Sense into Religious Liberty Debates with Official Committee of Unsecured Creditors v. Listecki," that begins:
There are times when I despair that the United States will never return to the common sense religious liberty principles established by the Framers and respected by the Supreme Court in its long line of First Amendment, free exercise decisions. From Reynolds v. United States through Employment Div. v. Smith and Church of Lukumi Babalu Aye v. Hialeah, the Court has held the line on extreme demands for religious liberty rights. They—the Framers and the Court—have been responsible for creating a system of ordered liberty where believers are full-fledged members of the community, accountable to the laws that apply to everyone else, while having the ability to request legislative exemptions, which have been granted hundreds of times. It’s a system that has worked for centuries (including for the Native American Church members who lost in Smith).

Congress let loose the furies when it caved to demands for extreme rights with the Religious Freedom Restoration Act (“RFRA”) and its unfortunate “least restrictive means” test, which persuades believers (and courts) that the laws that apply to everyone else should be shaped specifically to a believer’s particular beliefs. This reasoning has opened a new and scary dialogue about carving back the public accommodations laws to permit believers to refuse service to those they disapprove, e.g., Arizona’s state RFRA, which was vetoed last year, and this year’s pending Indiana RFRA. The public rhetoric has been about the LGBTQ community and same-sex marriage, which is bad enough, but the principle equally applies to discrimination based on race, gender, and national origin. Such reasoning is poisoning the United States and threatening the Court’s careful and delicate balance between extraordinary religious diversity, the rule of law, and plain old common sense.

With these thoughts in mind, last week’s unanimous opinion by the United States Court of Appeals for the Seventh Circuit involving the Milwaukee Archdiocese bankruptcy is a much-needed breath of fresh air.

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

Wednesday, March 18, 2015

Ind. Courts - Senate Appropriations hearing tomorrow

Tomorrow, beginning at 9 AM in Rm. 431, the Senate Committee on Appropriations will hear the budget requests of, among others, the Attorney General, and the Supreme Court.

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

Ind. Decisions - Supreme Court decides one today

In Ball State University v. Jennifer Irons; In Re the Marriage of: Jennifer Irons and Scott Irons, an 8-page, 5-0 opinion, Justice Rucker writes:

Ball State University attempted to appeal a trial court order joining the University as a party-defendant to this post-dissolution action and compelling the University to release a student’s transcript. The Court of Appeals dismissed the appeal on grounds that this is not an appropriate interlocutory appeal and thus it lacked jurisdiction to entertain the action. We conclude this is an appeal of right under Indiana Appellate Rule 14(A)(3). Therefore we accept jurisdiction. On the merits, we reverse the judgment of the trial court.

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

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

For publication opinions today (1):

In David E. Price, Price & Associates, LLC, and Price & Collins, LLP v. Charles Brown Charitable Remainder Unitrust Trust, Charles Brown, and Charlotte Brown, a 13-page opinion, Sr. Judge Sharpnack writes:

In this interlocutory appeal, David E. Price, Price & Associates, LLC, and Price & Collins, LLP (collectively, Price), seek review of the trial court’s denial of their motion for summary judgment. We affirm and remand. * * *

Price argues that the Browns and the Trust’s claims cannot go forward because the information and materials Brown and Price shared pursuant to the JDA to defend against the indictment “could never be separated from matters relevant to prosecution of the civil claims.” Appellants’ Br. p. 18. He thus concludes that the terms of the JDA and the sharing of information under the JDA bar the Browns and the Trust’s claims, and “the only appropriate remedy available to Price is dismissal” of their claims. Id. at 20.

NFP civil decisions today (0):

NFP criminal decisions today (5):

Allenn Peterson v. State of Indiana (mem. dec.)

Patrick Green v. State of Indiana (mem. dec.)

Renicka Hoskins v. State of Indiana (mem. dec.)

Devon Fry v. State of Indiana (mem. dec.)

Joshua E. Cain v. State of Indiana (mem. dec.)

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

Law - "States keep concocting ways to restrict the right to abortion"

The LA Times has an editorial today surveying some of the various state proposals, and concluding:

These state bills are unnecessary — no other comparable medical procedure requires a waiting period — often unconstitutional, and intended not to protect women's health but to curtail access to legal abortions.
[h/t: How Appealing]

Posted by Marcia Oddi on Wednesday, March 18, 2015
Posted to General Law Related

Ind. Gov't. - "PU Prez Daniels proposes students trade future income for investor-paid college tuition" [Updated]

Dan Carden has the story in the NWI Times, including a link to Purdue President Mitch Daniels' written testimony to U.S. House Subcommittee on Higher Education and Workforce Training. The story begins:

INDIANAPOLIS | Can the nation's $1.3 trillion student debt burden be alleviated by permitting investors to purchase university educations for students in exchange for a cut of their future earnings?

Purdue University President Mitch Daniels believes such "income share agreements" may be part of the answer to making college more affordable.

The former Indiana governor told a U.S. House subcommittee Tuesday that Purdue is exploring opportunities for investors -- "perhaps devoted alumni," he said -- to pay for students to attend Purdue, if those students agree to pay the investors a to-be-determined slice of their post-graduation incomes for a set number of years.

"Such arrangements would create incentives for organizations to support students with mentoring and career counseling without putting tax dollars at risk," Daniels said, a Republican.

More from the story:
Critics of the idea suggest income share agreements are dangerously similar to indentured servitude or sharecropping, because the investor has an ongoing claim to the student's income and might be able to insist students work a specific job to pay their obligation.

Opponents also fear only high-paying majors might be supported keeping college unaffordable for people interested in doing necessary, but generally low-paying, jobs that often require a college degree, like social work or teaching.

[Updated March 22, 2015] Dave Bangert had a March 19th update to his earlier column. A snippit:
As for indentured servitude, the instant, two-word commentary heaped on the plan as soon as word started getting around about Daniels' testimony?

"Actually, that's just silly," Daniels said Wednesday night, while grabbing a bite to eat in the spring-break slow West Lafayette Village after returning from several days in Washington, D.C.

"Right now, if you need help paying for school, you're already paying someone back. It's just a question of who you're going to be obligated to," Daniels said. "What we're really talking about here is about giving us a chance on campuses to innovate and think of new ways to deal with the cost of a college education. It's just an idea I was using as an illustration of that. That's all."

But if the novelty of income share agreements is the key that opens that bigger discussion as Congress considers reauthorization of the Higher Education Act, which covers a host of university regulations, financial aid and student debt issues? Daniels said he's fine with that.

"And I can understand if people are asking, 'What's the catch?' " he said.

Right now, the first catch is that recent graduates are swimming in debt.

Sheila Kennedy asked some good questions about the Daniels' proposal in her March 20th column, including:
This raises some fascinating possibilities: while it’s unlikely the proposed contracts to finance an education would include a right to approve marriages, could the “investor” require the student to choose a job that paid more rather than a lower-paid one that the student preferred?

Could the investor “sell” the contract at a profit if the student did well and the negotiated percentage of her income represented a better-than-anticipated return on investment?

Could the investor require his “investment” to abstain from smoking, drinking and other risky behaviors that might threaten the duration of the student’s work life?

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

Ind. Courts - Fewer Oral Arguments at the Indiana Supreme Court

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

The Indiana Supreme Court heard oral argument in 72 cases in 2012-13 and 80 cases in 2013-14. (Its fiscal year runs July to June.)

2012-2013 2013-2014 2014-2015
August 0 3 0
September 11 9 9
October 5 12 11
November 5 3 6
December 9 3 5
January 13 6 3
February 6 9 6
March 7 7 4
April 4 6 --
May 6 14 --
June 6 8 --
Total 72 80 --

The 44 arguments so far this year mark a decrease of nearly 20% for July-March:

Put another way, compared with the 80 and 72 arguments in the two preceding years, the justices are on pace to hear only 65 arguments this year, assuming a April to June schedule similar to recent years.

That number may be even smaller considering the lack of cases in the argument pipeline. Although no April cases are currently posted on the Court's online argument calendar, it appears likely that three are scheduled for April 2.

Kopetsky, which was granted transfer on February 26, is set for 10:30 on April 2, which usually means it will be the third case argued that morning. Antonio Smith v. State, the prosecutoril misconduct/perjury case, is set for argument at 9:45 - transfer has not yet been granted.

Posted by Marcia Oddi on Wednesday, March 18, 2015
Posted to Schumm - Commentary

Ind. Gov't. - Still more on: Is the General Assembly subject to the public records law?

Updating this ILB post from March 6th, and this supplement from the same day, the ILB has now received some additional information. Recall that the initial ILB post ended with:

The opinion concludes that in this specific case, much of what is requested may fall into the legislative work product exception, but "it remains to be seen whether the totality of the documentation is work product." Additionally, the PAC asks that the request be refined so that the emails sought are defined with "reasonable particularly." Concluding:
If resubmitted with reasonable specificity, the Caucus would need to identify the non-disclosable records containing work product and produce the information which does not contain work product.

Conclusion. Based on the foregoing, it is the Opinion of the Public Access Counselor the Indiana General Assembly is subject to the Access to Public Records Act.

On March 9, 2015, the entity in this case, the Energy and Policy Institute, filed a new "refined" request, aimed at defining the emails sought with "reasonable particularity." Here is a copy of that document.

And here is a copy of the 3-page March 16th response from the Chief Counsel to the House Republican Caucus, again denying the request, asserting broadly that the Access to Public Records Law does not apply to the General Assembly.

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

Tuesday, March 17, 2015

Ind. Decisions - Supreme Court decides one late today

In Thomas H. Kramer, Member and Manager of Domus Property Investments, LLC v. Mark Kramer, and Domus Property Investments, LLC, a 3-paragraaph, 5-0 per curiam decision, the Court concludes:

We grant transfer, and now summarily affirm the Court of Appeals’ conclusion that Mark breached the noncompetition agreement with respect to all three properties. See Ind. Appellate Rule 58(A)(2). We remand to the trial court with instructions to determine damages.

Posted by Marcia Oddi on Tuesday, March 17, 2015
Posted to Ind. Sup.Ct. Decisions

Courts - "Does NCAA Ban On Paying Student Athletes Violate Federal Law? "

The ILB has written about the Ed O'Bannon case before, but apparently not since 2011.

NPR had a good 4-minute story on the case on March 13th.

A Reuters story today by Dan Levine begins:

(Reuters) - A group of athletes trying to win a slice of the billions of dollars universities reap from football and basketball will face a full court press on Tuesday from the NCAA, which is determined to enforce amateurism in college sports.

The National Collegiate Athletic Association wants a U.S. appeals court to undo a ruling last year that allowed student athletes a limited share of revenue by allowing students to recover some revenue generated from use of their names, images and likenesses.

The ruling by U.S. District Judge Claudia Wilken in Oakland, California added to mounting legal, political and public pressure for colleges to give student athletes better benefits. It came in response to an antitrust class action against the NCAA filed by more than 20 current and former athletes, saying players should share in profits of college athletics.

A three-judge 9th U.S. Circuit Court of Appeals panel will hear arguments from both sides on Tuesday [ILB: today], just a day before the NCAA's annual March Madness men's basketball tournament begins. The NCAA hired former U.S. Solicitor General Seth Waxman to argue its case.

Maura Dolan reports in the LA Times:
The hour-long hearing starts at 1 p.m. and will be live-streamed on the 9th Circuit’s website. Although the panel’s decision is likely to take months, the judges’ questions may reveal their leanings.
How Appealing writes:
Once the video of today's oral argument at the U.S. Court of Appeals for the Ninth Circuit becomes available, I will link to it.

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

Ind. Courts - "Bill puts Sullivan County in danger of losing judge position"

This very long, fascinating story, well reported by Lisa Trigg of the Terre Haute Tribune-Star (as reprinted in the Indiana Economic Digest), tells a lot about the power of legislative committee chairs, local politics, and the county courts. It begins:

Sullivan County is in danger of losing one-third of its judicial officers in a state legislative move that reportedly took the county’s judges by surprise.

Sen. Brent Steele of Bedford has called the position of Sullivan County Magistrate an unneeded appointment that could be eliminated to free up money for a judge in another county. Steele has introduced Senate Bill 58, which sailed through the Senate and now awaits a hearing in the House committee on Courts and Criminal Code. That bill seeks to eliminate the Sullivan Magistrate as of July 1.

Sullivan County judges, however, say that the magistrate position is needed, based on the proximity of the Wabash Valley Correctional Facility at Carlisle.

On the surface, the bill has been presented as a cost-saving measure. The legislation also looks at eliminating one of two judges in Pulaski County. That northern Indiana county also shows a need for fewer judges, based on caseload statistics. However, Senate Bill 58 sends the Pulaski judge cut to a summer study commission for further investigation and possible elimination in 2019.

The politics at work in the Sullivan magistrate issue also brings out what some have said is a power move by the weaker Republican Party in Sullivan County to sow discord among the office-holding Democratic Party.

The controversy might be seen as the playing out of some local rivalries, and it highlights how small-town politics can play out in a bigger venue when the right people are willing to listen.

At a February hearing on the proposed bill, Steele told the Senate Judiciary Committee that a review of courts statewide shows that some counties are in desperate need of more judges to handle the heavy caseloads on their dockets. Sullivan County, however, is one of a few counties in Indiana whose statistics show that there are more judges than needed.

Steele said during the committee meeting — which was recorded and is available for viewing online at iga.in.gov — that he feels the legislature could use the same procedure it does to create a court to, in reverse, eliminate an under-utilized court as a cost-saving measure for the state.

The bill’s financial impact statement explains that eliminating the Sullivan County magistrate will save the state $158,135 starting in 2016, based on the 2014 salaries and benefits for magistrates and judges.

Steele cited the state’s most recent judicial review statistics from 2013 that show the county has three full-time judicial officers but needs less than two, based on the weighted caseload system.

“People higher up in the food chain in this Statehouse have asked me to give this bill a hearing,” Steele can be heard saying on the video-recording of the hearing. “I have no idea who these judges are, and I have no idea what their politics are. I could care less.”

However, as the committee hearing progressed and he questioned the current Sullivan County judges about their caseloads, Steele did seem to go on the attack against current magistrate Robert Springer, questioning the hours that he worked and whether he even shown up at the courthouse.

At the beginning of public statements, the committee heard statements from Billy Springer — no relation of Magistrate Robert Springer. Billy Springer has served as chairman of the Republican Party in Sullivan County for the past 20 years. Billy Springer’s statements were followed by comments from current judges Bob Hunley and Hugh Hunt, who both took office on Jan. 1.

Springer called his home county a “dying county,” referring to the declining coal mining industry and the population loss since the 1960s. Springer also stated that the majority of the court action going on in the Sullivan County involved the community hospital filing small claims against “everybody in the county.” Springer cited the local newspaper when said he counted 74 small claims filings by the hospital in one week.

“It’s kind of a joke in the coffee shop,” Springer said. “We sit in there and count them.”

He claimed that the courtrooms in the courthouse are seldom busy, and that the small claims cases are handled by attorneys who try to make payment arrangements with the people being sued.

“If you take those out, we wouldn’t qualify for one judge,” Springer claimed.

He also said that he has “a gripe” with the way magistrates are chosen, claiming that it’s a “buddy system” with the county judges taking care of their friends and appointing someone to serve as magistrate.

“We just need one judge, not three,” Springer said.

Later in the story:
The previous magistrate — Ann Smith Mischler — served 15 years as magistrate before leaving that appointed position at the end of 2014.

She told the Tribune-Star that the magistrate is very busy, but that may not show up in the court statistics.

“I would hate to see Sullivan County lose the magistrate position, and I think the citizens of Sullivan County are very well served by the position,” Mischler said.

She explained that the civil cases that come out of the prison are time-consuming. Many of the filings from the inmates are done pro se, that is, an inmate advocating on his own behalf. He may be requesting some relief from his sentence or some other matter that can be considered by the court.

“It may take 30 to 40 minutes to review if written by an attorney,” Mischler said, “but if written by an offender it may take me three hours to puzzle it out.”

She said she was surprised to find out about Senate Bill 58 and thinks that any consideration of cutting the position is worth more study.

More from the story:
Following Billy Springer’s statements to the senate committee, judges Hunley and Hunt stepped up to address legislation that they said was a recent surprise to them.

Hunley noted that Magistrate Robert Springer had been left behind in Sullivan County to handle all of the court cases scheduled for that day.

Hunley explained to the committee that he had served as prosecutor for the previous six years, and had served a total of 19 years in the county prosecutor’s office. He said that the addition of the Wabash Valley Correctional Facility to the county, with its 2,000-plus inmates, has added to the court caseload.

The county courts have handled three death penalty cases, all arising from prisoner-on-prisoner crimes, he said, and there have also been recent stabbings at the prison that will be charged through the prosecutor’s office.

Hurley said he has concerns that WVCF is the sixth largest correctional facility in the state, but a plan is now under consideration to expand the prison by 800 beds. That will mean more court filings and cases to prosecute.

“My position is that we do need it,” Hunley said of the magistrate position. He asked the committee to take time to study the caseload report and look at trends during the time the county has had a magistrate.

Judge Hunt also told the committee he has found that some cases that have been disposed were not properly recorded in the annual judicial report. That makes him feel that the caseload numbers may not have been reported correctly.

Sen. Steele questioned Hunt about the hours that Magistrate Springer works. Hunt responded that Springer works full time, Monday through Friday, in the courtroom on the second floor of the courthouse.

Steel said he has been “hearing from people” that Springer is not coming to work, and that “this guy takes long periods of time off, and he’s doing this just to pad his retirement.”

Hunt defended Springer, saying that the magistrate handles divorces and small claims cases for both courts.

“In the six weeks since I’ve taken office, I consult with him on a daily basis,” Hunt said of Springer.

Steele returned to the 1.71 caseload number for three judges, and said that two judges ought to be able to handle the caseload.

“You guys, if you’ll just buckle up to your caseload, you’ll be able to do what you need to do,” Steele said.

The senator said that other counties have need for more judicial officers, and the caseload statistics back up that need.

“What are we supposed to say to them?” Steele queried.

Hunley said that one area he plans to look into is an agreement with the Vigo County court system to check on a long-standing agreement that sends some Vigo County cases to Sullivan County to eliminate some of the backlog in Vigo County.

There is much more in the Trib-Star story. The ILB actually heard the entire Senate Judiciary committee discussion of the bill, Senate Bill 58. It took place Feb. 18th in Room 130. Here was the agenda. Note that SB was added to the agenda late.

You can watch the video of the Feb. 18th meeting by going to this page and then using the pull-down menu to select Feb. 18th. The discussion of SB 58 begins at about 00:24:30. (BTW, The bills were not discussed in the order set out in the agenda.)

Although Lisa Trigg's story covers a lot of what went on at the meeting, there is so much more to learn from the video.

Posted by Marcia Oddi on Tuesday, March 17, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 7 NFP memorandum decisions)

For publication opinions today (1):

In Steven M. Sandleben v. State of Indiana, a 17-page opinion, Sr. Judge Sharpnack writes:

Steven M. Sandleben appeals his conviction and sentence for stalking, a Class D felony. Ind. Code § 35-45-10-5 (2002). We affirm. * * *

In August 2012, thirteen-year-old A.S. and her family entered a Target store to do some shopping. Sandleben began following A.S. when she entered the store, and he continued to follow her throughout the store. At some point, A.S.’s father noticed that Sandleben was taking video of A.S. with a small camera. A.S.’s father then contacted the store manager who asked Sandleben to leave the store.

In May 2013, A.S. and her family were again out shopping and entered a Michaels store. After entering the store, A.S.’s father saw Sandleben and recognized him as the man who had followed A.S. in Target the previous August. Sandleben again followed A.S. through the store taking video of her with a small camera. A.S.’s father called 911, and the police arrived at the store. Upon interviewing those involved, the police arrested Sandleben.

Based upon these two incidents, the State charged Sandleben with stalking, as a Class D felony. Following a jury trial, Sandleben was found guilty of the charge and was sentenced to thirty months. It is from this conviction and sentence that he now appeals. * * *

For the reasons stated, we conclude that there was sufficient evidence to support his conviction of stalking, that his arrest was lawful and therefore the trial court properly admitted evidence seized pursuant to his arrest, and that the trial court did not abuse its discretion in sentencing him and his sentence is not inappropriate given the nature of the offense and his character.

NFP civil decisions today (3):

In re the Involuntary Termination of the Parent-Child Relationship of Ja.M., X.M., Je.M., and R.M. (Minor Children) , and S.J. (Mother) and D.M. (Father) (mem. dec.)

In the Matter of the Paternity of C.N.W.: Christa E. Phelps v. Mark L. Wishart (mem. dec.)

In Re the Estate of: Genevieve O. Bruce, Keith Oxley v. Dianna Duncan, et al. (mem. dec.)

NFP criminal decisions today (4):

Devan L. Jones v. State of Indiana (mem. dec.)

Marzano Shelly v. State of Indiana (mem. dec.)

Vinson Tate v. State of Indiana (mem. dec.)

Alfred Higdon v. State of Indiana (mem. dec.)

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

Ind. Decisions - Tax Court posts one, filed March 16

In Blue Chip Casino, LLC v. Laporte County Treasurer, and Laporte County Convention & Visitors Bureau, a 9-page opinion, Judge Wentworth writes:

Blue Chip Casino, LLC has appealed the LaPorte County Treasurer’s failure to respond to its request for a refund of innkeeper’s tax that it paid to the Treasurer between January 2007 and August 2009 (the period at issue). The parties are before the Court on cross-motions for summary judgment, but lacking subject matter jurisdiction, the Court cannot decide the merits of the case. * * *

Blue Chip’s appeal is not taken from a final determination of the Department. Instead, Blue Chip appeals from the failure of the Treasurer to act upon its request for a refund. Nonetheless, Blue Chip contends that the Court has subject matter jurisdiction over this case based on Ordinance No. 92-1, which placed the [County] Treasurer in the shoes of the Department for purposes of collecting the LaPorte County’s innkeeper’s tax. * * *

Blue Chip maintains that the Treasurer does have the right to determine refund claims because the duty to collect the innkeeper’s tax necessarily includes the duty to refund the tax. (See Hr’g Tr. at 23-24.) Blue Chip argues that to find otherwise creates an absurdity in that the Treasurer “ha[s] the authority to take Blue Chip’s money but then lack[s] the authority to give it back when Blue Chip overpa[ys].” (Hr’g Tr. at 24.) This argument, however, is unavailing for three reasons. [ILB: see pp. 6-9] * * *

For the reasons stated above, the Court DISMISSES Blue Chip’s appeal for lack of subject matter jurisdiction. Accordingly, all pending motions, including the Motion to Strike Errata Sheet and Supplemental Affidavit of Blue Chip’s Witness Sara Ellis made by the Visitors Bureau are hereby deemed MOOT.

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

Ind. Gov't. - “Soldier Girls: The Battles of Three Women at Home and at War”

A review by Maureen Groppe, Star Washington Bureau, of the book titled “Soldier Girls: The Battles of Three Women at Home and at War,” is on the front page of today's Indianapolis Star.

I read this book early in January and recommended it to friends, writing quickly:

It is about three women from the Evansville area. Interesting look at Nat'l Guard women who enlisted for the promise of education, the $$, promises of only a few weeks a year of service -- then 9-11 happened.
Groppe today writes a more in-depth review:
The book, written by journalist Helen Thorpe and published last year, follows the Indiana women through their enlistment, training, deployments and difficult re-entries into civilian lives.

“I had one main question in my mind when I began,” Thorpe said. “And that was, ‘Why do veterans sometimes struggle to return home?’ I specifically went looking for people who could help me understand what that struggle was about.”

That struggle, at least for the women profiled, included some unflattering behaviors. There was abuse of alcohol and prescription drugs, as well as extramarital affairs — including with officers. * * *

The stories told in the book can be helpful in understanding at least some of the general struggles of veterans.

That’s particularly important in Indiana, which had more members of its National Guard deployed in 2009 than any other state. The 3,400 Indiana soldiers who went to Iraq in 2008 represented Indiana’s largest single deployment since World War II.

My take-away from the book was a much better picture of the backgrounds of some of the women who enlist in the Guard, and how deployment, sometimes multiple deployments to the Middle East, impacted their lives and those of their families for the long-term.

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

Ind. Gov't. - Reports on yesterday's hearing on "religious freedom" bill

Updating this ILB post from yesterday, here are some quotes from press reports of the hearing:

"House panel votes for 'religious freedom' bill," Nili Kelly, Fort Wayne Journal Gazette:

The House Judiciary Committee on Monday voted 9-4 in support of a controversial "religious freedom" bill.

Senate Bill 101 says a state or local government action cannot substantially burden a person's right to the exercise of religion. But it isn't an automatic win for someone who would sue under the statute.

A judge would still have to determine that the action was essential to a compelling government interest and it was achieved in the least restrictive way. * * *

Opponents believe the law can be used to discriminate against Hoosiers -- especially gays and lesbians.

Sexual orientation is not a state-protected class, but 12 Indiana cities -- including Fort Wayne -- have their own human rights' ordinances that protect gays. These local laws generally prohibit a business from discriminating in employment, housing and public accommodations.

Indiana University Professor of Law Robert Katz said Indiana's Constitution has a stronger protection than the federal constitution and the bill is unnecessary.

And he urged lawmakers to insert one line making clear the bill would not supersede state and local civil rights protections.

"The problem is what this bill doesn't say," Katz said. "It doesn't say the protection of civil rights is a compelling interest. Why doesn't this bill itself provide an exemption for anti-discrimination laws?"

"Why, again, do we need a religious freedom bill?," Erika Smith, Indy Star:
[I]nside the House chamber, Democrats asked whether businesses could be sued for firing employees who refuse to do their jobs for religious reasons.

Republicans, meanwhile, stayed the course about Indiana needing the bill to protect the right of business owners who don’t want to make cakes or take photos for gay couples who are getting married. Never mind the law professor who warned that “the odds of success for the religious objector are slim, but not impossible,” and even with a religious freedom law on the books, “discrimination just for the sake of discrimination will not be tolerated.”

Then there was the bill’s sponsor, Rep. Tim Wesco, who argued that Indiana needs the bill to protect churches like one in Goshen that is pushing to expand into a largely retail district.

“The board of zoning appeals should not discriminate against that church simply because they’re religious,” he said.

Other supporters said the bill would protect pharmacies that don’t want to sell morning-after pills and Muslim women who want to wear hijab head-coverings despite bans on wearing hats in a classroom. A monk said the bill would help prevent the United States from going down the same slippery slope as Cuba, where he had to flee religious persecution. * * *

Perhaps Cummins Inc.’s Marya Rose put it best when she reminded lawmakers about the two “very smart” attorneys who predicted that the bill would do very different things.

“Maybe we don’t really know,” she told the committee. “How’s a business to know?”

"‘Religious freedom' legislation passes House committee," Chelsea Schneider, Evansville C&P:
Opponents argue the proposal doesn't adequately protect civil rights and the legislation is unnecessary because religious protections already exist in state law.

Robert Katz, an Indiana University law professor, asked lawmakers to add anti-discrimination language to the bill.

"The problem here is what this bill doesn't say," Katz said. "It doesn't say that the protection of civil rights is a compelling governmental interest … that is what is so disconcerting to people who are concerned about the protection of their civil rights."

With same-sex marriage now legal in Indiana, the state is one of a handful in the country where same-sex couples are allowed to marry but no statewide non-discrimination law exists. That's led some to fear the state adopting the measure could lead to businesses denying services to gays or minorities based on religious beliefs.

"House panel OKs 'religious freedom' proposal on party-line vote," Dan Carden, NWI Times:
Fear that state courts may not be sufficiently enthusiastic for the Indiana Constitution's multiple guarantees of religious liberty helped propel House committee approval Monday of a "religious freedom restoration act."

Senate Bill 101, which opponents claim is a license to discriminate under the guise of religion, passed the House Judiciary Committee 9-4, * * *

The measure exempts individuals, including businesses, from state laws and local ordinances if a person claims the law violates his or her religious beliefs -- unless the government can show the burden is the least restrictive way to further a legitimate government interest, such as public safety.

The committee changed the Senate-approved text, which also passed on a party-line vote, 40-10, to bar religious freedom lawsuits by employees against their employers for workplace sanctions imposed, for example, if a Christian electrician refused to repair a mosque's generator or a male worker rebelled at having a female supervisor.

Supporters of the revised legislation, particularly state Rep. Tim Wesco, R-Osceola, the sponsor, argued it brings needed clarity to the standard courts must use in judging whether a government action infringes on religious liberty by requiring the strictest possible scrutiny.

However, proving the maxim that all politics is local, Wesco said he was drawn to the issue after he learned a church in his district might be prohibited from relocating to downtown Goshen because the area is zoned commercial, and neighboring businesses are concerned a storefront church will create a dead zone six days a week in what is supposed to be a retail area.

"The Board of Zoning Appeals should not discriminate against that church simply because they are religious," Wesco said.

Opponents of the measure said its requirement that anti-discrimination, and all other Indiana laws and local ordinances, must specifically be exempted to avoid being subject to religious freedom challenges implicitly authorizes discrimination in the name of religion.

"Indiana House panel OKs religious freedom bill," Tony Cook and Stephanie Wang , Indianapolis Star:
The vote followed four hours of testimony, which included dueling speeches from law professors and conflicting testimony from religious leaders on both sides of the issue.

Tim Overton, a Southern Baptist pastor from Muncie, said the law is needed to protect people who strictly interpret the Bible.

"People that have my approach toward scripture are much more worried about government because we can't bend our religious beliefs," he said.

Daniel Conkle, a law professor at Indiana University's Maurer School of Law, said the measure would provide judges with clearer guidance in resolving disputes over religious freedom.

He said concerns about discrimination were overblown based on the experiences of 19 other states with similar laws, though he conceded it is possible that a judge could rule in favor of a business owner who denies wedding services to a gay couple.

Robert Katz, a law professor at Indiana University's Robert H. McKinney School of Law, said the bill has a lethal flaw because it could undermine local ordinances in Indianapolis and several other Indiana cities that prohibit discrimination based on sexual orientation.

"Why doesn't this bill itself provide an exemption for anti-discrimination laws?" he said. "It's the absence that itself sends a message."

Several large Indiana employers — including engine maker Cummins and healthcare provider Eskenazi Health — voiced concerns about the measure's impact on their businesses.

Jessica Barth, Eskenazi's vice president of legal affairs and chief counsel, said the hospital fears employees might think they don't have to provide care to a patient if they feel it violates their religious views. * * *

The battle over the bill is increasingly mirroring last year's fight over a proposal that would have banned same-sex marriage in Indiana's constitution.

Until Monday's hearing, opponents of the religious freedom bill lacked a significant presence at the Statehouse. But after the measure cleared the Senate last month, many who opposed the same-sex marriage ban last year re-united to oppose this year's religious freedom legislation.

Freedom Indiana, the coalition that successfully stalled the marriage amendment last year, rallied against the religious freedom bill, packing the House gallery with opponents wearing red T-shirts.

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

Monday, March 16, 2015

Ind. Courts - Complying with the revisions to Administrative Rule 9 - Q & A #6

[The ILB has created a new category, "Adm. Rule 9 Questions," which will give you direct access to all the Q&A on this topic.]

Question: A question has arisen about GAL [Guardian Ad Litem] reports being filed on green paper as a matter of course in adult guardianships. I think that's improper. I could see where portions of the report may need to be redacted for account numbers, or certain pages on green paper if specific medical records are discussed. But the practice of always filing the entire report on green paper seems to have no basis other than it discusses what we all might consider "private" information.

Maggie Smith (Frost Brown Todd LLC, who serves on the Court's Committee on Rules of Practice and Procedure) responds:

Answer: I agree with you. The confusion is likely because the confidentiality of GAL reports depends on the proceeding in which the GAL (or CASA (“Court Appointed Special Advocates”)) reports are being offered. So if parties are used to reports being confidential in some contexts (juvenile and child abuse cases), they likely don’t realize that the reports are not confidential in other contexts.

For example:

Posted by Marcia Oddi on Monday, March 16, 2015
Posted to Adm. Rule 9 Questions

Ind. Courts - Judicial Center's Legislative Update: 10th weekly installment

Here is the tenth weekly installment of the Legislative Update for the 2015 legislative session. This was the second week for bills to be considered in the 2nd house committee.

Posted by Marcia Oddi on Monday, March 16, 2015
Posted to Indiana Courts

Ind. Courts - More on: 7th Circuit Judge Posner "rips colleagues, immigration courts, backs Chicago cabbie"

Updating this March 7th ILB post, How Appealing last Thursday reported:

Yesterday, the U.S. Court of Appeals for the Seventh Circuit reissued its decision in the case because Circuit Judge Richard A. Posner has amended his scathing dissenting opinion.
The March 13 order reads:
IT IS ORDERED that the amended dissenting opinion issued on March 13, 2015, is SUBSTITUTED for the dissenting opinion issued on March 4, 2015, which is now WITHDRAWN. No change has been made to the majority opinion.
Posner's amended dissent starts on p. 15 and continues to p. 33. The original opinion was also 33 pages long...

Posted by Marcia Oddi on Monday, March 16, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 2 NFP memorandum decisions)

For publication opinions today (3):

In Redevelopment Commission of the Town of Munster, Indiana v. Indiana State Board of Accounts and Paul D. Joyce, State Examiner of State Board of Accounts, a 14-page opinion, Judge Mathias writes:

The Munster Redevelopment Commission (“the Commission”) appeals the Lake Circuit Court’s order entering summary judgment in favor of the Indiana State Board of Accounts (“the Board”) in which the trial court determined that Indiana Code section 36-7-14-28 does not permit the Commission to use tax incremental financing funds to pay for the ongoing maintenance of redeveloped properties. * * *

For all of these reasons, we conclude that the Commission had standing to bring its declaratory judgment. We further conclude that the trial court did not err in determining that Indiana statute does not permit the use of TIF funds for the continued maintenance of completed redevelopment projects.

In In the Matter of the Termination of the Parent-Child Relationship of: D.P. and D.P.E. and J.P. (Mother) v. Ind. Dept. of Child Services, a 13-page opinion, Judge Bailey writes:
J.P. (“Mother”) appeals the trial court’s order granting the petition of the Department of Child Services (“DCS”) to terminate Mother’s parental rights as to D.P. and D.P.E. (“the Children”). Mother raises two issues for our review, which we reframe as a single issue: whether the trial court deprived Mother of due process of law when, in Mother’s absence and without representation of counsel, it converted the nature of the proceedings and then terminated her parental rights. Finding this a deprivation of due process guarantees, we reverse. * * *

And while DCS regards Mother’s failure to seek counsel as a matter of little moment—or even as waiver—under the totality of the circumstances, we cannot agree. As in both A.B. and Thompson, Mother was denied a meaningful opportunity for cross-examination, presentation of evidence, and indeed—unlike both A.B. and Thompson—representation of counsel. This is particularly worrisome given DCS’s knowledge of Mother’s apparently significant learning and cognitive problems, and the placement of the Children in a stable foster home where the foster parent intended to adopt the children.

The magnitude of Mother’s parental rights and the risk of error in the State’s procedural approach in this case outweigh the State’s interests in its chosen procedural path. See C.G., 954 N.E.2d at 917. Both constitutional and statutory guarantees were transgressed. Accordingly, we cannot conclude that Mother’s due process rights received adequate protection in this matter. We therefore reverse the trial court’s order terminating Mother’s parental rights, and remand for further proceedings.

In Johnnie M. Trout Jr. v. State of Indiana, a 9-page opinion, Chef Judge Vaidik writes:
According to Indiana Code section 35-38-9-3(b)(3), a person is ineligible for mandatory expungement of their criminal records if they are “convicted of a felony that resulted in bodily injury to another person.” Johnnie M. Trout Jr. filed a petition to expunge records of his Class D felony convictions for criminal recklessness with a deadly weapon and pointing a firearm, and the trial court denied his petition. The trial court reasoned that although Trout was not convicted of a felony that resulted in bodily injury to another person, it could not “turn a blind eye” to the fact that Trout was acquitted of attempted murder for shooting and injuring someone during the same incident.

According to the plain language of the statute, the felonies that Trout was convicted of must have resulted in bodily injury to another person. However, the record shows that neither of his convictions resulted in bodily injury to another person. Therefore, these convictions do not disqualify Trout from mandatory expungement according to Section 35-38-9-3(b)(3). We therefore reverse and remand this case.

NFP civil decisions today (1):

In the Matter of the Adoption of B.R. (Minor Child) R.R. v. D.S. and V.S. (mem. dec.)

NFP criminal decisions today (1):

Dennis Bretzlaff v. State of Indiana (mem. dec.)

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

Ind. Gov't. - "Lake, LaPorte County consortium says state was hostile to Indiana Toll Road bid" [Updated twice]

Carrie Napoleon reported in the Gary Post-Tribune in a story that begins:

An Indiana Finance Authority hostile to the idea of state control of the bankrupt Indiana Toll Roadis being blamed for the lack of consideration of the bid by the Lake and LaPorte counties consortium to acquire the toll road lease, consortium members say.

IFM Investors announced Wednesday it was chosen as the successful bidder for the toll road lease. The IFA approved the deal hours after the $5.725 billion bid was presented in federal bankruptcy court.

Shaw Friedman, LaPorte County attorney, said in a statement it should be clear "that IFA has been hostile to the County Consortium bid from day one and it appears they'd rather have excess revenues from the Indiana Toll Road lease go to an offshore hedge fund than be reinvested in Northwest Indiana for the next 67 years."

He said county consortium members were treated in a fairer fashion in the bidding process by the UBS, the bank charged with administering the sale, and the New York-based Special Creditors' Committee than by the Indiana Finance Authority, "which has been unremittingly hostile to the notion of a public bid from the outset."

"The outrageous written questions IFA generated last week to the County Consortium were further evidence of that, and the fact the agency issued a press release rubber-stamping the IFM deal within hours of the announcement today without seeking to leverage their approval for any benefits to the state or our counties is further evidence of their bias, predisposition and hopeless incompetence," Friedman wrote in an email.

IFA spokeswoman Stephanie McFarland disputes that account. She said in statement Friday the U.S. Bankruptcy Court approved the process by which a new toll road operator would be selected.

McFarland said that as part of the court-approved selection process, IFA and its team of legal, financial and engineering experts provided input on all of the proposals presented and "prequalified" viable bids to move forward in the process.

"Mr. Friedman's bid was among those prequalified to move forward for consideration as a viable option," she said.

This March 9th ILB post collects some earlier stories.

[Updated March 18th]
Keith Berman of the NWI Times had a related story March 17th headed "Counties made Toll Road pitch in NYC."

Berman has a story today headed "Indiana Toll Road execs to share $2.45 million bonus," that begins:

The rich price fetched last week for the Indiana Toll Road means the top five executives of its bankrupt operator should be sharing a $2.45 million bonus pool as a reward for their services.

ITR Concession Company CEO Fernando Redondo and the four executives under him will receive the money when IFM Investors closes on its $5.72 billion offer for the road, under the terms of an order issued in January in U.S. Bankruptcy Court. The closing is expected within months.

The order for the payout was issued by Judge Pamela Hollis after the special committee overseeing the sale submitted a motion to provide incentives for top Toll Road executives helping to market the road.

[Updated again on March 18th] A reader points to this quote later on in today's story:
The filing of the incentive plan motion in early January offered the first glimpse of the rich price expected by those conducting the bidding. The price offered by IFM and accepted last week in a definitive purchase and sale agreement is $1.92 billion more than the road fetched just nine years ago when the lease was auctioned off by the state of Indiana.

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

Ind. Courts - "Veterans court could come to Tippecanoe County"

Steven Porter reports today in the Lafayette Journal & Courier:

Posted by Marcia Oddi on Monday, March 16, 2015
Posted to Indiana Courts

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

Here is the Clerk's transfer list for the week ending Friday, March 13, 2015. It is 3 pages (and 26 cases) long.

One transfer was granted last week:

Transfer was denied in Terry L. LaCroix v. State of Indiana, by a vote of 3-2. Rush, C.J., and David, J., voted to grant the Petition to Transfer. In all other cases, all justices concurred.

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

Ind. Gov't. - Hearing on "religious freedom" bill this morning at 9:30 AM

The House Judiciary Committee public hearing on SB 101, the "religious freedom" bill, begins at 9:30 this morning in the House Chambers. You will be able to watch here.

The ILB has had a number of earlier posts about this bill.

Most stories about the proposal say it has already been enacted by the federal government and 19 states. It may be instructive to actually compare SB 101 with the federal Religious Freedom Restoration Act (RFRA).

Dan Carden of the NWI Times, in a story March 13th, provides a link to the Illinois RFRA. Here are some quotes from his story:

The measure, which cleared the Republican-controlled Senate last month on a 40-10 party-line vote, exempts individuals, including businesses, from state laws and local ordinances if a person claims the law violates his or her religious beliefs -- unless the government can show the burden is the least restrictive way to further a legitimate government interest.

Backers of the proposal, which already has been enacted by the federal government and 19 states, including Illinois in 1998, argue it shields believers by requiring government to justify any imposition on an individual's religious beliefs.

Critics of the legislation, which comes on the heels of gay marriage being legalized in the state, say it provides business owners permission to discriminate against homosexuals and others.

House Speaker Brian Bosma, R-Indianapolis, said he expects the measure -- which he supports -- will proceed through the normal House committee process.

Last year, Bosma yanked House Joint Resolution 3, a proposal to add the state's now-invalidated law banning gay marriage to the Indiana Constitution, from the Judiciary Committee and put it in the Elections Committee when it appeared the constitutional amendment might not advance to the full chamber.

Bosma hinted this year's legislation may be altered by the Judiciary Committee to deny employees the right to sue their employers for claimed religious freedom violations.

That would limit lawsuits under the measure to only government actions affecting religion.

He said that change likely will eliminate opposition to the proposal by many business groups, including the Indiana Chamber of Commerce.

Here is Dave Bangert's March 14th column in the Lafayette Journal & Courier. A quote:
The bill would offer a separate line of defense for courts to consider, saying that the state would need a "compelling governmental interest" before it could "substantially burden" the personal exercise of religion.

It's modeled after a federal law, passed in 1993 and used most recently by Hobby Lobby to successfully protest employee health care coverage for certain forms of contraception demanded in the Affordable Care Act. The federal law stopped covering states after a 1997 U.S. Supreme Court ruling. Since then 19 states have adopted their own versions. * * *

Some cracks have started to show since the Senate voted on Feb. 24.

The Indiana Chamber of Commerce came out last week against SB 101. Cameron Carter, the Indiana Chamber's vice president of economic development and federal relations, told John Ketzenberger in an Indianapolis Star column that the business group was concerned about two things: 1. Litigation that was bound to follow. 2. Lost opportunities from businesses and talent seeing Indiana as a less-welcoming place.

"We think it could damage the Indiana brand, if you will," Carter told Ketzenberger.

In a letter to the House Judiciary Committee, 30 law school professors from across the country — including 12 from Indiana University — warned that SB 101 "would amount to an over-correction in protecting important religious liberty rights, thereby destroying a well-established harmony struck" with other rights in the Indiana Constitution and Indiana Code.

Their prediction if the Religious Freedom Restoration Act goes through in Indiana: The rise of "private actors, such as employers, landlords, small business owners or corporations, taking the law into their own hands and acting in ways that violate generally applicable laws on grounds that they have a religious justification for doing so. … As we have learned on the federal level, RFRAs do not 'open the door' to conversation, but rather invite new conflict that takes the form of litigation."

Chelsea Schneider of the Evanville Courier & Press had this commentary Sunday - some quotes:
Opponents have argued the proposal is broadly written and could have unintended consequence, especially for the LGBT community, and could place in jeopardy local ordinances, such as the city of Evansville's which offers protections based on sexual orientation and gender identity in matters of education, employment, access to public accommodations and housing.

Supporters say it offers a state-level protection, akin to the federal Religious Freedom Restoration Act, which asserts people's rights to practice their religion without substantial burden by government. Both groups plan to rally Monday at the Statehouse. * * *

[T]he Indiana Chamber of Commerce has come out in opposition against the bill because of the potential affect it could have on employers.

"From the employer perspective, the greatest concern is the potential for lawsuits. It puts employers in the difficult position of determining the legitimacy of an employee's religious belief claims. That's not something employers want or should have to do because it would subject them to unwarranted, costly and time-consuming litigation," said Kevin Brinegar in February when the Senate weighed "religious freedom" legislation.

Freedom Indiana released a legal analysis last week stating the legislation could shift "legal burden to third parties, including businesses…"

"Yet, rather than advancing reasonable concerns about religious freedom, the proposed Religious Freedom Restoration Act is more a solution in search of a problem, or worse, if passed will create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state's ability to enforce other compelling interests," according to letter sent by a group of 30 law professors.

However, supporters of the bill have maintained it deals with the relationship between people and their government, and not private groups.

One of the bill's sponsors, state Rep. Tim Wesco (R-Osceola), said the legislation sets the standard that government must have a compelling interest to burden someone's religious beliefs.

"I think the bill is very clear that it allows for a defense against any party but only a claim with allowable relief against a government entity," Wesco said. "I think there's going to be a lot of discussion surrounding that."

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

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

From Sunday, March 15, 2015:

From Saturday, March 14, 2015: From Friday evening, March 13, 2015:

Posted by Marcia Oddi on Monday, March 16, 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 3/16/15):

Monday, March 16

Thursday, March 19

Next week's oral arguments before the Supreme Court (week of 3/23/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/16/15):

Wednesday, March 18

Next week's oral arguments before the Court of Appeals (week of 3/23/15):

Monday, March 23

Thursday, March 12

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, March 16, 2015
Posted to Upcoming Oral Arguments

Sunday, March 15, 2015

Ind. Gov't. - More on: Changes to limit public access to records law buried within massive "Education deregulation" package

The March 13th USA Today has a different version of the AP story I quoted in this earlier post today. It is headed "Cost-related FOI issues, solutions in 18 states." The section about Indiana is more extensive. Here it is, I have added some emphasis:

Indiana lawmakers are considering a bill that — on the surface — aims to simplify school management by cutting obsolete or duplicate regulations in education. But hidden within the bill -- which is more than 270 pages long -- are major changes to how public records are handled by all types of public agencies, not just schools, sparking mixed reviews from open-record advocates.

The state Senate voted 31-18 in favor of the proposal, sending it to the House. The bill would allow government entities to charge a searching fee for records requests that take longer than two hours to fulfill. After that time, an agency could charge up to $20 an hour and require payment up front.

The search time would not include time spent redacting confidential information, but opponents such as Gerry Lanosga, president of the Indiana Coalition for Open Government, said the fee will discourage more in-depth record requests and give officials another tool to fight transparency.

However, the bill would allow someone to receive records that already are in an electronic format via email. Under current law, an agency can refuse to send electronic copies, forcing a requester to pick up records in person and pay the copying fee.

The Hoosier State Press Association says the benefit of getting records in an easy format outweighs the potential negatives of a search fee; the organization has not opposed the bill.

HSPA Executive Director Steve Key said he doesn't believe the fee will deter someone from making a large request, but said it could "discourage fishing expeditions where you just want to go through and find everything."

More specific requests would save time and improve the process for both sides, he said.

The ILB certainly agrees with Indiana Coalition for Open Government. The Hoosier State Press Association is supporting this bill again this year, but it is not that group's role to represent or speak for the interests of the Indiana public.

Here are the ILB's notes after reading the relevant provisions of SB 500, which differ at only one point* from last year's bill.

SECTION 13 [see p. 14 of SB 500] amends IC 5-14-3-3 (which is the section of the public records law that provides the right to inspect and copy public records) by adding a new subsection (i) [p. 16, lines 28-34] that says, to paraphrase:

If a public record [other than one in a county recorder's office] is already in an electronic format, the person making the request may ask for and be provided either the electronic version, or a paper version, at the person's option. But then it has a contradictory statement: "This subsection does not require a public agency to change the format of a public record."

I read this to mean an agency does not have to scan a paper document (put it into electronic format) in order to email it to you. And that if you are at the agency and the document is electronic, the agency does not have to print it out for you.

SECTION 14 [at p.16] amends IC 5-14-3-8, the law that currently sets restrictions on when, and how much, the public can be charged for access to public records. The amendment at the end of p. 16 and the beginning of p. 17 would specify that an agency could not charge for a search under 2 hours. Also [p. 15, line 5-10], an agency could not charge "to transmit an electronic copy of a public record by electronic mail."

But there are several exceptions; and I think the one in line 10 is significant: the agency may charge a fee for a public record transmitted by electronic mail if the fee for the public record is authorized under "(B) section 6(c) of this chapter."

That would be IC 5-14-3-6(c) of the current law [see it here, at p. 26] , which says that if a public record contains disclosable and nondisclosable information:

(c) A public agency may charge a person who makes a request for disclosable information the agency's direct cost of reprogramming a computer system if:
(1) the disclosable information is stored on a computer tape, computer disc, or a similar or analogous record system; and
(2) the public agency is required to reprogram the computer system to separate the disclosable information from nondisclosable information.
So what is meant by "reprogram"? Does that mean simply devising and running a search to locate specified emails? And isn't it a given that most public record collections, such as email messages, might contain some "nondisclosable information" such as social security numbers, birth dates, or even email addresses, which would need to be excluded, and could be by a standard sort?

The SECTION 14 amendment continues on to p. 19, where it adds a new subsection (l) at the end of IC 5-14-3-8, detailing the restrictions an agency is under in its charges for searches of over two hours. Some of the language here would be commendable, IF you were to accept the premise of this bill. For instance:

A public agency may not charge for computer processing time and may not establish a minimum fee for searching for a public record. A public agency must make a good faith effort to complete a search for a public record within a reasonable time in order to minimize the amount of a search fee. The fee shall be prorated to reflect any search time of less than two (2) hours.
Presumably that last sentence means that if a search lasts 2 hours and 15 minutes, the person will be charged only for the 15 minutes.
___________
* This year's version is different in one regard from last year's (HB 1306-2014). This year's bill does not include the addition of a new IC 5-14-3-8(b)(6) [see p. 10 of the PDF, line 1-4] which provides that a public agency may not charge any fee: (6) For a person (not including a commercial entity) to use a cellular telephone to copy a public record for a noncommercial purpose, if the public record contains the person's name.

Posted by Marcia Oddi on Sunday, March 15, 2015
Posted to Indiana Government

Ind. Gov't. - Changes to limit public access to records law buried within massive "Education deregulation" package

As detailed in this long ILB post from Feb. 27, 2014, for the past two years the General Assembly has stopped short of enacting legislation that would, as Margaret Fosmoe reported last year in the South Bend Tribune:

... allow government agencies to charge a fee to members of the public, the media and anyone else for a public records request that takes more than two hours to fulfill. The measure would allow a governmental office to charge the hourly salary of the employee handling the search or $20 per hour, whichever is less.
The 2014 bill was House Bill 1306. The year before, 2013, it was HB 1075.

This year, the language is buried within the massive SB 500. The main change is in SECTION 14, which would amend IC 5-14-3-8. It begins on p. 16 [PDF paging], line 35, and appears identical to last year's language. SECTION 12, p. 10, amends IC 5-14-3-2 and SECTION 13, p. 14, amends IC 5-14-3-3.

The language changing the public records law has been in the bill since introduction, a bill which the synopsis labels "Education deregulation." The changes to the public records law, however, would apply across-the-board, and this inclusion might be called log-rolling by some.

The ILB was alerted to this stealth amendment by a brief AP story today in the $$ Bloomington Herald-Times.

But Friday Michael Felberbaum of the AP had a national story that began:

RICHMOND, Va. (AP) — The public's right to see government records is coming at an ever-increasing price, as authorities set fees and hourly charges that often prevent information from flowing.
The article surveys the status of the law across the country. Deep into the story is the reference to Indiana that was the likely source of today's Herald-Times story:
An Indiana proposal would allow a searching fee for record requests that take longer than two hours to fulfill. After that time, an agency could charge up to $20 an hour and require payment up front. The search time would not include time spent redacting confidential information, but opponents said the fee will discourage more in-depth records requests and give officials another tool to fight transparency.
AP writer Lauryn Schroeder in Indianapolis, is identified as one of the contributors to the story.

An editorial today in the South Bend Tribune, "Why we fight to shine a spotlight," notes that this upcoming week is Sunshine Week and concludes:

Thanks to open records laws, The Tribune last year examined how South Bend police officers were handing tickets, complete with fines and court costs, to school students — some as young as 10 — for unruly behavior. And we showed how hundreds of those students had their driving privileges wrongly suspended because of the tickets. In 2011, after the torture death of 10-year-old Tramelle Sturgis, public records showed how sweeping DCS changes had undermined the safety of Indiana’s children. In 2008, public records helped us prove that local officials had used forgery and dishonesty to place presidential candidates on the Indiana primary ballot.

They were all examples of why public records laws are important. My goal is to have The Tribune remain vigilant, fighting for your right to know. Sunshine Week serves as a good reminder of our mission. It also reminds us that we — and you — need to ensure that those laws are never weakened and remain an integral part of our democracy.

Posted by Marcia Oddi on Sunday, March 15, 2015
Posted to Indiana Government

Friday, March 13, 2015

Ind. Gov't. - More on bill proposing changes to the 2009 mortgage settlement conference law

A story late this afternoon by John Russell of the Indianapolis Star throws more light on the furor surrounding provisions in the current version of SB 415, which its digest now identifies as "Vacant and abandoned housing and mortgage servicing." It started out as simply "Vacant and abandoned housing," a 40-page bill authored by Sen. Merritt.

The Senate Local Government Committee, on Jan. 28, adopted a lengthy amendment (#1) re "mortgage servicing" that repealed much of IC 32-30-10.5, the chapter of current law titled "Foreclosure Prevention Agreements for Residential Mortgages." The changes made by the committee amendment can be seen in the Jan. 30th printing of the bill; they start on p. 53 (PDF numbering) and continue through p. 65.

What isn't revealed by the online bill history is who offered Committee Amendment #1, the changes that started all this. But Russell's story today answers that:

The problem cropped up with Sen. Karen Tallian, D-Portage, introduced an amendment dealing with mortgage settlements. Tallian is a longtime advocate for homeowner rights and was the main sponsor of the current law requiring mortgage lenders to hold conferences with distressed lenders.

Tallian [who was not a member of the Local Government Committee] said her amendment was meant to reconcile state law on foreclosure rights with a newer federal law, the Dodd-Frank Wall Street Reform and Consumer Protection Act.

Russell's story continues:
Her amendment quickly ran onto the rocks. As originally written, it would have completely scrapped a homeowner’s right to have a settlement conference with the bank, overseen by a judge.

Housing advocates and legal experts saw the first version of the bill [i.e. the Jan. 30th printing] and began raising the alarm.

“It essentially gutted the entire law,” said Chase Haller, an attorney for the Neighborhood Christian Legal Clinic, the agency that helped Keefe save his Southside house by mediating an agreement with his mortgage lender.

Last month, Tallian acknowledged her amendment was poorly written. She blamed it on a misunderstanding with the Indiana Legislative Services Agency, a state agency that researches and drafts bills.

“We made a little error when we drafted the bill,” she told The Star last month. “Judges were saying, ‘We’ve been thrown out of the conference procedure.’ But that’s not what we intended to do.”

Tallian said she was simply trying to reconcile differences between the state and federal laws on mortgage settlements. State law requires banks to offer a settlement conference, under court supervision, after filing a foreclose notice, in an attempt to find a solution to let a homeowner keep his or her house.

Federal law requires big banks to contact homeowners in advance of a foreclosure, and let them know what their loan-modification options are. The banks governed under federal law can’t file for foreclosure unless the borrower is 120 days or more delinquent.

So Tallian tried again, with her 2nd reading amendment on Feb. 10th. As the ILB has written in several recent posts, including this one from March 8th, and as Russell writes today:
In February, Tallian rewrote her amendment to restore the court-supervised settlement conferences. But she said they wouldn’t apply to big banks that are subject to federal regulations adopted under the Dodd-Frank law.

That language was supported by the Indiana Mortgage Bankers Association, a trade group that represents hundreds of mortgage lenders around the state. They say mortgage lenders should not have to deal with two different systems. Going through two processes is expensive, time consuming and unnecessary, the association said.

“The federal system was drafted by the Consumer Financial Protection Bureau and is much more comprehensive in its requirements than the current state requirements,” Tom Dinwiddie, a lawyer for the mortgate bankers group, wrote in an email.

The Indiana Senate unanimously passed the bill on Feb. 17, with Tallian’s rewritten amendment. [here is the Feb. 17th reprinting]

But that did not end the controversy. "For now the stance of the Attorney General and IACED (Indiana Association for Community Economic Development) is to leave the current foreclosure conference law as is," as the ILB wrote at the end of this March 10th post. From Russell's story:
“Lawmakers should remove this offensive amendment from the bill and shelve the amendment permanently, and allow settlement conferences to continue,” Zoeller said in a statement.

He pointed out that even though the bill’s supporters claim the state and federal laws overlap and are unnecessarily time-consuming, the federal protections are not enough for Indiana homeowners. The federal protections occur before a house goes into foreclosure and don’t give homeowners a final opportunity to save their homes after foreclosure begins. * * *

In response to Zoeller’s criticism, Tallian said Friday she would meet with bankers next week to take another look at the language.

Merritt, the main sponsor of the bill, said he planned to meet with Zoeller’s office. “If what we have is incorrect or wrong, we will amend it out of the bill,” Merritt said. “I’m very open to getting this right.”

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

Ind. Courts - "Prosecutors won't seek charges against DCS, Damar in young woman's death"

Marisa Kwiatkowski has the story this afternoon in the Indianapolis Star. The subhead: "A Department of Child Services employee and two Damar Services workers visited an Indianapolis home six days before a paralyzed young woman died but did not report concerns about her well-being." Some quotes from the sad story:

Marion County prosecutors will not pursue criminal charges against the Department of Child Services employee and Damar Services workers who visited an Indianapolis home six days before a young woman died yet did not report concerns about her well-being, a spokeswoman said.

Linda Kelley died Aug. 4 in a filthy, cluttered home with blackened bedsores covering much of her lower body. Some were so deep they exposed the 18-year-old's bone and organs.

On the day she died, her parents' house was littered with dog feces, cigarette butts, trash bags, soiled adult diapers, empty pop cans and other items. Bugs crawled on the refrigerator.

In September, after seeing pictures of Linda and the home, Marion Juvenile Court Judge Marilyn Moores said she could not understand how the workers visiting only six days earlier could submit positive reports on the conditions there.

Two DCS employees were fired for failing to protect Linda, who had entered the DCS system as a child and turned 18 shortly before her death. DCS officials also canceled the agency's home services contract with Damar, citing "termination for endangering life, health or safety of any person."

But those employees' conduct did not constitute a crime, said Peg McLeish, spokeswoman for the Marion County prosecutor's office.

"We were not presented with information that would rise to the level of criminal charges against DCS or Damar Services employees," McLeish said in an email. "The parents had the actual physical custody and care of Linda." * * *

Linda Thatcher, who teaches students with significant disabilities in Indianapolis Public Schools, said she and others in the district repeatedly expressed concern about Linda's well-being to officials with DCS and Damar Services. She said they filed multiple reports in the two years before Linda's death, but officials wouldn't listen.

"We knew it was ungodly," Thatcher said.

The ILB asked Prof. Schumm about the decision:
I'm a little surprised by the conclusion that there was not probable cause to pursue any charges, even a violation of the duty to report child abuse under Indiana Code section 31-33-5-1. One would think that a DCS employee would be held to at least as high of a standard as the principal in Smith.
Christopher Smith v. State of Indiana was a 2014 opinion of the Supreme Court.

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

Ind. Gov't. - More on: Public Access Counselor takes West Lafayette School Corp. to the woodshed

Updating this ILB post from March 6th, Dave Bangert of the Lafayette Journal Courier wrote a very good column on the same PAC opinion on March 11th. Worthy of a full read; here is a quote:

What follows is a real case study still working itself out in West Lafayette, all hinging on this question:

Did West Lafayette schools really need to put $5,500 worth of legal fees into vetting a series of public records requests for school board agenda items, and a recording of a December school board meeting?

Even after a withering, though non-binding advisory opinion issued last week by Indiana' s public access counselor — the district was taken to the woodshed, as the Indiana Law Blog put it, for trying to "frustrate access" — Superintendent Rocky Killion was willing to make a case that the district was justified.

Here's the situation. You decide.

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

Ind. Decisions - 7th Circuit decides one Indiana case today, vacated in part

In USA v. Booker Sewell (ND Ind., Springmann), a 24-page opinion, Judge Kanne writes:

Following a thirteen-month investigation of a drug-trafficking network that stretched from Mexico to California to Indiana, the United States secured a warrant to search seven homes in Fort Wayne, Indiana. Appellant Booker T. Sewell stayed in one of those homes, located at Sawmill Woods Court. When a team of federal and local authorities arrived there, they soon discovered, among other items, 110 grams of marijuana, cutting agents for cocaine, a drug ledger, multiple scales, $19,900 in cash in the dishwasher, and a loaded revolver. The presentation of this evidence led to Sewell’s convictions and sentence, which he now appeals. Sewell raises four issues. He first argues that the search warrant was issued without probable cause. He next challenges the sufficiency of the evidence to sustain his conviction for being a felon in possession of a firearm. His remaining two challenges concern sentence enhancements applied by the district court. For the reasons expressed below, we affirm the judgment of the district court on each of the four issues raised by Sewell. In light of our recent decisions in United States v. Thompson, Nos. 14-1316, 14-1521, 14-1676, 14-1772, 2015 U.S. App. LEXIS 604 (7th Cir. Jan. 13, 2015), and United States v. Siegel, 753 F.3d 705 (7th Cir. 2014), however, we vacate Sewell’s conditions of supervised release and remand for resentencing.

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

Ind. Decisions- No opinions so far today from state appellate courts

Nothing today from the Court of Appeals, Tax Court, or Supreme Court, so far.

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

Ind. Gov't. - "Indiana pays $650,000 in Legal Fees to Marriage Law Challenges" - So far

That is the heading to this $$$ story from The National Journal today. Some quotes:

Indiana has agreed to pay $650,000 in legal fees to the lawyers who successfully challenged the state's same-sex marriage ban.

State officials negotiated an award of $325,000 to Kirkland & Ellis and $325,000 to Lambda Legal Defense & Education Fund. A spokesman for the state attorney general’s office said the payments have been made.

The Indiana settlement, announced on March 9, pushes the amount of money awarded by judges or negotiated through settlements in same-sex marriage cases in federal courts over $2 million. Some of those awards are still on hold pending appeals.

The ILB is checking into whether there weren't additional legal fees awarded to representatives of the plaintiffs in the three combined lawsuits, argued under the heading Baskin et al. v. Bogan.

[Updated at 1:54 PM] Here is what the ILB has learned so far:

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

Ind. Gov't. - "Cuomo’s Rule on Purging State Email Roils Albany"

That is the headline to a lengthy front-page NY Times story today, reported by Thomas Kaplan, about the e-mail retention policy followed by New York state government. According to the story, "Gov. Andrew M. Cuomo’s administration [has] put in place a policy of automatically deleting state workers’ emails after 90 days." Some quotes from late in the story:

The ubiquity of email has created a new set of challenges for officials and archivists alike, who, instead of filling cartons with written correspondence, must grapple with the virtual expanse of electronic communications that now course through sprawling bureaucracies.

States must figure out how to cull messages worth preserving from the large quantity of emails that often are ephemeral in nature, said Vermont’s state archivist, Tanya Marshall, who is president of the National Association of Government Archives and Records Administrators. “Part of the challenge with email is it’s such a large system that everybody partakes in,” Ms. Marshall said. “Different states have taken different strategies — or maybe no strategy.”

Aides to Mr. Cuomo argued that the state’s policy was being wrongly portrayed as nefarious, asserting that the emails whose content makes them qualify as government records will be properly retained. Bristling at the characterization of Mr. Cuomo as secretive, they also said similar policies existed in the corporate world and in other governments.

State officials have not offered a detailed rationale for the policy. Cost or physical limitations would not seem to be obstacles: Under the new email system, every state worker has a large amount of email storage. The main reason given for the policy, as Ms. Miller said in a statement, was to “increase efficiency.”

The bill proposed by Ms. Krueger and Mr. O’Donnell, who are Manhattan Democrats, would require emails to be preserved permanently for senior officials, in addition to the seven-year requirement for other state workers. Another Democrat, Assemblyman Jeffrey Dinowitz of the Bronx, introduced his own bill on Thursday that would require longer or permanent retention of email while forbidding the use of private email accounts for government business. The Senate majority leader, Dean G. Skelos, a Republican from Long Island, has said he would support legislation to change the email policy.

Here is the ILB's March 3rd post on Indiana's policies: "What is the state policy re email retention?" And here is the March 6th ILB post, headed " Is the General Assembly subject to the public records law?"

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

Environment - "Fracking is nothing new in Indiana. Frequent earthquakes would be."

That is the lede to this $$ story today in the Bloomington Herald-Times, reported by Lauren Slavin. It is accompanied by a great graphic, accessible here. A few quotes from the lengthy story:

Geologists and environmental activists have been raising concerns for years about increased hydraulic fracturing — called “fracking” for short — and other unconventional oil production methods in the United States. Hydraulic fracturing is the drilling and injection of fluid into the ground to create cracks in rock formations and release natural gas, oil and other energy-producing resources. * * *

“It’s not that the wastewater injection itself is producing the earthquake. It’s triggering an earthquake that might have happened anyway, and in some cases that could be a very large earthquake,” Hamburger said. “There are tens of thousands of wastewater injection wells in the country, and only a few are producing earthquakes. Unfortunately, we often only know that after they produce earthquakes.”

In an effort to mitigate that risk in Indiana, IU’s department of geological sciences, the Indiana Geological Survey and the state division of oil and gas are working together to create a comprehensive database of all the state’s injection wells and earthquake activity.

“We do have the ingredients for induced seismicity here. We have natural seismic activity; we have pre-existing faults that are under stress; we have injection of wastewater,” Hamburger said. “I don’t have much doubt that as the process continues, there’s increasing potential for this kind of thing here and in our neighboring states, so it’s something we want to be prepared for.”

Indiana is home to more than 77,000 wells, though not all are active. The majority of active wells are located in southwestern Indiana.

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

Ind. courts - Former Clerk Circuit Judge Jacobi reaches agreement with Judicial Disciplinary Commission

From this morning's news release:

The Indiana Commission on Judicial Qualifications and former Clark Circuit Court Judge Jerry F. Jacobi have reached a stipulation and agreement for resolution of investigation. The three-page document is a matter of public record and concludes the Commission's investigation into the former judge with the agreement he will not serve as a judicial officer in the future.

Neither complaints filed with the Commission nor Commission investigations are public record. However, under the terms of the agreement, Judge Jacobi waived certain confidentiality provisions related to the Commission investigation--allowing the agreement to be made public. The agreement is attached.

Judge Jacobi's term expired December 31, 2014. While he was still in office, the Commission began investigating allegations of misconduct involving supervision of the Clark County Drug Court. The Commission was investigating whether he failed to supervise and train staff which resulted in drug court participants spending additional time in jail, failed in certain instances to advise participants they had the right to an attorney, failed to train employees about their limitations on detaining participants, and failed to immediately schedule certain hearings.

Judge Jacobi fully cooperated with the investigation, which was not completed. In exchange for his agreement not to serve in any judicial capacity in the future, the Commission is closing its investigation into alleged ethical misconduct and making no statement on whether any violation occurred.

Here is the 3-page "Stipulation and Agreement for Resolution of Investigation."

The ILB has a long list of posts re the problems at the Clark Co. Drug Court.

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

Thursday, March 12, 2015

Ind. Decisions - 7th Circuit decides one today, on speedy trial

In USA v. Jackie Richardson (SD Ind., Pratt), a 25-page, with J.Posner writing for the majority, and J.Hamilton, starting on p. 13 of 25, concurring. Posner:

The Sixth Amendment to the Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy … trial.” The brevity of the provision is striking. There is no quantification of “speedy” and no specification of when in the course of a criminal investigation or prosecution the speedy-trial clock begins to tick. But the Supreme Court has held that it does not begin to tick “before a defendant is indicted, arrested, or otherwise officially accused.” United States v. MacDonald, 456 U.S. 1, 6 (1982). To the same effect see United States v. Marion, 404 U.S. 307, 313 (1971), and United States v. Loud Hawk, 474 U.S. 302, 310 (1986). The question presented by this appeal is whether or in what circumstances the clock begins to tick when a federal complaint and detainer are served on a person who is being prosecuted by a state. * * *

All this said, we acknowledge that the extreme vagueness of the speedy-trial clause of the Sixth Amendment, and the limited clarification of it that has been attempted by the Supreme Court, open up a potential for prejudice to a defendant caught between two sovereigns.

The district judge was right to deny the motion to dismiss the federal prosecution. AFFIRMED.

HAMILTON, Circuit Judge, concurring in the judgment. I agree with my colleagues that defendant Jackie Richardson’s speedy trial right under the Sixth Amendment was not violated here. I would follow a much narrower path to that conclusion, however, to stay more consistent with Supreme Court precedent and to preserve the ability to deter or prevent unduly prejudicial delay in future cases. * * *

The better solution is to recognize that a federal complaint and arrest warrant filed under Federal Rules of Criminal Procedure 3 and 4 add up to an “official accusation” of a crime that starts the Sixth Amendment speedy trial clock, at least where the suspect is in state custody and subject to a federal detainer. Richardson has not established a violation of his speedy trial right, but we should not foreclose the possibility that another defendant could.

Posted by Marcia Oddi on Thursday, March 12, 2015
Posted to Ind. (7th Cir.) Decisions

Environment - More on: Who approved stealth project to build banquet center on Dunes State Park prime beachfront? Who knew?

[Update on 3/13/15 - Note that Gov. Daniels was not succeeded by Gov. Pence until Jan. 14, 2013.]

Earlier today the ILB wrote about the furor in 2006 when Gov. Daniels and the DNR proposed to lease part of the Dunes State Park for a private hotel/convention center.

Now it seems a deal has been struck to allow a developer to remodel the historic Pavilion, plus build additional structures, with little public outcry, or perhaps knowledge.

As stories from the NWI Times show, the idea of turning the Dunes Park Pavilion into a restaurant/banquet hall has been around for a while. The first story I'm now aware of (thanks to a reader) is from Dec. 26, 2011, a story headlined "Restaurant planned for state park pavilion," by Heather Augustyn, NWI Times correspondent. Some quotes:

Indiana Department of Natural Resources officials are hoping to resurrect the former glory of the building and attract visitors. The DNR is seeking proposals by March 1 to “redevelop, operate and maintain the Indiana Dunes Pavilion and other appropriate facilities that would be compatible and enhance the operation,” according to the prospectus.

“The pavilion is an integral part of the Indiana Dunes State Park, and is in need of rehab and repair. Since the DNR does not have the funding to undertake this type of project, the DNR is seeking a public/private partnership to accomplish this goal," the prospectus states. "This building has been remodeled over time, and the DNR is interested in offering the re-development of this structure within the scope of this offering."

The DNR hopes to enter into a 30-year lease agreement to offer minimum services as a full-service restaurant and banquet service, meeting facilities, merchandise for sale that is appropriate to the park and facility, a snack bar, other services and restroom and shower facilities. * * *

“This is really a gem we have at the Indiana Dunes State Park," Weimer said. "If this goes through, it will be the only opportunity in Porter County to sit and have dinner right on Lake Michigan." * * *

The park's location in a state park will present a few challenges to development, she said. No alcohol will be allowed, and the facility will be open year-round.

But in the 2012 session, as I learned via NWI Times stories by Dan Carden, the alcohol roadblock was removed through legislation sponsored by state Sens. Karen Tallian, D-Ogden Dunes, and Ed Charbonneau, R-Valparaiso, which passed the Senate and eventually got incorporated into House Bill 1054, that year's omnibus alcohol bill. Per the digest, it authorizes:
... state owned land under the control and management of the department of natural resources may permit the retail sale of alcoholic beverages for consumption on the licensed premises of a pavilion located within Indiana Dunes State Park; if the lessee or concessionaire applies for and secures the necessary alcohol permits.
But the first story the ILB has seen on the new beach construction was the March 5, 2015 story in the NWI Times referred to in the post earlier today. Since then I've also located this well worth reading March 3rd story (with photos) in the Gary Post Tribune, reported by Amy Lavalley. Some quotes from the long story:
A complete demolition of the building's interior began Feb. 19. The exterior of the building will remain unchanged, but the first floor will hold a lifeguard stand, casual dining restaurant and snack bar. The second floor will be a fine dining restaurant, with rooftop dining available.

The work also includes a new building for bathrooms, and an adjacent building that can host wedding receptions, conferences and other special events. * * *

A portion of the interior work will be complete in time for the beach's seasonal opening Memorial Day weekend, Baughman said, including the lifeguard station, snack bar, and the bathroom facilities, which will have showers, family dressing rooms and lockers. The bathrooms will be to the west of the pavilion.

The rest of the work is scheduled to be complete in time for the start of the 2016 season. The conference/banquet center will be around 10,000 square feet on each of three floors, and the fine dining restaurant will have a liquor license.

The event facility will be to the east of the pavilion, attached by an enclosed walkway, and will be constructed on area that is now pavement so the natural landscape will not be disturbed, Baughman said.

Pavilion Partners is an investment group that has assembled a team to renovate the pavilion and build the conference/banquet center through a partnership with the state, Butterfield said.

So it seems at least two new beach buildings are in the works.

Finally, for now, a letter from attorney Michael T. Sawyier appears in today's issue of the Chesterton Tribune, raising questions such as whether the State is in effect selling to this "developer the exclusive use rights to the convention center to be constructed on ( or fronting on ) the public beach right next to the Pavilion? Why, if that is permissible, may the State not sell off a large swath of the entire Lake Michigan beach to a luxury condo/hotel developer?"

Posted by Marcia Oddi on Thursday, March 12, 2015
Posted to Environment

Environment - Who approved stealth project to build banquet center on Dunes State Park prime beachfront? Who knew?

In 2006 the IndyStar reported "about the state's plan to lease part of the Indiana Dunes State Park to a private developer for up to 100 years, to build and run a private hotel." The story began: " A privately owned lodge proposed for Lake Michigan's public shore has triggered a debate over the future of Indiana's scarce beaches." This ILB post from June 2, 2006 collects a number of other stories.

Recently the ILB read a story (with good photos) by Sarah Gollner in the NWI Times (March 5th) on the remodeliing of the historic Dunes State Park Pavilion. It begins:

CHESTERTON | The remodeling of the interior of the pavilion at the Indiana Dunes State Park (IDSP) is underway.

When complete, the first floor will offer a casual dining restaurant, a snack bar and a lifeguard stand while the second floor will be a fine dining restaurant with rooftop seating available.

The project is a result of a private/public partnership with Pavilion Partners L.L.C. It will also include a new bathroom facility on the west end of the pavilion, which will include the same number of lavatory stalls as the current restroom, and construction of a 30,000-square-foot building east of the pavilion to host conferences, weddings and other events.

The estimated cost is around $3 to $4 million.

"All of the new construction will be built on existing concrete and asphalt," said Brandt Baughman, IDSP Property Manager. "No historic or natural landscape will be disturbed."

Anyone who's visited the IDSP on a summer day is aware how difficult it can be to find a parking space. Baughman says only six spots will be lost as a result of this project, and anyone renting the new facility for an event or planning to visit the restaurant will need to plan ahead to ensure a parking spot.

I admit I missed the significance of the phrase I've highlighted until reading today this story from yesterday's Chesterton Tribune. Some quotes:
One of Northwest Indiana’s premier conservationist groups has gone on the record against the planned construction by Pavilion Partners LLC of a 30,000-square foot conference center next to the Pavilion on the beach at Indiana Dunes State Park (IDSP).

The Indiana Division of the Izaak Walton League of America (IWLA) formally opposed the conference center at its quarterly meeting in South Bend on Saturday, according to a statement released after deadline on Tuesday.

“We support the renovation of the old pavilion at the State Park but we feel like we have been bushwhacked by plans for a new building next to it,” Porter County Chapter Jim Sweeney said. “We are not willing to trade some of the public beach for a private conference center, more parking, and booze on the beach, no way.”

The IWLA’s Porter County Chapter was founded in 1958 specifically “to help promote the protection of the Indiana Dunes National Lakeshore and the League has a 93-year history of expanding and protecting public lands,” the statement noted.

“We need to see what the state wants to do and how they want to do it,” Indiana Division President Tim Russell said. “Right now, it sounds like an eyesore on one of the most beautiful beaches in the state.”

“We didn’t know this new building was being proposed,” Russell added.

“If they want to build a new conference center, they can buy some new land for it and add it to the park,” Sweeney said. “We don’t want to give up any park land for it.” * * *

As of two weeks ago, however, the design of the conference/banquet center had not yet been completed and Butterfield was calling the plans still “fluid.” This much is known: the conference center will be built on already existing concrete and asphalt to the east of the Pavilion, each of its three floors will be 10,000 square feet, the structure will be elevated, and the first floor will have an open layout similar to the Pavilion’s.

IDSP Property Manager Brandt Baughman said that visitors will still be able to see Lake Michigan from the parking lot to the south of the conference center.

Butterfield described Pavilion Partners LLC this way: it’s “an investment group that has assembled a team of expert talent to renovate the Indiana Dunes Park Pavilion and additional conference/banquet center through a public/private partnership with the State of Indiana. Specifically, the team is experienced in historic building renovation, restaurant, banquet center, and event management, and has had a significant presence in the food, beverage, and tourism industry of Northwest Indiana.”

[More] Here is a postcard of the Pavilion from the 1930s. The building to the left, long since demolished, is said to have been designed by John Lloyd Wright (son of Frank). It is identified in this photo (source) as "New Dunes Arcade Hotel, West of The Beach Pavilion." Here is the Pavilion when first built, circa 1925 (source, with many more photos).

Posted by Marcia Oddi on Thursday, March 12, 2015
Posted to Environment

Ind. Gov't. - "Chicken ban for the birds: Woman pushes for end to Fort Wayne prohibition"

The ILB has a very long list of entries concerning urban chickens, particularly in cities and towns in Indiana, but nothing since July 13, 2014.

That lull ends today with this lengthy March 8th story by Jeff Wiehe on the Fort Wayne Journal Gazette. Some quotes:

One Fort Wayne woman is trying to spark a change to city law so residents would be allowed to own and raise chickens at their home, much like other cities – big, small and midsize – have done over the past several years as urban farming has become more popular.

“Chickens are very important to the landscape,” said Michele Berkes-Adams, who in February started an online petition to gather signatures in support of making it legal to raise chickens within Fort Wayne city limits.

Berkes-Adams is not jumping into this as some fly-by-night idea, though.

She’s the founding member of a Food Not Lawns chapter here in Fort Wayne, a group of farming advocates that has attracted between 50 and 100 people to events during the past year and a half.

She has also done her research, looking at what other cities, including Denver, New York City and even Indianapolis, have put into place as far as ordinances when it comes to chickens, she said.

Plus, she owned chickens herself – before she knew they were illegal – until a neighborhood dog got through her fence and ate them.

“I’ve been working on this for a while,” Berkes-Adams said. “I’ve looked at a lot of different cities, and I’ve tried to make it as comprehensive as possible.”

Posted by Marcia Oddi on Thursday, March 12, 2015
Posted to Indiana Government

Ind. Decisions - Supreme Court decides one today, re insurance coverage

In Indiana Restorative Dentistry, P.C. v. The Laven Insurance Agency, Inc. and ProAssurance Indemnity Co., Inc. F/K/A the Medical Assurance Co., Inc., a 12-page, 5-0 opinion, Chief Justice Rush writes:

After a fire, a dentist’s office discovered that the contents coverage of its insurance policy—a policy it had maintained for over thirty years—was inadequate to cover the loss. The insurance agent and the insured now dispute whether their long-term relationship was a special relationship that obligated the agent to advise the insured about its coverage. The parties also dispute whether their past dealings show a “meeting of the minds” on an implied contract, requiring the agent to procure a policy that would cover all losses to office contents.

On summary judgment review, we hold that the designated evidence supports conflicting inferences on whether the parties enjoyed a special relationship that created a duty to advise. As for the implied contract to procure full coverage, we hold that the record does not show any discussion between the parties on the matter, much less a meeting of the minds. We therefore reverse in part and affirm in part the trial court’s order granting partial summary judgment. * * *

The designated evidence here paints an inconclusive picture regarding the nature of Laven’s and IRD’s relationship. Thus, genuine issues of material fact remain regarding the existence of a special relationship, and consequently a duty to advise. But the record is clear that Laven had no duty to procure full coverage, because there is no evidence of any discussion of an implied contract for Laven to procure full coverage for IRD’s office contents, much less a meeting of the minds.

We therefore reverse summary judgment regarding Laven’s duty to advise but affirm sum-mary judgment against IRD regarding Laven’s contractual duty to procure full coverage. On re-mand, the parties may continue to litigate Laven’s duty to advise; Laven’s alleged contractual duty to procure $350,000 in office contents coverage; and ProAssurance’s vicarious liability for Laven’s alleged wrongdoing.

Posted by Marcia Oddi on Thursday, March 12, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 6 NFP memorandum decisions)

For publication opinions today (3):

In The County of Lake, Ind.; Board of Commissioners of the County of Lake (Ind.), in their official capacities; and the Lake County Treasurer, in his official capacity v. U.S. Research Consultants, Inc., a 15-page opinion, Judge Robb writes:

U.S. Research Consultants, Inc. (“Consultant”) and The County of Lake, Indiana; the Board of Commissioners of the County of Lake, Indiana, in their official capacities; and the Lake County Treasurer, in his official capacity (collectively, the “County”), entered into a series of contracts (the “collection contracts”) for Consultant to be paid a commission for collecting delinquent real property taxes on behalf of the County.

After the collection contracts were terminated, Consultant sued the County for breach of contract, alleging unpaid commissions under the collection contracts. The trial court granted Consultant’s motion for partial summary judgment and denied the County’s motion regarding the interpretation of the contract. Based upon that judgment, the trial court later granted final judgment in excess of one million dollars to Consultant on its complaint.

The County raises several issues, of which we find the following dispositive: whether the trial court properly interpreted the collection contracts as a matter of law and therefore properly granted partial summary judgment to Consultant and denied partial summary judgment to the County. Concluding the trial court erred as a matter of law in interpreting the collection contracts and erroneously granted partial summary judgment and ultimately final judgment to Consultant, we reverse and remand. * * *

The trial court erred as a matter of law in determining that the collection contracts meant Consultant was entitled to collect all delinquent taxes and therefore erred in granting partial summary judgment to Consultant and denying summary judgment to the County on this issue.

In Ronald Fritts v. Linda Fritts, a 17-page opinion, Judge Barnes concludes:
Ronald knew or should have known that the surviving spouse benefit could not be revoked as early as June 2010, and he was required to take action pursuant to the Indiana Trial Rules to modify the judgment. Because he did not do so, he may not argue on appeal that the trial court’s decision not to credit Linda for the surviving spouse benefits she might receive is clearly erroneous. Because the record shows that Ronald was improperly credited a second time for $2,310.00 of Linda’s child support arrearage and is not clear regarding the uninsured medical expenses, we remand for the trial court to correct the arrearage and to reevaluate the medical expenses claimed by Ronald. Linda has not established that the trial court’s order was clearly erroneous regarding the payment of trial counsel’s attorney fees and the valuation of the accounts at dissolution. She also has not established that appellate attorney fees are warranted. We affirm in part, reverse in part, and remand.
In Bryan P. Stone v. State of Indiana, an 8-page opinion, Judge Bailey writes:
Issue: [W]hether the trial court abused its discretion when, after accepting a plea agreement between Stone and the State and entering judgment of conviction against Stone pursuant to the agreement, the trial court withdrew its acceptance of the plea agreement and ordered Stone to stand trial. * * *

Whether to accept or reject a proffered plea agreement is within the discretion of the trial court. Campbell v. State, 17 N.E.3d 1021, 1023 (Ind. Ct. App. 2014). Once accepted, however, “If the court accepts a plea agreement, it shall be bound by its terms.” I.C. § 35-35-3-3(e). In numerous cases, this Court and our Indiana Supreme Court have held that the binding nature of a court-accepted plea agreement prevents trial courts from revoking such agreements and vacating previously-entered judgments of conviction—even if the defendant has not yet been sentenced. * * *

The trial court lacked authority to rescind the plea agreement, vacate Stone’s convictions, and set the matter for trial. We accordingly reverse the judgment of the trial court, order it to enter judgments of conviction pursuant to the plea agreement, and to sentence Stone within the discretion afforded to it by the plea agreement. Reversed and remanded.

NFP civil decisions today (3):

Michael L. Turner v. Jennifer D. Pence (mem. dec.)

Bruce and Sybil Scheffer v. Centier Bank (mem. dec.)

Shelley Bradford v. Mike Lazo and Angela Lazo (mem. dec.)

NFP criminal decisions today (3):

Antwaun D. Moody v. State of Indiana (mem. dec.)

James M.A. Howard v. State of Indiana (mem. dec.)

Malcolm Walker v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 12, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Texting by elected officials during meetings wrong"

This is the heading of an editorial in the Marion Chronicle Tribune. Some quotes:

State laws do not address texting among officials during public meetings, and as Hoosier State Press Association legal counsel Steve Key says, it often takes a while for laws to catch up with new technology.

Here is hoping the law catches up fast. * * *

Texting between one elected official on a multi-member board to a non-voting department head is not a violation. And because state statutes don’t discuss texting, it would not have been illegal if the exchange was with two or more voting members of this board. But, in the interests of government transparency and the spirit of public access, it certainly is not a good idea.

Even though state statutes do not address text messages, anyone who does this risks their reputation and standing in the eyes of the public. You have to wonder if they are hiding something. Was the message exchange, if it occurred, related to a vote to be made at the meeting, or was it simply the sharing of a joke or a comment about the weather?

It sounds like the editorial is aimed at a specific, recent incident. But this long ILB post from Nov. 11, 2014 quoted from a Terre Haute Tribune-Star story by Arthur Foulkes:
Last week, Cliff Lambert, executive director of the Terre Haute Department of Redevelopment, sent an email to members of the City Council stating that he has “observed in recent months at council meetings …that there was texting occurring between some members of the council during the meeting.”

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

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

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

Posted by Marcia Oddi on Thursday, March 12, 2015
Posted to Indiana Government

Wednesday, March 11, 2015

Ind. Decisions - "Lake public defender deemed incompetent by Court of Appeals"

Dan Carden reports this afternoon in the NWI Times on this morning's COA opinion in Matthew Marcus, II v. State of Indiana (ILB summary here, 3rd case):

INDIANAPOLIS | The Indiana Court of Appeals condemned a Lake County appellate public defender Wednesday for his habit of using an outdated legal argument in seeking reduced prison sentences for his clients.

In a rare action, the appeals court threw out the written arguments submitted by Merrillville attorney P. Jeffrey Schlesinger, reprimanded him and ordered Lake Superior Judge Clarence Murray to appoint "competent counsel" for Matthew Marcus II. * * *

He argued, relying on the 2001 Indiana Appellate Rules, that the Court of Appeals can adjust a prison term if it is plainly and obviously unreasonable.

Appeals Judge L. Mark Bailey, writing for a unanimous three-judge panel, said Schlesinger seems not to know that both a 2003 rules change and a 2007 Indiana Supreme Court decision permit the Court of Appeals to conduct an independent review of all criminal sentences.

However, Bailey notes, Schelessinger should be well aware of those facts since he specifically has been advised in three prior Court of Appeals decisions involving Lake County clients -- in 2008, 2014 and earlier this year -- that the manifestly unreasonable standard is obsolete.

"Apparently oblivious to the direction of this court and a decade of legal progression, counsel yet again advocates for a review of his client's sentence under the manifestly unreasonable standard. He wholly fails to present a cogent argument," Bailey said in ordering a new appellate attorney be appointed for Marcus.

Posted by Marcia Oddi on Wednesday, March 11, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Former attorney charged with stealing child's settlement"

A story by James D. Wolf Jr. in the Gary Post-Tribune begins:

VALPARAISO -- The former Porter County attorney accused of embezzling more than $1.6 million from clients has been charged with two more felonies for stealing from a child's insurance settlement and a client at New Creations Men's Center, which helps the homeless.

Clark W. Holesinger, 53, of the 500 block of Fordwick Lane pleaded not guilty on Tuesday to Class C felony theft, which carries a sentence of up to eight years in prison, and to Class D felony theft, which carries a sentence of up to three years.

The Roll of Attorneys shows that Holesinger has resigned from the bar.

Posted by Marcia Oddi on Wednesday, March 11, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 3 NFP memorandum decisions)

For publication opinions today (6):

In FLM, LLC v. The Cincinnati Insurance Company, et al., a 5-page opinion on a petition for rehearing, Judge Crone writes:

In FLM, LLC v. Cincinnati Ins. Co., 24 N.E.3d 444 (Ind. Ct. App. 2014) (“FLM II”), we held, among other things, that the commercial general liability (“CGL”) policy issued by The Cincinnati Insurance Company (“Cincinnati”) provided property damage coverage to the insured, International Recycling Inc. (“IRI”), which went out of business and abandoned 100,000 tons of Chrysler foundry sand on property owned by FLM, LLC (“FLM”), after Chrysler stopped paying IRI for its sand disposal services. Consequently, we reversed the trial court’s contrary ruling and remanded with instructions to enter summary judgment in FLM’s favor on that issue. Cincinnati now petitions for rehearing, asserting that we also should have addressed whether the property damage was expected or intended by IRI and therefore subject to a coverage exclusion under the policy. We grant Cincinnati’s petition to address this issue and affirm our original opinion in all respects. * * *

We find FLM’s argument persuasive and therefore conclude as a matter of law that the property damage was not expected or intended by IRI and thus the exclusion does not apply. Subject to this clarification, we affirm our original opinion in all respects.

In In re the Supervised Estate of Gary Roberts, Deceased; Martha Blevins, Appellant and In re the Supervised Estate of Elizabeth A. Roberts, Deceased; Martha Blevins, Appellant, a 9-page opinion, Judge Robb writes:
Gary Roberts died intestate on September 27, 2013, and his widow, Elizabeth Roberts, died testate on November 2, 2013. Martha Blevins filed a claim against Gary’s Estate. Following a hearing, the trial court issued an order that concluded, among other things, that a gun collection located in the Robertses’ home was “household goods” to which Elizabeth held a right of survivorship under Indiana Code section 32-17-11-29. Blevins appeals that order, raising two issues for review: (1) whether the trial court correctly determined that the gun collection met the requirements in Indiana Code section 32-17-11-29(c)(1) to create a right of survivorship; and (2) whether the trial court abused its discretion by admitting into evidence, over Blevins’s hearsay objection, three exhibits related to the purchase and origin of the gun collection. Concluding that the gun collection does not fit within the term “household goods,” we reverse and remand.
In Matthew Marcus, II v. State of Indiana , a 5-page opinion, Judge Bailey concludes (in an opinion you may wish to read in full):
Apparently oblivious to the direction of this Court and a decade of legal progression, Counsel yet again advocates for a review of his client’s sentence under the manifestly unreasonable standard. He wholly fails to present a cogent argument with citation to relevant authority. It is within our authority to strike the brief, order the return of attorney’s fees, order Counsel to show cause why he should not be held in contempt of court, or refer the matter to the Supreme Court Disciplinary Commission. See Keeney v. State, 873 N.E.2d 187, 190 (Ind. Ct. App. 2007). We strike the brief and remand the matter to the trial court for appointment of competent counsel [ILB emphasis}.
In D.Y. v. State of Indiana , a 16-page opinion, Judge Pyle writes:
Defendant/Appellant, D.Y., appeals his adjudication as a delinquent child, which was based on the juvenile court’s true finding that he had committed dangerous possession of a firearm and carrying a handgun without a license. * * * D.Y. filed a motion to suppress the evidence of the firearm, arguing that it was the result of an illegal search. The juvenile court denied the motion and adjudicated D.Y. a delinquent child.

On appeal, D.Y. now argues that the juvenile court abused its discretion in admitting the firearm because it was the result of an unlawful search. He asserts that the search was unlawful because: (1) it was incident to an unlawful arrest; (2) it was incident to an unlawful investigatory stop; and (3) the officer did not have reasonable concerns for safety to justify the search. We conclude that the juvenile court abused its discretion in admitting the firearm because it was obtained through a search incident to an unlawful arrest. Because the evidence of the firearm was an essential element of D.Y.’s charges, we reverse and remand to the juvenile court with instructions to vacate its true findings and D.Y.’s adjudication as a delinquent child.

In Ignacio Perez v. State of Indiana , an 18-page opinion, Judge Najam writes:
Ignacio Perez appeals his convictions, following a bench trial, for dealing in cocaine, as a Class A felony, and resisting law enforcement, as a Class A misdemeanor. Perez presents two issues for our review, both of which we addressed in detail in a prior interlocutory appeal brought by Perez. See Perez v. State, 981 N.E.2d 1242 (Ind. Ct. App. 2013), trans. denied. Thus, were it not for an opinion issued by the United States Supreme Court subsequent to that appeal, see Florida v. Jardines, 133 S. Ct. 1409 (2012), we would apply the law of the case doctrine and affirm in all respects. However, Jardines requires us to revisit Perez’s second claim of error * * *.

We first hold that the law of the case doctrine precludes our review of Perez’s first claim of error, namely, that the police unconstitutionally seized his person. However, in light of Jardines, we also hold that the canine sniff of Perez’s front door violated the Fourth Amendment. Nevertheless, the probable cause affidavit contained sufficient facts, independent of those discovered by the unconstitutional canine sniff, to provide probable cause for the warrant to search Perez’s home. Thus, we hold that the trial court did not abuse its discretion when it admitted evidence discovered during the execution of the warrant, and we affirm Perez’s convictions.

In David Cupello v. State of Indiana , a 25-page opinion, Judge Najam writes:
In Barnes v. State, 953 N.E.2d 473, 474-75 (Ind. 2011), our supreme court held on rehearing that “the Castle Doctrine is not a defense to the crime of battery or other violent acts on a police officer.” In so holding, the Barnes court noted that “[t]he General Assembly can and does create statutory defenses to the offenses it criminalizes, and the crime of battery against a police officer stands on no different ground. What the statutory defenses should be, if any, is in its hands.”

In its legislative response to Barnes, the General Assembly found and declared that “it is the policy of this state to recognize the unique character of a citizen’s home and to ensure that a citizen feels secure in his or her own home against unlawful intrusion by another individual or a public servant.” Ind. Code § 35-41-3-2(a) (emphasis supplied)

In this case of first impression, David Cupello appeals his conviction, following a bench trial, for battery on a law enforcement officer, as a Class A misdemeanor. * * *

We first hold that the State presented sufficient evidence that the off-duty constable, Robert Webb, was engaged in the performance of his official duties. However, we also hold that, under the statute enacted by our legislature in response to Barnes, the Castle Doctrine is an affirmative defense to the crime of battery on a law enforcement officer when that officer has unlawfully entered the person’s dwelling. And we hold that, on the facts of this case, Cupello exercised reasonable force under Indiana Code Section 35-41-3-2(i)(2) to prevent or terminate an unlawful entry by a public servant into his home. Thus, we reverse Cupello’s conviction. * * *

Bradford, J., concurs.
Mathias, J., concurs with separate opinion. [which begins, at p. 21] I fully concur in the majority’s holding that Cupello exercised reasonable force under Indiana Code section 35-41-3-2(i)(2) to prevent or terminate Constable Webb’s unlawful entry into Cupello’s home.

I find it especially disturbing that Constable Webb freely admitted that it was his “standard practice” to place his foot just inside the threshold of the door when talking to someone, to “to keep them from slamming the door in [his] face.” Tr. p. 15. As the majority notes, without a warrant, this is an unconstitutional entry into the home, see Middleton, 714 N.E.2d at 1101, and arguably criminal residential entry, see Williams, 873 N.E.2d at 148, I.C. § 35-43-2-1.5. However rude it might be to do so, a private citizen has a right to close his or her door on any unwelcome visitor, including a police officer, unless the officer has a warrant. * * *

However, despite my concurrence with this conclusion, I would note that confrontations such as the one that occurred in this case—where a citizen encounters an off-duty law enforcement officer working in the private sector but acting in his official capacity—are fraught with ambiguity and room for misunderstanding.

NFP civil decisions today (1):

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

NFP criminal decisions today (2):

Roland O. Ward v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Wednesday, March 11, 2015
Posted to Ind. App.Ct. Decisions

Tuesday, March 10, 2015

Ind. Gov't. - Provisions erroneously repealing 2009 settlement conference law corrected a month ago on Senate floor [Updated again, on 3/11/15]

Sunday's Fort Wayne Journal Gazette reported that SB 415 has "a paragraph repealing language from state code that created, back in 2009, the practice of mortgage settlement conferences for troubled borrowers facing foreclosure."

In a post that same day the ILB wrote: that was true about the bill as it came out of Senate committee, but a successful 2nd reading amendment had deleted the repeals.

Being unfamiliar with banking law, the ILB did wonder whether Tallian's:

... change that would leave the current Indiana law in effect except that it "does not apply to a mortgage that is serviced by a mortgage servicer that is subject to the requirements of 12 CFR 1024.39, 12 CFR 1024.40, and 12 CFR 1024.41" would add clarity, or sow confusion?
Today, as related in this ILB post, Attorney General Zoeller issued a news release warning:
... that an important consumer protection helping distressed homeowners avoid foreclosure – the settlement conference – is in danger of being eliminated because of a proposal moving through the Legislature that to this point received insufficient discussion or debate in committee or floor sessions. Zoeller urged state legislators to remove the proposal before it goes any further in the process so that the foreclosure-preventing settlement conference process that helps homeowners stay in their homes can continue unimpeded.
The ILB commented in the post that: "It is not clear whether the AG's statement takes into account the 2nd reading amendment made by Sen. Tallian" over a month ago, on Feb. 10th.

To clarify this matter, this evening the ILB watched and transcribed Senator Tallian's presentation of her successful Feb. 10th 2nd reading amendment - Am. #3. Here is the complete transcript, it can be found in the Senate Video Archives for Feb. 10, 2015, beginning at about 33:22:00:

Senator Tallian: Am. #3 reinstates something that had been taken out that was probably an error. We set up a settlement conference mechanism here in 2009 and now some of the banks of a certain size must do their settlement conferences before they file the complaint for foreclosure, according to the federal Dodd-Frank Act.

We are going to let them do that settlement conference before foreclosure but require the other banks to keep the settlement conference.

So the mortgage settlement foreclosure conference is not gone. I ask for your support.

At about 34:32:00, Senator Merritt, the bill's auther: There is a need for settlement conferences and I appreciate Senator Tallian's submitting the amendment, which I support.

The amendment was adopted and is reflected in the current, Feb. 17, 2015 printing of SB 415.

[Updated at 8:51 PM] The ILB has learned that SB 415 is not yet completely fixed. As noted, Sen. Tallian's 2nd reading amendment restores settlement conferences for loans outside the jurisdiction of Dodd-Frank, but "she is working with IACED (Indiana Association for Community Economic Development), the AG and others to further correct the situation."

[Updated at 9:48 AM on 3/11/15] Okay, here is the current situation.

Posted by Marcia Oddi on Tuesday, March 10, 2015
Posted to Indiana Government

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

Updating this ILB post from Feb. 28, Purdue has decided to leave the current policy in place for at least another year, according to this story today by Joseph Paul in the Lafayette Journal & Courier.

Posted by Marcia Oddi on Tuesday, March 10, 2015
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending March 6, 2015

Here is the Clerk's transfer list for the week ending Friday, March 6, 2015. It is one page (and 1 case) long.

No transfers were granted last week. The vote on the only case considered was a tie, with one justice not participating:

Posted by Marcia Oddi on Tuesday, March 10, 2015
Posted to Indiana Transfer Lists

Environment - "Proposed permits to allow Duke ash pond leaks "

Updating this Dec. 8, 2014 ILB post titled "60 Minutes on how Duke Energy is handling over 100 million tons of coal ash waste in North Carolina," which links to many other posts, Bruce Henderson of The Charlotte Observer reported last evening in a story that begins:

New proposed discharge permits for Duke Energy’s three Charlotte-area power plants make legal ash pond leaks that have previously been illegal.

A state law that took effect in September gave Duke the option of stopping the leaks, which can contaminate water, or including them in new discharge permits. The new permits take the second option.

The proposed permits, which are renewed every five years, allow Duke to drain water from its ash ponds and other plant operations into local lakes.

Duke, in a report to the state in December, identified 200 seeps at its 14 coal-fired power plants in North Carolina. Together they leak more than 3 million gallons a day.

Proposed permits for three power plants – Riverbend on Mountain Island Lake, Marshall on Lake Norman and Allen on Lake Wylie – include 23 of the seeps.

Seeps at Riverbend were among the nine federal misdemeanors Duke agreed last month to settle for $102 million.

“They’re illegal enough to constitute a $102 million fine, but here you have the state regulatory agency coming out and saying they’re legal,” said Catawba Riverkeeper Sam Perkins.

Posted by Marcia Oddi on Tuesday, March 10, 2015
Posted to Environment

Law - "When a federal agency changes its interpretation of a regulation that it has issued itself, does it need to give the public notice and ask for public comment?"

Harvard law professor Noah Feldman, in a column yesterday in Bloomberg View headed "Supreme Court's Big Mistake in a Small Case," discusses Monday's SCOTUS decision in Perez v. Mortgage Bankers Association. This is a very interesting administrative law opinion. From Feldman's analysis:

The U.S. Court of Appeals for the D.C. Circuit is often called the second highest court in the land, because its judges decide most of the important cases involving the vast reach of the modern administrative state. Every so often, however, the U.S. Supreme Court likes to remind the D.C. Circuit who’s the boss by reversing one of its administrative law principles. That happened Monday, in a 9-0 decision in which the court repudiated a perfectly serviceable doctrine the D.C. Circuit invented and has used sensibly since 1997. The decision won’t make headlines -- but it’s wrong anyway, and it gives far too much power to administrative agencies.

The decision involves what sounds like a deceptively simple question: When an agency changes its interpretation of a regulation that it has issued itself, does it need to give the public notice and ask for public comment? The Supreme Court said the answer was no. It looked to the Administrative Procedure Act, which functions as the unofficial constitution for the fourth branch of government known as the administrative state. The APA says that ordinary rules must be subject to notice and comment, but that the same requirement doesn't apply to what it infelicitously calls “interpretative” rules.

As far as the Supreme Court was concerned, that was the end of the matter. New interpretations of existing regulations, the court said, count as interpretative rules -- and so don't require notice and comment. Still following the formal structure of the APA, the court added a caveat: the convenience for agencies of adopting interpretative rules without notice and comment “comes at a price,” the court said: Interpretative rules do not themselves have the force of law.

All of this sounds sensible enough on its face. But in so deciding, the court reversed a D.C. Circuit doctrine known mellifluously as the “Paralyzed Veterans” rule, named for a 1997 case in which it was first introduced. According to the now-repudiated doctrine, agencies must engage in notice and comment when they change an existing interpretation. * * *

It's all well and good for the Supreme Court to say that interpretative rules technically don't have the force of law. In the real world, however, they do. The reason is that the federal courts, unbidden by the APA, have adopted the rule of systematically deferring to agencies’ interpretations of their own rules. As Scalia noted in his concurrence, this practice is of a piece with the slightly more famous and parallel Chevron doctrine, which says that the courts will defer to an agency’s reasonable interpretation of an ambiguous statute that the agency is charged with administering.

Given that in the real world, interpretative regulations function as laws, it really makes no sense for an agency to be able to change its interpretation -- and therefore change existing law -- without getting feedback from those who will be affected by the change.

Later Feldman writes:
In an eloquent and lengthy separate concurrence, Justice Clarence Thomas argued that there were constitutional reasons to reject the idea of judicial deference to agency interpretations. The logic of his opinion actually extends to the Chevron rule as well.

Scalia and Thomas are right as a matter of original constitutional structure. The problem is that the ship of originalism has long sailed in relation to the administrative state, which is itself of doubtful constitutionality when viewed from the standpoint of the Framers.

Posted by Marcia Oddi on Tuesday, March 10, 2015
Posted to General Law Related

Ind. Gov't. - More on "Mortgage settlements in jeopardy: Bill killing them moves quietly" Or not?

Updating this long ILB post from Sunday, here is part of a just released statement from AG Zoeller, titled "AG urges lawmakers to keep mortgage settlement conferences, not repeal them: Amendment would undo 2011 law; legislators should keep law intact." Some quotes:

SOUTH BEND, Ind. -- Indiana Attorney General Greg Zoeller today warned that an important consumer protection helping distressed homeowners avoid foreclosure – the settlement conference – is in danger of being eliminated because of a proposal moving through the Legislature that to this point received insufficient discussion or debate in committee or floor sessions. Zoeller urged state legislators to remove the proposal before it goes any further in the process so that the foreclosure-preventing settlement conference process that helps homeowners stay in their homes can continue unimpeded.

“After the foreclosure crisis exposed the unethical practices of major mortgage servicers, my office worked extremely hard in our multistate investigation against five major banks to create new consumer protections for distressed homeowners. The right created by law to a court-supervised settlement conference and face-to-face meeting between borrowers and lenders has helped thousands of distressed homeowners work out plans to avoid foreclosures. We will aggressively oppose any attempt by the bankers’ lobby to roll back the clock and take away this crucial protection,” Zoeller said.

ILB: It is not clear whether the statement takes into account the 2nd reading amendment made by Sen. Tallian, the possible impact of which was discussed in the ILB post.

Posted by Marcia Oddi on Tuesday, March 10, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 3 NFP memorandum decisions)

For publication opinions today (2):

In In the Matter of the Term. of the Parent-Child Relationship of M.N., A Minor Child, and M.C., Her Father L.N. and Heartland Adoption Agency v. M.C., an 11-page opinion, Judge Mathias writes:

L.N. (“Mother”) and the Heartland Adoption Agency (collectively “the Appellants”) appeal the Monroe Circuit Court’s order dismissing the Heartland Adoption Agency’s petition to terminate M.C.’s parental rights. We reverse and remand for proceedings consistent with this opinion.
In J.B. v. State of Indiana , a 9-page opinion, Judge Riley writes:
J.B. raises one issue on appeal, which we restate as follows: Whether the trial court erred in denying his petition to expunge the criminal records relating to his misdemeanor conviction of battery. * * *

J.B. claims that the trial court erred in denying his petition for expungement because, notwithstanding the fact that his conviction was ultimately dismissed, he is entitled to have the corresponding records expunged. In response, the State concedes that if dismissed convictions are eligible for expungement, then J.B.’s records should be expunged. However, because Indiana Code section 35-38-9-2 does not contain an “express exception” permitting the expungement of dismissed convictions, the State contends that “the trial court’s ruling appears reasonable.” * * *

[W]e find that the dismissal of J.B.’s conviction would be meaningless if the records concerning that conviction were to remain accessible, and we cannot conclude that the General Assembly would have intended such a result. Accordingly, we remand with instructions for the trial court to order the conviction records described in Indiana Code section 35-38-9-2(b) to be expunged in accordance with Indiana Code section 35-38-9-6. * * *
__________
[1] In general, when a trial court grants a petition for expungement, it must subsequently redact the petitioner’s name from any appellate decision and submit a copy of the same “to any publisher or organization to whom the opinion or memorandum decision is provided after the date of the order of expungement.” Ind. Code § 35-38-9-6(c). Here, for the sake of efficiency, we have elected to refer to the petitioner by initials.

NFP civil decisions today (0):NFP criminal decisions today (3):

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

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

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

Posted by Marcia Oddi on Tuesday, March 10, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Complying with the revisions to Administrative Rule 9 - Q & A #5

[The ILB has created a new category, "Adm. Rule 9 Questions," which will give you direct access to all the Q&A on this topic.]

Question: In most criminal cases, a PSI is required to be produced. The top of the PSI has (in bold letters) "CONFIDENTIAL pursuant to statute" which I have always interpreted as meaning that the entire report is confidential, not that selected parts of the report are/might be confidential.

In other words, it seems to me that when an entire document is confidential the whole thing has to be kept out of the public portion, and you cannot redact portions of it that "seem" confidential (not to mention the disparity that would happen if it were up to each lawyer, clerk, etc.). I cannot think of a way in which a PSI could have only select portions of it redacted appropriately under Admin Rule 9 and still comply with the statute requiring the entire PSI document to be "CONFIDENTIAL."

Is there guidance as to what can/should be redacted in a document where the entire document is labelled "CONFIDENTIAL"? If so, where is that guidance located? Or, are we correct that the entire document is to be treated as confidential, add one page in the public portion that says that, and not try to submit a public portion with some parts redacted?

Maggie Smith (Frost Brown Todd LLC, who serves on the Court's Committee on Rules of Practice and Procedure) responds:

Yes, the entire report is confidential and the whole thing is to be filed on green paper.

It is the AR 9(G)(5)(a)(i)(a) Notice (which is not filed on green paper) that tells the clerk/court and general public that such a document has been filed on green paper in the case and gives the reason for doing so.

This Notice satisfies the requirement in 9(G)(5)(b)(i) that the omission be noted in the Public Access version.

Posted by Marcia Oddi on Tuesday, March 10, 2015
Posted to Adm. Rule 9 Questions

Ind. Courts - Complying with the revisions to Administrative Rule 9 - Q & A #4

[The ILB has created a new category, "Adm. Rule 9 Questions," which will give you direct access to all the Q&A on this topic.]

Question: Does the Notice you mentioned yesterday have to be filed even when it is a statute that declares the document confidential (like the pre-sentence reports in criminal cases that are confidential by right per 35-38-1-13)?

Maggie Smith (Frost Brown Todd LLC, who serves on the Court's Committee on Rules of Practice and Procedure) responds:

Yes. If something is declared confidential by statute, your right to file on green paper is governed by 9(G)(2), so you need not file a 9(G)(4) motion seeking permission to file on green paper.

BUT … you still always have to file a 9(G)(5) notice even when you are filing per 9(G)(2). The Notice requires you to identify the statute which gives you the right to file on green paper, but does not require further action on the Notice by the court. AR 9(G)(5)(a)(i)(a) states:

(5) Procedures for Excluding Court Records From Public Access.

(a) Notice to maintain exclusion from Public Access.
(i) In cases where only a portion of the Court Record is excluded from Public Access, the party or person submitting the confidential record must provide the following notice that the record is to remain excluded from Public Access:
a. Pleadings or Papers. A Court Record filed with the Clerk of Court that is to be excluded from Public Access must be accompanied by separate written notice identifying the specific 9(G)(2) or 9(G)(3) ground(s) upon which exclusion is based. See Form 9-G1.
It is helpful to understand the reasons for the Notice:
  1. The Notice itself is publically-accessible, so it alerts the public looking at the file that there are documents filed under seal and the grounds for doing so. This allows for greater public accountability with regard to green paper filings;
  2. The Notice provides the party’s foundation justifying exclusion, so a court (trial or appellate) knows the asserted grounds when reviewing the filing. Right now, the courts have to guess why something is on green paper and, in some instances, this leads to the incorrect conclusion that a document was improperly filed on green paper; and
  3. When an entire Court Record is excluded from public access (such as a pre-sentence report), the Notice satisfies the 9(G)(5)(b) requirement that the omission “be indicated at the place it occurs in the Public Access version.”

Posted by Marcia Oddi on Tuesday, March 10, 2015
Posted to Adm. Rule 9 Questions

Ind. Gov't. - Two gems buried in this week's Ind. Legislative Insight

You have to be on your toes as you read through the weekly issue of the subscription-only Indiana Legislative Insight. For instance, from Monday's issue, these items on different inside pages:

Posted by Marcia Oddi on Tuesday, March 10, 2015
Posted to Indiana Government

Ind. Gov't. - Couple from Utah on a church mission digitizing Vigo County probate records

This interesting March 9th story from Howard Greninger, Terre Haute Tribune-Star, that begins:

Vigo County is benefiting from a project that will digitize probate records dating back to 1818, the year the county was founded.

The documents are contained in bundles, stored in large cardboard boxes stacked 6 feet high in rows and columns that fill an entire bay in a county document warehouse near 13th and Deming Streets in Terre Haute.

Michael and Ann Packham, residents of Utah, have rented an apartment in Terre Haute, where they will live until December. The two are on an 18-month church mission for FamilySearch, a genealogical online archive sponsored by The Church of Jesus Christ of Latter-day Saints. The nonprofit FamilySearch claims to have the largest archive of historical and genealogical records in the world, with more than 3 billion documents.

The couple — he is a retired band and orchestra teacher while she is a retired accountant — initially went to Montgomery County in mid-July to digitize records.

They moved to Vigo County in mid January to begin digitizing documents. They first digitized about 37,000 marriage licenses and wills before beginning work to digitize probate documents.

Their job is to document Vigo County probate documents from 1818 to 1935.

“It is estimated that by the end of the project there will be a million digital images,” Michael Packham said.

The job will take 2 1/2 years. After December, however, another team will continue the work the Packhams have started.

The two are making about 1,500 digital images a day and strive to get at least 6,000 images done per week, working from 8 a.m. to 4 p.m. They mail images, stored on a hard drive, weekly to FamilySearch’s facility in Salt Lake City.

FamilySearch then archives the digital documents, storing them in a large mountainside repository vault in Utah, and sends a hard drive copy of the images back to Vigo County. Last week, the Packhams sent 6,533 images to FamilySearch.

The couple has a blog with a number of interesting photos of the project.

Posted by Marcia Oddi on Tuesday, March 10, 2015
Posted to Indiana Government

Ind. Law - "Expect bad news and really bad news for IUs tomorrow in U.S. News law school rankings"

That is what I tweeted late last evening.

Regardless of what you think about the annual US News law school rankings, the decline in the ratings of Indiana's two law schools over the past few years is concerning.

In the 2016 (out in 2015) rankings out today, IU Mauer is in a 6-way tie for #34 and IU McKinney is in a three-way tie for #102.

For 2015 (out in 2014), Mauer was 29 and McKinney was 87.

Posted by Marcia Oddi on Tuesday, March 10, 2015
Posted to Indiana Law

Monday, March 09, 2015

Ind. Decisions - SCOTUS sends Notre Dame contraception mandate challenge back to 7th Circuit

The 7th Circuit decided Notre Dame v. Sebelius (now Burwell) on Feb. 21, 2014. The South Bend Tribune's Bob Blake had this still available detailed coverage. It was followed by this long March 2 SBT story by Madeline Buckley, also still available. Her story was headed " Divided opinions on contraceptive mandate: Notre Dame only religious entity denied contraceptive injunction."

The Notre Dame decision was appealed to the SCOTUS, and today that Court sent the case back to the 7th Circuit. Lawrence Hurley reports for Reuters:

The Supreme Court on Monday threw out an appeals court decision that went against the University of Notre Dame over its religious objections to the Obamacare health law’s contraception requirement.

The justices asked the 7th U.S. Circuit Court of Appeals to reconsider its decision in favor of the Obama administration in light of the June 2014 Supreme Court ruling that allowed closely held corporations to seek exemptions from the provision.

The court’s action means the February 2014 appeals court ruling that denied the South Bend, Indiana-based Roman Catholic university an injunction against the requirement has been wiped out. * * *

The Notre Dame case was the only appeals court decision on that issue that pre-dated the Hobby Lobby ruling.

Posted by Marcia Oddi on Monday, March 09, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Rockport coal gasification project dead? Air permit withdrawn

Chelsea Schneider of the Evansville Courier & Press is reporting this afternoon in a story that begins:

In the newest chapter of the slow unraveling of a $2.8 billion coal-to-gas plant once planned for Rockport, the state is rescinding an air quality permit required for the project.

The Indiana Department of Environmental Management withdrew the permit following a request for its revocation by the project’s financer, New York-based Leucadia National Corp., according to a spokesman for the state agency.

The project’s developer obtained the permit, which set emissions limits on the proposed plant, in 2012. But construction on the project never began, even though air quality permits require work to begin within a certain time period, said Dan Goldblatt, a spokesman for the Department of Environmental Management.

The state sent a letter to the project’s developer, Indiana Gasification LLC, notifying of its decision to revoke the permit on Thursday.

“Please be advised that once this revocation is effective the source will no longer have approval to operate any emission units at this source,” according to the state’s letter.

Posted by Marcia Oddi on Monday, March 09, 2015
Posted to Indiana Government

Ind. Gov't. - More on: Lake, LaPorte Counties plan to buy parts of bankrupt tollroad [Updated]

Updating this ILB post from Feb. 27th, here are some updates:



[Updated 3/10/15]
Carrie Napoleon, Gary Post-Tribune, reports:
Lake County Commissioners joined their LaPorte County counterparts on Monday, adopting resolutions entering into a partnership aimed at creating a nonprofit that would allow the bidding for the Indiana Toll Road to continue.

Lake Commissioners unanimously approved the measure in a special meeting Monday. LaPorte commissioners last week approved the resolutions. The Lake County Council is set to consider the measures Tuesday, while the LaPorte County Council will consider it in a special meeting Wednesday.

"Thank you to our soon-to-be partners in LaPorte County for the action they have already taken...We appreciate the effort you put forth," Commissioner Michael Repay, D-Hammond, said.

LaPorte led the charge for the counties to bid on the bankrupt Indiana Toll Road after officials from both counties in November approved pursuing the creation of a nonprofit corporation in order to do so.

A team including Krieg Devault, special council Goldstein & McClintock, financial adviser Piper Jaffray and bond underwriter Bank of America Merrill Lynch assembled to create the terms of the agreement creating the nonprofit as well as the details of the bid package.

Posted by Marcia Oddi on Monday, March 09, 2015
Posted to Indiana Government

Ind. Courts - Complying with the revisions to Administrative Rule 9 - Q & A #3

[See also March 3 Q&A #2, and Feb. 9 Q&A #1]

Question: When we file an appendix in a criminal case we often have at the end the pre-sentence investigation report which is confidential. It comes to us from the clerk on green paper. We put it in an envelope and mark it confidential. Under the new rule do we also need to file a separate pleading indicating we wish to keep it confidential?

Maggie Smith (Frost Brown Todd LLC, who serves on the Court's Committee on Rules of Practice and Procedure) responds:

Great question. Short answer … Yes.

Long answer … Appellate Rule 23(F)(3) requires you to comply with AR 9(G)(5).

AR 9(G)(5)(a)(i)(a) requires a separate “Notice” be filed with the “Clerk of Court,” which includes the Appellate Clerk. See AR 9(C)(F).

So whenever you go to file a confidential document at the appellate level in an appendix, you will file three documents:

  1. The Public Access version, which is on white paper and either will have a redaction (if there are only a few words or lines that are confidential) or a separate record of omission (if the whole page is confidential). See AR 9(G)(5)(b)(i).
  2. The Non-Public Access version, which is on green paper only and does NOT need to be in an envelope for any court (in fact, the envelope is often discarded). AND
  3. A “Notice to Maintain Exclusion” per AR 9(G)(5)(a)(i)(a). There is a sample of this Notice included in the Administrative Rules (Form 9-G1). The form was drafted for the trial court so you’d change the caption to reflect the appeal.
**NOTE: This above procedure is only for confidential filings tendered in the Appendix or as an exhibit to an appellate motion. There are different rules applicable to confidential materials contained in the Appellate Briefs or substantive legal motions filed with the appellate court. See AR 9(G)(5)(b)(ii).

Posted by Marcia Oddi on Monday, March 09, 2015
Posted to Adm. Rule 9 Questions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decisions)

For publication opinions today (2):

In Manuel Montalvo, et. al. v. State of Indiana, ex rel. Gregory F. Zoeller, Attorney General of Indiana, a 12-page opinion by Judge Crone, the State sued three members of the East Chicago Public Library Board:

... to recover funds alleging that, in exchange for their service on the Library Board, the Appellants received the payment of health, dental, vision, and life insurance premiums on their behalf, in violation of Indiana Code Section 36-12-2-21, which states that “[a] member of a library board shall serve without compensation.” * * * In entering partial summary judgment in the State’s favor, the trial court concluded as a matter of law that the term “compensation” includes the payment of insurance premiums, and therefore the Appellants’ receipt of such compensation in exchange for their service was in violation of statutory law and constituted the misappropriation of public funds. Accordingly, the trial court entered money judgments against each of the Appellants for the reimbursement of those funds. The sole issue presented for our review is whether the trial court erred in granting the State’s motion for partial summary judgment. Concluding that the State is entitled to judgment as a matter of law, we affirm the trial court’s entry of partial summary judgment in favor of the State. * * *

The relevant material facts are undisputed. The State Board of Accounts (“the SBOA”) conducted an audit and supplemental audit of the East Chicago Public Library for the period of January 1, 2008 to December 31, 2010.2 During the audit period, the Appellants were members of the Library Board and each received the payment of insurance premiums for health, dental, vision, and life insurance in exchange for their service on the Library Board. The SBOA referred the audit reports to the Office of the Attorney General of Indiana. On April 18, 2011, the State filed a “Complaint to Recover Public Funds” alleging that the Appellants had misappropriated public funds. * * *

Having determined as a matter of law that the Appellants received compensation in exchange for their service on the Library Board in violation of Indiana Code Section 36-12-2-21, we turn to the Appellants’ claim that a genuine issue of fact remains for trial regarding their knowledge as to the “wrongfulness” of their conduct. Appellants’ Reply Br. at 2. Specifically, the Appellants argue that Library Board members had been receiving insurance premiums for many years and that, although the SBOA clearly discovered this practice in prior audits, the SBOA never before submitted a report to the attorney general for prosecution. Thus, the Appellants claim that they were misled by the SBOA’s prior inaction and that they were without knowledge that they were prohibited from receiving the payment of insurance premiums in exchange for their service on the Library Board.

However, the Appellants’ knowledge as to the wrongfulness of their conduct is irrelevant for purposes of this appeal. * * *

In other words, if public funds have been misappropriated or diverted, the State may seek and secure the recovery of those funds. This authority is irrespective of whether the person who wrongfully received public money knew that he or she was not lawfully entitled to receive it. We recognize that such unfettered discretion by our attorney general in prosecuting civil proceedings to recover funds may lead to seemingly harsh results, as it did here. However, it is not within the province of the trial court or this Court to second-guess such decisions. * * *
________
[5] We note that although not relevant for purposes of this appeal, the Appellants’ knowledge or lack thereof as to the wrongfulness of their conduct is relevant regarding the State’s claim for treble damages. * * * Because the State’s claim for treble damages is not a subject of the current appeal from the trial court’s entry of partial summary judgment, we do not address it.

In Stuart Reed and Michael Reed v. Michael Cassady, a 24-page opinion, Judge Brown writes:
Stuart Reed and Michael Reed (the “Reeds”) appeal the trial court’s order on April 22, 2014, related to certain discovery sanctions and contempt for failure to pay other previously-ordered sanctions. We affirm.
NFP civil decisions today (1):

T.R. Bulger, Inc. and Thomas R. Bulger v. Indiana Insurance Company (mem. dec.)

NFP criminal decisions today (5):

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

Carol D. Geis v. State of Indiana (mem. dec.)

Jeffrey A. Dice, II v. State of Indiana (mem. dec.)

Derrick Morris v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Monday, March 09, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Utilities wage campaign against rooftop solar"

Updating this ILB post from Feb. 22, on HB 1320, which died in the House (Kokomo Tribune, Feb. 27):

House Bill 1320, which aimed to change the way solar panel owners are credited for the energy they produce, was not heard on the House floor Wednesday, the last day for legislation to clear the chamber.

“Nothing is completely dead until the session is over, but it is definitely dead in the House,” said Utilities and Energy Committee Vice Chairman Rep. Heath VanNatter, R-Kokomo, about the controversial bill authored by Rep. Eric Koch, R-Bedford.

The Washington Post had a long story this weekend by Joby Warrick, headed "Utilities wage campaign against rooftop solar" that begins:
Three years ago, the nation’s top utility executives gathered at a Colorado resort to hear warnings about a grave new threat to operators of America’s electric grid: not superstorms or cyberattacks, but rooftop solar panels.

If demand for residential solar continued to soar, traditional utilities could soon face serious problems, from “declining retail sales” and a “loss of customers” to “potential obsolescence,” according to a presentation prepared for the group. “Industry must prepare an action plan to address the challenges,” it said.

The warning, delivered to a private meeting of the utility industry’s main trade association, became a call to arms for electricity providers in nearly every corner of the nation. Three years later, the industry and its fossil-fuel supporters are waging a determined campaign to stop a home-solar insurgency that is rattling the boardrooms of the country’s government-regulated electric monopolies. * * *

Two-and-a-half years later, evidence of the “action plan” envisioned by Edison officials can be seen in states across the country. Legislation to make net metering illegal or more costly has been introduced in nearly two dozen state houses since 2013. Some of the proposals were virtual copies of model legislation drafted two years ago by the American Legislative Exchange Council, or ALEC, a nonprofit organization with financial ties to billionaire industrialists Charles and David Koch.

Most of the bills that have been considered so far have been either rejected or vetoed, with the most-striking defeats coming in Republican strongholds, such as Indiana and Utah. There, anti-solar legislation came under a surprisingly fierce attack from free-market conservatives and even evangelical groups, many of which have installed solar panels on their churches.

“Conservatives support solar — they support it even more than progressives do,” said Bryan Miller, co-chairman of the Alliance for Solar Choice and a vice president of public policy for Sunrun, a California solar provider. “It’s about competition in its most basic form. The idea that you should be forced to buy power from a state-sponsored monopoly and not have an option is about the least conservative thing you can imagine.”

Posted by Marcia Oddi on Monday, March 09, 2015
Posted to Indiana Government

Ind. Courts - "Judges lobby for screening for young offenders"

Maureen Hayden, CNHI, reported this weekend in the Greensburg Daily News. The story begins:

Pushed by juvenile court judges, the state may soon change how it treats young offenders.

Lawmakers are considering a proposal to force court officials and child welfare advocates to work together to screen juveniles for abuse, neglect or mental illness after their arrests.

Advocates for the measure include Henry County Circuit Court Judge Mary Willis, who says a “tough on crime” approach is failing the state’s most vulnerable citizens.

“The kid who steals a candy bar and a Gatorade from the corner store is too often treated just as a thief,” Willis said. “And only later do we find out that he committed the crime because there’s no food in the house because his parents are running a meth lab.”

Willis is president of the Indiana Council of Juvenile and Family Court Judges, which has long pushed for changes in how young offenders are treated.

Willis and others on the council worry that the state relies too much on the criminal justice system to deal with troubled youth, when many would be better served by social services.

The council has worked with Rep. Wendy McNamara, R-Evansville, and Sen. Randy Head, R-Logansport, to craft legislation aimed at “crossover youth” - those funneled into the criminal justice system as perpetrators who’d be better served by the child welfare system if treated as victims.

Their legislation requires screening of juveniles who are arrested to determine if they’ve been abused, neglected or endangered. A team including a prosecutor, public defender and child welfare worker must then recommend to a judge how the case should be handled.

Posted by Marcia Oddi on Monday, March 09, 2015
Posted to Indiana Courts

Ind. Gov't. - "Fenced hunting fight should end" - but where is the option?

"Fenced hunting fight should end" is the headline to Lesley Weidenbener's Sunday column in the Louisville Courier Journal. The conclusion:

Last year lawmakers came close to a decision. But a bill to legalize the preserves died in the Senate when only 25 of the 50 members voted yes — one shy of the majority needed to pass the bill.

Enough.

It's time for the General Assembly to decide one way or another.

The House has passed a bill to legalize the existing operations and let the DNR and the State Board of Animal Health regulate them. Senate President Pro Tem David Long, R-Fort Wayne, is now holding that bill, waiting for a proposal he considers fair and reasonable.

Meanwhile, no rules govern the operations.

"It appears that we are looking at a Wild West situation if we don't do something," Sen. Carlin Yoder, R-Middlebury, said last year. "If we don't act, anything could go."

And that's just not a good idea for anyone.

ILB: Unfortunately, the House appears to have put the Senate in a position where there is no second option. From a Feb. 5th editorial in the Fort Wayne Journal Gazette:
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 Monday, March 09, 2015
Posted to Indiana Government

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

From Sunday, March 8, 2015:

From Saturday, March 7, 2015:

From Friday, March 6, 2015:

Posted by Marcia Oddi on Monday, March 09, 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 3/9/15):

Wednesday, March 11

Next week's oral arguments before the Supreme Court (week of 3/16/15):

Monday, March 16

Thursday, March 19

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/9/15):

Thursday, March 12

Next week's oral arguments before the Court of Appeals (week of 3/16/15):

Wednesday, March 18

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, March 09, 2015
Posted to Upcoming Oral Arguments

Sunday, March 08, 2015

Ind. Gov't. - Open door law should apply to the House and Senate

Recently the ILB tweeted that meetings of a quorum of the House or Senate really should be open to the public. One party has "quorum-proof majorities in the Indiana House and Senate." A super-majority. As reported in The Statehouse File in 2012, "The numbers mean Republicans can conduct business in both chambers without Democrats present."

Meetings in caucus of these super-majorities can decide the fate of legislation without public discussion and debate. The floor vote, if there is one, is only window dressing. The ILB has written about this before, on March 21st and April 23rd of 2014.

On March 7 the KPC NEWS (Kendallville ) said it well in an editorial headed "Hoosier legislators can - and do - meet out of public view":

If you went online to the website of the Indiana House last week, hoping to catch debate on the bill concerning Sunday sales of alcohol, you would have seen the seal of the state hanging on House chamber’s black marble wall with a message that said, “There is currently no live video stream.”

The session was supposed to start at around 9 a.m. on that final day to call bills for a final vote. Instead, on this day, your best bet was to move on to Facebook or Twitter or some other website (or actual work) because there would be no action until after lunch.

That’s because the House Republicans called a caucus meeting, one of those behind-closed-doors affairs where they are allowed to discuss anything and everything pertaining to, we assume, proposed legislation.

Reporters covering the Legislature then started sending out messages and eventually reporting that the Sunday sales bill was not going to be called, because it didn’t have enough votes to pass as amended with all sorts of regulations for the big-box retailers who would have to dramatically alter the way they sold alcohol if the legislation passed.

The problem here is with super majorities in both the House and Senate, all either body has to do is call for a caucus meeting and hash out matters of great importance to the people of Indiana. So, instead of nasty floor fights among themselves, Republicans simply call for a caucus, take test votes, we assume, and basically conduct the state’s business behind closed doors. Even if there aren’t nasty floor fights being avoided, we still do not get to hear our lawmakers’ positions on bills.

Why, you ask? Because they can.

When the Legislature adopted the Indiana Open Door Law in 1977, it exempted itself from the law. That’s right. You might expect your local school board, city council, county commissioners or even sewer district to conduct its business in public. You might even attend these meetings from time to time.

At the very least, you expect the news media to attend and report on these meetings so you might be able to read about what happened with school conduct policies, garbage contracts and the like.

Not so with the Legislature. The half dozen or so reporters who regularly cover the Statehouse were sitting around, waiting for the caucus to break because they — all of the public, for that matter — were shut out of the action, where, we would assume, important matters of state were being hashed out behind closed doors.

Don’t expect the Open Door Law to change any time soon. The Legislature has been able to conduct certain business in private for decades and is not about to change that now. The only way this will change is if the GOP loses its super-majority grip on both the House and Senate, and that’s not about to change anytime soon, either.

Posted by Marcia Oddi on Sunday, March 08, 2015
Posted to Indiana Government

Ind. Gov't. - Years of environmental indifference: Are the chickens coming home to roost?

Some might ask that question this weekend after reading stories in the Indianapolis Star and Indianapolis Business Journal.

A long, front-page story (unfortunately behind a paywall) in the latest issue of the IBJ, reported by Kathleen McLaughlin, begins:

The owners of more than 20 polluted industrial sites in Indianapolis are hiding behind the legal protections of a state-run voluntary program to delay cleanup, Mayor Greg Ballard alleges in a letter to state regulators. * * *

A city review of dozens of voluntary remediation sites found that more than 20 have been in the program for longer than 10 years, and several of those still don't have approved work plans, Ballard said in a letter to Easterly last year. "Our review of Indianapolis sites n the program indicates that numerous applicants are taking advantage of its protections without fulfilling their corresponding duties to the public."

The ILB had a long post on this issue in 2007, quoting from the Fort Wayne Journal Gazette and IDEM.

Here is the IDEM Voluntary Remediation site. I don't see information reporting on the sites in the program, how long they have been there, what stage each is in, how many sites have totally navigated the program, etc. A 187-page 1996 document on the site talks at p. 5 of the advantages of participating in the program:

The Certificate of Completion and Covenant Not to Sue provide both the applicant and future land owners with an assurance that the voluntary cleanup has been performed properly and their future liability is strictly limited. This assurance is important to prospective purchasers of the property, and prospective lenders where property is being offered as collateral. Participation in the Voluntary Remediation Program will facilitate the sale and reuse of industrial and commercial properties in the State, an important benefit to all Indiana residents.
So how many Certificates of Completion and Covenants Not to Sue have been issued since the program began in 1993?

A story in the Indianapolis Star today, written by Ryan Sabalow and Vic Ryckaert, looks at the Metalworking Lubricants Co. on the southside of Indianapolis. The lengthy story begins:

Rotten eggs. Sulfur. Natural gas. Near Southside residents describe the odors that permeate their neighborhood in many ways.

"This neighborhood, it just stinks," said Lisa Barnes, 52, who has lived with it for years. "It just stinks like a sewer."

Officials at the nearby Metalworking Lubricants Co. plant have insisted that what is known as the "Southside stench" isn't caused by the dozens of smudged tanks behind their chain-link fence.

Government regulators, too, have said they don't have proof the company is the source. And even if they did, they say, they can't regulate smells.

But those regulators knew where to turn when they wanted to put an abrupt end to the smell in 2012. With Super Bowl XLVI only a week away, an Indianapolis Star investigation recently discovered, city and state officials quietly signed an agreement to suspend operations at Metalworking Lubricants for seven days in the lead up to and during the nationally televised NFL festivities.

Some activists and residents say the Super Bowl deal raises questions about what the city and state promised the company in order to persuade it to shut down. Were favors offered, some ask, in exchange for ensuring a stink-free event at Indy's nearby Lucas Oil Stadium?

City and state officials insist no favors were extended. But to residents — who had complained about the odor for years — the Super Bowl deal stings in other ways.

"It strikes me as unfair and unfortunate that we can provide clean air and non-smelly air for visitors who come for the Super Bowl," said Southside resident Jim Simmons, "but not for our citizens who are in the path of this odor every day."

As state environmental regulators propose a new air-quality permit for the company, more than 100 activists and residents from the impoverished neighborhood recently packed a hearing.

Many of them cast the Super Bowl agreement as social justice question. Would a wealthy suburb such as Carmel have to endure such a stench so long? Who's more important: the high rollers attending the Super Bowl or average Hoosiers?

More from the story:
The entry gate at Metalworking Lubricants Company, which is located less than a mile from Lucas Oil Stadium, Indianapolis, Tuesday, Feb. 17, 2015. (Photo: Robert Scheer / The Star)

City officials have for years argued that the stench comes from the company. They call it a drain on public safety resources as crews respond to frequent false-alarm reports of natural gas leaks in the neighborhood.

A new permit is now being considered that state officials say could help the odor problem. State officials have proposed adding more stringent pollution limits, factoring in equipment that wasn't in the original permit, and requiring the company to more thoroughly test what chemicals are being released.

But at a recent public meeting at Manual High School, neighbor after neighbor took the podium to express their frustrations with both the state and the city.

They said smells from the plant are so noxious they scare away guests, prevent them from going outside and stymie efforts to revitalize what's long been an impoverished area south of Downtown. * * *

When it comes to fixing the problem, residents have found themselves in a sort of regulatory no-man's land.

It wasn't until 2013 that the Chicago office of the U.S. Environmental Protection Agency issued a violation notice, alleging the company wasn't keeping adequate records or maintaining its scrubber properly "to control sulfur emission and resulting odors."

The action is still pending.

Prior to the federal involvement, state and city officials point at each other for why the agencies, whose headquarters are within walking distance of the plant, have done little to address air-quality concerns.

State officials say the city had primary oversight of air quality prior to 2009. City officials say there's little they can do now that the state is in charge.

Meanwhile, the state has issued no air-quality citations against the company in spite of the Indiana Department of Environmental Management receiving at least 30 complaints about the smell since 2010.

The response to those complaints is often the same: "No regulatory authority." IDEM insists it can't regulate foul odors.

Matthew Stuckey, branch chief of IDEM's air permitting department, says the city shares the blame because it crafted a weak air permit for the company. Stuckey said Metalworking Lubricants' permit issued in 2003 and modified slightly in 2008 only set emissions limits on boilers and a few tanks, ignoring nearly 100 tanks used for storage and production.

"They just simply didn't do a thorough job," Stuckey said

The state is bound by the terms of that permit, he said. "It makes it very difficult for us to turn around and say 'Well, you didn't obtain the proper permits,' when our Indianapolis inspectors were aware that it was present. To go in now and shut down a facility based on that would be very difficult. It would be fraught with a lot of litigation."

Katie Heinz and Kelly Patrick Slone had a WRTV story with video and maps on March 5-6.

The WRTV story links to a long March 3rd report in The Southsider Voice by B. Scott Mohr that includes:

If residents of the Near Southside had their say, the new air permit being issued to the Metalworking Lubricants Co. would contain the strictest of requirements and the costliest of fines when emissions limits were breached. In fact, many residents would like to see all of the company’s permits revoked and an “Out of Business” sign hanging in front of the factory at 1509 S. Senate Ave.

The company produces industrial oils, compounds, greases and other products. Unfortunately for the community, the by-product of the plant’s operations is a stench that drives people indoors and causes concerns for what they are breathing.

The disgusting, intense odor – often resembling natural gas – is routinely smelled around Concord Community Center, Manual High School, Garfield Park, Fountain Square and on the IUPUI campus, where students and faculty complain of headaches, hives and respiratory irritation. Some people have said they were nauseated.
Opinions on health risks of the odor are split. According to Marion County Local Emergency Planning Committee Chairman William Beranek, concentrations typically found in the city air aren’t likely to be noxious.

Citizens Gas has taken more than 100 phone calls from people who believe there is a natural gas leak in the area. Investigations normally reveal that the aroma originates from Metalworking Lubricants. “We have had a lot of false alarms, with the gas company and fire department responding,” said Dr. Beranek. “The false alarms may development a sense of complacency in people.”

The smell – which many believe is the result of Metalworking Lubricant’s scrubber not properly cleansing the air it emits – has become so common that many residents no longer associate it with a natural gas leak, and that is bothersome to him, who fears a real leak may go unreported. “One of these alarms could be a real one and result in an explosion and kill people. People close to the plant could have a natural gas leak in their house, but because they know Metalworking Lubricants has an odor from time to time, they may not report it.”

The business is no stranger to environmental controversy. An explosion at the plant in 1995 rocked the area, and the company was responsible for a 25,000-gallon above-ground oil spill in 2010. The incident required 850 tons of polluted soil to be disposed of. Despite the volume of the spill, the Indiana Department of Environmental Management claimed that no toxic material was released into the sewer system or any nearby water sources.

As for the odor, Metalworking Lubricants has always been quick to pass the blame to others. But area residents know better. What’s puzzling to them is how successful the company has been at delaying serious action all these years.
Metalworking Lubricants, which has been fined $8,600 over the past three years for resource conservation and recovery act violations (not air), refused comment when approached for this story.

Matthew W. Stuckey, IDEM branch chief, admitted that the government is moving slowly. “We have asked for records, but we have not gotten what we have asked for. We don’t have the resources to continually monitor them. It’s not a perfect system, but it’s the best we can have with our resources.”

Posted by Marcia Oddi on Sunday, March 08, 2015
Posted to Environment | Indiana Government

Ind. Gov't. - "Mortgage settlements in jeopardy: Bill killing them moves quietly" Or not?

This is a big story in today's Fort Wayne Journal Gazette, reported by Rebecca S. Green. The long story begins:[ILB emphasis]:

Remember back in the grim days of the mortgage foreclosure crisis? Back when consumers in trouble on their mortgages told horror stories about their inability to reach a live human being at their bank? Back when borrowers would have to fax forms to Wichita on one day and Cleveland the next?

Well, if a proposed piece of legislation working its way through the Indiana House of Representatives is passed as it stands, Hoosier borrowers might find themselves right back there.

Tucked inside Senate Bill 415, on Page 55 of a 104-page bill, is a paragraph repealing language from state code that created, back in 2009, the practice of mortgage settlement conferences for troubled borrowers facing foreclosure.

The change in language isn’t in a bill primarily about mortgages. Most of the bill deals with vacant and abandoned properties. It unanimously passed the Senate in mid-February and is currently in the House’s Local Government Committee.

Attempts to reach various legislators this past week were unsuccessful. Messages left last week with both the Indiana Mortgage Bankers Association and the national Mortgage Bankers Association were not returned by Friday evening.

ILB: As the bill came out of Senate Committee, it would have repealed much of IC 32-30-10.5, the chapter of current law titled "Foreclosure Prevention Agreements for Residential Mortgages."

However, a successful Feb. 10th 2nd reading motion (motion #3) made by Senator Tallian, that can be found beginning at p. 94 (paging as in the bill document) of the Feb. 17 printing and continues through p. 100, deleted many pages (pp. 51-63) of language in the Jan. 30th version, language which would have gutted much of IC 32-30-10.5.

Here is the current, Feb. 17, 2015 printing of the 104-page bill, it is the version which passed the Senate and is now in House Committee. At the bottom of p. 52 and the top of p. 53, SECTION 31 of the bill would add a new Sec. 12 to IC 32-30-10.5:

Sec. 12. This chapter does not apply to a mortgage that is serviced by a mortgage servicer that is subject to the requirements of 12 CFR 1024.39, 12 CFR 1024.40, and 12 CFR 1024.41.
In addition, SECTIONS 28-30 of the bill would make conforming changes, such as "Except as provided in section 12 of this chapter."

It is not clear to the ILB whether the changes made by the Senate second reading amendment resolve the issues raised in today's FWJG story. 12 CFR 1024.39, 40, and 41, which were adopted in 2013, deal with: early intervention requirements for certain borrowers, continuity of contact, and loss mitigation procedures, as they relate to mortgage servicing.

Did these federal regulations preempt the Indiana law? Or does the Indiana law relating to mortgage foreclosures and settlement conferences continue to be needed? Will a change that would leave the Indiana law in effect except that it "does not apply to a mortgage that is serviced by a mortgage servicer that is subject to the requirements of 12 CFR 1024.39, 12 CFR 1024.40, and 12 CFR 1024.41" add clarity, or sow confusion?

The FWJG story today concluded:

Some of the arguments for the proposed changes have alleged the program isn’t needed because federal programs make similar requirements of lenders, another argument [Allen Superior Court Judge Nancy Boyer] isn’t buying.

“The reason the state of Indiana enacted the statutes was because the borrowers were falling in the cracks,” she said.

Those federal laws have been in place for just over a year, and have done nothing to stem the tied of foreclosures in Allen County, which are on the rise again, Boyer said.

“If (the banks) are so positive that this is duplicative, and it causes delays,” Boyer said. “Then they should not be hesitant to have all the testimony come before the commission.”

Posted by Marcia Oddi on Sunday, March 08, 2015
Posted to Indiana Government

Ind. Courts - Judicial Center's Legislative Update: 9th weekly installment

Here is the ninth weekly installment of the Legislative Update for the 2015 legislative session. This was the first week for bills to be considered in the 2nd house committee, and there was little activity.

Posted by Marcia Oddi on Sunday, March 08, 2015
Posted to Indiana Courts

Saturday, March 07, 2015

Ind. Gov't. - "States Weigh Legislation to Let Businesses Refuse to Serve Gay Couples"

Updating this ILB post from Feb. 26, and particularly the WAPO story quoted, Richard FaussetT and Alan Blinder of the NY Times reported March 5th in a story titled "States Weigh Legislation to Let Businesses Refuse to Serve Gay Couples." some quotes:

Many states are now reliving a version of events that embroiled Arizona in February 2014, when Gov. Jan Brewer, a Republican, vetoed a bill that would have allowed businesses to use their religious beliefs as a legal justification for refusing to serve gay customers.

The resurgent controversy is fueled in part by a deep anxiety among many evangelicals and other conservatives that the Supreme Court will make same-sex marriage legal in all 50 states after it takes up the matter in April.

“The L.G.B.T. movement is the main thing, the primary thing that’s going to be challenging religious liberties and the freedom to live out religious convictions,” said State Senator Joseph Silk, an Oklahoma Republican and the sponsor of a bill in that state. “And I say that sensitively, because I have homosexual friends.”

As in Arizona last year, some of the new bills are already experiencing pushback from businesses and prominent conservatives who are concerned that they might lead to boycotts or harm their states’ reputations.[*] And gay-rights groups say the bills would enshrine discrimination.

In Arkansas, a so-called conscience protection bill was scuttled in the Judiciary Committee of the State Senate on Feb. 25, a day after the homegrown retail giant Walmart released a statement arguing that the bill would send “the wrong message about Arkansas, as well as the diverse environment which exists in the state.”

Supporters of the proposal, which the State House of Representatives overwhelmingly approved, said they might introduce a new version this session.

In Georgia, powerful business interests helped kill similar legislation last year. Opposition to two similar bills remains strong among a portion of the state’s elite, who are sensitive to the perceptions that Southern states, in particular, can be havens of intolerance.

“What you have to be careful about is making sure you don’t conform to those perceptions,” said former Gov. Roy Barnes, a Democrat. “That’s the reason this bill is so dangerous.”

The Georgia Senate approved a version of the legislation on Thursday afternoon by a vote of 37 to 15.

Similar bills have been introduced in Colorado, Hawaii, Indiana, Michigan, Utah, West Virginia and Wyoming, according to the Human Rights Campaign.

Bills in South Dakota and Wyoming recently failed.

________
* See also this ILB post from yesterday: "Fear of lawsuits unites Indiana Chamber against 'religious freedom' bill."

Posted by Marcia Oddi on Saturday, March 07, 2015
Posted to Indiana Government

Ind. Courts - 7th Circuit Judge Posner "rips colleagues, immigration courts, backs Chicago cabbie"

Here is the 33-page March 4, 2015 opinion, Mohamed Bouras v. Eric Holder, Jr., authored by Judge Hamilton, joined by Judge Sykes. Dissent by Judge Posner, beginning on p. 15. [ILB: Read the ruling for yourself, I don't find where Posner inordinately "rips his colleagues," as the Sun-Times headline reports.]

At issue in this review of an order of the board of immigration appeals is the question of whether there was a sham marriage. The March 6, 2015 Chicago Sun-Times carried this story by Kim Janssen, here are some quotes:

U.S. Appeals Court Judge Richard Posner slammed both his colleagues on the Seventh Circuit and immigration authorities for their treatment of Bouras, saying they have “confused a failed marriage with a fraudulent one” and are ratifying ”a prime example of administrative incompetence.”

Bouras and his ex-wife, Jennifer Schreiner, say their marriage failed because he wanted children and she didn’t want any more than she already had. Bouras was unable to find work in Ohio after they married in 2006, so spent half his time apart from his wife, working as a cabbie in Chicago, they say.

Citing that evidence, Appeals Court Judges Diane Sykes and David Hamilton agreed with an immigration court judge that “an undocumented alien’s brief marriage to a U.S. citizen, during which the couple spent little or no time together and kept their property and finances separate, raises obvious warning signs for immigration authorities.”

But Posner wrote that ”there is no evidence that the marriage was fraudulent” and added that what “did in” Bouras was the immigration court’s failure to let Schreiner testify for her ex-husband that the marriage was for real.

Schreiner, who had work commitments that prevented her from traveling from Columbus to Chicago on the day of the hearing, could have testified via telephone, or on another day, Posner wrote.

The immigration judge’s decision to prevent her from testifying “appears just to be his personal rule, his display of arbitrary bureaucratic power,” Posner wrote, before quoting from Shakespeare’s ‘Measure for Measure’: “Oh, it is excellent / To have a giant’s strength; but it is tyrannous / To use it like a giant.”

Posner has a national reputation for both his intellectual brilliance and at times, his staggering rudeness. But even by his standards, the opinion constitutes a blistering attack on his colleagues and the immigration courts.

He said he was “disturbed” that Sykes and Hamilton criticized Bouras for waiting too long before trying to delay the critical hearing in his case, telling them, “Bouras is a taxi driver, not a lawyer.”

Posted by Marcia Oddi on Saturday, March 07, 2015
Posted to Ind. (7th Cir.) Decisions

Friday, March 06, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decisions)

For publication opinions today (2):

In John Norris v. State of Indiana, a 7-page opinion, Chief Judge Vaikik writes:

John Norris sold ten hydrocodone pills for $6 each to a confidential informant during a controlled buy. Norris was charged with a Class A felony and pled guilty to Class B felony dealing in a controlled substance. The trial court sentenced him to twenty years, all executed. Norris now appeals his sentence, arguing that it is inappropriate.

Although Norris has a criminal history and was on probation when he committed this offense, given the small amount of pills that were sold to a confidential informant during a controlled buy, we find that a twenty-year executed sentence is excessive. We therefore remand this case to the trial court with instructions to impose a sentence of twelve years, with eight years executed in the Indiana Department of Correction and four years suspended to supervised probation.

In Demand Johnson v. State of Indiana, a 5-page opinion, Judge Baker writes:
Demand Johnson appeals the trial court’s order that he pay $340 for probation fees. Specifically, Johnson argues that the trial court abused its discretion when it ordered him to pay probation fees without first conducting an indigency hearing. We find no requirement that a trial court should conduct an indigency hearing at the time probation fees are ordered. Nevertheless, the trial court has a duty to conduct an indigency hearing before or upon the completion of a defendant’s sentence. Additionally, probation fees should reflect the time a defendant actually served on probation. Therefore, we remand to the trial court to conduct an indigency hearing upon the completion of Johnson’s sentence and to reassess probation fees relative to the time that Johnson served on probation.
NFP civil decisions today (2):

Allstate Insurance Company as Subrogee of Elaine Weiman v. Cleve W. Hatfield, and Michael W. Hatfield (mem. dec.)

In re the Termination of the Parent_Child Relationship of: S.H., A Child in Need of Services, M.H. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (4):

Juan Lucio v. State of Indiana (mem. dec.)

Darius T. Fisher v. State of Indiana (mem. dec.)

Marshall Barnes-Bey v. State of Indiana (mem. dec.)

Derek Core v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, March 06, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Fear of lawsuits unites Indiana Chamber against 'religious freedom' bill"

That is the title to John Ketzenberger's long Sunday column. A quote:

The Indiana Chamber opposes SB 101 because of the costs associated with it, Carter said. The actual cost of dealing with the discrimination lawsuits many believe will arise if the state law passes the legislation is the obvious concern, but the chamber also worries about the cost of lost opportunities if Indiana is perceived as a less-welcoming place for people with a variety of religious beliefs — or none at all.

"We think it could damage the Indiana brand, if you will," [Cameron Carter, the Indiana Chamber's vice president of economic development and federal relations] said.

Posted by Marcia Oddi on Friday, March 06, 2015
Posted to Indiana Government

Ind. Gov't. - More on: Is the General Assembly subject to the public records law?

Supplementing my post below on the PAC opinion on applicability of the public records law to the General Assembly, here is earlier ILB post of interest, from July 26, 2013. It looked at whether emails of the General Assembly were subject to the Public Records law, and at both the Masariu and Berry decisions, as well as Gov. O'Bannon's 2001 veto of a bill "which would have exempted the General Assembly, and the legislative services agency, from the public records law, except to the extent expressly set out in law or in the rules of the house, senate, or legislative council."

Posted by Marcia Oddi on Friday, March 06, 2015
Posted to Indiana Government

Ind. Gov't. - Is the General Assembly subject to the public records law?

In an opinion issued today, Luke Britt, the Public Access Counselor, leaves no doubt that this is the case. The opinion is J5-FC-69: Alleged Violation a/the Access to Public Records Act by Indiana House Representative Eric Koch and the Indiana House Republican Caucus. The request, filed by William R. Groth, asked for:

[c]opies of correspondence between Representative Eric Koch, Koch's staff, and Duke Energy, and Indianapolis Power & Light. The information is specifically regarding the distributed generation bill, H.B. 1320, filed by Representative Eric Koch. This public records request should include but is not limited to emails, all draft records, notes, minutes, scheduling records, text messages, other correspondence and all other records. The search for records may be limited to September 1,2014 to January 15, 2015.
In response, the cousel for the caucus argued:
the Indiana Access to Public Records Law was inapplicable to the Indiana General Assembly based upon House tradition and the holding in Masariu v. The Marion Superior Court No.1, 621 N.E.2d 1097 (Ind. 1993).
In the opinion, the PAC leaves no doubt that the Public Records Act applies to the Indiana General Assembly, nothing that the Legislature itself wrote in Ind. Code § 5-14-3-1:
A fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information.
The opinion continues:
Nowhere in the APRA does the statute exempt the General Assembly from its provisions. In fact, it carves out several exemptions for itself in relation to specific records. Therefore, if it does not apply, there would be no need to create exceptions. See Ind. Code §§ 5-l4-3-4(b)(13) and (14) and; 5-14-3-9.5(a) et. seq.

Furthermore, Ind. Code § 5-14-3-2(n)(1) defines public agency for the purpose of the APRA as Any board, commission, department, division, bureau, committee, agency, office, instrumentality, or authority, by whatever name designated, exercising any part of the executive, administrative, judicial, or legislative power of the state.

The Caucus cites Masariu v. The Marion Superior Court No.1, 621 N.E.2d 1097 (Ind. 1993) as basis for its assertion that the APRA does not apply to the General Assembly. In Masariu, the Indiana Supreme Court declined to insert itself into the operations of the legislative branch based upon separation of powers principles. That particular case, however, concerned the matter of whether House personnel should undertake a task and did not address any substantive APRA or Open Door Law issues. The Court did not affirmatively state whether the APRA was applicable or not, only that the Supreme Court would not interfere with internal legislative operations.

The Caucus also cites Berry et. al. v. Crawford, et. al., 990 N.E.2d 410 (Ind. 2013). Berry held that where a particular function has been expressly delegated to the legislature by the Indiana Constitution without any express constitutional limitation or qualification, disputes arising in the exercise of such functions are inappropriate for judicial resolution. Distinguishable is the fact that access to public records and governmental transparency is not exclusive to the legislative branch of government. As noted above in Ind. Code § 5- 14-3-2(n)(l), those responsibilities apply across all levels of state and local government. Both Masariu and Berry were concerned with what is non-justiciable.

This very Office was created by the Indiana Legislature in part to make recommendations regarding public access to the General Assembly. See Ind. Code § 5-14-5-10(7). I opine on matters related to the executive and legislative branches of government as well. Therefore, it is my opinion the Indiana General Assembly is subject to the Indiana Access Laws.

It should also be noted the General Assembly has contemplated writing itself out of the APRA after Masariu (See H.B. 1083 (2001)). It declined to do so. Furthermore, the General Assembly has created specific exemptions for itself regarding work product indicating it considers itself subject to the APRA in other regards.

The opinion concludes that in this specific case, much of what is requested may fall into the legislative work product exception, but "it remains to be seen whether the totality of the documentation is work product." Additionally, the PAC asks that the request be refined so that the emails sought are defined with "reasonable particularly." Concluding:
If resubmitted with reasonable specificity, the Caucus would need to identify the non-disclosable records containing work product and produce the information which does not contain work product.

Conclusion. Based on the foregoing, it is the Opinion of the Public Access Counselor the Indiana General Assembly is subject to the Access to Public Records Act.

Posted by Marcia Oddi on Friday, March 06, 2015
Posted to Indiana Government

Ind. Gov't. - Public Access Counselor takes West Lafayette School Corp. to the woodshed

Read the March 5 Formal Complaint J5-FC-28; Alleged Violation of the Access to Public Records Act by the West Lafayette School Corporation for yourself. Some quotes from the analysis:

At the outset, I encourage the WLSC to take note of the General Assembly's words in Ind. Code § 5-14-3-1: "The public policy of the APRA states that "(p)roviding persons with information is an essential function of a representative government and an integral part ofthe routine duties of public officials and employees, whose duty it is to provide the information."

I emphasize this language as the WLSC appears to lament the responsibility of being a steward of such information. As representative civil servants, public employees have the affirmative duty to respond to public records requests regardless of the volume of inquiries they receive. It should be integrated in their duties. This is not to say they need to neglect other responsibilities in the regular discharge of their business, however, it should be part of their routine duties.

The West Lafayette School Corporation is a public agency for the purposes of the APRA. See Ind. Code § 5-14-3-2(n)(I). Accordingly, any person has the right to inspect and copy WLSC's public records during regular business hours unless the records are protected from disclosure as confidential or otherwise exempt under the APRA. See Ind. Code § 5-14- 3-3(a).

By itself, a recording of an open meeting should not be subject to redactions. When a properly noticed meeting attended by the public is conducted, anyone has the opportunity to observe and record. See generally, Ind. Code § 5-14-1.5 et. al. Therefore, if confidential subject matter is discussed, it has already been disclosed and loses its confidential or discretionary status.

That being said, a governing body does not have to record its meetings. Only minutes and/or memoranda are required to be kept. However, if a governing body does record a meeting, the recording becomes public record subject to inspection and copying.

WLSC has not identified why or how their recording technology is so limited that it cannot reasonably isolate the meeting in question and duplicate it. I am familiar with recording technology used by public agencies statewide and have not encountered a system which incurs $75-$100 to generate a copy.

For example, Indiana courts often use a proprietary system to record proceedings. While the file format of the recording is unique to the judiciary, the courts can isolate the proceeding easily by use of time code and convert the file to a universally recognized file format with very little cost. I have difficulty accepting the WLSC's system is so advanced it could not undertake a similar measure cost-effectively.

By the tone of WLSC's response and the amount charged, one can reasonably infer the fee set to copy a recording of an open board meeting was meant to frustrate access based upon your history as a repeat requester. The contents of the recording of the open meeting should be provided to you without redactions. Costs should be reexamined and limited to isolating the entirety ofthe open meeting and, if a duplicate is requested, the physical medium upon which it is copied.

Posted by Marcia Oddi on Friday, March 06, 2015
Posted to Indiana Government

Ind. Gov't. - "State attorneys general are more and more powerful. Is that a problem?"

That is the headline to a long story today in the Washington Post, reported by Paul Nolette. A sample:

Another problem arises from the fact that, unlike the federal government, most states divide executive power between independently elected executive officials. When Alexander Hamilton argued against a plural executive in Federalist No. 70, he noted that their existence “tends to conceal faults and destroy responsibility.” By allowing multiple actors to engage in credit claiming and blame avoidance for any given policy, “public opinion is left in suspense about the real author.”

As AGs increasingly use litigation as a method of policymaking, it becomes more difficult for voters to know who to hold responsible for these policy decisions. This is particularly true when AGs and governors simultaneously claim to represent the state’s interests and do so – as with health care and immigration – on opposite sides of the issue.

AGs’ policymaking also raises concerns because much of it occurs well outside of the public view. Recent revelations exposing secretive alliances between AGs and outside interests, including energy firms and plaintiffs’ lawyers, illustrate the dangers of the lack of transparency involved in this form of policymaking. Because so much of the AGs’ contemporary activity occurs behind closed doors and in highly technical legal forums, this form of policymaking may reflect the private interests of the parties involved rather than the broader public interest.

These concerns about democratic accountability are not likely to disappear, particularly since AG activism shows little sign of abating. For better or worse, AGs’ presence on the national stage has become politics as usual.

Posted by Marcia Oddi on Friday, March 06, 2015
Posted to Indiana Government

Ind. Courts - How is the General Assembly dealing with Marion County Court issues?

How is the 2015 General Assembly dealing with two issues facing the Marion County Court system?

So what is happening in the 2015 General Assembly?

Senator Mike Young has introduced the only bill dealing with Marion county courts: SB 523. It has passed the Senate and is in House Courts and Criminal Code. Would the current bill address and resolve either of these issues? You be the judge:

Synopsis: Marion County small claims. Establishes three small claims court districts within Marion County, each consisting of three township small claims courts. Provides that candidates for small claims court judge run at-large within each district, with the three candidates receiving the greatest number of votes within a district being elected. Establishes a procedure for assigning judges elected at-large within a district to a particular township small claims court, requires the judges to be full time judges, and fixes the judges' salary at 70% of the salary of the Marion County circuit court judge. Increases the small claims jurisdictional amount to $8,000. Requires that two dollars of the township docket fee be transferred monthly to Decatur and Franklin township (each receiving one dollar). Makes conforming amendments.
Effective: Upon passage.

Posted by Marcia Oddi on Friday, March 06, 2015
Posted to Indiana Courts

Thursday, March 05, 2015

Law - "ACA case shows Congress often misses mark when writing legislation"

Congressional legislation often needs "technical corrections" after passage, reported Paul Kane of the Washington Post yesterday in this story. A few quotes:

It turns out, Congress often makes mistakes when writing laws. In other instances [than the ACA], sometimes a few years later, Congress comes back with a “corrections bill” to fix mistakes that have become apparent. Sometimes lawmakers wait for the courts to tell them what they got wrong and then make amends after the fact.

“This happens all the time,” said Sen. John Cornyn (R-Tex.), the No. 2 Republican leader. “Just in terms of statutory construction, trying to figure out: What in the world did Congress mean?”

But partisan differences over Obamacare run so deep that there’s been no possibility of fine-tuning the law or winning agreement among lawmakers over what it actually means. * * *

While legislative drafts can often contain muddied language, the battle over Obamacare may represent the most significant legal challenge to a law based on what some might consider careless wording.

The issue of imprecise lawmaking came up recently in the context of the District of Columbia’s plan to legalize possession of marijuana. Congressional Republicans sought to impose restrictions on the plan by using a massive December bill to fund almost all of the federal government. They included a line forbidding the new marijuana measure from taking effect by including a line in legislation providing federal funds to the District.

After the fact, GOP lawmakers discovered that District officials had found a loophole to exploit. District officials declared that the restriction was null and void because the marijuana law had already been enacted when the voters approved it, and last week the law took effect, making it legal to smoke marijuana.

The issue seems destined for the federal courts — and also for a potential do-over by Republicans when they write funding legislation later this year.

Posted by Marcia Oddi on Thursday, March 05, 2015
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (1):

In In the Matter of the Irrevocable Trust of Mary Ruth Moeder; Susan R. Moeder v. Salin Bank & Trust Company, a 28-page opinion, Judge Bailey writes:

Salin Bank and Trust Company (“Salin”), trustee of the Mary Ruth Moeder Revocable Living Trust Agreement (the “Trust”), petitioned the probate court to approve an accounting of the Trust and to resign as trustee. Susan Moeder (“Moeder”), the former trustee and current contingent remainder beneficiary of the Trust, objected to the accounting and alleged that Salin had breached its fiduciary duties by imprudently administering the Trust in violation of the Indiana Uniform Prudent Investor Act. The probate court entered a judgment in favor of Salin and ordered that Moeder personally pay the reasonable attorney’s fees and costs Salin incurred in defending against Moeder’s objection and claims. We affirm. * * *

The probate court did not abuse its discretion in granting Salin’s motion for a one day continuance. The probate court’s findings and conclusions were not clearly erroneous. The probate court did not err in concluding that Moeder brought or continued to litigate a groundless claim and did not abuse its discretion in awarding Salin $106,001.28 in attorney’s fees and costs. Salin’s request for appellate attorney’s fees is denied. Affirmed.

NFP civil decisions today (3):

Aurora Loan Services, LLC v. Gary Brian Plunkitt and Robert Nelson Imbody (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of, A.R.B., & A.K.B. (Children), and J.B. (Father) v. The Indiana Department of Child Services (mem. dec.)

Barbara L. Mack (individually) and Barbara L. Mack, Grandmother/Custodian and Next Friend of Jaylan N. Brown, a minor child v. Christine A. Amiott, Harold S. Burchfield, et al (mem. dec.)

NFP criminal decisions today (6):

Jennifer Harding v. State of Indiana (mem. dec.)

Ted Prather v. State of Indiana (mem. dec.)

Alvino Pizano v. State of Indiana (mem. dec.)

Kap Thang v. State of Indiana (mem. dec.)

Devonne Clayborne v. State of Indiana (mem. dec.)

Wynford Jones v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 05, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Kenneth Griesemer v. State of Indiana, a 9-page, 3-2 opinion, Justice Massa writes:

Kenneth Griesemer appeals his conviction for patronizing a prostitute, arguing the State failed to rebut his defense of entrapment. We are asked to decide whether the State disproved one element of that defense—either showing there was no police inducement or showing Griesemer was predisposed to commit the crime—beyond a reasonable doubt. Because we find the undercover detective merely presented Griesemer with an opportunity to patronize a prostitute, we find no inducement and therefore no entrapment. We affirm. * * *

Griesemer appealed his conviction, arguing he raised the entrapment defense by showing police inducement—it was Detective McLemore who first mentioned money, sex, and the possibility of trading one for the other—and the State failed to offer any evidence of Griesemer’s predisposition to commit the offense. A majority of our Court of Appeals agreed, and it reversed Griesemer’s conviction. * * *

Indeed, if we were to find entrapment on these facts, we would effectively put an end to prostitution stings. We are not willing to so limit the activity of undercover officers to the detriment of safety and quality of life in many neighborhoods.

Because a reasonable trier of fact could have found the State proved, beyond a reasonable doubt, the police did not induce Griesemer, his entrapment defense fails. We need not address the question of his predisposition to commit the crime.

Rush, C.J., David, J., concur.
Rucker, J., dissents with separate opinion in which Dickson, J., concurs.

Rucker, Justice, dissenting. [which begins on p. 8, and concludes] In my view the Court of Appeals majority got it exactly right: “Because the evidence most favorable to the State permits an inference only that the police induced Griesemer’s criminal behavior, but does not contain any evidence permitting an inference that Griesemer was predisposed to commit patronizing a prostitute, entrapment was established as a matter of law . . . .” Griesemer, 10 N.E.3d at 1021. I therefore respectfully dissent and would reverse the judgment of the trial court.

Dickson, J., concurs.

Posted by Marcia Oddi on Thursday, March 05, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Zoeller appeals captive-deer case to Supreme Court"

Updating many earlier ILB posts on this topic, including, most recently, from Feb. 18th, "High fenced hunting bill passes House, goes to Senate," Ryan Sabalow reports today in the Indianapolis Star:

Indiana's attorney general has appealed to the state's top court a case that removed the authority of wildlife officials to regulate captive-deer hunting.

But even as he filed a legal challenge Wednesday that argues the Department of Natural Resources had legal authority to ban high-fence hunting, Attorney General Greg Zoeller put pressure on lawmakers to end a legislative impasse.

"What would be preferable is a legislative solution — a bill reflecting the will of the people's elected representatives — rather than a court-mandated solution," Zoeller said Wednesday in a statement.

House Bill 1453, which would formally legalize high-fence hunting, has already passed the Indiana House. But it faces an uncertain future in the second half of Indiana's legislative session. Last year, a similar bill failed in the Senate by just one vote.

The Senate's top Republican, President Pro Tempore David Long, has likened high-fence hunting to dog fighting and has stopped HB 1453 from moving forward. Long said last week that he would allow the bill to advance only if he thought it could be reworked to ensure ethical hunting practices and adequate protection against the facilities spreading disease.

Absent a bill passing, Zoeller said that he had no choice but to appeal the case Wednesday, the deadline to challenge an appellate court ruling.

ILB: Here is a copy of the State's petition to transfer, filed March 4, 2015.

Posted by Marcia Oddi on Thursday, March 05, 2015
Posted to Indiana Law

Wednesday, March 04, 2015

Law - "The Lost Emails of the I.R.S. Point to a Wider Problem"

That is the headline to a June 30, 2014 NYT article worth rereading. A sample:

Although banks, insurance companies and other recorders of important data have created rules for preserving information, the government has to take special consideration with preserving federal records. Regulations were drafted with paper in mind and agencies must make the transition to preserving the growing amount of electronic records, including email. Almost every agency, bureau, department and commission has specific criteria and practices, leading to overlapping but not identical preservation techniques.

Even requiring agencies to store emails as electronic records rather than on paper might not solve the federal government’s problems with record management.

The article is cited in an op-ed in the Times today written by Matthew Connelly,a professor of history at Columbia University and Richard H. Immerman, a professor of history at Temple University and chair of the State Department’s Historical Advisory Committee, headed "What Hillary Clinton’s Emails Really Reveal." A sample:
This is a problem for the entire federal government, as we should have realized when the Internal Revenue Service could not produce even very recent emails to answer a congressional inquiry in 2014. While archiving email presents a technical challenge to the federal government, the Obama administration, to its credit, has ordered that all electronic records be managed digitally by 2019, including records that, in the past, departments would have printed out before sending to the National Archives and Records Administration. That organization itself is already overwhelmed with unprocessed paper records dating from the Cold War.

Posted by Marcia Oddi on Wednesday, March 04, 2015
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 3 NFP memorandum decisions)

For publication opinions today (2):

In David Bisard v. State of Indiana , a 19-page opinion, Judge Friedlander writes:

Following a jury trial, David Bisard was convicted of Operating a Vehicle with a Blood Alcohol Content of .15 or Higher Causing Death, a class B felony, and two counts of Operating a Vehicle with a Blood Alcohol Content of More Than .08 Percent Causing Serious Bodily Injury, class D felonies.2 Bisard was subsequently sentenced to an aggregate term of sixteen years executed with three years suspended to probation. On appeal, Bisard presents three issues for our review:
1. Was Bisard denied his right to present a defense when the trial court ruled that if Bisard presented evidence from several witnesses that he was not a heavy drinker in response to expert testimony offered by the State, he would open the door to evidence of his subsequent arrest for operating a vehicle while intoxicated?
2. Did the trial court abuse its discretion in denying Bisard’s motion for mistrial based upon issues relating to juror misconduct?
3. Did the trial court abuse its discretion when for purposes of sentencing it considered as an aggravating factor that Bisard had abused police power and breached the public trust?
We affirm.
In Christopher Harding v. State of Indiana , a 6-page opinion, Sr. Judge Carden writes:
Christopher Harding appeals the trial court’s calculation of credit for the time he served prior to the revocation of his probation as well as the sentence imposed following the revocation. We reverse and remand with instructions.
NFP civil decisions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: H.A., B.A., and J.A. (Minor Childrent) and H.A. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (2):

Rodrick Hughes v. State of Indiana (mem. dec.)

Erik Toombs v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, March 04, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Indiana urges high court to terminate Hoosiers health insurance subsidies"

Here is a timely repost of Dan Carden's Jan. 10th NWI Times story. Some quotes:

INDIANAPOLIS | Gov. Mike Pence and Attorney General Greg Zoeller are asking the U.S. Supreme Court to effectively cancel the private health insurance policies of more than 100,000 Hoosiers by the end of June.

The Republicans recently submitted a friend-of-the-court brief to the nine justices supporting a lawsuit that seeks to deny federal subsidies provided by the Affordable Care Act, also known as Obamacare, to individuals purchasing health insurance in states, like Indiana, that have not established a state-run insurance marketplace.

In the filing, written by Indiana Solicitor General Thomas Fisher, a Jasper County native, the state argues any plain text reading of the 2010 health law clearly requires state creation of an insurance marketplace as a condition of that state's citizens receiving federal subsidies to purchase health insurance policies through the marketplace.

Pence ruled out Indiana establishing a state health marketplace, also known as an exchange, in one of his first pronouncements after winning election in November 2012.

The Republican-controlled General Assembly similarly has refused to create an Indiana insurance marketplace.

The governor has said he has no interest in reversing that action even though approximately 118,000 Hoosiers now receiving health insurance subsidies, worth on average $4,000 each, will lose that money — and likely their health insurance — and may even have to pay back past subsidies, if Pence's argument prevails at the Supreme Court.

"I stand by our decision not to establish a state-based exchange in Indiana," Pence said. "The truth is, I think that ordering every American to purchase health insurance — whether they want it, or need it or not — was the wrong idea to begin with, and I think Obamacare should be repealed." * * *

The Supreme Court is scheduled hear oral arguments March 4 in the case, known as King v. Burwell. A ruling is expected before the high court ends its annual term in June.

In their filing, Pence and Zoeller also take issue with an Obamacare requirement subjecting employers with more than 50 full-time employees to a tax penalty if they fail to provide essential health coverage and their workers instead purchase subsidized health insurance through the marketplace.

They argue the "employer mandate" only applies in states with a state-created marketplace, and therefore Indiana businesses should not be subject to the penalty if they choose not to provide sufficient insurance coverage for their employees.

Moreover, they claim the federal government also is requiring government employers, such as the state or Hoosier school corporations, to comply with the employer mandate, in effect imposing a prohibited intergovernmental tax and infringing on state sovereignty.

"It forces each state either to pay the tax or to engage in Congress’ desired behavior," they write. "Such a direct tax would plainly be unconstitutional if Indiana levied it on the United States, so it is hard to understand how it could be constitutional when roles are reversed."

A separate Indiana lawsuit challenging the subsidies and employer mandate, filed in October 2013 by Zoeller of behalf of the state and 39 school corporations, including East Porter County School Corp., is on hold until the Supreme Court rules in King v. Burwell.

The NWI Times story links to the State of Indiana amicus briefs in King v. Burwell and the State's complaint in Indiana v. IRS.

And from Nina Totenberg of NPR, an 8-minute story on today's oral argument, headed "Round 2: Health Care Law Faces The Supreme Court Again."

Posted by Marcia Oddi on Wednesday, March 04, 2015
Posted to Indiana Government

Environment - "K&D Contract Pork applies for Steuben County special exception for CAFO for 4,800 hogs"

Some quotes from a long story by Jennifer Decker in the Angola Herald Republican:

ANGOLA — Keith Werner has again petitioned for a special exception-usage request from Steuben County on a proposed 4,800-hog concentrated animal feeding operation in the heart of the lakes region. * * *

Werner, owner of K&D Contract Pork, applied for the special exception with the Steuben County Plan Office Friday. Conti said the application is the same as Werner filed last year.

A third-generation farmer, Werner has proposed a 60-acre hog operation at C.R. 600W and C.R. 200N. He proposed two barns, each containing a maximum 2,400 grow-to-finish hogs. Pigs for the operation would arrive at 55-60 pounds and leave weighing between 250-270 pounds. He received an Indiana Department of Environmental Management CAFO permit in January 2014. * * *

A special exception is required from the BZA based on the size of the proposed CAFO, which Conti said is more than 600 swine.

Frank Charlton, Steuben County plan director, said earlier the outcome of a special exception request is based on the affects on the comprehensive plan, runoff to lakes, negative impact, smell, ground water and impact on environment.

Werner’s parcel is near Pine Canyon, Crooked and Lime lakes and Lake Gage. Environmental concerns have been expressed over potential pollution problems and air quality by neighboring lake residents, and a citizens group to fight the proposal was formed.

Multitudes of residents spoke out last year and packed meetings against the proposal. They also wrote numerous letters to the editor that appeared in this newspaper.

Others have said the CAFO would decrease the county’s tourism industry and property values and damage roads from excess truck weights.

Schwarz said his client’s CAFO proposal is also up against the Office of Environmental Adjudication.

Werner withdrew a special exception request with the county last year. That was after an OEA judge requested mediation between Werner and those appealing his CAFO permit.

A stay was granted on appeal Sept. 26, 2014, by Judge Catherine Gibbs. Barry Sneed, IDEM public information officer, said the judge’s request was made in lieu of the county’s pending special exception decision.

News of Werner re-applying for the special exception did not come as a surprise to Pete Hippensteel, vice president of the Steuben County Lakes Council.

“There’s the same concerns — water quality, ground water and potential for runoff from manure application, air quality concerns and their effect on property values,” Hippensteel said.

Posted by Marcia Oddi on Wednesday, March 04, 2015
Posted to Environment

Ind. Gov't. - "Bill targets reducing county jail populations"

Maureen Hayden, CNHI, reports in a long story in the New Albany News & Tribune - some quotes:

INDIANAPOLIS — Sheriffs and local jailers may see more money to help keep numbers in check in their lock-ups, as lawmakers pursue an ambitious plan to clear low-level offenders from state prisons.

The House agreed this week to free up almost $90 million over the next two years for communities that offer treatment programs designed to reduce recidivism. If it survives the session, the measure also will forbid judges from sentencing the lowest level felons — most convicted of drug and theft crimes — to state prisons as of Jan. 1, 2016.

“The money goes directly where we want it. We want to make sure it’s not used simply to build jails,” said House Judiciary Chairman Greg Steuerwald, R-Avon, author of the bill.

The effort has support from groups that represent sheriffs and parole officers, who’ve endorsed the idea of shoring up treatment for those whose crimes are driven by addiction or mental illness. * * *

Indiana already spends about $40 million a year on local community correction programs that include home detention and work-release programs for low level offenders.

But the state’s recidivism rate is high, ranging from 48 to 62 percent over the last decade, so legislators have been looking for something to interrupt that cycle.

Steuerwald said tying state money to treatment is modeled on a Texas initiative. After seeing prison costs spiral due to tougher penalties, especially for drugs, Texas sunk more than $230 million into community programs focused on addiction and mental health treatment. It saw results: Texas closed a prison in 2011, and state prison officials report $3 billion in savings. * * *

Steuerwald’s measure to replicate that success still faces opposition.

Officials with the state Department of Correction aren’t convinced that the new sentencing guidelines will drive down their costs and free up the money that Steuerwald wants to direct into local treatment programs.

In a budget proposed by Gov. Mike Pence, the department asked for $51 million to expand prisons at Miami Correctional Facility near Peru and the Wabash Valley Correctional Facility near Sullivan. Officials anticipate housing more high-security prisoners since lawmakers have also lengthened sentences for the worst offenders.

But the Republican-led House stripped out the department’s request before moving its budget over to the Senate this week.

That decision has the support of Senate leaders who were instrumental in overhauling the criminal sentencing laws.

Senate Appropriations Chairman Luke Kenley, R-Noblesville, has already talked to officials in the Division of Mental Health and Addiction about overseeing grants for local programs designed to reduce recidivism.

Kenley said he’s not sure yet what will happen to the Corrections request for more money to expand prisons.

Meanwhile, Senate Judiciary Committee Chairman Brent Steele, R-Bedford, is dead set against putting more money into prisons. He’s pressing hard for the money to go communities that will take on more low-level offenders.

“As a state, we don’t like unfunded mandates handed down to us by the federal government,” he said. “And it’s our goal to make sure we don’t do same thing to the locals.”

Posted by Marcia Oddi on Wednesday, March 04, 2015
Posted to Indiana Government

Tuesday, March 03, 2015

Ind. Courts - The latest effort to change the way appellate jurists are selected in Indiana

In 2006 I published a Res Gestae article titled "Analysis of another effort to alter the Indiana judicial selection and retention process." A 2005 attempt is detailed in this 2005 Res Gestae article.

This year there was another effort that received a committee hearing; on Feb. 18 the Senate Judiciary Committee held a hearing on SJR 15, a proposed constitutional amendment introduced by Senator Michael Young. The hearing lasted from 3:00 PM to 4:35 PM on the 18th. You can listen to the entire hearing yourself at this link.

The ILB has listened to the hearing and transcribed much of it because it represents a good look at the pros and cons of our current system for selecting Supreme Court justices and Court of Appeals judges, as it exists today. The post is long, but important, I think, for historical reasons.

Here is the text of SJR 15 as introduced. Here is the digest:

Renames the judicial nominating commission as the commission on judicial nominations and qualifications. Provides that one commission member is selected by attorneys licensed in Indiana, one commission member is appointed by the speaker of the house of representatives, and one commission member is appointed by the president pro tempore of the senate. Requires that at least one commission member appointed by the governor must be an attorney. Prohibits a person who is a lobbyist from serving on the commission. Provides for the governor to fill a vacancy on the supreme court or the court of appeals from nominees recommended by the commission, subject to confirmation by the senate. Provides that a justice of the supreme court or a judge of the court of appeals serves until July 1 of the tenth year after the justice's or judge's appointment is confirmed by the senate or the justice's or judge's retention in office is confirmed by the house of representatives. Provides that if a justice or judge wants to serve a new term, the justice or judge must apply to the house of representatives for retention. Specifies that a judge or justice will be retained, unless: (1) the judge or justice does not apply to the house of representatives for retention; or (2) at least 60% of the members of the house of representatives vote against retention. Amends the provisions concerning impeachment proceedings for a justice or judge. Provides a transition for justices and judges serving at the time of the adoption of these amendments to the constitution. This proposed amendment has not been previously agreed to by a general assembly.
Sen. Young during his description of his proposal referenced an amendment he had apparently just prepared, but it does not appear on the website.

Here are my notes from the hearing. Occasionally times are indicated in brackets, for anyone attempting to find the testimony in the videocast.

[3:01:00] Senator Young speaking on his proposed amendment. When people vote on retention they don't know anything about them or their record, other than that some unelected people recommended them to the Governor. In Indiana the person selected by the Governor serves for life. No one has ever lost a retention vote. We the people don't have a sayso. Senators and Reps are elected by the people, people can hold us accountable.

A major of the states have people's input involved. The issue today isn't whether the process we have works well, it is are the people served well when they don't have a sayso.

[General description of some other states' systems]

[3:07:00] They may be retained because they are doing a great job. Well, someone is not doing a great job if they are always in the minority. Any why? Because they lack understanding of the law, or have a completely different view of our constitution and our statutes. And maybe that person should be removed. Or it could be if we had a chance to retain them, we might find that we cannot. But we have no sayso, the people have no sayso.

In the proposal, we would keep the nominating commission, with one attorney elected by the bar, 3 appointments by the gov (one of whom must be an attorney), a citizen appointed by the speaker, and another by the pro tem. The governor's recommended nominee would appear before the Senate, first in committee and then the full Senate, it would take 28 votes to confirm.

[3:13:00] After 6 years, a judge could file with the House for retention. The full House could retain by a constitutional majority.

[Discussion among members]

[3:22] Sen. Bray asked:
If the system is broken, what is the problem you are trying to fix?

Young: It is because the people have no sayso, and for life. More people who are elected should look into it, and not just the governor.

Public Testimony

[3:26] Bob Freese, Superior Court, Hendricks County.
He said although Shepard, Dickson and Boehm were out of state, all had agreed to have their signatures on a handout expressing serious concerns and opposition to the proposal. [ILB: Here is a column Boehm wrote for Forefront] He also handed out a law journal article by Judge Najam on the history of Indiana's appellate court system.

Freese continued, saying one thing we need in the law is slow change, if any, and consistency. Under the current system, retention the first time is in 2 years, then 10. He pointed out that if the goal was not to have judges for life, then the pending bill to raise the retirement age from 75 to 80 was inconsistent with that goal. Re the change that would take away two of the lawyers on the commission and give them to the house and senate -- right now we are letting the entire electorate decide whether or not to retain, not the house or senate.

[3:45:00] John Feighner - Served from District 3 on the Nominating Commission twice in the past 15 years, then last November was elected again. While he was on, they made nominations for a COA judge , a Tax judge, and a Supreme Court judge. They meet every two months to review disciplinary cases.

Judicial independence, without fear or favor, free from external pressures -- we adhere to that in Indiana. Re SJR 15, I know it is not your intentions to repudiate these important constitutional values. I do have concerns though that the effect of what you are considering would adversely impact judicial independence and the separation of powers.

[3:50:00] First concern is going from three lawyers with staggered terms who represent their constituencies and their part of the state to one lawyer electged by all the lawyers of the state - it will go to the best known, with the best advertising. In the present system there is both turnover and cultural representation.

The Governor now has the sole discretion to pick three citizens, they are generally business leaders, the same thing goes for diversity and turnover. It is also an opportunity to appoint women and minorities.

Giving appointment power to the speaker and pro tem means the legislature will have the power of the purse coupled with the power of appointments; this puts a pretty heavy thumb on the court.

Re the retention issue, Feighner said the people in Allen County who vote on retention read the papers and generally know about judicial decisions.

[3:59:00] Sen. Delph asked about how the commission members come to a consensus. Feighner responded that it was a very collegial process, and that very rarely did the three lawyers vote one way and the three lay people the other. Delph: So no tension? Feighner: No, in fact particularly on the judicial disciplinary issues, the lay people have a lot of common sense.

[4:02:00] Steve Williams, trial lawyer from Terre Haute, now on the Commission. This is the last year of my second term, I also served from 2006-09. I've been president of the trial lawyers and the trial advocates, both plaintiffs and defendants. In the perspective of lawyers from all over the state, what we have now works very well. The way it is set up gives us geographical and cultural diversity. Can testify to the competence and nonpartisanship of the citizen members. The Commission is very nonpolitical in its choice of nominees.

[4:06:00] The system is not broken, no candidate has had this change as a platform, there is no mandate from the people that we want to give up our right of retention, or that we want other change.

The changes are focusing on the part re selection of candidates, but the most time-consuming thing that we do is discipline of judges. While I've been on, three trial judges have been removed from the bench. [4:08:00] Just as we don't want to project too much politics into the process of the selection of judges, we sure don't want to inject too much politics into the discipline of judges. The present mix of 3 plus 3 plus the CJ has worked well in this part of it.

[4:10:00] John Ulmer, a former member of the commission and a former legislator. I'm from northern Indiana, I came down for myself, and am speaking on behalf of other citizens. I wasn't that familiar with the Commission until I ran for it three years ago. (His term ended last Dec.) Indiana's system is one of the best in the country. It has eliminated almost all politics. During his term the Commission nominated 2 Supreme Court justices, and elected 2 chief justices.

Not one time while we were interviewing did I know whether applicants were D or R. We had both applying. I later found out I had voted for a D. Politics was never ever discussed. Our judges are neutral, nonpolitical. I know that judges will listen to facts and arguments.

Re shortening confirmation to 6 years - as an applicant, why would I want to take that risk that I wouldn't be reconfirmed by the House, my practice would be gone by then.

We just selected CJ Rush last year. I made the motion, Jean Northerner seconded. It wasn't lawyer and citizen. [4:16:00] Re a Q from Sen. Delph re tensions, Ulmer said that the citizens were well represented, the lawyers and citizens have a different perspective and background and the result is excellent.

[4:18] John Trimble, trial, defense attorney from Indianapolis. Past member 2007-10 of Commission, when Supreme Court and Tax Court positions were filled. Has practiced in 25 states, chaired a national review - a judicial task force from across the country - on judges, "Without Fear or Favor." Representing Indy and State Bar, wants to emphasize two themes:

The system is not broken, we have a wonderful court, efficient, turns opinions around quickly, honest, collegial, involved in bar ass'ns, loves the law, fairminded, apolitical, we simply have a good system.

[4:20:00] With the Gov. involved, the system has some politics in it, but the proposal would take what is basically an apolitical system and make it political. Having to come before the House for retention would create a problem. A single issue can absolutely end a person's career in business or in politics.

Because applicants figure out that the governor makes the appointment, people have figured out that it is a self-limiting process. So no discussion of anyone's politics. Don't have a lot of Ds or Rs applying when the Gov is of the other party. No one from the Gov's office called us and told us who to vote for. And the process is so transparent applications, law school grades, writing samples, medical records, etc. are all available online and the interviews are available online. [4:23:00] So some won't apply because they are unwilling to have their life spread out online. If you add to that Senate confirmation, there will be a lot more people who won't apply. [ILB - medical records have never been online]

Trimble also said that a person who has to run for office is a different type of person.

[4:24:00] The economy. There is a direct correlation between the economic vitality of a city, county, state or country and its judiciary. Our state has benefited economically from the reputation of its judiciary. If you politicize our judiciary, it will impact our economy.

[4:28:00] Several others spoke very briefly against the proposal
, including the head of the 800 member defense trial council, and Larry Landis, public defenders council.

[4:29:00] Sen. Young spoke in closing. [ILB: It is worth a listen.] One phrase: "they are controlling their own little fiefdoms." Another: "The people have no sayso."

[4:31:00] Sen. Bray - This would disrupt a system we have right now that works pretty well. I will vote no.

Sen. Glick - We have developed a system over time that works very well, I see no reason to change it at this time.

The Vote, 4-6:

Yes - Young, Steele, Delph, Zakas*
No - Glick, Bray, Randolph, Brodin, Taylor, Head*

*Zakas & Head votes were hard to hear, but one voted yes and one no. There is no voting record as far as I know.
_______________
The ILB takes note that while the current Article 7 of the Indiana Constitution was the work of the Judicial Study Commission, which met for several years to produce, refine, and test its draft, this proposed rewrite was the work of one legislator, who was redrafting even during the presentation. Yet it was taken very seriously by the bench and bar. Just saying.

Posted by Marcia Oddi on Tuesday, March 03, 2015
Posted to Indiana Courts

Ind. Courts - Complying with the revisions to Administrative Rule 9 - Q & A #2

[See Feb. 9's Q & A #1, with intro, here]

Question:
Regarding the decision today in Advanced Correctional Healthcare, Inc. v. Review Board of the Indiana Department of Workforce Development, et al., a reader noted: “Doesn’t new A.R. 9(G)(5) still require that a party file a ‘Notice to maintain exclusion from Public Access’ every time that party wishes to file confidential information?”

Maggie Smith (Frost Brown Todd LLC, who serves on the Court's Committee on Rules of Practice and Procedure) responds:

That is correct. Although the “affirmative request” language from the old AR 9(G)(1.2) that the Supreme Court was dealing with in Recker has been omitted from the new A.R. 9(G), the new requirements of 9(G)(5)(a)(i) still require the same basic type of affirmative act as the predicate to excluding information on green paper:
(5) Procedures for Excluding Court Records From Public Access.

(a) Notice to maintain exclusion from Public Access.

(i) In cases where only a portion of the Court Record is excluded from Public Access, the party or person submitting the confidential record must provide the following notice that the record is to remain excluded from Public Access:

a. Pleadings or Papers. A Court Record filed with the Clerk of Court that is to be excluded from Public Access must be accompanied by separate written notice identifying the specific 9(G)(2) or 9(G)(3) ground(s) upon which exclusion is based. See Form 9-G1.

b. Exhibits. A Court Record tendered or admitted into evidence during an in camera review, hearing, or trial that is to be excluded from Public Access must be accompanied by separate written notice identifying the specific 9(G)(2) or 9(G)(3) ground(s) upon which exclusion is based. See Form 9-G2.

c. Oral statements in transcript on appeal. If any oral statement(s) contained in the transcript on appeal is to be excluded from Public Access, then during the hearing or trial, the Court Reporter must be given notice of the exclusion and the specific 9(G)(2) or 9(G)(3) ground(s) upon which that exclusion is based. If notice was not provided during the hearing or trial, any party or person may provide written notice in accordance with Appellate Rules 28(A)(9)(c) or (d). The Court Reporter must comply with Appellate Rules 28(A)(9) and 29(C) when preparing the transcript on appeal.

Your readers should note that, whereas the old 9(G)(1.2) only applied to hearings and trials, the new 9(G)(5)(a)(i) applies to all types of proceedings and filings.

Appellate practitioners should also note that the requirements of new 9(G)(5)(a)(i) apply both at the trial and the appellate level. This means that AR 9(G)(5)(a)(i)(a) requires a “Notice” to be filed when an Appendix is filed on green paper with the Appellate Clerk just the same as when the document was filed on green paper below in the trial court (See definition of “Clerk of Court” in AR 9(C)(5).)

But as the opinion in Advanced Correctional Healthcare, Inc. correctly noted, pursuant to AR 9(G)(6)(a), waiver will occur if the party/person who filed the confidential information fails to comply with these rules … subject to the caveat that the party/person who is filing the confidential information is in fact the “party or person affected by the release of the Court Record.” If the person/party filing the confidential information is not the one affected by the release of the confidential information, then per AR 9(G)(6)(b) there can be no waiver and the error must be corrected as soon as it is realized. (This prevents opposing counsel from “waiving” a right that was never counsel’s right to waive.)

Because the party who failed to comply with AR 9(G) in Advanced Correctional Healthcare, Inc. was, in fact, the party/person affected by the release of the confidential info, the court correctly held the right to exclude such information was waived.

Posted by Marcia Oddi on Tuesday, March 03, 2015
Posted to Adm. Rule 9 Questions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 3 NFP memorandum decisions)

For publication opinions today (2):

In Gordon A. Etzler v. Indiana Department of Revenue, a 9-page opinion, Judge Robb writes:

Gordon Etzler, pro se, appeals the trial court’s award of summary judgment in favor of the Indiana Department of Revenue (the “Department”). Etzler raises two issues for our review: (1) whether the trial court abused its discretion by denying Etzler’s motion to strike an affidavit designated by the Department in support of its motion for summary judgment; and (2) whether the trial court erred by awarding summary judgment to the Department. * * *

We conclude that Etzler had priority in the breeder’s award proceeds and that the Department did not have statutory authority to levy upon those proceeds in the manner it did. Therefore, the trial court erred by awarding summary judgment to the Department and denying Etzler’s motion for summary judgment. Reversed.

In Advanced Correctional Healthcare, Inc. v. Review Board of the Indiana Department of Workforce Development, et al. , a 14-page opinion, Judge Baker writes:
Advanced Correctional Healthcare (ACH)[1] appeals the determination of the Review Board of the Indiana Department of Workforce Development (the Board) that M.W., a former employee of ACH, is entitled to unemployment insurance because he was not fired for just cause. Evidence was presented that eleven people from two different employers and five separate work locations had complained about inappropriate sexual comments made by M.W. Despite this evidence, and despite the fact that M.W. did not deny four of the complained-of conversations, the Board found that M.W. had not violated ACH’s sexual harassment policy and was not fired for just cause. Finding a lack of substantial evidence supporting this judgment, we reverse. * * *

We note, again, that ACH was not required to prove that M.W. committed actionable sexual harassment, and we have not made any findings in that regard in this opinion. As aptly noted by ACH, it should not have to wait until M.W.’s actions became so egregious that they were legally actionable to terminate his employment. Instead, ACH was merely required to show that M.W. was terminated for just cause; specifically, that he was terminated for violating the Sexual Harassment Policy. We find that the Board erred by concluding that M.W. was not fired for just cause.
________
[1] As of January 13, 2015, Administrative Rule 9 has been amended. In the past, parties to unemployment compensation proceedings were required to make an affirmative request to remain confidential in court records. See Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136, 1138 n.4 (Ind. 2011). The newly amended Rule 9 has a default position of confidentiality such that parties need no longer make an affirmative request in that regard. Ind. Administrative Rule 9(G)(6). The corollary, however, is that the party or person affected by the release of the protected personal information may waive the right to exclude the court record from public access. Id. Here, ACH used its own name in its appellate pleadings and did not file any of its briefs or appendix on green paper. Consequently, we find that it has waived the right to have its name excluded from the court record. Because M.W. is not taking part personally in this appeal, we decline to find that he has waived confidentiality and will refer to him by initials.

ILB: For more on this footnote re Rule 9, see the ILB note after the Sept. 12, 2013 Albright opinion.

NFP civil decisions today (1):

Carol Hanquier and Jose Hanquier v. Joseph Hall and Pekin Insurance (mem. dec.)

NFP criminal decisions today (2):

Sidney Lamour Tyson v. State of Indiana (mem. dec.)

Elijah Moore v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, March 03, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - What is the state policy re email retention?

In 2012 the ILB had a number of posts on the Indiana Commission on Public Records project to create a statewide policy for retaining electronic records. This most recent post, from June 16, 2012, is particularly worth a read.*

Here is the Commission on Public Records' page on Electronic Records. It links to the Indiana Electronic Records Policy -- OCPR Policy 12-01 (Effective 9/19/2012). Some quotes [ILB emphasis]:

This Electronic Records Policy applies to electronic records of governmental entities, including, but not limited to: email, word-processing documents, spreadsheets, databases, websites, images, video, audio, multimedia, interactive documents, scanned/digitized documents, etc. It includes records created, sent or received by employees, appointees or elected officials of governmental entities, as well as contractors in the course of their interaction with governmental entities.

It is the governmental entity’s responsibility to ensure electronic records are maintained under the same public access laws and approved records retention schedules as physical records. This includes e-mail conducted on government devices, or through a government e-mail address, or for an official government purpose, which should be retained in accordance with the approved records retention schedule that covers the content of the message. However, accessing a personal e-mail account via the internet on a government device does not establish the personal e-mail or the personal account as a public record if no official government business is being conducted.

Not all public records must be retained under an approved retention schedule. Those defined as “transitory non-record materials” are not subject to retention; however, these materials cannot be destroyed to avoid an existing public records request filed with the governmental entity to which the records may be responsive under Indiana’s Access to Public Record Act. Transitory non-record materials are:

  • personal records as defined by IC 5-15-5.1-1
  • nonrecord materials as defined by IC 5-15-5.1-1
  • unsolicited advertising messages and "spam" e-mail
  • the recipient's copy of messages sent to a mass audience or from listservs
Employees of governmental entities should have no expectation of privacy for items considered public records.
The policy also provides:
Governmental entities should develop internal guidelines and procedures to control the creation, receipt, transmission, maintenance and disposition of records; all record creators and users should be made aware of their responsibility to comply with these procedures, and receive training appropriate to their role. * * *

Electronic records should be retained and disposed of in accordance with the retention schedule that covers the records’ informational content, as approved by the Indiana Oversight Committee on Public Records.

A slide show from May 14, 2014, titled "Electronic Records Management, Preservation, and Best Practices in Indiana Government," includes on slide 5:
Electronic Records Policy Scope:

This Electronic Records Policy applies to electronic records of governmental entities, including, but not limited to: email, word-processing documents, spreadsheets, databases, websites, images, video, audio, multimedia, interactive documents, scanned/digitized documents, etc. It includes records created, sent or received by employees, appointees or elected officials of governmental entities, as well as contractors in the course of their interaction with governmental entities.

Slide 6:
Electronic Records and Email are not records series. Retention of these items is based upon the content of the information and not the format.
  • ICPR is beginning the process to accept limited permanent electronic records for transfer to the State Archives.
  • Email Capstone Project. ICPR anticipates having departed/departing agency heads emails transferred in their entirety to the permanent electronic records repository. We would like your feedback on acceptable processes. Our plan…
Interestingly, until rescinded by the Sept. 19, 2012 policy, the Commission had a very detailed 7-page email policy, titled "E-mail Retention Policy and Guidelines For Agencies On Developing An Agency-Specific E-mail Retention Policy," which appears to have been adopted in 2005. A common feature at the time of departmental email policies approved by the Commission is found on p. 2 of the 18-page 2005 IDEM policy:
If an employee leaves service at IDEM it is the employee’s responsibility to review e-mail records, download those e-mail that need to be retained onto a disk, archive (printed and stored in the correct place) or delete all e-mail according to the established retention schedule prior to leaving. The employee’s manager is responsible to apply the schedule to any e-mail remaining after the employee leaves.

Posted by Marcia Oddi on Tuesday, March 03, 2015
Posted to Indiana Government

Ind. Gov't. - State archives still waiting for new roof? [Updated]

This ILB post from 2009 was headed "Ind. Gov't. - State archives still waiting for new roof." In the post I describe a visit I had made to the state archives now 10 years ago, in 2005, and wrote:

What I remember most about the archives is that they are located in a gigantic warehouse building, housing seeming acres of metal shelving, and that everything was sheathed in plastic sheets, the kind painters use. Why? Because of severe leaks through the much-repaired flat roof of the old RCA building. Employees were very concerned about the continuing leaks, and were hopeful something permanent would be done soon by the powers that be.
There was some talk at the beginning of this 2015 session about a new building for the state archives. What's up with that?

[Updated at 9:42 AM]
A knowledgeable reader (Niki Kelly of the FWJG) writes: "There is $25 million in the budget for a new State Archives building."

Posted by Marcia Oddi on Tuesday, March 03, 2015
Posted to Indiana Government

Monday, March 02, 2015

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

In Mir Iqbal v. Tejaskumar Patel (ND Ind., Moody), a 5-page opinion, Judge Easterbrook writes:

Through a closely held cor poration, Mir Iqbal bought a gasoline service station. (He al so guaranteed its debts, so we need not mention the corpora tion again.) Iqbal contracted with S-­‐‑Mart Petroleum for gaso line. Iqbal then hired Tejaskumar Patel to conduct the busi ness, ceding operational control to him. He chose Patel on the recommendation of Warren Johnson, S-Mart’s president. Patel ran the business but did not pay for the gasoline, lead ing S-­Mart to sue on the contract in an Indiana court. The court entered a judgment of more than $65,000 against Iqbal as guarantor. He did not pay, and a settlement was reached. Iqbal gave S-­Mart a note, secured by a mortgage on the business premises. When he still did not pay, a state court entered a second judgment against him, and the property was sold in a foreclosure auction.

Iqbal alleges in this federal suit that Patel and Johnson acted in cahoots to defraud him out of his business. The complaint accuses the defendants of racketeering and seeks treble damages under 18 U.S.C. §1964, part of the Racketeer Influenced and Corrupt Organizations Act (RICO). The dis trict court dismissed the complaint for want of jurisdiction, however, ruling that it is barred by the Rooker-­Feldman doc trine because it challenges the state court’s judgments. 2014 U.S. Dist. LEXIS 45385 (N.D. Ind. Mar. 27, 2014). * * *

Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-­Feldman doctrine does not block this suit. It must be reinstated. * * *

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Monday, March 02, 2015
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Ball Memorial Hospital, Inc. v. L. Gail Fair, as Personal Representative of the Estate of Suwanna Dickey, Deceased v. Izzet Yazgan, M.D., and Meridian Services Corporation, a 19-page opinion, Judge Bradford concludes:

We conclude that the trial court correctly denied defendant Ball Memorial summary judgment on the question of whether plaintiff Fair may pursue a negligence claim against its pharmacist. Dr. Yazgan and Meridian Services may also raise potential negligence on the part of the Ball Memorial pharmacist as a defense. Because Fair has a claim of negligence against the Ball Memorial pharmacist, Ball Memorial is not entitled to an order limiting its liability pursuant to Indiana Code section 34-18-14-3(d) at this time. We affirm the judgment of the trial court.
In Julie Kitchell v. Ted Franklin, as the Mayor of the City of Logansport, and The Common Council of the City of Logansport , a 16-page opinion, Chief Judge Vaidik writes:
Julie Kitchell appeals the trial court’s award of attorneys’ fees to Logansport Mayor Ted Franklin and the Common Council of the City of Logansport, challenging a number of the trial court’s findings of fact and conclusions of law. We conclude first that the findings and conclusions are not inherently suspect even though they were adopted verbatim from the City’s proposed findings and conclusions; moreover, we find that even if we were to eliminate entirely the findings of fact challenged by Kitchell, the remaining findings would amply support the conclusion that her claim was unreasonable and groundless. We also conclude that Kitchell’s characterization of this case as a matter of “first impression” does not shield her from attorney-fee liability. Therefore, finding that the trial court did not abuse its discretion in awarding attorneys’ fees, we affirm.
NFP civil decisions today (1):

In re the Marriage of: Dedra L. Fisher v. Terry L. Fisher (mem. dec.)

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Monday, March 02, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, a reversal

In State of Indiana v. Michael E. Cunningham, an 11-page, 4-1 opinion, Chief Justice Rush writes:

Unless police have reasonable suspicion that a subject is armed and dangerous, they may generally conduct a pat-down for officer safety only with the subject’s voluntary consent. Here, Defendant asked to step out of his truck during a traffic stop, and police made their permission conditional on a pat-down. Defendant argues that choice was inherently coercive and rendered his consent involuntary, but we disagree. Police could simply have required Defendant to remain in the truck, with no option of getting out, as part of their authority to control the scene of a traffic stop. Therefore, they could also make permission to exit conditional on consent to a pat-down, since Defendant had the option of staying in the truck and thus avoiding the search. We granted transfer after oral argument, and now reverse the trial court’s grant of Defendant’s motion to suppress evidence obtained as a result of the pat-down. * * *

Police always have the right to require a driver to remain inside the vehicle during a traffic stop, even without particularized officer-safety concerns. Accordingly, it is not inherently coercive for police to give conditional permission to step out of the vehicle, subject to the motorist’s consent to a pat-down. Such a situation offers the motorist a free choice to remain unsearched by staying inside the vehicle—so stepping out signifies consent, not coercion. And here, any expansion of the search from Defendant’s initial consent was the product of his subsequent consent, and not of improper police conduct. We therefore reverse the trial court’s order granting Defendant’s motion to suppress, and remand for further proceedings.

Dickson, David, and Massa, JJ., concur.

Rucker, J., dissents with separate opinion. [which begins, at p. 9] In my view the State has failed to establish Cunningham’s purported consent to the pat-down was constitutionally valid. Therefore I respectfully dissent. * * *

It is of course the case that police officers have the authority to maintain control of a traffic stop, including ordering someone to either stay in or exit a vehicle. However, it goes too far to permit a police officer to be able to barter an individual’s constitutional right to be free from warrantless, unreasonable searches in exchange for the individual to verify he in fact was committing a minor traffic infraction as the officer alleged. Up to the point when Cunningham asked to step out of the vehicle, the officer had no safety concerns. The officer also had not instructed Cunningham to remain in the vehicle. If instead of asking permission Cunningham simply had gotten out of the vehicle, inspected the light in the same calm demeanor, then immediately got back in his vehicle— whether or not Officer Hammock in the meantime had ordered him back in—Cunningham would not have done anything to warrant a search. See Jett v. State, 716 N.E.2d at 71. Unlike the majority, it appears to me Office Hammock was not seeking Cunningham’s permission to search in telling Cunningham he “would pat him down.” Tr. at 6 (emphasis added). Instead it is apparent the officer was merely asserting that he had that right. Cunningham’s response of “that was fine,” id., only served as verbal acknowledgement of his submission to the claimed authority.

I agree with my colleagues on the Court of Appeals that the “pat-down search of Cunningham violated the Fourth Amendment and the resulting fruits of that search must be suppressed.” State v. Cunningham, 4 N.E.3d 800, 807 (Ind. Ct. App. 2014). Accordingly, I would affirm the trial court’s grant of Cunningham’s motion to suppress.

Posted by Marcia Oddi on Monday, March 02, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending February 27, 2015

Here is the Clerk's transfer list for the week ending Friday, February 27, 2015. It is two page (and 24 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, March 02, 2015
Posted to Indiana Transfer Lists

Ind. Courts - Howard Superior Court court reporter under investigation

Pat Munsey reports at length in the Kokomo Perspective that the court reporter "is alleged to have over-billed for transcription services on appeals cases."

Posted by Marcia Oddi on Monday, March 02, 2015
Posted to Indiana Courts

Ind. Gov't. - "Controversy looms over second half of 'education session'"

Dan Carden's long Sunday story in the NWI Times begins:

Education issues dominated the first half of the 2015 Indiana General Assembly, but myriad controversial social and economic proposals appear likely to consume the Legislature over the next two months.
See also this listing from Inside Indiana Business.

Posted by Marcia Oddi on Monday, March 02, 2015
Posted to Indiana Government

Ind. Courts - Applications available for Court of Appeals Vacancy

Today the Supreme Court has announced:

Applications for an upcoming vacancy on the Court of Appeals of Indiana are due by April 27, 2015

Today, Chief Justice Loretta H. Rush announced details of the application process for the vacancy that will be available at the end of the summer. The application is online.

The position on the state’s second highest court is available because Judge Ezra H. Friedlander announced he is stepping down from the bench, effective August 31, 2015. Chief Justice Rush thanked Judge Friedlander on behalf of the Supreme Court, “His stellar and dedicated longtime service on the Court of Appeals is appreciated.”

Chief Justice Rush encourages attorneys and judges to look at the application, talk to their colleagues and consider whether they can give back to the state by serving. “Indiana has a wealth of qualified lawyers,” she said. “It is important that these thoughtful, service-oriented attorneys consider whether the next chapter in their career includes being a member of the appellate bench.”

A candidate must be an Indiana resident in the second appellate district and must have been a member of the Indiana Bar for at least ten years or an Indiana judge for five years. The application requires providing pertinent background information, writing samples, references and educational transcripts. Submitted applications will be considered by the seven-member Indiana Judicial Nominating Commission. The Commission includes three lawyers elected by their peers and three citizen-members appointed by the Governor. Chief Justice Rush chairs the Commission.

The Commission will conduct initial public interviews of qualified candidates on May 20-22 in Indianapolis, followed by second interviews on June 10. After the public interviews and Commission deliberations in an executive session, the Commission will publicly vote to send the three most qualified names to Governor Mike Pence. The Governor will have 60 days to select Indiana's next Court of Appeals Judge from the three names submitted by the Commission.

ILB: These opportunities come up very infrequently.

Posted by Marcia Oddi on Monday, March 02, 2015
Posted to Indiana Courts | Vacancy on COA 2015

Ind. Gov't. - "Annexation overhaul in works: Bill gives greater say to landowners over cities, towns"

Niki Kelly of the Fort Wayne Journal Gazette has a long, knowledgeable Sunday story that begins:

INDIANAPOLIS – Legislators are considering a wholesale change to state annexation laws that would put landowners in the driver’s seat.

The move comes about 15 years since the last major overhaul. But now property tax caps are in place, and they bring a new dynamic to the old conversation.

A compromise version of legislation died in the House on Wednesday leaving a more aggressive Senate bill as the vehicle moving forward. (HB 1561; SB 330)

Senate President Pro Tem David Long, R-Fort Wayne, said annexation is simply another way for cities and towns to build their tax base.

“I think it’s wrong,” he said. “I think annexation law is getting modernized with this bill and I hope it passes. I don’t like it unless it’s a voluntary exchange between the property owner and government.”

But others are worried that legislators are gutting a key tool that municipalities use for growth and economic development.

“This turns annexation on its head in terms of how it has traditionally been done,” said Sen. John Broden, D-South Bend.

“Most communities do annexations the right way. I don’t think the voices of a small group of people should obviate the benefits that annexation provides.”

Annexation has always been controversial because those being brought into a community see higher taxes, but don’t have a way to vote against the plan or those pushing it.

Posted by Marcia Oddi on Monday, March 02, 2015
Posted to Indiana Government

Ind. Gov't. - "Bright Spots in the Sad State of Statehouse Reporting"

Louis Jacobson of Governing has a long, insightful story today that is recommended reading. The article begins by pointing out "a number of factors that are affecting the press corps’ ability to cover state government." These include:

That is just the start of the long article.

Posted by Marcia Oddi on Monday, March 02, 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 3/2/15):

Next week's oral arguments before the Supreme Court (week of 3/9/15):

Wednesday, March

Webcasts of Supreme Court oral arguments are available here.


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

Friday, March 5

Next week's oral arguments before the Court of Appeals (week of 3/9/15):

Thursday, March 12

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, March 02, 2015
Posted to Upcoming Oral Arguments