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Thursday, April 30, 2015

Ind. Courts - "Supreme Court Justice Robert D. Rucker and billionaire attorney Willie E. Gary" honored

Lisa DeNeal reported April 27th in the Chicago Tribune:

The third annual Katie Hall Public Service Awards luncheon at the Genesis Convention Center honored Indiana Supreme Court Justice Robert D. Rucker and guest speaker and billionaire attorney Willie E. Gary.

Known as the "giant killer" for taking down some of America's most well-known corporate giants on behalf of his clients, Gary said prior to his speech that it was an honor to come to Gary and be a part of the late congresswoman's foundation. * * * The awards luncheon was sponsored by the Katie Hall Educational Foundation. * * *

Indiana Supreme Court Justice Robert D. Rucker, who grew up in Gary, received the Merit of Distinction Award. Attorney Michael Tolbert of Tolbert and Tolbert LLC in Gary presented Rucker with the award, calling him a "living legend" of law and justice.

"Justice Rucker has been a champion for all of us. It means so much to present him with this award," Tolbert said.

ILB: It turns out the ILB also had a post about Mr. Gary in 2006, linking to a still available WSJ Law Blog post that names "Willie Gary’s home page, among the best lawyer Web sites we’ve seen." Unfortunately, the WSJ link to the Gary website no longer works; here is his current recent website.

Posted by Marcia Oddi on Thursday, April 30, 2015
Posted to Indiana Courts

Ind. Decisions - Purvi Patel feticide and felony neglect convictions to be appealed

On April 2nd the ILB had a post with a brief quote from a NYT Magazine feature story by Emily Bazelon [emphasis added]:

The prosecution of Purvi Patel began in sorrow and ended in more sadness this week. Patel, a 33-year-old woman who lives in Indiana, was accused of feticide — specifically, illegally inducing her own abortion — and accused of having a baby whom she allowed to die. The facts supporting each count are murky, but a jury convicted Patel in February, and on Monday she was sentenced to 20 years in prison. * * *

[P]rosecutions like these are growing more frequent. In Indiana, before Purvi Patel, there was Bei Bei Shuai, a Chinese immigrant who tried to commit suicide while pregnant and was also charged with feticide. The charges against Shuai were dropped in 2013 after she pleaded guilty to a lesser charge and spent a year in custody. In Iowa, Christine Taylor faced charges for attempted fetal homicide after falling down the stairs, going to the hospital and being reported for trying to end her pregnancy.

The title to the NYT story was "Purvi Patel Could Be Just the Beginning."

Purvi Patel is now appealing her conviction to the Indiana Court of Appeals. As reported in several northern Indiana news outlets, including this story yesterday from Christian Sheckler of the South Bend Tribune, Patel will be represented pro bono by Stanford University law professor Lawrence Marshall, with IU McKinney law professor Joel Schumm serving as co-counsel. From the story:

“There are issues here, there are errors here that were committed, that in our view justify and compel reversal,” Marshall said. “We will be hopefully showing the appellate court that errors were committed in both interpreting the law and how facts were allowed to be proven.”

Patel was convicted of child neglect and feticide after, authorities said, she illegally used drugs to try to induce her own abortion, then failed to get medical help for her infant son after he was born alive. A judge handed down a 20-year sentence in March. Police found Patel’s baby July 14, 2013, in a Dumpster behind Moe’s Southwest Grill in Mishawaka.

The case drew widespread media coverage beyond Indiana and sparked intense reactions for and against Patel. Marshall said he believed emotions interfered with the law in Patel’s case.

“What I generally gravitate toward are cases where it seems like an intense passion has interfered with dispassionate interpretation and application of the law,” he said. “It struck me that this case may be a textbook example of that phenomenon.”

Some critics said the case showed how the state’s feticide law could increasingly be used against women who miscarry or seek abortions, instead of against domestic abusers or drunken drivers whose actions cause pregnant women to lose their babies.

Others leveled scorn at some of the evidence used by prosecutors, such as the testimony of a forensic pathologist who used a controversial “float test” to prove the baby’s lungs had drawn a breath after he was born.

Schumm, who said he has worked on about 150 appeals since 2001, many of them on a pro bono basis, said he was interested in raising important legal arguments on Patel’s behalf, but was not motivated by political outrage.

“I’m not taking this case with a political agenda in mind at all,” he said. “I’m taking it with the view that she’s been convicted of a serious crime and she, like everyone else, deserves a defense of those convictions, a zealous defense.”

The St. Joseph Superior Court has 90 days to provide Patel’s lawyers with transcripts of her trial. The lawyers would then have 30 days, with a possible 30-day extension, to file a brief of their case with the Court of Appeals. At that point, the court could hear oral arguments before ruling.

For more, see this story by Jessica Mason Pieklo of RH Reality Check.

Posted by Marcia Oddi on Thursday, April 30, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 11 NFP memorandum decisions)

For publication opinions today (5):

In William Arnold Henry and Mary Ann Henry v. Margo Liebner, a 35-page opinion, Judge Pyle concludes:

In summary, we conclude that the trial court correctly determined that the Henrys did not have title to the triangular parcel. However, the trial court erred by concluding that the non-party Niblocks had obtained title via adverse possession where there was no evidence presented regarding their payment of taxes or compliance with the adverse possession tax statute during the relevant ten-year period. Nevertheless, because we may affirm a general judgment based on any theory supported by the evidence and because there is evidence regarding Liebner’s and her predecessor’s payment of taxes or compliance with the adverse possession tax statute during the relevant ten-year period, we remand to the trial court to enter judgment for Liebner on her claim of adverse possession.
In Bruce Angelo Evans v. State of Indiana, a 13-page opinion, Chief Judge Vaidik writes:
A confidential informant performed a controlled buy of heroin from the defendant, Bruce Angelo Evans. At the jury trial, several witnesses who had been present in the house where the controlled buy occurred or who were otherwise associated with Evans and the confidential informant testified that Evans had also sold them heroin on the day of the controlled buy. On appeal, Evans argues first that in light of the evidence of multiple acts of dealing, the trial court erred in failing to issue an instruction on jury unanimity, in order to ensure that all of the jurors relied on the same act of dealing to support Evans’s conviction. We find that Evans waived this alleged error by failing to object to the jury instructions or offer one of his own. Moreover, we find that any error does not rise to the level of fundamental error because given that the overwhelming majority of evidence at trial was about the controlled buy, it is clear that this was the act of dealing that supported the jury’s guilty verdict. Second, Evans argues that the trial court abused its discretion in admitting evidence of a large amount of cash – in addition to the buy money – found on Evans when he was searched by law enforcement officers after the controlled buy. But Evans failed to object when the evidence of this additional money was first offered into evidence, and thus has waived this claim on appeal. Waiver notwithstanding, we find that any error in the admission of this evidence was harmless insofar as there was substantial evidence supporting Evans’s conviction regardless of the evidence of additional money. Accordingly, we affirm.
In Donnell D. Wilson v. State of Indiana , a 13-page opinion, Judge Bradford writes:
Wilson raises three issues on appeal: (1) whether the trial court properly admitted the Twitter messages into evidence; (2) whether Wilson’s conviction for conspiracy to commit criminal gang activity should be vacated as being in conflict with his criminal gang activity enhancements; and (3) whether the trial court properly excluded Wilson from a portion of trial. We affirm in part, reverse in part, and remand to the trial court with instructions.

[(1) Authentication of Twitter Account, begins on p. 6 and continues to p. 9, concluding]

Consequently, we think that taken together, the witness testimony identifying the Twitter account as belonging to Wilson and the content posted on the account, including pictures and gang references, are more than sufficient to authenticate the Twitter posts as being authored by Wilson.

In Mitchell Swallows v. State of Indiana , a 7-page opinion, Judge Kirsch writes:
Mitchell Swallows appeals the trial court’s denial of his petition to modify his sentence, contending that the trial court erred in finding that the revised modification statute, which became effective July 1, 2014, did not apply to his sentence. * * *

Essentially, Swallows is asking this court to reverse the denial of his petition for modification because the trial court erroneously determined it did not have authority under the current version of Indiana Code section 35-38-1-17. * * *

Noting the plain meaning of the savings clause, and following the intent of the Legislature and our court’s reasoning in Hobbs, we conclude that the current version of Indiana Code section 35-38-1-17, which became effective July 1, 2014, does not apply to Swallows’s petition to modify a sentence that he began serving in 1989. The trial court did not err in denying Swallows’s petition to modify his sentence.

In Casie S. Rudisel v. State of Indiana, a 14-page opinion, Judge Brown writes:
Casie S. Rudisel appeals the trial court’s order revoking her probation and placement and ordering that she serve the balance of her original sentence. Rudisel raises one issue which we revise and restate as whether the trial court abused its discretion in sentencing her following revocation of her probation. We reverse and remand. * * *

For the foregoing reasons, we reverse and remand with instructions to sentence Rudisel to a term that considers the applicable credit time and does not exceed the maximum sentence.

NFP civil decisions today (2):

T.M. v. D.W. (mem. dec.)

Christopher K. Kesling, Emily Kesling, and Adam Kesling v. Andrew C. Kesling, individually and as Trustee of the Andrew C. Kesling Trust Dated March 28, 2001, Peter Kesling, et al. (mem. dec.)

NFP criminal decisions today (9):

Charles J. Davis, Jr. v. State of Indiana (mem. dec.)

Jody A. Bailey v. State of Indiana (mem. dec.)

Robert Tibbs v. State of Indiana (mem. dec.)

Tim A. Tyler v. State of Indiana (mem. dec.)

Stephen E. Abernathy v. State of Indiana (mem. dec.)

Servan Allen v. State of Indiana (mem. dec.)

James Currin v. State of Indiana (mem. dec.)

S.H. v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Thursday, April 30, 2015
Posted to Ind. App.Ct. Decisions

Wednesday, April 29, 2015

Ind. Decisions - In Indiana "a debt that has become uncollectible is not extinguished; the money is still owed"

That according to an April 7th opinion by federal Judge McKinney, who writes at p. 8:

But this argument also loses because, at least according to the State of Indiana, a debt that has become uncollectible is not extinguished; the money is still owed and the FDCPA only regulates the remedies available to the debt collector. See Collection of Old Debts, Ind. Dept. of Fin. Insts., http://www.in.gov/dfi/2537.htm (last visited Mar. 4, 2015). Specifically, a debt collector may send a factual letter to a debtor about the existence of a stale debt and the amount owed, but it may not threaten legal action to collect on it. Id. In other words, a factual statement that the debt exists and its amount is not a mischaracterization of the legal status of a debt.
For more about this, see this article by Ethan G. Ostroff and David N. Anthony of Troutman Sanders, titled "Indiana And Pennsylvania District Courts Hold That Filing Proofs Of Claim On Time-Barred Debt Does Not Violate FDCPA," which links to Domaldson v. LVNV Funding (1:14-cv-01979).

[Updated 5/5/15]
See also this new post from the accounts receivable management industry.

Posted by Marcia Oddi on Wednesday, April 29, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - It's going to the Governor: "Lawmakers reconsider hourly search fee, changes to public records"

Updating this ILB post from this morning, Lauryn Schroeder of the AP is now reporting:

An Indiana bill that would allow a fee for public records requests that take longer than two hours to fulfill will be sent to Gov. Mike Pence's desk.

Senate members Wednesday approved a measure that would allow government entities to charge as much as $20 an hour to search for records requests that take more than two hours. It would also allow entities making requesters to receive them electronically.

The provision was removed from an education bill earlier this session, but the House revived the language Tuesday.

Supporters say government agencies are bogged down by large requests. Critics argue the measure gives officials another tool to fight transparency.

The Hoosier State Press Association supports the measure, saying the benefit of getting records electronically outweighs the potential negatives of a fee.

ILB: Maybe, for large data requests by the press...

Posted by Marcia Oddi on Wednesday, April 29, 2015
Posted to Indiana Government

Ind. Decisions - Volokh on "an Indiana Court of Appeals decision that was just posted to Westlaw"

The April 17th COA opinion in Angelique Lockett and Lanetra Lockett v. Planned Parenthood of Indiana, Inc., and Cathy McGee is the subject of a post this afternoon by Eugene Volokh in the Washington Post. His headline: "17-year-old gets help in lying about age to get abortion; later, she and her mother sue helper (the boyfriend’s mother) for providing the help."

Posted by Marcia Oddi on Wednesday, April 29, 2015
Posted to Ind. App.Ct. Decisions

Courts - Specialized courts can be "economic engines" in localities where the conditions are right

Alan Scher Zagier reports for today the AP in a long story titled "Illinois County does booming business in asbestos lawsuits." Some quotes:

EDWARDSVILLE, Ill. (AP) -- Few of the tourists who drive old Route 66 through this rural Illinois town are aware of its true economic engine: a booming business in asbestos lawsuits that attracts law firms from across the country.

Since 2005, those lawsuits have generated a $14 million surplus for Edwardsville and solidified Madison County's place at the center of a long-running national debate over personal-injury claims.

A decade after former President George W. Bush came here to tout class-action lawsuit limits, the number of asbestos suits has reached record levels, with caseloads that surpass specialized courts in far larger cities such as New York, Chicago and Baltimore.

Lawsuits have also proliferated in smaller industrial communities such as Beaumont, Texas, and Charleston, West Virginia, but Edwardsville is the smallest and perhaps most unlikely of the bunch, with just 24,000 residents. The city 30 miles north of St. Louis, Missouri, is better known for its historic downtown and the scenic drive along the nearby Mississippi River. * * *

Currently, asbestos plaintiffs don't have to live in the jurisdiction where the suit is filed - or even in the state. They just have to show that the corporation being sued did business in heavily industrial communities that surround Edwardsville and line the Mississippi.

Plaintiff's lawyers from across the country were drawn to Edwardsville by its reputation as a favorable venue for clients sickened by the cancer-causing mineral after a succession of multimillion-dollar jury verdicts in the last couple of decades. Critics also point to the historically cozy relationship between elected judges and law firms that helped fund their campaigns, as well as lingering sympathies from the city's roots as a union hotbed early in the 20th century.

Defense lawyers representing U.S. Steel, Georgia Pacific and other large corporations quickly followed.

"The law firms in this area are huge economic engines," restaurant owner Sam Guarino said. "And they're very engaged in the community."

The local government benefits economically, at a time when many small towns are seeing budget crunches. County records show that filing fees contributed to a seven-figure surplus over the past decade, County Administrator Joseph Parente said, allowing elected leaders to avoid large property tax increases while helping to cover the operating costs of its legal system - from prosecutors and public defenders to jailers and judges. * * *

The overwhelming majority of lawsuits filed never go to trial. Instead, lawyers jockey for trial dates scheduled a year or two in advance and then negotiate. In early March, more than 200 asbestos suits were scheduled for trial in a single week.

Business groups that want to cap lawsuit awards continue to target Madison County courts. The Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, owns weekly legal newspapers in Edwardsville and five other locales with courts that it considers to have run amok, including Beaumont, the Texas port city flush with chemical plants and refineries, and Charleston, the West Virginia city sometimes referred to as "Chemical Valley" for the preponderance of heavy industry.

Posted by Marcia Oddi on Wednesday, April 29, 2015
Posted to Courts in general

Ind. Courts - More on: Here is the final language of a bill to remake the Marion County small claims courts

Updating this ILB post from early this morning, a story just came out from another legal publication that reports CCR on SB 523 has now been adopted in both houses, and that the bill:

...proposes modest reforms of the nine township small claims courts in Marion County, a far cry from recommendations of multiple judicial studies to restructure the courts.
The story overlooks the facts that the bill raises the nine small claims judges' salaries, makes them full time positions, turns the courts into courts of records, and in my opinion will make it virtually impossible to integrate them into the county court system in the future.

Posted by Marcia Oddi on Wednesday, April 29, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 2 NFP memorandum decisions)

For publication opinions today (3):

In Leandrew Beasley v. State of Indiana, a 32-page opinion, Judge Brown writes:

Leandrew Beasley appeals his convictions for murder, attempted murder, a class A felony, and unlawful possession of a firearm by a serious violent felon, a class B felony. Beasley raises four issues, which we consolidate and restate as:
I. Whether the trial court abused its discretion when it admitted certain statements as statements against interest and admitted testimony of a police officer regarding a victim’s statement made to him minutes after the incident;
II. Whether the trial court committed fundamental error by not declaring a mistrial after an officer gave testimony not supported by her investigation and the court admonished the jury to disregard the testimony; and
III. Whether the trial court erred in denying his motion for mistrial regarding jury taint. * * *

[I] The court did not err in admitting the testimony of Officer Gallico regarding Beamon’s identification at the scene of Beasley and James as two of the shooters. * * *

[II] The next issue is whether the court committed fundamental error by not declaring a mistrial after Detective VanBuskirk gave testimony not supported by her investigation and the court admonished the jury to disregard the testimony. * * *

We conclude that the court’s admonishment to the jury that the testimony of Detective VanBuskirk regarding any relation between Melvin Beasley and Beasley was stricken from the record and was not to be considered, and to not declare a mistrial, did not result in fundamental error.

[III] The next issue is whether the court erred in denying Beasley’s motion for mistrial after Juror No. 9 told the other jurors that she recognized a person in the gallery and was concerned for her safety and well-being. * * *

Based on the foregoing, we cannot say that the court abused its discretion when it denied Beasley’s motion for mistrial. See Henri, 908 N.E.2d at 202-204 (holding that the defendant failed to show misconduct which was gross and probably harmed the defendant based upon claims that one juror’s receipt of a cell phone call created pressure to reach a hasty verdict, and that the alternate juror communicated with the regular jurors during deliberations); see also Weisheit v. State, 26 N.E.3d 3, 13-14 (Ind. 2015) (holding that the trial court did not err in denying the defendant’s motion for a mistrial after it was discovered that one of the jurors delivered cookies to the jury room baked by his wife which contained an attached note stating “Thank you for your service for the family of Alyssa [and] Caleb Lynch. I will pray for you all to have strength and wisdom to deal with the days ahead. God bless!” the court interviewed each juror individually and determined that the note had no impact on the jurors, and it removed the juror who brought the cookies and replaced the juror with an alternate).[Affirmed]

In James Beasley v. State of Indiana, a 28-page opinion, Judge Brown writes:
James Beasley appeals his convictions for murder and attempted murder, a class A felony. Beasley raises two issues, which we revise and restate as:
I. Whether the trial court abused its discretion in admitting certain statements; and
II. Whether the trial court erred in denying his motion for mistrial. * * *

For the foregoing reasons, we affirm Beasley’s convictions for murder and attempted murder, a class A felony.

In Andre C.T. Wells v. State of Indiana, a 13-page opinion, Judge May writes:
Andre C.T. Wells appeals his conviction of murder. He raises three issues for our review:
1. Whether the trial court abused its discretion when it admitted recordings of Wells’ statements to Brian Thompson;
2. Whether the trial court abused its discretion when it admitted evidence regarding Wells’ alleged plot to kill Brian Thompson; and
3. Whether the trial court abused its discretion when it admitted testimony concerning cell phone towers and the potential locations of cell phones relevant to the crime. * * *

Wells argues his recorded conversations with Thompson violated his Fifth Amendment and Section 1, Article 14[2] rights against self-incrimination because Thompson was an agent of the police and, thus, Wells should have been given a Miranda warning before speaking with Thompson. * * *

The trial court did not abuse its discretion when it admitted the wiretap evidence and the evidence of a murder for hire plot. In addition, if the admission of the cell phone location information was error, it was harmless. Accordingly, we affirm the judgment of the trial court.
________
[2] Wells mentions the admission of the wiretap recordings violates his rights under Article 1, Section 14 of the Indiana Constitution, however, he makes no argument to that effect. Thus he has waived any such argument. See Indiana Appellate Rule 46(A)(8)(a) (appellate argument must be a cogent argument supported by citations to authority [and] statutes); and see West v. State, 755 N.E.2d 173, 181 (Ind. 2001) (failure to make a cogent argument waives issue from appellate court’s consideration).

NFP civil decisions today (0):

NFP criminal decisions today (2):

Keith R. Miller v. State of Indiana (mem. dec.)

Dwight Patton v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, April 29, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Financing Odyssey, INcite and electronic filing almost entirely by fees on infractions and ordinance violations?

Here is the history of the Court's automated recordkeeping fee (ARK), including the changes made in 2013 to IC 33-37-5-21:

Changes to the Annual Automated Record Keeping Fee Through the 21st Century
2001 $2 annually
2002 $5 annually until 7-1-03, then $7 annually until 7-1-09, then $4 annually thereafter.
2004 $7 annually until 7-1-09, then $4 annually thereafter.
2007 $7 annually until 7-1-11, then $4 annually thereafter.
2009 $7 annually until 7-1-11, then $4 annually thereafter.
2011 $7 annually until 7-1-11, then $5 annually thereafter.
2013 $7 annually until 7-1-15, then $5 annually thereafter, except
$5 annually until 7-1-15, then $5 annually thereafter with respect to actions resulting in the accused person entering into a: (A) pretrial diversion program agreement under IC 33-39-1-8; or (B) deferral program agreement under IC 34-28-5-1.

Valuable background information on the automated record keeping fee can be found in this Feb. 25, 2013 ILB post. See particularly the 5-page LSA fiscal impact report and, at the end of the post, the Indiana Judicial Center's summary re what happened at the Ways & Means Committee meeting.

The final budget compromise, before the General Assembly today, includes provisions which raise the ARK fee from $5 to $19. You can find it in SECTION 261 of the Conference Committee Report on HB 1001 along with changes in SECTION 260 to the document storage fee, which impact non-Odyssey counties:

Some questions the ILB has had:

* Is the overall plan that Odyssey, INcite and electronic filing are all going to be funded now and in the future by a $19.00, or higher, ARK fee?

* It has never been clear to the ILB exactly who pays the ARK fee. IC 33-37-5-21, the automated record keeping fee section, begins:

(a) This section applies to all civil, criminal, infraction, and ordinance violation actions.
However, the State doesn't pay the fee, and indigent defendants do not pay the fee. It has been pointed out by some that ARK is essentially a tax on traffic offenders and small claims filers and that the courts only get the fee on infractions if the defendant is found guilty.

Posted by Marcia Oddi on Wednesday, April 29, 2015
Posted to Indiana Courts

Ind. Courts - Appellate court docket moves to mycase.com on May 4th

Last November, the Tax Court moved to mycase.com. Today the Supreme Court has announced that on May 4th, all applellate case information also will be moved to mycase.com.

There will be a minor delay during the transition:

During the upgrade both dockets will be affected. The Clerk of Courts will receive and process filings, but Supreme Court and Court of Appeals case events that occur on May 1 will not be posted to the dockets until May 4. Docket entries for the Tax Court and trial courts will not likely be affected.
ILB: Some readers may recall that, on Dec. 3, 2014, upon learning of the plan to move all appellate docket information to mycase.com, the ILB wrote a long post explaining why that move would be to the detriment of practitioners.

The post heading: "One step forward followed by two steps back for the appellate docket." The post explained in detail how the appellate docket which was to be replaced had many benefits for practitioners that would be lost in the move to mycase.com.

But there is good news today. The Court's news release explains that "Appellate case information is available in both dockets." I checked with the Kathryn Dolan, the Court's public information officer, who responded:

Yes. The appellate docket is scheduled to remain in existence. There are essentially two avenues to lookup appellate case information: 1) mycase.in.gov or 2) appellate docket.

It is important that the appellate case information be available in Odyssey (as is case information for the other 200 courts using the Odyssey case management system). But the Court also recognized that many users benefited from the appellate docket. Some improvements were made to the appellate docket, and it remains an option for folks.

Also from today's release: " For the first time, the appellate docket will also include links to opinions and orders."

Posted by Marcia Oddi on Wednesday, April 29, 2015
Posted to Indiana Courts

Ind. Gov't. - Now here is a helpful digest in a CCR ...

It is the Conference Committee Report for HB 1472 and reads:

(This conference committee report deletes all the provisions in the bill and inserts selected SECTIONS from the following documents: (1) HB 1472 (as reprinted February 20, 2015). (2) ESB 438 (as printed April 15, 2015). (3) SB 438 (as printed February 13, 2015). (4) EHB 1485 (as reprinted April 15, 2015). (5) ESB 436 (as reprinted April 15, 2015). Authorizes the DLGF to increase the maximum school corporation transportation fund levy for the New Durham Township School Corporation and the North Vermillion Community School Corporation.)
The new proposal is 68-pages long and starts out with:
SECTION 1. IC 4-6-5-3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]: Sec. 3. (a) No agency, except as provided in this chapter, shall have any right to name, appoint, employ, or hire any attorney or special or general counsel to represent it or perform any legal service in behalf of the agency and the state without the written consent of the attorney general.

(b) An attorney employed by an agency is subject to IC 34-46-3-1 and Trial Rule 26(B) of the Indiana Rules of Trial Procedure, commonly referred to as the attorney-client and work product privileges, if the requirements to assert the protection and privilege have been satisfied.

Posted by Marcia Oddi on Wednesday, April 29, 2015
Posted to Indiana Government

Ind. Courts - Here is the final language of a bill to remake the Marion County small claims courts

You can read the conference committee report of SB 523 here; it is pending before both houses today.

The bill, authored by Senator Michael Young, has changed at each step of the process, so your best route is to just read the final proposal in full, rather than the digest of changes.

For background, start with this April 17th ILB post, which describes how the Supreme Court has been asking for changes in the Marion County small claims court system since 2012, what changes the Court has recommended, and how this proposal takes a totally different direction.

Posted by Marcia Oddi on Wednesday, April 29, 2015
Posted to Indiana Courts

Ind. Gov't. - It's back! "Lawmakers reconsider hourly search fee, changes to public records"

Lauryn Schroeder of the AP reported very late last evening:

A fee for public records requests that take longer than two hours to fulfill is back on the table this session, Indiana lawmakers said Tuesday.

House members have approved a proposal that would allow government agencies to charge a searching fee for record requests that take over two hours. After that time, they could charge up to $20 an hour.

Lawmakers considered the fee and other public record changes earlier this session but voted to remove the language in from another bill in March. * * *

Supporters of the proposal argue that compensation for search times would help alleviate the burden that large requests place on government resources. But critics say the measure could discourage in-depth records requests and give officials another tool to fight transparency.

Bill sponsor Republican Rep. Dennis Zent of Angola said local governments often receive complicated requests for documents from certain individuals.

"I don't think that's a wise use of taxpayer money if that's just one individual repeatedly doing it," Zent said.

Supporters also applaud a provision that would allow a requester to receive records electronically. The search fee would apply, but the requester would not have to pay a copying cost.

Currently, an agency can refuse to provide electronic copies, forcing a requester to pick up records in person and pay a copying fee.

Hoosier State Press Association Executive Director Steve Key said the benefit of getting records in an easy format outweighs the potential negatives of a search fee.

Key said it would also save time and resources for both government agencies and records requesters.

"This is going to probably force people to be a little bit more selective when they make records requests," he said. "It will be much more of a rifle approach as opposed to a shot gun or casting a fishing net."

Democratic Rep. Matt Pierce of Bloomington criticized the measure.

"The records are created with our tax dollars; the employees and the buildings are paid for with our tax dollars. If they've got to suffer through a few people who make outrageous requests, that's kind of the price of democracy," he said.

The Senate is set to vote on the measure Wednesday, the 2015 session deadline.

Unfortunately, the otherwise good story does not identify what bill the language has been slipped into...

As the ILB has reported before
, similar language was also introduced in 2014, and, just as now, it was supported by the Hoosier State Press Association. See earier ILB coverage, including March 15, 2015, and this second ILB post from the same date, which included:
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.
This post from March 24th reported that the changes to limit public access to records, buried within the massive "Education deregulation" package, had been deleted.

But now they are back, in a conference committee report already adopted by the House and awaiting Senate action.

[More] Here it is, the language has been inserted into the CCR report on Senate Bill 369:

(This conference committee report does the following: (1) Inserts provisions of
ESB 288, printed April 3, 2015 (as adopted by the House) that: (A) allow state and local
agencies to charge a fee for public record searches in excess of two hours; and (B) require
a public agency to provide a public record in electronic form if the record is in an electronic
format. (3) Inserts provisions of SB 288 as reprinted February 24, 2015 (as adopted by the
Senate) regarding publication of budget notices. (4) Provides that a locality newspaper
must be located in the political subdivision. Makes a technical correction.)
It is on today's Senate Calendar, adoption will send it to the Governor.

Posted by Marcia Oddi on Wednesday, April 29, 2015
Posted to Indiana Government

Tuesday, April 28, 2015

Ind. Gov't. - "Effort to withhold state legislative records stalls"

On April 15th the ILB posted "Lawsuit filed for certain House Republican caucus emails," which includes both the complaint and links to the Public Access Counselor opinions in the now pending case of CAC v. Ed Koch and Indiana House Republican Caucus.

This afternoon, two seasoned statehouse reporters, Tom LoBianco of the IndyStar, and Niki Kelly of the Fort Wayne Journal Gazette, have posted stories on a behind the scenes, now abandoned effort to rewrite the public records law to deny public access to legislative emails.

From the Star story:

A last-minute push to protect state lawmakers from having to disclose public records, including their emails and other documents, has stalled, but is likely to resurface next year.

Senate and House lawmakers had scheduled a conference committee for Tuesday morning to consider a measure that would have specifically exempted their exchanges from public disclosure. But the meeting was cancelled at the last minute Tuesday morning.

House Speaker Brian Bosma, whose lawyers are fighting off a challenge from a Washington-based environmental group, said the protection is needed, but will probably have to wait.

"Ultimately I thought it was inadvisable for us to put legislation together at the last second, despite the appropriateness of it and the need for it," he said Tuesday.

Lawmakers are a little more than 24 hours from wrapping up work on their 2015 legislative session. The issue of access to public records arose earlier in the session when the Energy and Policy Institute sought emails between House Energy Chairman Eric Koch, R-Bedford, and Duke Energy regarding solar energy legislation.

Bosma's staff flatly refused the request, citing a 1993 court case that allegedly exempted all state lawmakers from the state's public records laws. But Indiana's public access counselor, who is appointed by the governor to interpret state open records laws, determined at the time that lawmakers, along with other public agencies, are still subject to the law.

"It is the opinion of the public access counselor the Indiana General Assembly is subject to the Access to Public Records Act," Public Access Counselor Luke Britt wrote in the conclusion of his March 6 opinion.

But because the opinion's are only advisory, and not enforceable, Bosma's staff replied that they would still not release the emails. Specifically, Bosma's chief counsel, Jill Carnell, argued that a pair of Indiana Supreme Court cases left the decision solely up to the General Assembly, as to whether disclose.

From the FWJG story:
A last-second attempt to conceal legislative records from the public hit a wall Tuesday morning.

A conference committee hearing had been called for Senate Bill 528 - a bill about public records. Legislative leaders were considering adding language to officially exempt legislative calls and emails.

The move is related to a recent lawsuit filed against the Indiana House, and multiple opinions by the Indiana Public Access Counselor that the General Assembly must follow the state public records law.

But the Tuesday meeting was scrapped.

"Ultimately I thought it was inadvisable to put legislation together at the last second despite the appropriateness of it and the need for it," said Republican House Speaker Brian Bosma. "Probably best not to do it."

Citizens Action Coalition, Common Cause Indiana and the Energy and Policy Institute filed a lawsuit earlier this month in Marion County against the Indiana House Republican Caucus and State Rep. Eric Koch, R-Bedford, for violating the Indiana Access to Public Records Act.

According to a press release, the groups are asking the court to declare that Koch and the caucus are subject to the state open records law, which the GOP legislators have denied, and to order disclosure of correspondence between Rep. Koch and utility companies regarding solar energy issues.

Posted by Marcia Oddi on Tuesday, April 28, 2015
Posted to GA and APRA | Indiana Government

Ind. Decisions - Supreme Court decides Child Support Guidelines case

In James Bogner v. Teresa Bogner, an 18-page, 5-0 opinion, Justice David writes:

Teresa Bogner (Mother) and James Bogner (Father) were married and have one child, H.B. In 2007, when H.B. was just over two years old, the marriage was dissolved. Father was originally ordered to pay $162 per week in child support. In 2008, Father sought to modify his support obligation. The parties agreed under the Indiana Child Support Guidelines that Father’s support obligation would be reduced to $135 per week. In 2013, Father again filed to modify his support obligation given an increased number of overnights Father was having with H.B. and a decrease in childcare costs. Under the Guidelines, the applicable parenting time credit decreased Father’s support obligation to $59 per week. Mother sought a deviation from the amount recommended by the Guidelines. Mother argues that $59 per week is insufficient for her to continue supporting H.B. considering all of the attendant costs she incurs as the custodial parent.

A hearing was held, and the parties agreed to proceed in a summary fashion. After arguments of counsel, the Court entered findings that the support provided under the Guidelines was unreasonable and created a hardship on Mother. As such, the Court deviated upward from the recommended support, but still reduced Father’s previous support obligation to $105 per week. Upon Mother’s request, the Court also ordered that Mother would claim H.B. each year for the child dependency tax exemption, instead of alternating years with Father. Father appealed the trial court’s ordered modification. Father argued that the trial court erred in deviating from the Guidelines regarding the amount of weekly support and in awarding the yearly state and federal tax exemptions to Mother.

Under the Guidelines, after considering certain factors, if “the court finds that the Guideline amount is unjust or inappropriate in a particular case, the court may state a factual basis for the deviation and proceed to enter a support amount that is deemed appropriate.” Ind. Child Supp. G. 3(F)(2). The trial court stated on the record its finding that the support provided by the Guidelines was unreasonable, and included the basis for deviating from the Guideline amount.

This Court has continually advised trial courts that the Guidelines should not be treated as immutable, black letter law. Rather, some situations require greater flexibility. To the extent that Father challenges the form of the summary proceedings, that argument is waived because no objection to the nature of the proceedings was made at the time of the hearing. Moreover, the trial court did not clearly err during the summary proceeding when it relied upon the arguments of counsel and limited informal documentary evidence in reaching its findings and conclusions. As such, we affirm the trial court’s child support modification order. * * *

To summarize, for both of the ordered modifications, the trial court accepted informal exhibits and heard arguments on disputed issues. The trial court then acted accordingly by entering written findings based upon the information provided by the parties and explaining the basis for its deviation from the Guidelines. Once again, formal findings of fact and conclusions of law are not required by the Child Support Guidelines. The judge need only articulate his or her reasoning. This is exactly what the trial court did in this case. Thus, the modifications were not clear error.

Conclusion. Father waived his challenge to the form of the summary proceeding when he failed to make a contemporaneous objection to that procedure. Despite Father’s waiver, the trial court properly conducted a summary proceeding under the agreement of both parties, and the court was permitted to rely upon the arguments of counsel and limited informal documentary evidence when it entered its findings. The trial court did not commit clear error when it deviated from the Indiana Child Support Guidelines by not granting Father the full parenting time credit and permitted Mother to claim H.B. each year for the federal and state dependency tax exemption. We affirm the trial court’s child support modification order.

Posted by Marcia Oddi on Tuesday, April 28, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (3):

In Dawn Warrick and Nathan Parrish v. Steve and Mitzi Stewart, a 15-page opinion, Judge Bailey writes:

Steve Stewart (“Stewart”) brought a negligence claim against Dawn Warrick (“Dawn”) and Nathan Parish (“Nathan”) (collectively, “the Warricks”) after Stewart’s motorcycle collided with the Warricks’ loose dog, causing Stewart to suffer personal injury. A jury found that Stewart was seventy percent at fault and accordingly returned a verdict for the Warricks. After Stewart filed a motion to correct error, the trial court granted the motion, set aside the jury’s verdict, and ordered a new jury trial. We affirm.
In In The Matter of The Adoption of: K.M.; B.M. v. J.R. and M.R. , a 10-page opinion, Judge Friedlander writes:
Mother acknowledges that she received notice of Stepmother’s adoption petition and that she was aware of the requirement that she must file an objection thereto within thirty days of being given such notice. See I.C. § 31-19- 10-1. Mother further admits that she did not file an objection within thirty days. I.C. § 31-19-9-18 provides, in pertinent part, that “[t]he consent of a person who is served with notice under IC 31-19-4.5 to adoption is irrevocably implied without further court action if the person . . . fails to file a motion to contest the adoption as required under IC 31-19-10 not later than thirty (30) days after service of notice under IC 31-19-4.5.”

Mother argues that I.C. § 31-19-9-18 is unconstitutional in that her consent to the adoption was irrevocably implied simply because she did not file an motion to contest the adoption within the statutory time limit and not as the result of a hearing at which she was given an opportunity to be heard. Mother argues that a hearing should be held in all adoption cases. Mother’s suggestion is really a request to rewrite legislation. There is nothing in the statutory language that requires a predicate hearing prior to a person’s consent being irrevocably implied. In fact, the language is clear that consent is irrevocably implied “without further court action.” I.C. § 31-19-9-18. We will not read a requirement for a hearing into the statute. See McGee v. McGee, 998 N.E.2d 270 (Ind. Ct. App. 2013).

The statutory framework provides that notice of an adoption petition shall be given and that a person receiving such notice has thirty days to file a motion to contest. Here, had Mother filed a motion to contest the adoption within the appropriate time frame, she would have been afforded the opportunity to voice her objection to Stepmother’s petition to adopt the Child. It was Mother’s failure to timely file a motion, not State action, that foreclosed her opportunity to oppose Stepmother’s petition for adoption. The statutory scheme afforded Mother procedural due process.[2]

Mother argues that she engaged in sufficient communication with the judicial system such that we should not strictly apply the time limit set out in I.C. § 31- 19-9-18. In other words, Mother argues that her efforts to communicate her objection to Stepmother’s petition for adoption should allow for equitable deviation from the statutory time limit and we should therefore set aside her irrevocable implied consent. * * *

Having determined that I.C. § 31-19-9-18 is a nonclaim statute, Mother is not entitled to equitable deviation from the thirty-day time limit and courts are not permitted to utilize equity to rectify an injustice even if warranted by the situation. Mother did not file a motion to contest Stepmother’s petition for adoption within thirty days after being served with notice thereof and consequently, Mother’s consent to the adoption was irrevocably implied. Mother was not thereafter permitted to contest the adoption or the validity of her consent and she was not entitled to equitable tolling. The trial court did not err in granting Stepmother’s petition for adoption of the Child. Judgment affirmed.
__________
[2] We note that the Appellees heavily rely upon an unpublished memorandum decision in support of their arguments. This is contrary to Indiana Appellate Rule 65(D), which provides: “[A] memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case."

In Zachary L. Lewis v. State of Indiana , a 9-page opinion, Judge Najam writes:
Zachery L. Lewis appeals his sentence following his convictions for two counts of battery, one as a Level 6 felony, and one as a Class A misdemeanor. Lewis presents three issues for our review, which we consolidate and restate as the following two issues:
1. Whether the two batteries constitute an episode of criminal conduct under Indiana Code Section 35-50-1-2(c).
2. Whether the trial court abused its discretion when it sentenced him.
We affirm.
NFP civil decisions today (3):

In Re Adoption of K.P. et al., D.M. v. C.P. (mem. dec.)

In re the Guardianship of M.M. et al; Melissa Miller v. FaithAnn Breden and Richard Breden (mem. dec.)

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

NFP criminal decisions today (6):

L.C. v. State of Indiana (mem. dec.)

Chad Byrd v. State of Indiana (mem. dec.)

Jennifer L. Buchanan v. State of Indiana (mem. dec.)

Marlon M. Banks v. State of Indiana (mem. dec)

Jonathan G. McPherson v. State of Indiana (mem. dec.)

Terrence Jamual Douglass v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, April 28, 2015
Posted to Ind. App.Ct. Decisions

Law - "How Legal Blogging Has Changed Over the Decade" - ILB celebrates its 12th year!

Robert Ambrogi, long-time national writer about law blogs, has a new post. He writes:

Over at PrawfsBlawg, as they commemorate their tenth anniversary, they’ve been ruminating on the question of how legal blogging has changed over the past decade. As professorial types tend to do, they have been putting forth all sorts of hypotheses, most more or less pointing to the same conclusion, which is that blogging — at least blogging by professors — is dying. As you read through their posts, you might think the anniversary was actually a funeral.

As someone who has been doing this for more than 12 years, I have my own thoughts about how blogging has changed. I strongly disagree with any suggestion that blogging, as a medium of communication, is declining. But there is one simple fact that accounts for the decline of at least some blogs. It is the same fact that, to my mind, most accurately and concisely sums up how blogging has changed in the last dozen years.

The fact is, blogging has gotten harder. A lot harder.

What’s made it harder? Competition. * * *

Just blogging is no longer enough to make you stand out or retain readers. You need to work at it. You need to develop a distinctive theme and then follow through on that theme with consistent, timely and quality posts. * * *

Blogging is not dying, it is thriving. Because it is thriving, it has become an enterprise. Big firms have paid writers on staff producing blog content. Marketing and PR firms now have units that specialize in sending their customers canned content to use on their blogs. Law.com now has an entire network of blogging contributors. Above the Law has made legal blogging into a full-fledged business — and what appears to be a pretty successful one at that. Competition abounds, and it comes from all corners.

If you want to blog successfully, you still can. You don’t have to be young. You don’t need inhouse writers or outside marketing firms. But you do need energy and commitment. Horwitz was right about that. And you need to enjoy it. Otherwise the energy and commitment get you nowhere. Blogging takes work. It can be hard work that can wear on you. But it can be rewarding. And it can also be fun. Once it’s not, that’s probably the time to move on.

ILB: In March of 2015, the ILB completed its 12th year! Please become an ILB supporter!

Posted by Marcia Oddi on Tuesday, April 28, 2015
Posted to General Law Related

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/27/15):

Next week's oral arguments before the Supreme Court (week of 5/4/15):

Thursday, May 7

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/27/15):

Wednesday, April 29

Next week's oral arguments before the Court of Appeals (week of 5/4/15):

Wednesday, May 6

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 Tuesday, April 28, 2015
Posted to Upcoming Oral Arguments

Courts - SCOTUS today to hear arguments on same-sex marriage, the great civil rights question of our age

Worth your attention:

Posted by Marcia Oddi on Tuesday, April 28, 2015
Posted to Courts in general

Monday, April 27, 2015

Ind. Gov't. - Session ends on Wednesday; how to follow

Here is Governor Pence's list of the bills he has received, the date he must act, and the date signed. If he does not act on a bill by the deadline given, it will become law without his signature "on the eighth day after presentment to the Governor." Ind. Const. Art. 5, Sec. 14(a)(3). This happens very infrequently.

Here is the General Assembly's 2015 Enrolled Act Summary, so far. It should correlate with the Governor's list of bills he has acted on.

For now, you can also try this dynamic list of 2015 legislation - that in blue has either passed or is at least still alive.

If you need to find out whether a section of law has been affected during this session, use the cite list. It may not give you the final word yet, but at least, when the session adjourns, it will tell you if your provision was in the mix when the General Assembly adjourned. (Be sure to check the date the list was produced.)

Posted by Marcia Oddi on Monday, April 27, 2015
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending April 24, 2015

Here is the Clerk's transfer list for the week ending Friday, April 24, 2015. It is four pages (and 34 cases) long.

Three transfers were granted last week:

Posted by Marcia Oddi on Monday, April 27, 2015
Posted to Indiana Transfer Lists

Ind. Courts - Names of Court of Appeals applicants released

From the news release:

The Judicial Nominating Commission received 8 applications for the upcoming Court of Appeals of Indiana vacancy. The following attorneys and judges have applied for the seat which will be available when Judge Ezra H. Friedlander retires this summer.

· Judge Robert R. Altice, Jr., Marion Superior Court

· Bryan L. Ciyou, Indianapolis, Ciyou & Dixon, PC

· Stephen R. Creason, Indianapolis, Office of the Attorney General

· Judge Christopher M. Goff, Wabash Superior Court

· Patricia C. McMath, Indianapolis, Marion County Public Defender Agency

· Judge Gary L. Miller, Marion Superior Court

· David L. Pippen, Indianapolis, Bose McKinney & Evans LLP

· Joel M. Schumm, Indianapolis, IU Robert H. McKinney School Of Law

The applicant names are public record. The actual applications are public record if the candidate is interviewed, see IC 33-27-3-2(d)(1). An announcement on interviews and details on how applications can be reviewed will be announced soon.

ILB: Note that only residents of the 2nd Judicial District are eligible for this seat.

Posted by Marcia Oddi on Monday, April 27, 2015
Posted to Vacancy on COA 2015

Ind. Courts - More on "Prosecutor orders Elkhart Truth reporter to surrender notes and recordings" [Updated]

Updating this post from April 10th, Michelle Sokol of the Elkhart Truth reported April 24th in a story headed "Within 30 days, judge will rule on motion to reject subpoena to Elkhart Truth journalist." The long story, which recounts the arguments of both sides, begins:

A judge did not rule on The Elkhart Truth’s request to reject an order from the Elkhart County Prosecutor’s Office for a reporter to surrender her notes and appear for testimony, but he did urge both parties to work together to find a solution.

Elkhart Circuit Court Judge Terry Shewmaker listened to arguments from Steve Badger, who is representing The Truth in the matter, and Chief Deputy Prosecutor Vicki Becker in an afternoon hearing Friday, April 24.

[Updated at 2:27PM] Here is a Friday story from Christian Sheckler of the South Bend Tribune, headed "Judge hears arguments on Elkhart Truth reporter's subpoena."

Posted by Marcia Oddi on Monday, April 27, 2015
Posted to Indiana Courts

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

For publication opinions today (1):

In Adegoke Adetokunbo aka Robert Adesanoye, and Grace Itaniyi v. State of Indiana, a 12-page opinion, Judge Robb writes:

A bench trial was held for Adegoke Adetokunbo and Grace Itaniyi, who were tried as codefendants. Adetokunbo was found guilty of resisting law enforcement, a Class A misdemeanor, and battery, a Class B misdemeanor. Itaniyi was found guilty of resisting law enforcement, a Class A misdemeanor, battery, a Class B misdemeanor, and disorderly conduct, a Class B misdemeanor. Following their convictions and sentence, Adetokunbo and Itaniyi appealed jointly, challenging the sufficiency of evidence supporting their convictions. We conclude there was insufficient evidence to support Itaniyi’s conviction for battery, and we remand with instructions that that conviction be vacated. However, we conclude that Itaniyi and Adetokunbo’s remaining convictions are supported by sufficient evidence and must be affirmed. * * *

We conclude that convicting a defendant of battering a person who was not the victim alleged in the charging information constitutes a material variance, and there was insufficient evidence to support Itaniyi’s conviction for battery against Flores as a Class B misdemeanor. Therefore, we reverse and remand with instructions that Itaniyi’s battery conviction be vacated. With respect to Itaniyi and Adetokunbo’s remaining convictions, we conclude the State presented sufficient evidence.

NFP civil decisions today (1):

Bloomington Police Department v. Stone Belt, Inc. (mem. dec.)

NFP criminal decisions today (2):

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

Terry Twitty, Sr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, April 27, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Another legislative session, full of surprises"

Supplementing this ILB post from Sunday, Tom LoBiano has a good report today on end of the long (budget)session machinations. Samples:

The last few days of any legislative session are always wild and woolly affairs, with the ability to slip big new changes into legislation in conference committees, avoiding much of the public debate (and private lobbying) that would otherwise trip them up. * * *

Surprises are all about timing, of course, and Indiana's state lawmakers have proved again this year that mere hours can seem like a lifetime and months can appear to be no time at all.

Take the Religious Freedom Restoration Act, which brought a firestorm to Indiana unlike any the state has seen in recent years. The proposal was debated extensively in the General Assembly and Indiana media in the months after the session started but still appeared to catch opponents off-guard.

But once the national firestorm had engulfed the Statehouse, it took just a few days of breakneck, closed-door negotiations to come up with a "fix".

The fix was unveiled publicly at 9 a.m. April 2 and signed into law about eight hours later. There was very little public debate over the merits of the change itself.

But calls to add lesbian, gay, bisexual and transgender people as a protected class of citizens — a move that would have mollified the state's most vociferous critics — were dismissed out of hand because the issue had not been publicly vetted.

So what surprises do lawmakers have in store for the final three days of the 2015 session? Plenty. We just don't know them yet.

Posted by Marcia Oddi on Monday, April 27, 2015
Posted to Indiana Government

Ind. Courts Federal Judge Richard Young Honored with James Bethel Gresham Freedom Award

From the TriState Homepage:

The Evansville Bar Association recognized Honorable Richard Young by presenting the James Bethel Gresham Award to him on Friday. Judge Young received the award at the annual Law Day dinner hosted by E.B.A.

Posted by Marcia Oddi on Monday, April 27, 2015
Posted to Indiana Courts

Ind. Gov't. - "Once-vocal Indiana now silent on gay marriage bans" and some history

On Sept. 27, 2010, the ILB had this post, headed "AG Zoeller files brief opposing gay marriage in California."

On behalf of the citizens of the State of Indiana, the Indiana Attorney General's office is the lead author on an amicus brief that was, according to this AP story out of Wyoming, submitted Friday to the 9th Circuit U.S. Court of Appeals:
[The brief] said that the Constitution does not require marriage to include same-sex couples. The 39-page brief also said that states, not federal courts, have final say in whether to allow same-sex marriages.

A federal judge ruled last month that California’s Proposition 8, a voter-passed ban on same-sex marriage, was unconstitutional. Judge Vaughn Walker ruled there was no legitimate state interest in preventing same-sex marriages and that “moral disapproval” alone wasn’t sufficient reason to justify banning it.

The ILB has received a copy of the brief of the amici states. Indiana is joined on the brief by the states of (or at least by the attorney generals of the states of) Virginia, Louisiana, Michigan, Alabama, Alaska, Florida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah and Wyoming.
In 2013, the Indiana Attorney General made the State of Indiana the lead author in amicus briefs opposing marriage equality in both of the Prop 8 and DOMA cases then pending before the SCOTUS.

On July 23, 2014 an ILB post points to "the same 10 states that have signed on to the numerous amicus briefs authored in Indiana and filed by Attorney General Zoeller on behalf of the citizens of the State of Indiana in same-sex marriage cases throughout the country. See for example, this amicus brief, authored in Indiana and filed by the State of Indiana in the 9th Circuit, in support of the Governor and Attorney General of the State of Nevada. It was joined by ALABAMA, ALASKA, ARIZONA, COLORADO, IDAHO, MONTANA, NEBRASKA, OKLAHOMA, SOUTH CAROLINA AND UTAH."

In this June 23, 2014 post, the ILB quotes from, and responds to, an opinion piece of AG Zoeller defending his office's involvement in cases in other states.

And here, on April 7th of this year, the ILB quotes a story from the Gannett's Maureen Groppe reporting that:

Indiana was not among the 15 states, all led by Republican governors, that filed briefs calling for the bans in Michigan, Ohio, Kentucky and Tennessee to be upheld.

Bryan Corbin, a spokesman for Indiana Attorney General Greg Zoeller, said the state did not weigh in because the Supreme Court let stand last year a lower court's rejection of Indiana's ban. Corbin said Zoeller felt his office had "fulfilled our duty to defend the statute."

This weekend the same reporter expanded her story, in a long report headed "Once-vocal Indiana now silent on gay marriage bans." Some quotes:
WASHINGTON — Despite vigorously defending a state's right to prohibit same-sex marriages for years, the Indiana attorney general's office is not weighing in on the case that is expected to settle the issue.

Indiana is not among the 17 states asking the U.S. Supreme Court to side with Michigan, Ohio, Kentucky and Tennessee in the challenges to those states' gay marriage bans to be argued before the court Tuesday.

Indiana Attorney General Greg Zoeller says he no longer has a duty to defend that position after fighting for the state's ban all the way to the Supreme Court last year.

But Indiana's silence is quite a change from two years ago, when the high court last debated the issue. Zoeller's office was the primary author of briefs submitted by states in support of California's gay marriage ban and of a federal law defining marriage as the union between a man and a woman. * * *

Indiana was an early advocate, according to a research paper from the University of San Francisco School of Law, of the argument that marriage primarily exists to encourage couples to procreate responsibly. Because gay couples can't get pregnant by accident, the argument goes, states shouldn't have to allow them to marry. (That justification was ridiculed by the federal judges who struck down Indiana's ban last year but was used by the federal judges upholding the state bans being reviewed by the Supreme Court.)

[ILB: For more on the AG's "responsible procreation" argument, see this Aug. 23, 2012 ILB post, which traces its roots to the State's arguments in the 2005 Court of Appeals challenge to Indiana's marriage laws in the case of Morrison v. Sadler.]

Zoeller's office in recent years wrote briefs in defense of other states' bans and defended challenges to Indiana's law filed after the Supreme Court ruled unconstitutional a ban on providing federal benefits to married gay and lesbian couples.

Although some attorneys general have declined in recent years to defend their state's bans, they had a duty to do so, Zoeller argues in a recent article in the Indiana Law Journal. Attorneys general should always defend a state statute, even if it's a weak defense, unless there is no chance of prevailing based on past court rulings, he wrote. * * *

But Zoeller's obligation to defend Indiana's statute ended last year when the Supreme Court rejected the state's appeal of the 7th U.S. Circuit Court of Appeals' decision, according to his spokesman.

"Attorney General Zoeller decided after the Supreme Court declined to hear Indiana's case that we had fulfilled our duty to defend the statute and our office would not join in the amicus briefs in Obergefell v. Hodges," spokesman Bryan Corbin said of the pending case.

That decision was a surprise to Steve Sanders, an Indiana University Maurer School of Law professor who co-wrote a brief supporting the challenge to the bans in Michigan, Ohio, Kentucky and Tennessee.

"The Indiana attorney general's office had been sticking its nose into marriage cases that it had no direct connection to for years," Sanders said. "So the fact that they now have finally thrown in the towel, when the issue is on the brink of a Supreme Court decision, really does surprise me." * * *

But Jim Bopp, a Terre Haute lawyer who authored a brief supporting state bans that was submitted by conservative members of the Republican National Committee, said Zoeller should not have given up the fight.

"If the court rules in favor of traditional marriage, then Indiana's law will go back into effect," Bopp said. "The whole future of Indiana's current law will be affected by the decision of the court in this case."

Posted by Marcia Oddi on Monday, April 27, 2015
Posted to Indiana Government

Ind. Courts - Applications for an upcoming vacancy on the Court of Appeals are due today, April 27th

So if you haven't starting getting your application together yet, it may be a scramble...

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.

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.

More from the application instructions:

The 11 completed hard-copy applications must be delivered to the Commission's Office at 30 S. Meridian Street, Suite 500, Indianapolis, Indiana 46204 no later than 12:00 p.m. on April 27, 2015. Applications received after 12:00 p.m. on April 27, 2015 will not be considered. Please retain proof of delivery. The electronic copy of the application must be submitted to Commission’s Counsel at adrienne.meiring@courts.in.gov by 3:00 p.m. on April 27, 2015.

Upon the Commission’s receipt of 11 complete applications and an electronic copy, the candidate’s name will be made public. I.C. § 33-27-3-2(d).

There is no word yet from the Court as to when the applications will be made available to the public, but the ILB will be covering the process closely, as it has in the past.

Posted by Marcia Oddi on Monday, April 27, 2015
Posted to Vacancy on COA 2015

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

From Sunday, April 26, 2015:

From Saturday, April 25, 2015:

Posted by Marcia Oddi on Monday, April 27, 2015
Posted to Catch-up

Ind. Courts - February 2015 Indiana Bar Exam Results

Here is the list, just released.

Posted by Marcia Oddi on Monday, April 27, 2015
Posted to Indiana Courts

Sunday, April 26, 2015

Courts - Tuesday is finally the day the SCOTUS hears the SSM cases

There are four cases, all from the 6th Circuit, consolidated under the name Obergefell v. Hodges, "on the questions of whether the Fourteenth Amendment requires that states grant and/or recognize same-sex marriages." There is a plethora of good information available, much of it either written for, or linked on, SCOTUSblog. For instance:

Posted by Marcia Oddi on Sunday, April 26, 2015
Posted to Courts in general

Ind. Courts - The dubious doctrine of legislative acquiescence

Today Doug Masson of Masson's Blog has a brief post concluding:

In any event, the doctrine of legislative acquiescence is, frankly, dubious. Basically it means that if a court interprets legislation in a certain way and the legislature gives no sign one way or the other, courts will assume that the legislature agrees with the court decision. The more likely reality is that the legislators have no earthly idea what the courts have been up to. This is even more likely when dealing with the public access counselor and not the courts.
ILB: I couldn't agree more.

Researching and writing on what seems to be our Indiana courts' increasing reliance on this concept has long been on the ILB's "to do" list.

Masson links to the ILB's April 20th post on the St. Joseph County ESPN v. Notre Dame opinion, but the ILB had another post just this morning. It includes this quote from a South Bend Tribune story today:

That the General Assembly chose not to change the law despite those three opinions, coming in record request cases from 2003 to 2011, is persuasive evidence of “legislative acquiescence,” meaning lawmakers think the courts are interpreting the law as it was intended when enacted, [Judge] Hostetler wrote, agreeing with Notre Dame’s argument.

But [Steve Key, executive director and legal counsel for the Hoosier State Press Association] said he isn’t dissuaded by that notion.

“The fact that the legislature hasn’t acted is a function of not having been asked to act upon it,” Key said. “Now we have a situation where the courts have officially taken a position on the law. It’s a good thing that ESPN brought this case to light, so we will have something to bring to the legislature and say, ‘Here is how the current law is being interpreted. Is this what you intended?’”

Posted by Marcia Oddi on Sunday, April 26, 2015
Posted to Indiana Courts

Ind. Decisions - More on "Judge rules for Notre Dame in ESPN lawsuit over police records"

Following up on this ILB post from April 20th, Jeff Parrott reports today in the South Bend Tribune that: "Debate over Notre Dame police records not over: Debate may shift to legislature." Some quotes from the lengthy story:

Could the debate over University of Notre Dame Security Police records, and whether they should be public, eventually shift to the Statehouse?

The judge in the case seemed to nudge the issue in that direction. While he ultimately decided that Notre Dame does not need to make its police records public, St. Joseph Superior Court Judge Steven Hostetler this past week wrote in his ruling: “Perhaps this will cause the Indiana Legislature to consider this important matter.”

After all, it was state legislators who first created and wrote the law years ago. Now, at least one local legislator says he’s ready to take on the question of how the law should apply to private universities.

State Rep. B. Patrick Bauer, D-South Bend, has vowed to author legislation or work with others on a bill that would change Indiana’s public records law to specify that records by campus police departments at private colleges and universities must be subject to public disclosure. He says he could introduce the bill as soon as January, when the next session starts.

“I believe any private police force should be under the same rules as a public police force because they’re acting instead of a public police force,” Bauer told The Tribune. “We cannot keep going on this way.” * * *

When contacted Friday by The Tribune, an ESPN spokeswoman said the network had not yet decided whether to appeal Hostetler’s ruling to the Indiana Court of Appeals. It has 30 days, or until May 20, to do so.

That decision likely will dictate how the Indiana General Assembly approaches the issue, said Steve Key, executive director and legal counsel for the Hoosier State Press Association. If the Indiana Court of Appeals receives the case, it could go from there to the state Supreme Court, a process that wouldn’t be finished by January when the 2016 General Assembly starts.

The legislature typically is reluctant to change laws while they’re under review by the courts, Key said.
[ILB: Unless it is the Gary gun lawsuit, which both houses have now voted to retroactively terminate via SB 98.]

But if ESPN doesn’t appeal, Key said lobbying to change public records law “very likely” will be high on the association’s legislative agenda for next year.

“Nobody is trying to put Notre Dame in the position where the university is a public agency with respect to APRA,” Key said. “The desire is to take its police department and say, if you derive arrest powers from the state … you should make public your records.”

Indiana Public Access Counselor Luke Britt has issued an advisory opinion in favor of ESPN in the matter, contrary to opinions by his three predecessors in other such cases over the years.

That the General Assembly chose not to change the law despite those three opinions, coming in record request cases from 2003 to 2011, is persuasive evidence of “legislative acquiescence,” meaning lawmakers think the courts are interpreting the law as it was intended when enacted, Hostetler wrote, agreeing with Notre Dame’s argument.

But Key said he isn’t dissuaded by that notion.

“The fact that the legislature hasn’t acted is a function of not having been asked to act upon it,” Key said. “Now we have a situation where the courts have officially taken a position on the law. It’s a good thing that ESPN brought this case to light, so we will have something to bring to the legislature and say, ‘Here is how the current law is being interpreted. Is this what you intended?’”

While ruling against ESPN, Hostetler wrote that he shared Britt’s “discomfort” with the notion that a private party can exercise police powers without sharing records related to that power with the public, but that’s simply how the state’s Access to Public Records Act is written and has been interpreted.

“Perhaps this will cause the Indiana Legislature to consider this important matter,” Hostetler wrote. “ESPN makes persuasive policy arguments.”

Posted by Marcia Oddi on Sunday, April 26, 2015
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Concerns expressed about the proposed justice center

Donna Sink, American Institute of Architects, Indianapolis has a letter today in the Indianapolis Star, expressing concerns about the proposed justice center:

I’m concerned about the long-term impact of stripping the jail and courts from Downtown and plopping a new justice center on a vacant lot (the former GM stamping plant), just because it’s available. I’m concerned what it’s going to do to our Downtown, and I’m concerned about a piecemeal development of the former GM site.

The City-County Council was right to delay action on the proposal. However, there’s still plenty of concern that it could become reality.

The American Institute of Architects Indianapolis is not opposed to a new justice center; in fact, we agree that it’s needed. We’re concerned about two issues: That proper public input was not sufficient, and there’s not a long-term urban plan or vision for either the justice center or the GM site.

Forward-thinking urban planning means getting input from many voices. It means finding the right location, and it means considering the larger-scale impact of every project. For example, how will moving the jail out of Downtown impact the vibrancy of the urban core? If the justice center is built on the GM site, will attorneys and other Downtown businesses who are regular users of the building vacate their offices? If so, how will that impact those businesses around the City County Building and the jail?

How does this affect transportation, including the under-construction transit center next to the current courts? Considering this investment in public transit, what mode of transit will users of the new justice center be able to use to get there?

There are a whole host of questions that haven’t been answered, and taxpayers haven’t been given sufficient opportunity to even ask. The City-County Council would be wise to start the process again, while considering the justice center in relation to the Indy ReZone process, the current developments in the Downtown core, and our city’s future hopes for our close-in neighborhoods.

Other developments paid with taxpayer money, such as White River State Park, have been developed successfully because we took the time to involve the public and stakeholders. We took the time to explore all the alternatives, and reject ideas that didn’t represent the best goals of our community and its citizens. Because of that engagement, we have a world-class urban park. The GM site’s proximity to this enormously popular park demands that we consider its development just as carefully and collectively.

Let’s not invest in a new justice center until the people have been heard, and we understand all the costs associated with it.

Posted by Marcia Oddi on Sunday, April 26, 2015
Posted to Indiana Government

Ind. Gov't. - "Final countdown is on at the Statehouse"

Some thought this day would never come, but the General Assembly adjourns this coming Wednesday.

Dan Carden's story today in the NWI Times begins and ends:

The Indiana General Assembly will adjourn for the year on Wednesday, that much is certain.

But what happens at the Statehouse this week in the hours before the final words, "sine die," are spoken is likely to be something of a choose-your-own-adventure mix of power, politics, pride, patience and, last but not least, public policy.

The two-year state budget, House Bill 1001, always is the dominant legislative concern in the waning hours of the four-month session. * * *

But the adventure only lasts until Wednesday when the Legislature, by law, must adjourn. For many at the Statehouse, that day can't come soon enough.

"It's been a long session, and we're all eager to wrap things up," Long said.

Carden's story links to this dynamic list of 2015 legislation - that in blue has either passed or is at least still alive.

Posted by Marcia Oddi on Sunday, April 26, 2015
Posted to Indiana Government

Friday, April 24, 2015

Ind. Decisions - Supreme Court decides 2nd case today

In DePuy Orthopaedics, Inc. and Johnson & Johnson v. Travis Brown et al, a 7-page, 5-0 opinion, Justice Massa writes:

Plaintiffs Travis Brown et al. filed suit against DePuy Orthopaedics, Inc. in Marion Superior Court, alleging injuries related to certain hip replacement equipment. DePuy moved to transfer venue to Virginia and Mississippi on the grounds of forum non conveniens, pursuant to Indiana Trial Rule 4.4(C). The trial court denied the motion, and certified the question for interlocutory appeal. We find the trial court did not abuse its discretion under Rule 4.4(C), and thus affirm.

Posted by Marcia Oddi on Friday, April 24, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Editorial: Dangerous final days at the Statehouse"

That is the heading to this Lafayette Journal & Courier editorial today. It begins:

These are dangerous days at the Indiana Statehouse.

Leaders in the Indiana Senate and House were warning late in the week that they expected the usual flurry of action, with last-minute bills popping up, as the legislature skids toward the final day of the session on Wednesday.

How many ideas rejected in February and March will re-emerge at the end of April? Hoosiers will have to wait and see. The best advice: Be sure to read the fine print in the final budget bill.

The action already started, giving a preview to why legislation done on the fly can be so frightening.

ILB: For some examples, out of a list of many, the ILB has selected this June 9, 2011 post that begins: "Time to begin the list of "surprises" in bills passed by the 2011 General Assembly."

Posted by Marcia Oddi on Friday, April 24, 2015
Posted to Indiana Government

Ind. Gov't. - The news is full of Indiana's HIV health care crisis

The Louisville Courier-Journall has posted in full the long testimony of "Dr. Shane Avery of Scottsburg, Ind., [who] recently testified before the Indiana General Assembly about the HIV outbreak in Southern Indiana and the benefits of a needle exchange."

Governing today has a story by Chris Kardish titled "Indiana Up Against Clock and Governor on Needle Exchanges." It begins:

The Indiana legislature is close to passing a bill that would expand needle-exchange programs following an HIV outbreak along the state’s southeastern border. Two hurdles remain: the end of the state’s legislative session and a potential veto from Gov. Mike Pence.

The measure would allow Indiana counties with the highest transmissions of hepatitis C, an infectious disease commonly spread through intravenous drug use, to run their own needle exchange programs, which are currently only allowed by an emergency decree of the governor. Supporters call needle exchanges a critical, if limited, tool to head off future public health emergencies because hepatitis C is far more easily spread and can presage an HIV outbreak.

Pence authorized a 30-day exchange last month for the center of the HIV surge, Scott County, where more than 130 cases linked to intravenous opioid use occured in the past two months. The governor extended the exchange for another 30 days earlier this week. But Pence said he opposes a broad needle-exchange program, arguing it would encourage drug use.

Yesterday Maureen Hayden of CNHI reported:

INDIANAPOLIS – Attorney General Greg Zoeller wants lawmakers to give local health officials room to implement needle exchanges to contain the spread of HIV in southeastern Indiana.

Zoeller, a Republican, spent Thursday urging lawmakers to act quickly on legislation that Gov. Mike Pence, also a Republican, has threatened to veto.

Zoeller said he’s convinced that an outbreak of the virus that causes AIDS has spread beyond Scott County. So far, 135 cases have been confirmed as part of the Scott County outbreak.

“Before everybody in every county knows someone with HIV, we’ve got to do something. And we’ve got to do it now,” he said. * * *

With less than a week left in the Legislature's session, Zoeller went public with his lobbying yesterday. As the state’s top law enforcement officer, he said he can give cover to lawmakers who fear they’ll be perceived as enablers of drug abuse if they vote for a needle exchange.

“This is not the time to be risk averse,” he said.

Zoeller made the statement just a day after the state's prosecutors came out strongly opposed to the idea. The Association of Indiana Prosecuting Attorneys said tougher enforcement is a better approach to giving clean needles to illegal drug users.

Zoeller said prosecutors don’t want to be seen as “soft on crime," and neither does he. But he argued that needle exchanges can be life-saving if they keep the deadly HIV virus from spreading among drug users.

“I’m not going to have anybody put to death with HIV just because they’ve broken the law,” he said.

Earlier this week, the state's 120-member Prescription Drug Abuse Task Force endorsed the needle exchange measure proposed by House Public Health Chairman Ed Clere, R-New Albany.

House and Senate leaders have been working to come up with language that both lawmakers and Pence will support. Their aim is to let health officials in high-risk communities intervene before an HIV outbreak.

Their proposal allows counties with high levels of IV drug abuse and Hepatitis C – a blood-borne disease also spread by contaminated needles – to act without first getting an emergency declaration from the governor.

As of late Thursday, it also included a provision that requires those county health officials to work directly with the state’s public health commissioner to launch a needle exchange.

On Thursday, Senate Democrats threw support behind the proposal but called for an expansion of HIV testing and treatment throughout the state. Currently the health department offers HIV testing in 27 of 92 counties.

“There’s a three-part, comprehensive approach that’s needed to address this crisis,” said Senate Minority Leader Tim Lanane, “and that is testing, treatment, and needle exchange.”

Late this morning the CDC issued this CDC Health Advisory that begins:
The Indiana State Department of Health (ISDH) and the Centers for Disease Control and Prevention (CDC) are investigating a large outbreak of recent human immunodeficiency virus (HIV) infections among persons who inject drugs (PWID). Many of the HIV-infected individuals in this outbreak are co-infected with hepatitis C virus (HCV). The purpose of this HAN Advisory is to alert public health departments and healthcare providers of the possibility of HIV outbreaks among PWID and to provide guidance to assist in the identification and prevention of such outbreaks.

Posted by Marcia Oddi on Friday, April 24, 2015
Posted to Indiana Government

Ind. Decisions - Judge Kanne on the use of "plead" and "pled"; "The use of 'pled' in our recent case was not accidental." [Updated]

On Monday the ILB had a post titled "Ind. Decisions - 7th Circuit decides one Indiana case today; and the AP stylebook on 'pled.'"

Th opinion was USA v. Kenneth Sandidge, the 7th Circuit judge was Judge Michael Kanne. After the case summary, the ILB added this note:

"Appellant Kenneth Sandidge pled guilty" - the ILB would not have mentioned this except for the recent @APStylebook tweet:
AP Style tip: It's plead, pleaded, pleading. Do not use the colloquial past tense form, pled.
This morning the ILB heard from Judge Kanne...

It was a pleasant, informative note; I was delighted to learn that Judge Kanne is an ILB reader:

Dear Ms. Oddi,

I read with interest your comment on April 20, 2015, regarding our use of the term "pled" in the above referenced case. As you note, the "AP Stylebook" for journalists indicates that "pleaded" is the correct past tense term, and that the use of the "colloquial" term "pled" is incorrect. Significantly, however, the AP guidance represents only one point of view.

Our chambers style guide indicates my preference for the use of "pled". This direction is consistent with, for example, "The Blue Book on Grammar and Punctuation" ("GrammarBook.com" blog) which indicates that the use of either "pled" or "pleaded" is permissible.

The use of "pled" in our recent case was not accidental. My law clerks have been instructed for over 25 years in our chambers guide to use "pled" not "pleaded" in preparing draft opinions for my review. I must also say, however, that my position on this matter is not universally held among the judges on the 7th Circuit. Googling "pled or pleaded" provides an interesting cross section of views on the use of "pled".

In any event, I thank you for the excellent contribution your blog provides to the legal community in Indiana and throughout the country. Best wishes for continued success.

MS Kanne

[Updated at 1:30 PM] The ILB has just been reminded of its Jan. 17, 2013 post, "Pleaded or Plead: Which is More Prevalent in Indiana Appellate Opinions?" by Prof. Joel Schumm.

Posted by Marcia Oddi on Friday, April 24, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Is state exploiting your public woods (and beaches) for cash?"

In Indiana it seems our state parks and state forests have to pay for themselves, whether that "necessitates" the building of a privately-run banquet center on the short stretch of Lake Michigan beach front for which the State of Indiana is the guardian, or the selling off of the trees in the State's forest lands. Some may consider this to be short-sighted.

The ILB has reported on the Indiana Dunes situation most recently here, on April 21st.

Today Ryan Sabalow of the Indianapolis Star has a story that asks: "Is the State exploiting your public woods for cash?" Some quotes:

There's one consistent theme in a new state forest plan: money — specifically, how forestry managers hope to use Indiana's public woods to make more of it to compensate for shrinking budgets.

Recently, foresters with the Indiana Department of Natural Resources released a four-year strategic plan that calls for continued timber sales as well as exploring plans to charge fees to access public woods and selling off some less-desirable land to acquire more.

Some are deeply troubled by what they see as a trend of monetizing the state's 158,300 acres of public woods.

"The idea of public land is a uniquely American idea," said Myke Luurtsema, a spokesman for the Indiana Forest Alliance. "And to view public lands predominately as a revenue source is unfair to the rich history of public lands that we have." * * *

The DNR's forest division's budget has shrunk over the years due to budget cuts and property tax caps.

"Obviously, we are a little smaller than we were back then," Seifert said.

For instance, in the 2009 and 2010 fiscal year, the agency had a nearly $12 million combined budget.

In the most recent fiscal year, it was just more than $9 million.

Posted by Marcia Oddi on Friday, April 24, 2015
Posted to Environment | Indiana Government

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

For publication opinions today (1):

In Jeannine Whittington, Personal Representative of the Estate of Robert J. Whittington, Deceased, and Jeannine Whittington, Individually v. David Magnante, M.D., and Magnante Eye Care, a 6-page opinion, Sr. Judge Sharpnack writes:

Jeannine Whittington, personal representative of the Estate of Robert J. Whittington, deceased, and Jeannine Whittington, in her individual capacity (collectively, “the Plaintiffs”), appeal from the trial court’s order appearing to grant a motion filed by David Magnante, M.D., and Magnante Eye Care (collectively “the Defendants”). Because we lack jurisdiction over this appeal, we dismiss. * * *

Because this is not a final judgment or an interlocutory appeal of right, the Plaintiffs were required to pursue a discretionary appeal under Indiana Appellate Rule 14(B). Having failed to do so, we must dismiss this appeal for want of jurisdiction.

NFP civil decisions today (0):

NFP criminal decisions today (3):

Corey Lorenzo Walton v. State of Indiana (mem. dec.)

Raymond Welch v. State of Indiana (mem. dec.)

Benjamin T. Haines v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, April 24, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court decides one today

In Board of Commissioners of Clark County v. Indiana Department of Local Government Finance, a 14-page opinion, Judge Wentworth writes:

This case concerns whether the Indiana Department of Local Government Finance (DLGF) erred in denying the Clark County Board of Commissioners’ (Board) request to increase Clark County’s Cumulative Capital Development Fund (CCDF) tax rate for the 2012 budget year. The Court finds no error. * * *

On appeal, the Board contends that the DLGF’s final determination must be reversed for two reasons. First, it claims that the DLGF considered matters outside its statutory authority under Indiana Code § 6-1.1-41 et seq. (Chapter 41). Second, the Board claims that the DLGF’s finding that the Board sought to increase the CCDF tax rate for an impermissible purpose is contrary to law, arbitrary and capricious, and unsupported by substantial evidence. * * *

For all of the above-stated reasons, the Court AFFIRMS the final determination of the DLGF.

Posted by Marcia Oddi on Friday, April 24, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Charles Stephenson v. State of Indiana, a 13-page, 5-0 opinion, Justice Dickson writes:

Convicted following a jury trial for the April 2012 robbery and murder of 67-year-old Leigh Jennings in Aurora, Indiana, the defendant, Charles R. Stephenson, brings this direct ap-peal to challenge his convictions and resulting sentence of life imprisonment without parole. For the reasons expressed below, we affirm both the convictions and sentence.

Because the defendant was sentenced to life imprisonment without parole, this Court has mandatory and exclusive jurisdiction over this appeal. Ind. Appellate Rule 4(A)(1)(a). The de-fendant asserts the following appellate claims: (1) insufficient evidence of robbery; (2) insuffi-cient evidence to support the sentence of life imprisonment without parole; (3) erroneous admis-sion of suicide attempt evidence; (4) erroneous admission of evidence regarding the defendant's appearance after the victim's apparent death; and (5) sentence inappropriateness. * * *

We affirm the defendant's convictions for the robbery and murder of Leigh Jennings, and we affirm his sentence of life imprisonment without parole.

Posted by Marcia Oddi on Friday, April 24, 2015
Posted to Ind. Sup.Ct. Decisions

Thursday, April 23, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 5 NFP memorandum decisions)

For publication opinions today (2):

In Old National Bank v. Steven Kelly, Jon A. Cook, and Rebecca F. Cook, individually and on behalf of others similarly situated, a 19-page opinion, Judge Bailey writes:

The Bank presents a single (consolidated) issue: whether it is entitled to summary judgment upon each of Depositor’s claims because those claims are preempted by federal law or because the Bank, as movant for summary judgment, has negated essential elements of each of those claims. * * *

The common factual allegations included an allegation that the Bank manipulated customers’ electronic debits5 from highest to lowest dollar amount, thereby depleing customer funds and maximizing the occurrences of $35.00 overdraft fees.6 (App. 13.) Depositors also alleged that the Bank grouped together transactions from multiple days, defying a reasonable contractual expectation of the consumer that instantaneous electronic transactions would be posted in chronological order. According to Depositors, “customer accounts may not have been actually overdrawn at the time the overdraft fees were charged, or at the time of the debit transaction.” (App. 6.) Finally, Depositors alleged that the Bank failed to provide accurate and timely information to Depositors regarding their balances or to warn that an overdraft was in progress.

[ILB: The details here are worth reading in full] * * *

C.F.R. § 7.4002 authorizes a bank to charge overdraft fees, but does not authorize banks to ignore state contract or tort law. Depositors have alleged that the Bank acted inconsistent with its contractual obligations and assessed improper overdraft fees. The Bank has not negated Depositors’ state law claim for a breach of a duty of good faith and fair dealing. However, Depositors’ claims for conversion, unconscionability,7 and unjust enrichment have been negated. We remand for further proceedings consistent with this opinion.

In J.B. v. State of Indiana, an 8-page opinion, Sr. Judge Sharpnack writes:
[Issue] [W]hether the juvenile court abused its discretion in admitting evidence obtained from J.B.’s encounter with a police officer. * * *

Under the totality of the circumstances, Officer Wallace did not act unreasonably in detaining J.B. to confirm his observation that J.B. had discarded a handgun, and there was no violation of J.B.’s rights under article 1, section 11.

J.B.’s federal and state constitutional claims are without merit, and the trial
court did not abuse its discretion in admitting evidence obtained from Officer
Wallace’s encounter with J.B.

NFP civil decisions today (1):

Yovanda R. Vaughn, individually and as special representative of the Estate of Anderson Vaughn, Jr., deceased v. Christopher T. Haughn, M.D., Evansville Surgical Associates, et al. (mem. dec.)

NFP criminal decisions today (4):

Travis Ley v. State of Indiana (mem. dec.)

N.B. v. State of Indiana (mem. dec.)

Christopher Underwood v. State of Indiana (mem. dec.)

Eric Lynn v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, April 23, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Commentary on Tax Court opinion re application of Adm. Rule 9

Updating this April 9th ILB post headed "Ind. Decisions - Tax Court opinion filed April 9th, re placing documents under seal," which briefly summarized the Indiana Tax Court opinion in ESPN Productions, Inc. v. Indiana Department of State Revenue, here is a commentary on the opinion from Brent Auberry of Faegre Baker Daniels.

Posted by Marcia Oddi on Thursday, April 23, 2015
Posted to Adm. Rule 9 Questions | Ind. Tax Ct. Decisions

Courts - "Pappy Van Winkle theft may be tied to syndicate"

From Gregory A. Hall's lengthy story yesterday in the Louisville Courier Journal:

FRANKFORT, Ky. – A Franklin County grand jury indicted nine people Tuesday in connection with Kentucky whiskey thefts dating back to 2008, possibly including the notorious heist of 65 cases of Pappy Van Winkle Family Reserve.

The charges of engaging in organized crime, which is the equivalent of racketeering, were handed down against Buffalo Trace Distillery worker Gilbert Thomas "Toby" Curtsinger, two other Kentucky distillery workers, and Curtsinger's wife and father-in-law, among others.

Authorities say the syndicate stole bourbon from the Buffalo Trace and Wild Turkey distilleries, sold it and also trafficked in anabolic steroids.

Assistant Commonwealth's Attorney Zachary Becker said that the Buffalo Trace-made Pappy Van Winkle bourbon involved in this case could have been part of the larger, well-publicized "Pappygate" from 2013, but he added that "is more for Buffalo Trace to figure out and their inventory issues."

He added, "When it comes to us, we were able to determine that there was a certain, very large amount of Pappy Van Winkle stolen by members of this syndicate, by Mr. Curtsinger and then thereafter sold to various individuals." * * *

The missing cases of the 20-year Pappy — one of the hardest-to-get varieties of Kentucky's bourbon — were worth more than $25,000, not including the nine cases of 13-year-old Van Winkle Family Reserve Rye whiskey.

Pappy is one of the nation's most sought-after bourbons.

Adding to the mix: Melton said much of the bourbon seized will be destroyed after the case is complete, under state law, because its whereabouts and contents and handling could not be vouched for to consumers.

Posted by Marcia Oddi on Thursday, April 23, 2015
Posted to Courts in general

Ind. Courts - "Samuel Bradbury defense team seeks federal bond"

Steven Porter's story today in the Lafayette Journal & Courier is subheaded: "Defense attorneys representing Samuel Bradbury are asking that bond be set in federal court, now that his parents have posted bail in Tippecanoe County — but one letter could foil their efforts."

A look back in the ILB archives reveals three earlier stories:

Now from today's story:
Stan and Linda Bradbury risked their Pine Village home earlier this month to bail their son out of Tippecanoe County Jail, even though they knew full well that doing so wouldn't result in his release.

They hoped, rather, that meeting local bond would encourage federal authorities to likewise set bond for their son, 23-year-old Samuel Bradbury, who remains in federal custody at Lake County Jail.

A court-appointed federal defense team followed suit last week and requested a hearing to argue that the defendant should be granted conditional release.

The request argues that the government must demonstrate there's no way to ensure public safety but to deprive a defendant of his or her liberty prior to trial.

The U.S. Attorney's Office responded in opposition Friday, however, arguing that there's "a presumption against bond for crimes of violence," including death threats.

Samuel Bradbury was arrested last June for posting a violent rant on Facebook that prosecutors allege constituted threats to kill two police officers and two judges, including Indiana Supreme Court Chief Justice Loretta Rush.

His post claimed affiliation with former Lafayette residents Jerad and Amanda Miller, who had just killed two police officers and a civilian in Las Vegas. It boasted of an anarchist militia prepared "to purge the vile pig scum from this land and restore constitutional rights to the people."

Federal prosecutors argued in their opposition that "nothing has changed" since July 1, when a judge authorized that Samuel Bradbury be held without bond.

"The Defendant still has a history of substance abuse and mental health issues, the latter of which the Court noted weighs in favor of detention," Assistant U.S. Attorneys Thomas Ratcliffe and Jill Koster wrote, noting that the defendant has failed to appear for court and abide by the conditions of probation in the past.

Furthermore, he still poses a threat, they argued.

"Although the thermite found during the search of Defendant's home last summer has been removed, the threat posed by his ability to make or carry out similar threats of death and destruction remains," they wrote.

Posted by Marcia Oddi on Thursday, April 23, 2015
Posted to Indiana Courts

Wednesday, April 22, 2015

Ind. Courts - Supreme Court grants emergency relief for Monroe County Courthouse closing

The Supreme Court has granted a petition for emergency relief for the Monroe Circuit Court. The order, filed at 3 PM this afternoon, reads in part:

[A]n extensive plumbing back-up has created a health emergency, involving black water, noxious odors, bacteria and a power outage, necessitating the closing of the courthouse and the Monroe Circuit Court beginning April 21. The petition seeks emergency relief permitting the Court and clerk to close until April 26. The petition states that clean up and repairs will be facilitated by the absence of court and clerk personnel from the building. As of the filing of the petition, the judges believe the building will be safe for occupancy on April 26. The petition further states that the Monroe Circuit Court Clerk Office will be open on a limited basis for filing emergency petitions and that a duty judge will be available for emergency matters. * * *

This Court authorizes the tolling, from 8:30 a.m. April 21, 2015 until 8:30 a.m. April 26, 2015, of all laws, rules and procedures setting time limits for speedy trials in criminal and juvenile proceedings, public health, mental health, and appellate matters; all judgments, support and other orders; and all other civil and criminal matters before the Monroe Circuit Court. In addition, no interest shall be due or charged during this tolled period of time. * * *

Petitioners shall assure during the period the Monroe Circuit Court is closed that appropriate records are maintained of any proceedings, filings and orders and shall cause this information to be entered in the Chronological Case Summary and Record of Judgments and Orders as soon as they are operational.

[More] A check of the $$$ Bloomington Herald-Times shows Abby Tonsing reporting at noon today under the headline "Justice building offices, Monroe County courts closed again today." Details:
Offices and courtrooms in the Charlotte Zietlow Justice Center will be closed to the public again Wednesday as cleanup of a weekend plumbing backup continues.

On Tuesday, a building hygienist from Indianapolis tested carpet, drywall and the air quality of the justice building for problems.

“We do not believe there’s an issue, but we want to be thorough,” county facilities manager David Gardner said Tuesday evening at the Justice Center. He anticipated the building would reopen on Thursday if the hygienist discovered no problems.

An estimated 15 to 20 pounds of food put through the jail kitchen’s garbage disposal overflowed a sewer pipe, causing graywater —wastewater that has not come into contact with fecal matter — to flood second-level offices and hallways Sunday night. The offices of Judges Ken Todd and Mary Ellen Diekhoff, courtroom 205 and a few hallways sustained the brunt of the damage, Gardner said. * * *

Large fans have been used to remove moisture, and professional cleaners have been using chemical-free anti-microbial products to clean, Gardner said.

While sections of the justice building did not stink Tuesday evening, the fragrance of the anti-microbial cleaning products was strong. * * *

Monroe County Circuit Court offices and courtrooms, the Monroe County Clerk’s Office and the Monroe County Prosecutor’s Office will all be closed Wednesday.

The child support division of the prosecutor’s office and the adult protective services department will still report to work Wednesday, as those workers are not housed at the justice building.

Posted by Marcia Oddi on Wednesday, April 22, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides decade-old Anthem litigation, "in large part" in Anthem's favor

In WellPoint, Inc. (f/k/a Anthem, Inc.) and Anthem Insurance Companies, Inc. v. National Union Fire Insurance Co. of Pittsburgh, PA, AIG Europe (U.K.) limited, New Hampshire Insurance Co. et al., a 17-page opinion, Justice Dickson writes:

Anthem, Inc. is a large managed health care organization. At all times relevant to this lit-igation, it was self-insured for errors and omissions (E&O) liability and had purchased policies from other insurers to reinsure its E&O liabilities. After Anthem settled certain multi-district lit-igation without admitting liability, it sought indemnification from its reinsurers, some of which denied coverage and successfully sought summary judgment. We reverse the trial court and in large part grant summary judgment for Anthem. * * *

We hold as a matter of law that Anthem's losses resulted from alleged wrongful acts that occurred solely in the rendering or failure to render Professional Services and thus fall within the Policy's insuring agreement; that the relief Anthem seeks is insurable under the Policy and Indiana law; and that, with respect to Anthem's settlement losses resulting from Shane, Thomas, and Levinson, the exception to Exclusion (b) obviates its application. Anthem is entitled to the coverage, including coverage for defense costs, under Coverage II of its policies with the Excess Reinsurers, except for its settlement losses resulting from CSMS's claims. We reverse and, except for Anthem's losses resulting from CSMS's claims and Anthem's bad faith claim, enter summary judgment in favor of Anthem for its costs of settling the Underlying Litigation and remand to the trial court for further pro-ceedings consistent with this opinion.

Rush, C.J., and David and Massa, JJ., concur.
Rucker, J., concurs in result.

Posted by Marcia Oddi on Wednesday, April 22, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (5):

In William I. Babchuk, M.D., P.C., d/b/a Babchuk Imaging, P.C., and William I. Babchuk v. Indiana University Health Tipton Hospital, Inc., d/b/a Indiana University Health Tipton Hospital, a 7-page opinion, Judge Najam concludes:

The Hospital appears to suggest that anything less than a motion for a trial date would have been insufficient to resume prosecution in this case. We cannot agree.

Babchuk not only requested a stay pending his motion to amend his complaint with the federal court, but he requested, in the alternative, a scheduling conference “to establish discovery and other deadlines in this matter.” Appellants’ App. at 13. Our research reveals no Indiana precedent squarely addressing what constitutes diligent prosecution under Trial Rule 41(E). But a request for a scheduling conference indicates a party’s intent to move forward with litigation. And we hold that where, as here, a plaintiff requests a scheduling conference, even in the alternative to a stay, that is sufficient to constitute resumption of prosecution for purposes of Trial Rule 41(E).

In sum, while the trial court would have had discretion to dismiss Babchuk’s case for failure to prosecute had a timely motion been filed, the Hospital did not file its motion to dismiss before Babchuk had resumed prosecution of his case. Thus, we hold that the Hospital’s Trial Rule 41(E) motion was untimely and that trial court abused its discretion when it dismissed Babchuk’s complaint.

In Timothy Devereux v. Jim and Diana Love , a 24-page opinion, Judge Bradford writes:
One of the blocks of the foundation of America is an individual’s ability to seek to right a wrong through the courts of justice. In a civil case, a plaintiff entrusts his plight and cause to his attorney. The instant matter involves the disturbing tale of a husband and wife whose confidence and trust was betrayed by the very attorney to which they had entrusted their cause of action. The just and normal inclination in such a matter is to punish the wrongdoer and make the victims whole. While William Conour, i.e., the wrongdoer, has been punished and now occupies his appropriate place in federal prison, to date, it appears that these victims have not been made whole for the misdeeds inflicted upon them.

In an attempt to redress this wrong, Appellees/Cross-Appellants/Plaintiffs Jim and Diana Love (collectively, the “Loves”) now seek relief from Appellant/Cross-Appellee/Defendant Timothy Devereux, a former member of Conour’s law practice. However, in light of the facts of this particular case, we find that Devereux satisfied his legal duty to the Loves based on his lack of knowledge of any specific wrongdoing by Conour relating to the Loves. We therefore reverse the judgment of the trial court in this regard and remand the matter to the trial court with instructions that the trial court grant summary judgment in favor of Devereux.

Bryson Tyrone Street v. State of Indiana

In M.M. v. State of Indiana , a 10-page opinion, Judge Najam writes:

After adjudicating M.M. a delinquent for failing to stop after an accident, a Class C misdemeanor when committed by an adult, the juvenile court ordered M.M. to serve probation and, as a condition of that probation, to pay restitution to his victim. Thereafter, the court discharged M.M. from probation, but it did not terminate his obligation to make restitution. M.M. appeals the court’s order and argues that Indiana law required the juvenile court to terminate his restitution obligation upon his discharge from probation. On this question of first impression, we hold that, when restitution is a condition of a juvenile’s probation, Indiana law does not require that the restitution obligation terminate upon the juvenile’s discharge from probation. Accordingly, we affirm on the merits of this appeal, but we remand with instructions that the court correct an error in one of its orders.
In Derek L. Moore v. State of Indiana , a 22-page, 2-1 opinion, Judge Bailey writes:
Derek L. Moore (“Moore”) appeals the trial court’s denial of his motion to correct error, which challenged the court’s denial of his petition for sentence modification. We hold that the trial court erred in finding that it did not have the authority to entertain Moore’s petition for sentence modification. However, we affirm the trial court’s judgment to deny Moore’s petition on its merits.

Moore raises one issue on appeal, which we restate as: whether the trial court erred when it denied Moore’s petition for sentence modification because the trial court did not apply a recent statutory revision that provided Moore procedural, as opposed to substantive, relief. We also address an issue first raised in the State’s brief: whether Moore’s appeal should be dismissed as moot. * * *

Ind. Code § 35-38-1-17(c) (2014) (the “revised statute” eff. July 1, 2014). * * *

Moore argues on appeal that, because the Indiana Code section under which Moore filed his petition was recently revised so that prosecutorial consent is not required, the trial court erred when it found that it had no authority to modify or reduce his sentence absent the consent of the prosecutor. * * *

Moore filed his petition on July 11, 2014, eleven days after the revised statute’s effective date. No provision in the revised Indiana Code section 35-38-1-17 limits the statute’s application to persons convicted after July 1, 2014. Therefore, by the plain language of subsection (c), the trial court did not need to obtain the prosecutor’s consent to reduce or suspend Moore’s sentence. Accordingly, the trial court erred when it found that it did not have the authority to entertain Moore’s petition on its merits without the prosecutor’s consent.

The State argues, however, that the revised statute does not apply to Moore because Moore was convicted and sentenced in 2006. The State contends that the laws in effect at the time of Moore’s offense, not the laws in effect at the time he filed his petition, govern his petition for sentence modification.

It is true that, as a general rule, courts must sentence a convicted person under the statute in effect at the time the person committed the offense. Payne v. State, 688 N.E.2d 164, 165 (Ind. 1997). We disagree, however, that the general rule bars Moore’s petition from proceeding under the revised statute. We confronted the same argument in Willis v. State, 567 N.E.2d 1170 (Ind. Ct. App. 1991), trans. denied. * * *

In this case, when the General Assembly revised the statute to remove the need for prosecutorial consent, it lifted a procedural barrier that prevented petitions from reaching the trial court for review on their merits and “did not make any changes in the sentencing court’s power over the sentence.” Willis, 567 N.E.2d at 1172. Thus, the recent revision to the sentence modification statute implemented a procedural change to a procedural statute. Accordingly, Moore is not barred from bringing his petition under the revised statute simply because he was convicted and sentenced before the revised statute’s effective date. * * *

Neither the plain language of the revised statute nor the savings clause prevents a person convicted or sentenced prior to July 1, 2014 from petitioning for sentence modification under the new terms of revised Indiana Code section 35-38-1-17, provided that all other terms of the statute are met. Accordingly, the trial court had the authority to entertain Moore’s petition for sentence modification without the consent of the prosecutor. * * *

Moore’s appeal is not moot. The trial court erred in finding that it did not have authority to entertain Moore’s petition for sentence modification on its merits. However, the trial court’s order also stated that the court would deny Moore’s petition due to the seriousness of his crimes and his criminal history; therefore, we affirm the decision of the trial court to deny Moore’s petition for sentence modification. Affirmed.

Brown, J., concurs.
Robb, J., dissents in part and concurs in part with opinion. [which begins, at p. 18] I agree with the trial court that the 2014 amendments to Indiana Code section 35-38-1-17 are not retroactive and that, absent the prosecutor’s approval, the trial court had no authority to entertain Moore’s petition for sentence modification. Therefore, I respectfully dissent from that part of the majority’s decision holding otherwise. * * *

I would hold that Moore’s petition for modification was subject to the terms of the modification statute in effect at the time he was sentenced. According to those terms, prosecutorial consent was required, it was not given, and the trial court properly declined to entertain Moore’s petition.

Though we would do so for different reasons, I concur with the majority’s result affirming the trial court’s denial of Moore’s petition for sentence modification.
______________
[6] Because the revised statute would have no ameliorative effect on Moore’s sentence, we find this Court’s recent discussion of the savings clause in Marley v. State, 17 N.E.3d 335 (Ind. Ct. App. 2014), trans. denied, inapplicable here. Marley, under Indiana Appellate Rule 8, asked this Court to review the appropriateness of his sentence in light of the new criminal code. Marley thus sought to take advantage of the ameliorative effects of the new sentencing provisions, which is not an issue here.

NFP civil decisions today (5):

Cindy Brothers, As Personal Representative of the Estate of Kristopher Stately, Deceased, Alicia Arnold and Tiffany Arnold v. Lake Holiday Enterprises, Inc. (mem. dec.)

John E. Servies v. The Kroger Company (mem. dec.)

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

Switzer Farms v. Sylvia Switzer, as Trustee of the Frank E. Switzer Revocable Trust (mem. dec.)

Cody Boruff v. Tiffany Boruff (mem. dec.)

NFP criminal decisions today (4):

Khamya Slayton v. State of Indiana (mem. dec.)

Jamie Joe Hardy v. State of Indiana (mem. dec.)

Mark Lax v. State of Indiana (mem. dec.)

Robert Smith v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, April 22, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Suit: IU Health and HealthNet cheated feds, risked pregnant women's care"

That was the headline to this lengthy April 17th story in the Indianapolis Star, reported by Shari Rudavsky.

Sandra Chapman of WTHR also had a report, with video, on April 17, updated on April 20.

Some quotes from the Star story:

A federal whistleblower lawsuit claims IU Health and the state's largest midwifery practice bilked the government of millions of dollars and compromised patient safety by letting nurse midwives care for hundreds of high-risk, low-income pregnant women who should have been seen by doctors.

The suit, filed by a doctor who served as director of women's services at HealthNet as well as medical director of ob-gyn services at IU Health Methodist Hospital, says that HealthNet and IU Health shunted Medicaid high-risk patients to less-expensive nurse midwives. Then, the suit says, the providers submitted bills as though doctors had treated the women. * * *

Robinson filed her suit under seal in December 2013 under the False Claims Act, which allows individuals with knowledge of fraudulent claims submitted to the U.S. government to sue on behalf of the government. The law requires that such suits must remain under seal for at least 60 days. This suit was unsealed in March, making it public.

The False Claims Act allows the government to collect three times the amount of damages as well as a penalty of up to $11,000 for each false claim. Robinson's suit also asks for compensation for Robinson, including two times her back pay plus interest and other damages, such as lawyer's fees.

If the suit is successful, plaintiffs say, potential damages could reach around $100 million for IU Health, the state's largest health system, and HealthNet, an IU Health affiliate that serves poor patients through eight inner-city clinics. MDwise, a local managed care insurer, is also named in the suit. * * *

Dr. Judith Robinson, the former employee who filed the suit, claims she was terminated in 2013 after raising questions about patient safety at HealthNet. Her suit claims doctors often never saw HealthNet patients with high-risk pregnancies or were called in only on an emergency basis, sometimes when it was too late.

The suit alleges a lack of doctor involvement may have contributed to one mother's death, and brain damage in children.

"I went to everybody and anybody I could because I was concerned about these patients," Robinson said in a recent interview. "Why is it that it seems to be OK to have this population of indigent patients … get less care? It is just not right."

The lawsuit cited an email Robinson sent her employers in spring 2013, shortly before she was fired. In it, Robinson identified 14 clients with near misses and two "terrible outcomes" within a six- to eight-month span and said she wanted to fix "a broken system." * * *

Robinson's suit says HealthNet, MDwise and IU Health all benefited financially by using nurse midwives, who command a lower salary than doctors.

HealthNet, a not-for-profit corporation, was set up to provide primary care to the medically underserved. More than half of the about 4,000 women who visit a HealthNet clinic for prenatal care each year deliver at Methodist. MDwise processed many of the claims.

ILB: The ILB had some difficulty locating the complaint using PACER; an inquiry to the reporter requesting the case number went unanswered.

However, this morning's search proved successful. Here is the current docket plus the 60-page amended complaint (now unsealed) in UNITED STATES et al v. INDIANA UNIVERSITY HEALTH INC. et al (1:13cv02009TWPMJD), SD Ind., Judge Pratt.

Posted by Marcia Oddi on Wednesday, April 22, 2015
Posted to Indiana Courts

Courts - "SCOTUS: Police can’t delay traffic stops to investigate crimes absent suspicion"

Prof. Orin Kerr has this lengthy analysis of this week's SCOTUS decision in Rodriguez v. United States, in The Volokh Conspiracy. A sample:

The Supreme Court handed down a notable Fourth Amendment ruling this morning [April 21] in Rodriguez v. United States, holding that the Fourth Amendment does not allow the police to extend the duration of a traffic stop without reasonable suspicion, even for just a “de minimis” amount of time, for reasons unrelated to vehicle and driver safety. The vote was 6-3, with Justice Ginsburg writing for the majority and Justices Kennedy, Thomas, and Alito dissenting. * * *

The issue in the case: When the police make a routine traffic stop, can the police delay the duration of the stop, even just for a small amount of time, to wait for drug sniffing dogs, absent any articulable suspicion to believe that there are drugs in the car? The Court has previously held that officers are allowed to use drug-sniffing dogs at a traffic stop so long as the use of the dogs does not delay the stop. This case raises the flip question: What if use of the dogs delays the stop just a little bit. Is that okay? How much leeway do the police have on the duration of the stop, given that a traffic stop is a seizure and its duration would normally determine how reasonable the delay is? * * *

The majority opinion begins with what is the most important analytical step in the opinion: Answering the permitted constitutional “mission” of a traffic stop. According to the Court, the fundamental mission of a traffic stop is “ensuring that vehicles on the road are operated safely and responsibly.” This principle allows officers to inquire into the traffic violation that justified the stop, as well as to make other safety-related checks: * * *

With that mission defined, the Court concludes that bringing out drug sniffing dogs are outside the mission and can’t support a delay absent reasonable suspicion: * * *

Posted by Marcia Oddi on Wednesday, April 22, 2015
Posted to Courts in general

Ind. Gov't. - "Dead bill doesn’t kill captive-deer debate"

Ryan Sabalow of the Indianapolis Star, who has reported extensively on Indiana high-fenced hunting issues, had a long analysis April 20th on where we are now that HB 1453 is dead. Some quotes:

After more than a decade of legislative and legal wrangling, Indiana is no closer to a solution to the controversy created by its captive-deer industry.

Division remains so sharp on the issue and positions so rigid that legislative leaders who thought they had crafted a workable compromise were exasperated even before their bill failed Tuesday for the second year in a row in the Indiana Senate.

Opponents wanted a complete ban on high-fence hunting ranches. Proponents wanted to open the door to more of them. In the end, nobody won. * * *

The a 27-23 “no” vote sets the stage for the Indiana Supreme Court to make a definitive ruling on whether the Department of Natural Resources overstepped its authority when conservation officers tried to ban high-fence hunting a decade ago.

Opponents of captive hunting may have seen the bill’s defeat as a victory, but it may have left them no closer to achieving their goals. There’s uncertainty no matter which way the state’s top court rules.

In an investigation last year, The Indianapolis Star uncovered the health risks associated with transporting potentially diseased animals across state lines, and a lack of fair-chase hunting rules on private preserves.

The deer industry also has reasons to support a solution. The four preserves in the state are operating in a cloud of uncertainty, without clear guidelines or regulations in place.

And there’s a lot at stake for the hundreds of Indiana deer breeders, who want a stable local market for the trophy deer they raise.

The only reason the state’s four fenced hunting preserves are in business today is that a court granted them an injunction preventing the DNR from closing them down a decade ago.

The preserves argue that the DNR doesn’t have oversight over the deer on their properties, which they consider to be livestock.

Recently, two lower courts have sided with the preserves.

[ILB: Trial courts in two different counties, Harrison and Owen, have issued conflicting rulings; the State appealed the Harrison County ruling that had held that deer are livestock and not subject to DNR regulation. The COA affirmed.]

But a political fight is imminent no matter which way the state’s top justices rule, should they decide to take up the case.

If the judges side with preserves, the hunting methods on high-fenced properties would remain unregulated. An owner could allow a client to shoot a drugged deer in a tiny pen, or only minutes after unloading it from a truck.

The General Assembly could find itself back at the same impasse. * * *

But if the judges rule that the DNR does have oversight, it’s hardly a sure thing that the DNR will do what it tried to do a decade ago: make the preserves extinct in Indiana.

Politics will come into play in that scenario, too.

For one, there’s no guarantee that Republican Gov. Mike Pence, who appoints the DNR’s director, will allow the agency to enforce a ban on preserves.

Pence has said that while he’s uncomfortable with an expansion of the high-fence hunting industry, he’d keep “an open mind about legislative efforts to permit existing facilities to continue to operate.” * * *

If Pence blocks the DNR’s ban, the agency would likely be forced to adopt hunting regulations on the preserves, a process that’s sure to be contentious.

The Indiana Natural Resources Commission, a 12-person board whose members are appointed by the governor, sets the hunting regulations the DNR enforces.

If it ever gets that far, the commissioners would no doubt hear the same heated testimony that’s been repeated year after year in the General Assembly.

The sides are clearly drawn

On one side, there are the animal-rights activists, wildlife conservationists and hunting associations who want nothing less than a complete ban on what they call “canned hunting.” On the other, there are the deer breeders and their powerful Farm Bureau lobbyists who want preserves to be allowed to expand unfettered so deer farmers can keep selling farm-raised trophy bucks worth thousands of dollars.

In other words, the same factions who were unhappy for completely different reasons with the final version of HB 1453.

The compromise bill the Senate killed Tuesday would have made a monopoly out of the four preserves, which upset some in the deer-breeding industry who’d pushed for an expansion.

And high-fence hunting opponents had won concessions, such as a ban on imports of deer from out-of-state and a provision forbidding hunting drugged deer, but they held out for a total ban.

Posted by Marcia Oddi on Wednesday, April 22, 2015
Posted to Indiana Government

Tuesday, April 21, 2015

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

For publication opinions today (4):

In Pamela Frazee v. Douglas J. Skees and Angela D. Skees, a 35-page opinion, Judge Najam writes:

Pamela Frazee filed a complaint against Douglas and Angela Skees (“the Skeeses”), which arose out of a dispute regarding a subsurface drain running through the parties’ properties in Tippecanoe County. In her complaint, Frazee alleged property damage, nuisance, and criminal trespass. The Skeeses filed a counterclaim alleging negligence, nuisance, criminal trespass, and invasion of privacy. All parties sought damages pursuant to the Crime Victim’s Relief Act, Indiana Code Section 34-24-3-1. Following a bench trial, the trial court found in favor of Frazee on her nuisance claim and in favor of the Skeeses on their trespass claim. The trial court awarded attorney’s fees to both parties, and it awarded treble damages to the Skeeses. Frazee now appeals, and the Skeeses cross-appeal. * * *

We affirm the trial court’s conclusions that the subsurface drain was a mutual drain and that the Skeeses did not abandon the drain. Thus, we also affirm its judgment that the Skeeses did not trespass when they connected their perimeter drain to the subsurface drain. Further, we affirm the court’s conclusion that Frazee was solely responsible for the costs of the repairs that she had made to the portion of the subsurface drain that ran through her property. However, we reverse the trial court’s judgment that Frazee committed a criminal trespass, and, therefore, we also reverse the award of treble damages and attorney’s fees to the Skeeses. Finally, we reverse the trial court’s award of attorney’s fees to Frazee.

In Andrew Meyer v. Beta Tau House Corporation, Beta Tau of Sigma Pi, Sigma Pi Fraternity International, Inc., and Quentin Calder , a 26-page opinion, Judge Baker writes:
Andrew Meyer filed a complaint against Beta Tau House Corporation (House Corporation), Beta Tau of Sigma Pi (Beta Tau), Sigma Pi Fraternity International, Inc. (Sigma Pi), and Quentin Calder. At issue in this appeal are Meyer’s claims for negligence against House Corporation, Beta Tau, and Sigma Pi; violation of the Dram Shop Act1 against Beta Tau; and defamation against Calder and the House Corporation. The trial court granted summary judgment in favor of the defendants on all of these claims. Meyer argues that the summary judgment order was erroneous because there are genuine issues of material fact related to each claim. Finding no error, we affirm.

[The opinion discusses: "two recent Indiana Supreme Court cases on the issue of duties assumed by a national fraternity," cited by both parties. Yost v. Wabash College and Smith v. Delta Tau Delta.]

In Brian L. Harrison v. State of Indiana, a 29-page opinion, Judge Mathias concludes:
In summary, we hold that the State presented sufficient evidence to convict Harrison of manufacturing methamphetamine. However, Harrison’s convictions for possession of anhydrous ammonia and possession of precursors are lesser included offenses of the greater offense of manufacturing methamphetamine and must be reversed. Harrison may not now assert a claim of improper search or seizure in his mobile phone, which he voluntarily abandoned. The trial court did not commit reversible error in admitting evidence regarding the telephone call between Hatfield and Pointer or between Harrison and Gee. Nor did the trial court err in permitting the prosecuting attorney to read from a published opinion of this court during the State’s closing argument. Lastly, the trial court did not abuse its discretion in permitting references to Harrison’s nickname of “Bam Bam.”

Accordingly, we affirm Harrison’s convictions for Class B felony manufacturing methamphetamine and Class A misdemeanor possession of paraphernalia but reverse his convictions for Class B felony possession of anhydrous ammonia and Class B felony possession of chemical precursors and remand with instructions that the trial court vacate the convictions and sentences thereon. Harrison’s habitual offender adjudication remains.

In Jeremy Ellis v. State of Indiana , an 18-page opinion, Judge Najam writes:
Jeremy Ellis appeals his convictions and sentence for theft and attempted theft, both as Class D felonies, following a jury trial. Ellis raises three issues for our review. First, he asserts that his two convictions violate Indiana’s prohibitions against double jeopardy either because the prosecutor told the jury that it should consider Ellis’ first offense as evidence of Ellis’ intent to commit the second offense or because the prosecutor expressly stated that the State was seeking only one conviction against Ellis. The first statement is not problematic under Indiana’s Double Jeopardy Clause. And while we do not approve of the entry of multiple convictions when the prosecutor does not request it, nonetheless Ellis was charged with multiple offenses and the evidence demonstrated multiple offenses. Thus, the error here, if any, is not an error under the actual evidence test of Indiana’s Double Jeopardy Clause.

Ellis also appeals his sentence. In particular, he asserts that his aggregate term of two and one-half years, with six months suspended to probation, for the theft of about $30 worth of goods for each offense is inappropriate. For support of this argument, Ellis cites the current version of Indiana’s criminal code, which was not in effect at the time he committed his offenses. We reject Ellis’ attempt to use Indiana Appellate Rule 7(B) to give retroactive effect to the new criminal code.

Finally, Ellis asserts that the trial court erred when it denied his motion for additional credit time. But Ellis has not supported this argument with citations to any part of the appendix or record on appeal that demonstrates his claims regarding time served and credit time. Thus, we are obliged to reject this argument.

We affirm Ellis’ convictions and sentence.

NFP civil decisions today (1):

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

NFP criminal decisions today (3):

Timothy M. Roberts, Jr. v. State of Indiana (mem. dec.)

Mary Stephens v. State of Indiana (mem. dec.)

Javon Thomas v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, April 21, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court disbars Fort Wayne attorney

In In the Matter of: R. Mark Keaton, a 12-page, 5-0 per curiam opinion, the Court writes:

We find that Respondent, R. Mark Keaton, committed attorney misconduct by, among other things, engaging in an extreme and pervasive pattern of conduct involving harassment and dishonesty. For this misconduct, we conclude that Respondent should be disbarred. * * *

Conduct involving “JD” (Count 1). In 2005, Respondent – who at the time was 41 years old, married, and lived in Fort Wayne – began an intimate relationship with JD, who at the time was a sophomore at Indiana University and the roommate of Respondent’s daughter. Respondent and JD maintained a tempestuous long-distance relationship until March 2008, when JD permanently ended the relationship.

During the ensuing four months, Respondent left numerous voicemails for JD, 90 of which were recorded and preserved by JD. And from March 2008 through April 2010, at least 7,199 emails were exchanged between Respondent and JD, the vast majority sent by Respondent. Both Respondent’s oral and written communications to JD were threatening, abusive, and highly manipulative in nature.

[The Court in a footnote quotes one email, then states: "We agree with the hearing officer’s assessment that “[t]he true angry, hostile and threatening content and tone present in the voicemails can only be fully understood” by listening to them. Quite simply, they are profoundly disturbing."] * * *

Additionally, Respondent has maintained and published for several years a blog about JD that identifies her by name and includes disparaging diatribes about her and explicit photographs of her. Respondent does not identify himself or include any pictures of himself in this blog. Even to this day, Respondent has refused to part with the blog and has refused to destroy or permanently delete the explicit photos of JD in his possession. * * *

In June 2009, Leonard Fromm, the associate dean for students and alumni affairs at Indiana University Maurer School of Law, contacted Respondent at JD’s request and asked that Respondent cease contact with JD. Respondent told Dean Fromm that Respondent was violating no law or ethical rule and was “blameless in this matter,” that JD was “happily engaged in” the email communications, and that JD “has a lengthy history of mental health issues,” physical abuse, self-mutilation, and substance abuse.

Thereafter, JD sought help from the Indiana University Police Department. In August 2009, a detective phoned Respondent and advised Respondent to stop contacting JD. Respondent’s response to the detective was similar to his response to Dean Fromm, and later that night Respondent sent a series of threatening emails to JD warning her against seeking a protective order. Nevertheless, there ensued a brief period in which Respondent refrained from contacting JD.

However, Respondent resumed his frequent emails in November 2009 and “continued his pattern of alternating pleas, threats and vitriol.” (HO’s Report ¶ 87). In April 2010, JD received an ex parte protective order against Respondent, and in May 2010 Respondent was arrested and criminally charged in Monroe County with felony stalking. This criminal case, which would prove to be the first of several legal proceedings spawned by Respondent’s conduct toward JD, eventually was dismissed without prejudice by the State in April 2011 based on personal privacy concerns raised by JD.

Respondent continued to attempt to contact JD in 2011, both by phone and by email. JD did not reply.

In February 2012, the Commission notified Respondent that it was investigating his conduct involving JD. Ten days later, Respondent, pro se, filed a civil complaint in state court against JD alleging malicious prosecution and abuse of process. And in May 2012, Respondent, pro se, filed a second complaint in federal court against JD and others alleging unlawful arrest (the “Federal Case”). * * *

[ILB: There follow many more pages before the conclusion ...]

Most disturbingly, despite the entreaties of JD and several others, Respondent simply has refused to take “no” for an answer. When asked at the disciplinary hearing what else JD might have told Respondent that would have convinced him to leave her alone, Respondent pointedly answered, “You know what, [c]ounsel, I don’t know if there is anything she could have ever said or done that would convince me[.]” (Tr. at 510). And to this day Respondent refuses to part with the blog or with the explicit photos he continues to hold as leverage against JD; Respondent instead has told JD “[y]ou will simply have the mistakes you made plastered all over for all to see for the rest of your life.”

In short, Respondent’s repugnant pattern of behavior and utter lack of remorse with respect to the events involving JD, his deceitful responses and lack of candor toward the Commission, his neglect involving DS’s appeal, his inability or unwillingness to appreciate the wrongfulness of his misconduct, and his propensity throughout to shift blame to others and see himself as the victim, all lead us unhesitatingly to conclude that disbarment is warranted and that Respondent’s privilege to practice law should permanently be revoked.

Conclusion. The Court concludes that Respondent violated the Indiana Rules of Professional Conduct by committing criminal acts against JD that reflect adversely on Respondent’s honesty, trustworthiness, and fitness as a lawyer; by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and by the various shortcomings in his representation of DS.

Respondent already is under an order of suspension for failure to fulfill his continuing legal education requirements. For Respondent's professional misconduct, the Court disbars Respondent from the practice of law in this state effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26).

ILB: This account of a spurned attorney harassing a woman for years is matched only by the the account related in the May 2013 Supreme Court suspension of Arthur Usher.

Posted by Marcia Oddi on Tuesday, April 21, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on: Protest continues against DNR plans to build banquet center on Dunes State Park prime beachfront

Updating this ILB post from yesterday, three more things:

Posted by Marcia Oddi on Tuesday, April 21, 2015
Posted to Indiana Government

Monday, April 20, 2015

Ind. Decisions - 7th Circuit decides one Indiana case today; and the AP stylebook on "pled"

In USA v. Kenneth Sandidge (ND Ind., Lozano), a 28-page opinion, Judge Kanne writes:

In December 2013, Appellant Kenneth Sandidge pled guilty to one count of being a felon in possession of a firearm. On appeal, he raises four challenges to his sentence. He argues that the district court erred: (1) in applying a 4-level enhancement to his base offense level; (2) in denying him a 3-level reduction in his base offense level; (3) in imposing his federal sentence to run consecutively with an undischarged state sentence; and (4) in imposing a number of conditions of supervised release. For the reasons that follow, we affirm in part and vacate and remand in part. * * *

For the foregoing reasons, we AFFIRM the district court’s imposition of the 4-level “in connection with an-other felony” enhancement and its denial of the 3-level acceptance-of-responsibility reduction. We AFFIRM the district court’s imposition of a consecutive sentence. And we VACATE the conditions of supervised release and REMAND that portion of Sandidge’s sentence for resentencing consistent with this opinion.

ILB: "Appellant Kenneth Sandidge pled guilty" - the ILB would not have mentioned this except for the recent @APStylebook tweet:
AP Style tip: It's plead, pleaded, pleading. Do not use the colloquial past tense form, pled.

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

Ind. Gov't. - More on: Needle exchange program bill in conference committee

Updating this morning's post on the Conference Committee meeting on SB 461, Nicki Kelly of the Fort Wayne Journal Gazette has coverage of the meeting, including:

INDIANAPOLIS - A southern Indiana HIV epidemic has spurred lawmakers to consider a controversial needle exchange program in counties that might have high intravenous drug use.

The House inserted language into Senate Bill 461 that would allow dozens of Indiana counties with the highest rate-per-population of hepatitis C to establish their own needle exchange programs.

Wabash County is the only area county in the bottom two categories. Hepatitis C is often a key indicator of HIV status.

But the Senate hasn't heard any testimony on the topic since it arose late in the session. No state money would be involved in the exchange program but legislators would need to give legal authority.

Sen. Patricia Miller, R-Indianapolis, conducted a hearing Monday to get more information on both the public health and public safety issues involved.

"I'm open," she said. "Indiana is in a terrible position."

But she noted she would want some changes, including a two-year sunset date on any program with a study on effectiveness. And Miller is concerned with drug addicts leaving the needles in public places so there might be a requirement of having to turn needles in to get new ones. * * *

Several people testified that a needle exchange program is good policy against the spread of infectious disease through the use of dirty needles. In Scott County the drug of choice was pain medication Opana but Indiana is also seeing a rise in heroin, and methamphetamine continues to be rampant.

But several members of the conference committee reviewing the legislation said the program isn't focused on substance abuse treatment.

"My concern is this isn't going to reduce any drug use," said Sen. Liz Brown, R-Fort Wayne.

Dr. Beth Meyerson, applied health science professor at Indiana University School of Public Health in Bloomington, said the primary goal of needle exchange is to reduce the spread of infectious disease.

Dr. Shane Avery, a Scott County family doctor, urged the committee to pass a sustained effort - not short-term - and also said HIV testing needs to be done in additional counties because it will eventually spread.

"If the Indiana General Assembly and Gov. Mike Pence fail to act, God have mercy on us," he said.

David Powell, executive director of the Indiana Prosecuting Attorneys Council, was the only person to speak against expanding the needle exchange program. He urged lawmakers to wait until more data is obtained from Scott County.

Posted by Marcia Oddi on Monday, April 20, 2015
Posted to Indiana Government

Ind. Decisions - Supreme Court issues order to study the Tax Court [Updated]

The Supreme Court today has issued an order creating an ad hoc advisory task force to study resources and caseload of the Indiana Tax Court. The Task Force is directed to provide a written report to the Supreme Court not later than March 1, 2016.

It is interesting that the 7-member task force will include two people from the AG's office and one from the Dept. of Revenue, two judges, and two private attorneys. No one from the General Assembly.

See also this ILB post from April 13th, quoting legislative language in SB 423, now in conference. That bill creates a Tax Court study via the Indiana judicial center, to report to the legislative council.

Posted by Marcia Oddi on Monday, April 20, 2015
Posted to Ind. Sup.Ct. Decisions | Ind. Tax Ct. Decisions

Ind. Decisions - "Judge rules for Notre Dame in ESPN lawsuit over police records" [Updated]

Updating earlier ILB entries about the ESPN lawsuit over Notre Dame police records, Jeff Parrott of the South Bend Tribune is reporting that:

SOUTH BEND — A St. Joseph County judge ruled Monday that the University of Notre Dame isn't required to give ESPN campus police department records because it's not a public agency under state law.

Superior Court Judge Steven Hostetler said he shared the Indiana public access counselor's "discomfort" with the notion that a private party can exercise police powers without sharing records related to that power with the public, but that's simply how the state's Access to Public Records Act is written and has been interpreted.

Hostetler said the campus police department's arrest powers are granted by the state to the university's governing board, meaning Notre Dame is a "state actor" but not a "public agency" under the APRA.

"This court will not strain the language of the statute in order to do what the Legislature has not," the judge wrote in his 11-page ruling, "even though there are indeed persuasive reasons why the statute should be amended to read the way ESPN desires."

The ILB hopes to post a copy of the trial court opinion ...

ILB: BTW, this story is intertwined with the earlier post today.

[Updated at 3:27 PM] Here is the 11-page opinion by Judge Hostetler.

Posted by Marcia Oddi on Monday, April 20, 2015
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Decision in an Illinois federal court on access to county records dispute

On Dec. 10, 2014, the ILB had a post headed "In Spencer County, more than $200,000 worth of public records were copied without payment." This was followed on Dec. 16, 2014 by this followup post. On Dec. 18th there was a third post, this one headed "Marshall County to Join Lawsuit over Theft of Documents." A quote:

Representatives of LPS Real Estate Data Solutions reportedly went in and took data out of the recorder’s office without going through the proper channels to pay for the data wanted. A civil action will be filed against LPS to recover damages for the stolen data and punitive damages.
The Dec. 10th post quoted a St Louis RFT (Riverfront Times) story stating:
Franklin County Recorder of Deeds Sharon Birkman ... claims 87,000 property records were copied from the county's servers and likely sold at profit by LPS Real Estate Data Solutions.

"This company is stealing tax payers' information," says Birkman. She tells Daily RFT that she was deposed three weeks ago by lawyers from Fidlar Technologies, the software company that runs Franklin County's online data access program. Fidlar first informed her of the alleged theft back in March 2013, but she says she didn't know the exact number of documents taken until her deposition.

"They called me, and told me they were certain that LPS was 'scraping my data without paying for it'," says Birkman, whose office oversees millions of digitized deed records going back to the 1800s.

"[LPS] signed an agreement that agreement stating that they will not sell to a third party," says Birkman. LPS apparently broke that agreement with Franklin County, as well as dozens of others across the U.S..

So what is data scraping? According to a lawsuit filed [in 2013] in U.S. District Court in Illinois, LPS is accused of improperly accessing recorders' office servers by way of a "web harvester," which allowed LPS to potentially copy millions of documents without paying a cent. According to the lawsuit, LPS's business model involves collecting massive amounts of public property data, combining it with third-party information and then licencing the resulting package to its customers. The collection is done "on a vast scale," as LPS has arraignments with 2,600 recorders' offices.

Much of that access goes through a digital middle man contracted by the recorders' offices. Birkman says 24 Missouri counties use Fidlar's "Laredo" program, which charges users to view, download and print various land-related records. Users can only view documents one at a time and cannot download the files without paying the county a printing fee.

As for Fidlar, they take a cut of the $400-per-month subscription fee charged to companies like LPS.

That process was apparently too slow (and expensive) for LPS. Fidlar's suit alleges that LPS dug into the Loredo's server protocols to create the web harvester, which allowed LPS to "scrape" the documents in bulk, right from the source. An audit by Fidlar found that LPS used this technique in approximately 74 counties in Illinois, Indiana, Minnesota, Missouri, and Wisconsin.

ILB: The ILB this weekend received a copy of a recent, 25-page (March 5th) summary judgment order from the Central District of Illinois awarding judgment in favor of LPS on all claims in the related litigation that the software vendor (Fidlar) pursued unsuccessfully against LPS. Here is a quote from p. 22:
From the mere fact that the counties made money from Fidlar’s product—obvious to LPS, presumably, since LPS paid the counties for access—it does not follow that LPS knew or should have known that it was depriving the counties of money, or even that it did deprive them of money. As described above, it was never LPS’s aim to print documents, the process which by which Fidlar claims the counties were deprived of money; it was LPS’s aim to copy and aggregate certain data from the land records it downloaded, which its client provided a means of doing. See McCabe 30(b)(6) Dep. 40:16–41:16. LPS could have done this by slower means than the one it eventually developed, including one that did not involve bypassing the intentionally restrictive Fidlar client interface (copying by hand, for instance).

The contention that LPS deprived counties of money rests on the assumption, unstated but everywhere present in Fidlar’s briefing, that any act of copying the digital land records entitled the counties to a fee. Fidlar may wish this were so; indeed, Fidlar may have marketed its products to counties by endorsing just this kind of sweeping commodification of public land records. Be that as it may, Fidlar points to no information in the record that could give rise to the inference the LPS knew or should have known that this was the case, or that it was the case with respect to any individual contract. The evidence provided by Fidlar merely suggests that some counties charged a print fee, and that LPS never made a practice of printing and incurring the fee and never sought to. LPS’s use of its own client to aggregate data from the documents does not suggest that it would have, or was contractually obligated to, print any of the associated documents and pay the counties for that printing.

Posted by Marcia Oddi on Monday, April 20, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 7 NFP memorandum decisions)

For publication opinions today (1):

Stephen F. Smith v. Foegley Landscape, Inc.

NFP civil decisions today (1):

William R. Koenig v. Wendy Knight (mem. dec.)

NFP criminal decisions today (6):

Amber Mobley v. State of Indiana (mem. dec.)

Paul Bell Jr. v. State of Indiana (mem. dec.)

Zachery A. Doan v. State of Indiana (mem. dec.)

Keandre Arnold v. State of Indiana (mem. dec.)

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

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

Posted by Marcia Oddi on Monday, April 20, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Retired Notre Dame cop critical of handling of sex assault cases"

Margaret Fosmoe of the South Bend Tribune reported this weekend in a long story that begins:

Patrick Cottrell has one regret about his 20 years as an investigator on the University of Notre Dame's Security Police department.

He investigated about 30 cases that involved allegations of sexual assault by students against other students — ranging from fondling to rape — but not a single one of those cases resulted in criminal charges from the county prosecutor's office, he said.

Not a single alleged assailant had to appear in court to answer to sex assault charges.

"The major disappointment of my career was I couldn't get any charges filed in sex assault cases," Cottrell said Thursday in a telephone interview.

The lack of prosecutions is one reason the retired police officer with 41 years of professional experience agreed to be interviewed and appear in the new documentary film, "The Hunting Ground," about sexual assaults on American college campuses. Three allegations of sexual assault involving students at Notre Dame and Saint Mary's College are highlighted in the film.

"The Hunting Ground" is being shown in theaters across the country. It was shown Friday night at Notre Dame and was screened this weekend at the Goshen Art House in Goshen.

More from the story:

In his Tribune interview, Cottrell, who retired from Notre Dame in 2010, raised concerns about several aspects of Notre Dame's handling of sex assault cases:

• A policy change that he said forbid campus police officers from contacting coaches or other athletic department employees in order to interview student athletes who were the subject of a police investigation.

• Lack of support for victims of sexual assault who requested a student affairs hearing to provide evidence an assailant should be suspended, expelled or otherwise face disciplinary action by the university.

• The fact that campus police investigate sex assault cases on their own, instead of joining with the countywide sex assault police investigation unit that handles cases in South Bend, Mishawaka and throughout St. Joseph County.

• Notre Dame's private campus police force not adhering to the state's public records law, just like every public police agency in the state. * * *

One woman interviewed in the film, Saint Mary's graduate Rachel Hudak, said she was raped in a Notre Dame residence hall by a male student after being invited to the dorm on the pretense of a party. Cottrell investigated that case and no charges were filed, although he and the woman's father later wanted the prosecutor's office to take the case before a grand jury and obtain testimony under oath from witnesses who had provided inconsistent statements.

The case of Lizzy Seeberg also is recounted in the film. Seeberg, who was a Saint Mary's freshman in 2010, reported that Notre Dame football player Prince Shembo committed sexual misconduct against her, and she committed suicide a few days later. No charges were filed. Her father, Tom Seeberg, appears in the film. Cottrell was not involved in the Seeberg case investigation.

When Cottrell learned Seeberg and another Saint Mary's victim has participated in the film, he agreed to be interviewed. Hudak also later agreed to appear in the film.

Cottrell has seen the film and thinks it does a good job of reporting on the huge problem of sexual assault on college campuses. "It's definitely fair and accurate," he said. "The stats that are reported in it are really pretty alarming."

The former officer said he hopes the film spurs action.

"We need to do more to encourage every victim to report sexual assault. And we need to follow through and encourage the prosecutor's office to file charges if there is probable cause," he said.

ILB: This long list of ILB posts include many about the Lizzy Seeberg case, the failure of Notre Dame police to comply with the public records law, etc.

[More] See this April 20th Fosmoe story headed "Movie on college sex assaults continues to stir Notre Dame controversy."

Posted by Marcia Oddi on Monday, April 20, 2015
Posted to Indiana Government

Ind. Gov't. - "Lawsuit over Americus quarry continues"

Updating a long list of earlier ILB entries, Mikel Livingston reported April 17th for the Lafayette Journal & Courier:

Both sides in the ongoing dispute over a proposed quarry near Americus made their cases Friday, requesting summary judgment from Superior Court 1 Judge Randy Williams.

It's the latest step in the back-and-forth battle that has waged since 2013, the year Nashville-based Rogers Group Inc. first notified residents it was proposing a stone quarry in northwest Tippecanoe County.

Attorneys for Rogers Group argue that the ordinance passed by the county commissioners last year was illegal and beyond the scope of the commissioners' power, while attorneys for the county say it was well within the board's right.

The crux of Friday's argument is whether the ordinance — which created a buffer zone between residential homes and quarry operations — can be considered a "zoning" ordinance or a "prohibition" ordinance.

Christopher Shelmon, an attorney with Gutwein Law, which is representing Rogers Group, argued the ordinance is a zoning ordinance and goes beyond the commissioners' authority.

"The defendants attempt to make this false dichotomy between police powers and zoning," Shelmon said. "Zoning is a police power. The ordinance is in fact quintessential zoning."

But Bob Reiling of Reiling, Teder and Schrier argued against that. His firm is representing the commissioners as well as county building commissioner.

"As long as the court finds this is a prohibition order — and I think there is ample evidence to support that — all these other arguments ... they're non sequiturs," Reiling said. "They don't make any sense."

Posted by Marcia Oddi on Monday, April 20, 2015
Posted to Indiana Government

Courts - "As U.S. gay-marriage battle looms, attorneys fight over fees"

That is the headline to a long, interesting story Joan Biskupic reported this weekend for Reuters. Some quotes:

(Reuters) - As a historic constitutional showdown over gay marriage looms this month at the U.S. Supreme Court, attorneys are fighting over another bitterly disputed issue: their fees.

The battles over billables are erupting far from the Washington, D.C., limelight, in lower courts from West Virginia to Wisconsin and Oklahoma. They pit lawyers representing gay couples who challenged same-sex marriage bans against the states that had enacted the laws.

Typically in the United States, each party pays its own lawyers. But under special laws designed to encourage civil rights cases against the government, parties who win can petition the county, state or other entity they sued for "reasonable” attorneys' fees and costs.

In some cases, the fee requests run well into seven figures and are submitted on behalf of powerful law firms that a Reuters examination found have outsized access to the Supreme Court. Individuals and advocacy groups that file lawsuits aimed at the high court sometimes retain big-firm lawyers who specialize in arguing in that forum and boast remarkable success rates in getting their cases heard.

Gay-marriage litigation, especially, has become a magnet for prominent lawyers and national firms with connections to the Supreme Court. These firms can bill at $1,000 an hour or more, and when they or other Supreme Court experts seek repayment from state coffers at even discounted rates, the rhetoric gets nasty. * * *

Many firms take these cases on a "pro bono" volunteer basis and promote their efforts on their websites. As Reuters reported last year, at least 30 of the country's largest firms were involved in some stage of gay-marriage litigation, either representing parties or submitting "friend-of-the-court" briefs, all in favor of broader rights.

For example, the state of Wisconsin in February objected to paying $980 per hour to a Chicago-based partner from the large Mayer Brown firm, one of the most successful at getting its cases heard by the high court.

Wisconsin called Mayer Brown's rates "stratospheric." The state also questioned why the fee request - made on behalf of Mayer Brown and lawyers for the American Civil Liberties Union, which had initiated the case - included more than a dozen attorneys in five offices across the country for a total of nearly $1.2 million. Wisconsin in late March agreed to pay $1,055,000.

The attorneys seeking fees in Wisconsin and in Oklahoma said their requests were fair. They cited the complexity of the issue and their expertise. The gay-marriage advocates in Wisconsin who retained Mayer Brown said they had been unable to persuade any large firms in their state to help them.

Wisconsin officials declined to comment. Mayer Brown declined to discuss the settlement, but said it considered the case a pro bono project and that it planned to turn over any fee award to the ACLU. * * *

In some cases, it is not known how much states are paying lawyers who win gay marriage cases. Earlier this year, Pennsylvania agreed in a confidential settlement to pay $1.5 million to lawyers who had challenged its gay-marriage ban. Reuters learned of that deal through a filing in a separate case. The $1.5 million payment was confirmed this week by the Pennsylvania governor's office.

ILB: The story ends with a chart of some top awards and requests. Indiana unaccountably is not listed in the story, although some of the Indiana litigation legal fees involved were reported by The National Journal on March 13th and confirmed by the ILB here.

Posted by Marcia Oddi on Monday, April 20, 2015
Posted to Courts in general

Ind. Decisions - Transfer list for week ending April 17, 2015

Here is the Clerk's transfer list for the week ending Friday, April 17, 2015. It is two pages (and 20 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, April 20, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - Needle exchange program bill in conference committee

The needle exchange language is now in SB 461 (the language was added in the House), the meeting is at 10:30 in Rm. 431. Watch it here. The needle exchange language is in SECTION 5, beginning on page 5 of the March 31st printing.

Maureen Hayden of CNHI reported Friday in a story that includes:

Public health experts are pushing Indiana lawmakers to pass legislation to allow for needle-exchange programs in communities at high risk for the deadly virus that causes AIDS, despite continuing opposition from Gov. Mike Pence.

They’re trying to make the case that giving clean needles to intravenous drug users doesn’t increase illegal drug use, as Pence contends, and instead could ward off the spread of the HIV epidemic that has hit rural Scott County in southeast Indiana.

“No one is going to run out and start using heroin just because you give them a syringe,” said Bill Piper, director of national affairs for the Drug Policy Alliance and an Indiana native who’s asked Pence to reconsider his stance.

On Monday, a joint Senate and House legislative committee will consider a measure that gives authority to local public health departments and law enforcement in high-risk counties to work together to start their own needle-exchange program.

Current law bars such programs without an emergency declaration like the one Pence issued in March for Scott County, where the number of HIV cases hit 130 on Friday.

Pence opposes the measure authored by House Public Health Chairman Ed Clere, R-New Albany. The governor has threatened to veto it, despite support for it from public health experts, including those inside his administration.

Pence has declined to publicly explain his opposition. But earlier this week, Senate President David Long, R-Fort Wayne, said the governor believes needle exchange programs lead to greater drug use.

Clark County Medical Director Dr. Kevin Burke, who diagnosed the first HIV case in the current epidemic, said Pence is wrong.

“The studies show that with needle-exchange programs, you increase the probability that someone will go into a drug rehabilitation program,” Burke said. “You don’t increase IV drug abuse, and you save the state millions and millions of dollars by preventing the spread of HIV infection.” * * *

Dr. Shane Avery, a Scott County physician who’s been treating HIV patients, plans to testify at Monday’s hearing. He said health officials in other high-risk counties can’t wait until they have a crisis on their hands to act.

“You can’t just stick your head in the sand,” Avery said. “These decisions need to be based on science, not political ideology.”

Among those who support Clere’s legislation is House Ways and Means Chairman Tim Brown, R-Crawfordsville, the legislature’s only physician.

The language in Clere’s measure, tagged onto Senate Bill 461, is limited in scope. It would only apply to counties with a high level of Hepatitis C, a potentially lethal bloodborne disease spread by intravenous drug use. Its presence is considered an indicator of risk for HIV.

The bill would clear the way for local health departments, working with police, to declare their own health emergencies so they could a put needle-exchange programs into place.

Clere has been frustrated by Pence’s opposition.

“I don't understand how anyone could walk away from an opportunity to prevent what's happening in Scott County from happening in other counties,” he said. “Unfortunately, Scott County is not an outlier, and other counties are at similarly high risk.”

Giles Bruce of the AP had a long story Sunday, datelined Austin, in the NWI Times headed "Largest HIV outbreak in Indiana history: A toxic mix of drug addiction, poverty, hopelessness." Some quotes:
As of Friday, there have been 130 cases of HIV diagnosed in southeast Indiana since December, according to the Indiana State Department of Health. That number is expected to increase as more people get tested. The cases are centered around Scott County and, in particular, Austin, a town of 4,225 about 35 miles north of Louisville, Ky.

"I think what happened in southeast Indiana can happen in any county or any city in the state of Indiana or United States," said Tammy Morris, executive director of the Aliveness Project of Northwest Indiana, an agency that delivers HIV and AIDS services out of Merrillville. "People have become very complacent. The way medications are going right now, people look very healthy. There's no way, physically, to tell if someone has the HIV virus."

Most of the infections in southeast Indiana resulted from IV use of the prescription painkiller Opana. State investigators have yet to locate where the drug is coming from, though they say it's not being prescribed in Scott County. One possible reason for the outbreak is that a single pill of Opana, once crushed and liquefied, contains eight injections, making it natural for sharing. A bag of heroin, by comparison, is generally used in just one injection. Opana also sells on the streets for as much as $160 a pill.

Narcotics experts said Opana abuse isn't as widespread in Northwest Indiana — heroin is the opiate of choice in the region — but warn that sharing needles containing any drug puts users at risk for HIV infection.

"What I can say is that statewide, nationally, locally, opiate addiction is an epidemic," said Aaron Kochar, director of education and prevention at Porter-Starke Services, a mental-health and drug-treatment agency based in Valparaiso. "We are continuing to recognize that opiate abuse is a tremendous problem. We see it in our communities all the time."

Kochar said the danger of Opana is that it is an extended-release pill, meaning that when it is crushed up and injected it is extremely potent.

The NY Times also ran an AP story Sunday, dateline Indianapolis. Some quotes:
But the future of the Scott County program, as well as the fate of legislation that would allow needle exchange programs in other counties, is not clear.

Mr. Pence, a Republican, opposes needle exchanges as an antidrug policy. David Long, the State Senate’s president pro tem, said Thursday that the emergency exchange for Scott County was “the right reaction” but added that he was not sure if it was the correct long-term approach. Nor was he sure, he said, whether the Senate would support legislation sponsored by the chairman of the House Public Health Committee, Representative Ed Clere, that would allow the 23 Indiana counties with the highest rates of hepatitis C to establish their own needle exchange programs.

Health officials say that high rates of hepatitis C are an indicator of needle-sharing.

The House approved the bill on April 7 in a 54-to-39 vote. The measure is scheduled for a hearing on Monday in a House-Senate conference committee, which will try to work out a final version for lawmakers to consider before the legislature’s April 29 adjournment deadline.

Mr. Long said the governor was not alone in his concerns that needle exchanges could promote instead of prevent drug use. “At the same time, you adapt and you evolve based on the world we live in, so we’re going to have to see if that requires a pivot for us,” he added.

Mr. Clere said he appreciated the governor’s approval of the needle exchange, but he added: “It doesn’t help in other areas of the state that are at risk for a similar outbreak. It’s just not enough.”

He said the association between needle exchanges and illegal drug activity made many people, including lawmakers, uncomfortable. But he said the exchange program should be viewed as “a proven and effective harm-reduction policy,” not as an antidrug policy.

“We simply can’t afford to view this as a short-term problem,” Mr. Clere said.

Money could also be an issue as lawmakers weigh their options. Since 1989, the federal government has banned public financing of needle exchange programs. Mr. Pence’s executive order did not include money for the Scott County program.

“They asked the state agencies to find their own money. How sustainable is that?” asked Beth Meyerson, a director of the Rural Center for AIDS/S.T.D. Prevention at Indiana University.

Posted by Marcia Oddi on Monday, April 20, 2015
Posted to Indiana Government

Environment - Protest continues against DNR plans to build banquet center on Dunes State Park prime beachfront

On March 12, 2015 the ILB had its first post on the latest iteration of efforts to commercialize the Indiana Dunes State Park. It was headed "Who approved the stealth project to build a banquet center on Dunes State Park prime beachfront? Who knew?"

A similar Statehouse effort from 2005-2006 was summarized in this June 2, 2006 ILB post. This post from Jan. 25, 2006 looked at issues and the need for an environmental impact assessment, as did this one from Jan. 29, 2006.

This newly located Fall 2006 story by Jeff Fleischer in Chicago Wilderness tells of the 2005-2006 effort and is worth reading.

The story also includes a good photo, taken looking eastward from a vantage point at or beyond the westmost boundary of the Park (where it abuts Johnson's Beach), showing the pristine beachfront and the setting of the Pavilion. Although the actual lakefront of the Indiana Dunes State Park is about four miles long, the only swimming beach is the several hundred foot stretch shown in the photo, ending about where the first wooded area appears. The rest of the narrow Lake Michigan beach in the Park may be walked, but other than that, the park is a nature preserve with the public limited to marked trails and designated camping/picnicking areas. [Correction: According to the DNR brochure, the entire beachfront is only 3 miles long and the State Park is just 2,182 acres.]

(This DNR brochure includes a detailed map of the State Park; this map shows how the State Park fits within the Indiana Dunes National Lakeshore.)

On Sunday, April 12, 2015 the ILB had a wrap-up of stories about the most current effort. Now, a week later, there are many new stories, all dateline April 15 or 16, 2015:

Posted by Marcia Oddi on Monday, April 20, 2015
Posted to Environment | Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/20/15):

Next week's oral arguments before the Supreme Court (week of 4/27/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/20/15):

Monday, April 20

Friday, April 24

Next week's oral arguments before the Court of Appeals (week of 4/27/15):

Wednesday, April 29

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, April 20, 2015
Posted to Upcoming Oral Arguments

Friday, April 17, 2015

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

For publication opinions today (1):

In Angelique Lockett and Lanetra Lockett v. Planned Parenthood of Indiana, Inc., and Cathy McGee, a 20-page opinion, Judge Bailey writes:

Angelique Lockett (“Angelique”) and her mother Lanetra Lockett (“Lanetra”) (collectively, “the Locketts”) appeal the trial court’s grant of summary judgment in favor of Planned Parenthood of Indiana, Inc. (“Planned Parenthood”) after Angelique, then a minor, intentionally misrepresented herself to be eighteen-years-old and obtained an abortion at a Planned Parenthood clinic without Lanetra’s consent. We affirm the trial court’s grant of Planned Parenthood’s motion for summary judgment because the Locketts failed to present their claims first to a medical review panel, as required by the Medical Malpractice Act (“the MMA”), and thus the trial court lacked subject matter jurisdiction over the claims. However, to the extent that the trial court’s order appears to have dismissed the Locketts’ claims against defendant Cathy McGee (“McGee”), we reverse and remand with instructions to correct the order.
NFP civil decisions today (2):

In Re: The Guardianship of Sharon Izzo (mem. dec.)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.D., Minor Child, and Her Father, B.D., B.D. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (6):

Andrew C. Stevens v. State of Indiana (mem. dec.)

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

Chad McKinney v. State of Indiana (mem. dec.)

Kenneth Ray Barnett, Jr. v. State of Indiana (mem. dec.)

Kenneth E. Aker, Jr. v. State of Indiana (mem. dec.)

Randolf S. Sargent v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, April 17, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Where are we with SB 523, Marion County Small Claims Courts?

Here is the most recent, April 15th version, as the bill passed the House. But the Senate has dissented and the bill will likely go to conference committee for more changes. The bill has been changed at every step of the process, many of the changes at the behest of the author, Sen. Michael Young, whose objective is not always discernible.

The Supreme Court has been asking for changes in the Marion County small claims court system since 2012. As the ILB wrote earlier this year:

These courts have been at issue since the front-page WSJ story on July 18, 2011, on the Pike Twp. small claims court being a mecca for debt collection: "Although the state requires suits to be filed in the county where the borrower lives, in Marion County and one other county, collectors can choose among township courts—each with a single judge. The courts handle all collection disputes involving up to $6,000." The Supreme Court in Feb. 2012 created a special task force to look into the issue. Star reporter Carrie Ritchie tweeted on Feb. 20, 2012: "The small claims court story really hit a nerve with readers. I've never gotten this many phone calls on one story."

The 33-page Task Force report was submitted May 1, 2012. Here is an update from May 31, 2013, another from July 16, 2013. On Aug. 4, 2013, the Star had a long story headed "Small claims, bigger problems: Unique rules in Marion County raise questions of fairness."

On Jan. 19, 2014, the ILB asked: "a look at the CJ's legislative requests in the State of the Judiciary (are they DOA?)" The request:

Fixing the Marion County Township Small Claims Courts. Our present system has been the subject of ridicule by the Wall Street Journal, and local newspaper and television reporters launched investigations into the system. A task force co-chaired by Court of Appeals Judge John Baker and Senior Judge Betty Barteau held hearings and made a comprehensive report recommending changes urgently needed. Local leadership and changes in court rules, however, can only scratch the surface. Systemic change is imperative, and this requires legislative action.
On July 2, 2014, the ILB reported on the 7th Circuit opinion Suesz v. Med-1 Solutions, holding that Marion County small claims courts are judicial districts for the purposes of the FDCPA. The federal Fair Debt Collection Practices Act requires a collector of consumer debts to file its debt-collection suit in the “judicial district or similar legal entity” where the contract was signed or where the debtor resides.)

On July 14, 2014 the ILB posted ""Judges call for an end to Marion County’s small claims court system" and this follow-up. Later that same day, the ILB did a Q&A with "an individual who is very well-attuned to Marion County politics." The question:

Marion county legislators of both parties appear to be totally against reforming our small claims court system. That does not bode well for any change. Can you tell me why there is such total resistance to legislative change, including merging the 9 small claims courts into the county court system?
On Sept. 2, 2014, the ILB reported that the: "Supreme Court has this morning released the July 2014 Final Report prepared by the National Center for State Courts on the Marion County small claims court. The Report recommends (see p. 23) that the small claims courts transition into a unified section within the Civil Division of the Superior Court."
Here are some quotes from the Supreme Court's Sept. 2, 2014 announcement about the July 2014 Final Report prepared by the National Center for State Courts on the Marion County small claims court:
The National Center for State Courts (NCSC) submitted a report to Indiana outlining the need to transition the small claims courts into a unified section within the civil division of the superior courts.

In May 2012, the Task Force on the Marion County Small Claims Courts made similar recommendations. Those study results can also be found online.

This NCSC study was prepared at the request of the Marion County Circuit Court and funded by a grant from the Indiana Supreme Court. Marion County Circuit Court Judge Louis Rosenberg stated that the NCSC report together with the earlier task force study detail a “reliable factual basis for identifying the shortcomings of the present system.” The NCSC report:

  • Provides a statistical profile of the small claims system with charts and tables featuring how the system is financed and how it manages caseload
  • Details a principal inefficiency of the current system in mismatching of resources with caseloads
  • Notes that local revenues from filing fees have not kept pace with court expenditures.
Court of Appeals Judge John G. Baker, co-chair of the Task Force on the Marion County Small Claims Court, said, “every organization or group studying this matter has come to the same conclusion. The flexibility and responsiveness of the proposed changes will better serve all of the people in Marion County.”

Incorporating the township courts into a Small Claims Division of the Marion County Superior Court requires new legislation. The Supreme Court has submitted the NCSC report to leadership in the General Assembly along with the Supreme Court’s recommendations for implementation of reforms to the system.

Curently SB 523 takes a different direction. Rather than incorporating the township courts into a Small Claims Division of the Marion County Superior Court, the current version of the bill would, according to the current digest:To better under the bill, the reader is directed to this LSA Fiscal Impact Statement, based on the April 14th printing.

Posted by Marcia Oddi on Friday, April 17, 2015
Posted to Indiana Courts

Thursday, April 16, 2015

Ind. Gov't. - "State lawmakers are close to retroactively terminating a 15-year-old lawsuit filed by the city of Gary against several gun manufacturers and retailers."

That was the lede to Dan Carden's story yesterday in the NWI Times. From the story:

State lawmakers are close to retroactively terminating a 15-year-old lawsuit filed by the city of Gary against several gun manufacturers and retailers.

The Republican-controlled House voted 72-23 on Tuesday for Senate Bill 98, which essentially goes back in time to prohibit Gary from seeking damages from the gun companies for their alleged complicity in the illegal retail sale of handguns.

State Rep. Ben Smaltz, R-Auburn, the sponsor, said the lawsuit -- which has idled in the courts for the past six years -- is deterring gun makers from locating in Indiana because they believe the state is unfriendly to gun businesses, even though state law since 2001 has barred civil lawsuits against them.

"Having a viable firearms and ammunition industry is a compelling state interest, as is having a firearms industry that can provide law enforcement and the military with the equipment they need to keep the peace," Smaltz said.

Opponents of the measure said it is plainly unconstitutional and grossly interferes with the required separation of powers by having the Legislature and governor insert themselves in a pending court case.

"This bill is an abomination," said state Rep. Ed Delaney, D-Indianapolis. "It's an insult to the legal system; it's an insult to the people of Gary and it will be one of the two or three most overreaching and wrong acts of this General Assembly."

The measure was revised Monday by the House to prohibit the gun companies from seeking reimbursement of their attorney fees from Gary.

As a result, it must again pass the Republican-controlled Senate or be sent to a House-Senate conference committee to devise a compromise version, subject to re-approval by both chambers.

ILB: Here are a number of earlier ILB posts on the Gary gun lawsuit and the bill to kill it.

[More] Here is Carole Carlson's Gary Post-Tribune story. It begins:

Gary Mayor Karen Freeman-Wilson lashed out at the General Assembly for approving a bill to kill a long-standing Gary lawsuit against gun manufacturers and dealers.

The measure passed the House Wednesday by a 72-23 vote. Because an amendment was added, it moves back to the Senate for consideration.

"Manufacturers and dealers have essentially turned a blind eye to straw purchases and other illegal acts that ultimately result in gun violence, many times leading to death in the streets," said Freeman-Wilson. "Yesterday, the Indiana General Assembly gave them a license to continue their reckless behavior."

Freeman-Wilson called on Gov. Mike Pence to reject the bill.

"Over a year ago, he challenged us to make changes to our crime fighting efforts. This is a part of our new strategy," Freeman-Wilson said in a statement released Wednesday.

Written by a downstate lawmaker, the bill prohibits lawsuits against gun manufacturers and dealers, making it retroactive to 1999 when former mayor Scott King filed Gary's lawsuit.

Posted by Marcia Oddi on Thursday, April 16, 2015
Posted to Indiana Government

Ind. Gov't. - "Hoosiers to decide whether 'right to hunt' belongs in Constitution"

The headline pretty much says it all; SJR 2 has now been passed by two General Assemblys and will go on the statewide ballot at the November general election. Here is Dan Carden's story in the NWI Times. It includes the language of the proposed constitutional amendment.

Posted by Marcia Oddi on Thursday, April 16, 2015
Posted to Indiana Government

Ind. Gov't. - Is Purdue's long Wartell and Trimble Report legal nightmare finally over?

Rebecca S. Green reported yesterday in the Fort Wayne Journal Gazette:

Former IPFW Chancellor Michael Wartell was paid $52,500 by his former employer when he settled an age discrimination lawsuit with Purdue University in February.

The information about that term of the settlement agreement in the federal lawsuit was released to The Journal Gazette on Monday in response to a Freedom of Information Act request.

It was not disclosed in court documents. * * *

The school has spent more than $160,000 in legal fees to keep the [Trimble] report a secret, according to Purdue officials.

In September, a federal judge ordered the report released.

The lawsuit was settled in February and the report was released a few weeks later.

Trimble’s report said that while university officials had not discriminated against Wartell, they had botched the whole situation so badly that it opened the door for all the litigation and fighting that followed.

Defending itself against the federal lawsuit cost Purdue an additional $168,312, according to university officials.

An earlier story (April 13) by Joseph Paul in the Lafayette Journal & Courier reported:
Purdue University spent more than $320,000 in legal fees battling state and federal lawsuits filed by former IPFW Chancellor Michael Wartell.

In both cases, Wartell alleged he had been discriminated against after the Purdue Board of Trustees declined to extend his contract past retirement age.

The then 65-year-old was ousted from Indiana University Purdue University-Fort Wayne in 2011 and replaced with 64-year-old Vicky Carwein.

Records released to the Journal & Courier Monday indicate Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit.

Much of those fees were spent battling court orders to release the Trimble Report — an independent investigation by attorney John Trimble that found Purdue and the Board of Trustees could have handled the forced retirement better.

Purdue, however, opposed the release of the document, claiming it was protected under attorney-client privilege, until the terms of a recent settlement unsealed the report.

ILB: So if you add all the figures together ($320,000 plus $52,500), the total is $372,500.

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

Posted by Marcia Oddi on Thursday, April 16, 2015
Posted to Indiana Government

Ind. Decisions - Supreme Court issues rare conditional reinstatement

As the ILB has noted in the past, a "suspension without automatic reinstatement" means an Indiana attorney so suspended faces difficult barriers in regaining the ability to practice. See this Feb. 14, 2014 ILB post headed "How bad is "suspension without automatic reinstatement" by the Supreme Court; can it be the kiss of death for an attorney?"

On April 13th the Court issued this order granting conditional reinstatement to the practice of law to Douglas S. Followell.

All Justices concurred except Dickson, J., who voted to deny reinstatement.

Posted by Marcia Oddi on Thursday, April 16, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decisions)

For publication opinions today (2):

[ILB Note: This opinion was removed by the COA on April 16th shortly after it had been posted online, but not before the ILB had written the following summary. The COA issued an opinion with the same conclusions (and that may be the same in all aspects) on May 12th and is it is summarized by the ILB here (4th case).] In James Satterfield v. State of Indiana, a 16-page opinion, Judge Riley writes:

Appellant-Defendant, James Satterfield (Satterfield), appeals the trial court’s denial of his motion to let bail following his arrest and charge for murder. We reverse and remand for further proceedings.

Satterfield raises one issue on appeal, which we restate as follows: Whether the State established that the proof of Satterfield’s guilt for murder is evident or the presumption of that guilt strong despite his claim of self-defense.

The State raises one issue on cross-appeal, which we restate as follows: Whether Satterfield filed a timely notice of appeal. * * *

In its cross-appeal, the State maintains that Satterfield forfeited his right to appeal the trial court’s denial of his bail by failing to file a notice of appeal within the requisite thirty days of the trial court’s order. Because the trial court’s order constituted a final appealable judgment and the motion to reconsider did not toll the running of time, the State maintains that the notice of appeal was due eight days prior to Satterfield’s filing of his notice of appeal. * * *

Ultimately, though, the criminal jurisprudence of Indiana and any corresponding discussion of bail is founded on a presumption of individual innocence. See Bozovichar, 103 N.E.2d at 681; see U.S. v. Salerno, 481 U.S. 739, 755 (1987) (“[L]iberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”). It is the unique confluence of this fundamental liberty interest along with one of the most valued rights in our culture—the right to bail—that we conclude that Satterfield’s otherwise forfeited appeal deserves a determination on its merits. * * *

Accordingly, after the Fry decision re-evaluated the bailment landscape, we pay homage to the ancient principle of stare decisis and reaffirm a defendant’s right to present exculpatory evidence as to his or her culpability during a bail proceeding and the trial court’s duty to take this evidence into account when considering a request for bail. * * *

However, after being presented with Satterfield’s evidence, the trial court refused to weigh any evidentiary facts alluding to a possible self-defense and, thus, abused its discretion. Accordingly, we reverse the trial court’s denial of Satterfield’s bail and remand to the trial court with instructions to conduct a new bail hearing in accordance with our opinion today.

Based on the foregoing, we hold that even though Satterfield forfeited his right to appeal due to his failure to timely file a notice of appeal, extraordinarily compelling reasons warrant a review of Satterfield’s argument on the merits. Upon review of the evidence, we reverse the trial court’s denial of bail and remand for a new bail hearing with instructions to weigh Satterfield’s evidence of self-defense. Reversed and remanded.

Najam, J. concurs
Bradford, J. concurs in result

In Jeffery J. Hunt v. State of Indiana, an 8-page opinion, Judge Mathias concludes:
After surveying sentences imposed in similar cases, we conclude that Hunt’s 120-year sentence is an “outlier” that is in need of revision. To be clear, we need not ensure that all sentences for similar acts and defendants are precisely the same.

We further note that the maximum aggregate sentence Hunt could have received had he actually killed Mr. Neer is 113 years. * * * As heinous as Hunt's crime was, it would be disproportionate5 to impose a sentence for his crime resulting in serious bodily injury to the victim that is greater than the sentence that would be imposed upon Hunt for killing the victim. * * *

For all of these reasons, we conclude that Hunt’s sentence is inappropriate in light of the nature of the offense and the character of the offender and direct that it be revised to an aggregate term of 100 years. Reversed and remanded for proceedings consistent with this opinion.

NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of L.P., Mother, and L.H., Child, L.P. v. Ind. Dept. of Child Services (mem. dec.)

Harry J. Evans, et al. v. Tommy L. Short (mem. dec.)

NFP criminal decisions today (2):

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

Eric P. Johnson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, April 16, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decided two Indiana cases yesterday

In USA v. Maria Ramirez (SD Ind., Pratt), a 15-page opinion, Judge Sykes writes:

Maria Ramirez was a courier and bookkeeper in an Indianapolis-based methamphetamine distribution ring. Police arrested her minutes after she left a stash house carrying about five pounds of meth worth more than $100,000. A search of the house yielded two handguns, and two additional firearms were later found in other houses used by her coconspirators. Ramirez pleaded guilty to conspiracy to distribute 50 or more grams of meth in violation of 21 U.S.C. §§ 841(a)(1) and 846, but at sentencing she claimed to have been unaware that her coconspirators possessed guns. Over her objection the district court found that the coconspirators’ firearm possession was reasonably foreseeable to her and increased the offense level under the Sentencing Guidelines by two levels for possession of a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1).

Ramirez raises two arguments on appeal. First, she contends that the § 2D1.1(b)(1) enhancement was wrongly applied because she could not have reasonably foreseen that her coconspirators possessed guns. Second, she argues—for the first time on appeal—that she was eligible for a two-level reduction in her offense level under the so-called “safety valve” for nonviolent first-time drug offenders. Id. §§ 2D1.1(b)(16), 5C1.2(a).

We reject these arguments and affirm. Proper application of the firearm enhancement requires the sentencing court to make an individualized determination that the defendant should have foreseen her coconspirators’ gun possession. At the same time, however, the judge is permitted to draw common-sense inferences when determining whether someone in the defendant’s position reasonably should have foreseen that guns were in use in the conspiracy. Here, Ramirez had substantial and important roles in a sizable drug enterprise. Under these circumstances, it was not clear error to attribute the coconspirators’ gun possession to her for purposes of the § 2D1.1(b)(1) enhancement.

Possession of a firearm in connection with the offense generally disqualifies the defendant from receiving safetyvalve consideration. Id. § 5C1.2(a)(2). Ramirez insists, however, that even if her coconspirators’ gun possession was properly attributed to her for purposes of the § 2D1.1(b)(1) enhancement, the “no firearms” condition for safety-valve eligibility is narrower. More specifically, she argues that she was eligible for the safety valve because she neither possessed a gun herself nor induced another to do so. See id. § 5C1.2 cmt. n.4; cf. id. § 1B1.3(a)(1)(B).

The scope of the safety valve’s “no firearms” prerequisite— more specifically, whether that condition includes liability for a coconspirator’s gun possession—is a question of first impression in this circuit. Because Ramirez failed to raise this argument in the district court, our review is for plain error only, and we find none. * * *

As we’ve noted, this is a question of first impression in our circuit. See Harris, 230 F.3d at 1058 (noting but not deciding the question whether coconspirator liability is a basis for determining possession of a firearm under § 5C1.2). If Ramirez had raised the issue at sentencing, then this would be an occasion for us to decide whether application of the firearms enhancement categorically forecloses eligibility for the safety valve. But her failure to make that argument before the district court limits us to review for plain error.

We rarely find plain error on a matter of first impression. In order to prevail, the defendant must show that “the error was so obvious and so prejudicial that a district judge should have intervened without being prompted by an objection from defense counsel.” United States v. Boswell, 772 F.3d 469, 476–77 (7th Cir. 2014) (internal quotation marks omitted). Matters of first impression are unlikely to be that obvious. See United States v. Turrietta, 696 F.3d 972, 981 (10th Cir. 2012) (“Since a district court cannot be faulted for failing to act on its own motion where the law is unsettled, a matter of first impression will generally preclude a finding of plain error.”). And Ramirez’s eligibility for the safety valve was not so obvious in this case.

It’s true that the scope of the “no firearms” condition in § 5C1.2(a)(2) was flagged as an open question in our decision in Harris. 230 F.3d at 1058 (“Whether co-conspirator liability is a basis for determining possession of a firearm under § 5C1.2 is an issue that we have never addressed … . [W]e cannot reach its merits [here].”); see also id. at 1061 (Ripple, J., dissenting). But the issue remains unsettled in this circuit. Given the lack of guiding circuit precedent, the district court cannot be faulted for failing to raise and apply the safety valve sua sponte. Accordingly, we find no plain error.

In Joseph E. Corcoran v. Ron Neal (ND Ind., DeGuilio), a 23-page opinion, Judge Sykes writes:
In 1997 Joseph Corcoran shot and killed four men at his home in Fort Wayne, Indiana. A jury convicted him of four counts of murder and recommended the death penalty. The trial judge agreed and imposed a death sentence in accordance with the jury’s recommendation.

After his appeals in state court had run their course, Corcoran sought federal habeas relief on multiple grounds. We resolved some of his claims in earlier opinions and Corcoran has abandoned others; only two issues remain. Corcoran argues that the trial judge impermissibly relied on nonstatutory aggravating factors and failed to consider mitigating evidence when deciding whether to impose the death penalty. In a thorough opinion, the district court rejected these claims and denied the writ.

We affirm. First, the Indiana Supreme Court held that the trial judge did not in fact rely on nonstatutory aggravating factors. We previously disagreed with that determination, but our earlier decision—now vacated—did not adequately grapple with the deference owed to state-court factual findings under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(2). Giving the matter a fresh look through the lens of AEDPA’s deferential standard of review, we now conclude that the state supreme court’s factual determination was not unreasonable.

Second, the Indiana Supreme Court reasonably determined that the trial judge considered all proffered evidence in mitigation. The sentencer’s obligation to consider mitigating evidence in a capital case does not require that the evidence be credited or given any particular weight in the final sentencing decision.

Posted by Marcia Oddi on Thursday, April 16, 2015
Posted to Ind. (7th Cir.) Decisions

Wednesday, April 15, 2015

Ind. Courts - In response to petition for SCOTUS to reverse Indiana COA decision, the State cites many NFPs as support [Updated]

The Court of Appeals decided Juan Manzano v. State of Indiana on July 15, 2014. Our Supreme Court denied transfer on Oct. 2, 2014.

On April 10, 2015, SCOTUSblog named the petition for cert now pending its "Petition of the Day," writing:

Manzano v. Indiana (14-631)

Issue: Whether, when a criminal defendant seeks to vacate a guilty plea on the ground that defense counsel rendered ineffective assistance, in order to establish prejudice the defendant must show that but for counsel’s errors he would not have pleaded guilty and would have insisted on going to trial (as this Court, all twelve federal circuits, and virtually all the states hold), or whether the defendant must also show that had he gone to trial he would have been acquitted (as the Indiana Supreme Court persists in holding).

You can access the petition for certiorari and the State of Indiana's response on the SCOTUSblog case page.

That is all very interesting by itself. But in addition, there is another angle. A reader has sent a note:

Apropos of your post about Chief Judge Vaidik and NFP's, have a look at the Indiana Solicitor General's brief in opposition to cert. in Manzano v. Indiana, Docket No. 14-631. Specifically, have a look at pages 8-9. I count citations to 9 NFPs. Not to be cited before any court, eh?
So the ILB looked and sure enough, on pp. 8-9 of the brief (22-23 in PDF numbering) many unpublished (NFP) Indiana Court of Appeals opinions are cited to the SCOTUS in support of the Court of Appeal's decision in Manzano.

[Updated at 2:27 PM] The ILB has received this note from an Indianapolis attorney:

Just a quite note regarding this post on the ILB, noting that the SG was citing NFP opinions in its SCOTUS brief. On review, it appears the SG is simply responding to arguments made in the Petitioner's brief, where the Petitioner appears to cite all of those cases listed on pages 8 and 9 of the SG's brief.

The SG even refers to them as "plea-consequences cases that Manzano cites." Obviously, I think it must be fair for the SG to respond to arguments made by a Petitioner in his cert. petition, and not something that should garner criticism.

Posted by Marcia Oddi on Wednesday, April 15, 2015
Posted to Indiana Courts

Ind. Courts - Lawsuit filed for certain House Republican caucus emails

From the press release:

Citizens Action Coalition (CAC), Common Cause Indiana, and the Energy and Policy Institute (EPI) filed a lawsuit today in Marion County Circuit/Superior Court against the Indiana House Republican Caucus and State Rep. Eric Koch (R, Bedford) for violating the Indiana Access to Public Records Act (APRA). The groups are asking the Court to declare that Rep. Koch and the Caucus are subject to APRA, which the GOP legislators have denied, and to order disclosure of correspondence between Rep. Koch and utility companies regarding solar energy issues.
ILB readers will recall a number of earlier posts on the question: "Is the General Assembly subject to the public records law?"Here is a link to a copy of the complaint.

Posted by Marcia Oddi on Wednesday, April 15, 2015
Posted to GA and APRA | Indiana Courts

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Posted by Marcia Oddi on Wednesday, April 15, 2015
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 2 NFP memorandum decisions)

For publication opinions today (5):

In In the matter of: L.E., et al; G.E. v. Indiana Department of Child Services , a 9-page opinion, Judge Pyle writes:

G.E. appeals the juvenile court’s denial of her petition to expunge a substantiated report of child neglect regarding her children. She claims that she presented clear and convincing evidence that she was unlikely to be a future perpetrator of neglect and that there was no reason to justify the retention of the record by the Department of Child Services (“DCS”), thus satisfying the requirements of INDIANA CODE § 31-33-27-5. Concluding that G.E. did not carry her burden of presenting clear and convincing evidence satisfying the statutory requirements, we affirm the juvenile court’s denial of G.E.’s expungement petition. We affirm.
In Norman Wagler, Nathan Wagler, and Janet Wagler v. West Boggs Sewer District, Inc., an 8-page opinion, Judge Crone writes:
The Waglers unsuccessfully litigated their appeals all the way to the U.S. Supreme Court, which denied certiorari in 2014.

The trial court issued two contempt orders against Norman and two contempt orders against Nathan and Janet based on their failure to comply with the judgments requiring them to connect to the sewer system. * * *

[On appeal] they claim that a 2012 amendment to Indiana Code Section 8-1-2-125 exempts them from having to connect to the sewer system. We conclude that this is an impermissible collateral attack on the underlying judgments and therefore summarily affirm the contempt orders. West Boggs contends that it is entitled to recover appellate attorneys’ fees from the Waglers pursuant to Indiana Appellate Rule 66(E) because of the frivolousness and vexatiousness of their appeal. We agree and therefore remand for a calculation of appellate attorneys’ fees to which West Boggs is entitled.

In Mike Winters v. City of Evansville, a 12-page opinion, Judge Crone writes:
On appeal, Winters contends that the Merit Commission’s decision is not supported by substantial evidence and is arbitrary and capricious, which is another way of saying that the decision is patently unreasonable. Winters raises three issues: (1) the chief’s motivation for seeking termination was improper; (2) the two commissioners who voted in favor of termination based their decision on improper considerations; and (3) the punishment is disproportionate to the conduct. We resolve these issues as follows: (1) because the chief did not participate in the Merit Commission’s decision to terminate Winters, his motivation for seeking termination is irrelevant; (2) the commissioners did not base their decision on improper considerations; and (3) the Merit Commission’s decision to terminate Winters for his unjustified and unprovoked grabbing of the student’s crotch is supported by substantial evidence and is not arbitrary and capricious, or patently unreasonable. Therefore, we affirm.
In A.A. v. State of Indiana, a 12-page opinion (which may have been intended to be NFP, judging from the footers), Judge Crone writes:
A.A., a juvenile, appeals a true finding that he committed dangerous possession of a firearm, a class A misdemeanor if committed by an adult. He challenges the trial court’s decision to admit the firearm during the factfinding hearing, claiming that it was the product of an unconstitutional patdown during an investigatory traffic stop. Finding that the patdown was lawful under both the United States and Indiana Constitutions, we conclude that the trial court acted within its discretion in admitting the firearm. As such, we affirm the true finding.
In Brent Cole v. State of Indiana, a 22-page opinion, Judge Pyle writes:
On appeal, Cole argues that the trial court committed fundamental error by admonishing or instructing the jury during the trial and that the State failed to present sufficient evidence to rebut his claim that he committed his offenses in self-defense. We find that: (1) Cole has waived any claim of error in regard to the admonition; (2) he invited any alleged error by specifically agreeing to the content of the trial court’s admonition; and (3) the State presented sufficient evidence that Cole was the initial aggressor and then re-engaged with the victim. As a result, we affirm his convictions.
NFP civil decisions today (1):

Reinforcing Services Company, LLC, Steven Estes, and Wesco Wind, LLC v. Whaley Steel Corp. and James Whaley (mem. dec.)

NFP criminal decisions today (1):

J.V. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, April 15, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Legislature rejects civil rights protections for gays"

Yesterday both an amendment to the civil rights law and a proposal for a summer study committee re LBGT Hoosiers were rejected in the General Assembly. Dan Carden reports in the NWI Times:

Indiana ain't ready for reform -- at least when it comes to designating lesbian, gay, bisexual and transgender Hoosiers a protected class under the state's civil rights laws.

The Republican-controlled House and Senate each rejected separate Democratic measures Tuesday aimed at showing the world that discrimination against gays is not permitted in Indiana, whether religiously motivated or not.

In the House, state Rep. Ed Delaney, D-Indianapolis, proposed inserting language in Senate Bill 465 prohibiting discrimination based on sexual orientation and gender identity on the same basis as existing protections for race, religion, color, sex, national origin and age. * * *

In the Senate, Democratic Leader Tim Lanane, D-Anderson, suggested changing House Bill 1001 to require a legislative study committee review the civil rights protections for lesbian, gay, bisexual and transgender individuals in Indiana and other states.

Posted by Marcia Oddi on Wednesday, April 15, 2015
Posted to Indiana Government

Ind. Gov't. - Budget bill includes tax break for for-profit hospitals

John Scheibel reports in a long story the NWI Times that begins:

A small section of a larger piece of legislation, which would cut in half a portion of property taxes for some hospitals, has some Porter County officials concerned about its impact.

The massive state budget bill, which appropriates money for capital expenditures, the operation of state agencies and other spending measures, includes a provision requiring a 50 percent tax cut on the property taxes applied to real and person property of for-profit hospitals. That would include taxes on the building and equipment inside.

Porter Regional Hospital would be among those hospitals to receive the tax break.

The exact impact of the legislation, if passed, is difficult to calculate, local officials said.

Porter County Auditor Vicki Urbanik said the loss of revenue the first year could be in the hundreds of thousands of dollars.

The state imposed tax reduction would come on top of a property tax abatement already granted by the Porter County Council. * * *

In Indianapolis on Tuesday, State Sen. Karen Tallian, D-Ogden Dunes, proposed deleting the property tax cut for for-profit hospitals.

"Unfortunately, I think this was done without any regard for the effect that it might have on local governments, and for any tax breaks that locals may have already given to them," Tallian said.

But State Sen. Luke Kenley, R-Noblesville, chairman of the Senate Appropriations Committee, urged a "no" vote on Tallian's request and said he would work with Tallian on the issue through the conference committee process over the next two weeks.

Kenley said the measure was inserted into legislation to allow for-profit hospitals to more easily compete with non-profit hospitals, which do not pay property taxes.

Niki Kelly reports in the Fort Wayne Journal Gazette:
Five area hospitals – including three in Allen County – could save millions in property taxes thanks to a small provision in the 200-page state budget bill.

The 14 lines inserted would generally give all for-profit hospitals in the state a 50 percent property tax exemption on taxes payable starting in 2017.

Statewide, the change might reduce hospital property tax bills by $4â ¯million, according to a fiscal impact statement on the budget. Some of the taxes will be shifted to other taxpayers, and some dollars will be lost to local units of government.

“It will have a huge impact,” said Allen County Auditor Tera Klutz. “I’m not surprised by the language. It’s tough because we have exempt hospitals and non-exempt. It’s something the legislature needs to look at.

“From a personal standpoint, I understand. Who doesn’t want to cut their tax bill in half? But there were no hearings or discussions on this.”

The language affects 11 hospitals in the state, according to the Association of Indiana Counties and the Indiana Hospital Association.

Locally, they include all the hospitals owned by Lutheran Health Network – Lutheran, St. Joseph, Dupont, Kosciusko Community and Bluffton Memorial.

Read the story for more details and rationale.

Posted by Marcia Oddi on Wednesday, April 15, 2015
Posted to Indiana Government

Ind. Gov't. - Dead: "The notoriously divisive bill to legalize and regulate high-fenced deer hunting"

Niki Kelly reports today in the Fort Wayne Journal Gazette:

The notoriously divisive bill to legalize and regulate high-fenced deer hunting failed by a vote of 23-27 in the Senate on Tuesday – officially killing any movement on the topic for this legislative session.

House Bill 1453 would have authorized only the existing four captive hunting preserves to operate in Harrison, Marshall, Kosciusko and Blackford counties. [ILB: although these could have been moved to other locations]

But the distaste of breeding deer for large racks and charging hunters high prices to shoot them behind a fence proved too strong.

“It’s very simple. This is not hunting,” said Sen. Pete Miller, R-Avon. “That is a slaughter, folks.”

Senate President Pro Tem David Long said the bill was “decisively defeated” and cannot be put into other legislation in any form this year.

“It’s dead,” he said.

Advocates argued that without the bill, the preserves can operate in any way they please because the Indiana Court of Appeals ruled this year that the Department of Natural Resources doesn’t have authority to regulate privately owned deer, though the legislature does. Attorney General Greg Zoeller has appealed.

“This provides a rigid framework for four existing preserves,” said Sen. Sue Glick, R-LaGrange. “Without this bill, there is no regulation in place.”

That makes a decision by the Indiana Supreme Court on pending litigation huge. The legal battle has been ongoing for 10 years.

If the court agrees to accept an appeal and sides with the DNR, the preserves would be shut down and no new ones could open. If the court agrees with the appellate ruling, the preserves can exist with no rules until the legislature can act next year.

The issue always stirs emotions in the Statehouse, and Tuesday’s debate was no different. The Senate also killed the bill last year.

Here is Ryan Sabalow's story in the Indianapolis Star.

Here is some background from the ILB:

Posted by Marcia Oddi on Wednesday, April 15, 2015
Posted to Indiana Government

Tuesday, April 14, 2015

Ind. Law - Dual covers for 2015 issue of Indiana Best Lawyers

Best Lawyers 2015 Indiana edition sports a dual cover on this promotional page, switching back and forth between a photo of Rob Dassow, Nick Deets, Rick Hovde & Boyd Hovde, of Hovde Dassow + Deets LLC, and a photo of Kathleen Sweeney, of Sweeney Hayes.

Some quotes from the Sweeney story:

Kathleen Sweeney says that each career choice she’s made has been in pursuit of doing something meaningful. From being a state and federal prosecutor to training public defenders to founding her own private law firm, Sweeney has chosen to do things that would be important not only to herself as an attorney, but to the clients she has helped.

“Choosing things that are meaningful, I think, has made me a better lawyer,” she says.

Sweeney began her career as a prosecutor, serving as Assistant United States Attorney in white-collar prosecution for the Southern District of Indiana, and many of her cases involved sex crimes and child abuse. In 2001, she decided to start her own private civil rights practice because she “wanted to be in touch more with the people who were being accused or deprived.” Sweeney said she has always been one to root for the underdog. * * *

A case Sweeney is particularly proud of is Mueller v. State, in which she successfully argued that Indiana’s policy for diversion (which required defendants to pay a fee to have charges dismissed) violated the Equal Protection Clause of the 14th Amendment. Sweeney said her argument was initially laughed at, but eventually, the judge came around and ruled the policy was unconstitutional. Now, if defendants can’t pay the fee, they can do community service to get charges dismissed.

Another case that Sweeney is proud to have been part of is Lee v. Pence, which brought marriage equality to Indiana last year. Sweeney was part of a group of lawyers that represented several first-responder same-sex couples in their fight to achieve the same legal benefits as heterosexual married couples.

ILB: Mueller was a 2005 Court of Appeals opinion, see this ILB post from Nov. 16, 2005, and this coverage from the press the same day. See also this earlier post from May 26, 2004. Judge Barnes' opinion includes this notable footnote #7 on p. 13:
The State argues in its brief that the $230 in fees is “hardly excessive” and, “That money easily could be saved by eliminating expenditures on items such as alcohol, cigarettes, cable television, cell phone usage, and eating out in restaurants.” Appellee’s Br. p. 13 n.3. Undoubtedly, not every person who claims to be indigent turns out to be so, and the number of persons unable to pay these fees may be a small percentage of persons applying for the Prosecutor’s pretrial diversion program. However, we do not doubt the existence of extreme poverty in society and it is inappropriate to presume that persons in dire financial straits have wasted their money on drinking, smoking, cable television, cell phones, or dining out.
Another notable Sweeney win was in Wallace v. State, a 2009 Supreme Court decision holding application of a sex offender registration law as to a defendant who committed his offense before the statutes were enacted constituted retroactive punishment forbidden by the ex post facto clause of the Indiana Constitution.

Posted by Marcia Oddi on Tuesday, April 14, 2015
Posted to Indiana Law

Ind. Gov't. - More on "Local Communities Updating Ordinances In Response To RFRA"

Updating this ILB post from April 8th, Maureen Hayden, CNHI, reported April 13th for the Kokomo Tribune (here at IED):

INDIANAPOLIS — As legislators scrambled to respond to fallout from a divisive religious freedom law that critics said sanctioned discrimination, Republican activist Brent Kent went online to do some damage control of his own.

Kent launched a petition asking residents of his small hometown of Martinsville to push their elected leaders to adopt an anti-discrimination ordinance to protect gays and lesbians.

Within days, Martinsville Mayor Phil Deckard signed an executive order barring discrimination based on sexual orientation, as well as a City Council proclamation declaring the community open to all. That set into motion the work of drafting an expansive human rights ordinance.

The local Chamber of Commerce quickly posted the proclamation on its website.

If Martinsville adopts a human rights ordinance, as expected, it will join a growing number of communities that are moving to create or expand similar laws in the aftermath of the state's controversial Religious Freedom Restoration Act. * * *

Republicans who control the General Assembly have said they won't take up the issue until next year's legislative session, at the earliest.

So, the focus instead has turned to communities including Martinsville.

For decades, the southern Indiana city of 10,000 people was plagued with what Kent calls an unfair reputation as a closed, racist community. That stemmed from a 1960s murder of a young black woman and a complicated history with the Ku Klux Klan.

Kent was pleased by his city's reaction to the state's religious freedom law.

“It was an opportunity for the people of Martinsville to state and really re-state what’s important to them,” he said. “And it’s something the state of Indiana should have already done.”

The ACLU and Freedom Indiana are offering a legal “framework” for other cities, towns and counties to follow. Legal scholars say those efforts may be accelerated by the "fix" passed by lawmakers to quell controversy over the religious freedom act.

The Legislature's amendment said the new law cannot be used as protection against discrimination claims based on sexual orientation and gender identity.

In essence, that carves out room for local ordinances that protect gay and transgender people from discrimination, said Indiana University law professor Robert Katz.

“But, at the state level, it’s still perfectly legal to discriminate against gays and lesbians in any context,” he said. * * *

After the religious freedom law passed, local officials across the state — Republican and Democrat — began re-examining what’s on their books.

Muncie was among the first to act. On April 6, its city council revised a non-discrimination ordinance to add protections for sexual orientation and gender identity. Existing rules cover race, religion and ethnicity.

The updated ordinance took effect the next day.

Terre Haute officials are looking at their 16-year-old human rights ordinance, which covers sexual orientation but lacks much enforcement power.

Jeff Lorick, executive director of the Terre Haute Human Relations Commission, would like to see that changed. An expanded ordinance could save the city money on potential lawsuits and make its citizens feel more valued, he said.

In conservative Martinsville, the mayor’s order not only bars the city from discriminating based on sexual orientation and gender identity, it extends the same prohibition to vendors doing business with the city.

Posted by Marcia Oddi on Tuesday, April 14, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (3):

In Think Tank Software Development Corp., d/b/a Think Tank Networking Tech. Group and Think Tank Info. Systems v. Chester, Inc., Mike Heinhold, John Mario, Joel Parker, Thomas Guelinas, Jon Meyer, Daniel, a 17-page opinion, Judge Baker writes:

Think Tank Software Development Corporation d/b/a Think Tank Networking Technologies Group and Think Tank Information Systems (“Think Tank”) appeals the trial court’s directed verdict in favor of Defendants–Appellees * * * (collectively, the defendants) on Think Tank’s claim for misappropriation of trade secrets. In addition, Think Tank appeals the trial court’s determination that its non-solicitation claim was barred. Finding that the trial court did not err in granting a directed verdict and correctly determined that Think Tank’s non-solicitation claim was barred, we affirm the judgment of the trial court.
In 5200 Keystone Limited Realty, LLC v. Filmcraft Laboratories, Inc., Eric J. Spicklemire, Portrait America, Inc., A.C. Demaree, Inc., Clean Car, Inc., and The Wax Museum & Auto Sales, Inc., a 26-page opinion, Judge Friedlander writes:
This litigation involves a dispute over responsibility for the costs of environmental cleanup of commercial real estate (the Site) located near the corner of 52nd St. and Keystone Avenue in Indianapolis. * * * The complaint alleged causes of action under these three statutes: [IC 13-11-2-70.3 (creating an “environmental legal action” (ELA), which is a legal action “brought to recover reasonable costs associated with removal or remedial action involving a hazardous substance or petroleum released into the surface or subsurface soil or groundwater that poses a risk to human health and the environment”), IC 13-30-3-13(d) (creating an action to recover reasonable expenses and attorney fees incurred by a landowner on whose land solid waste has been illegally dumped), and IC 6-1.1-22-13 (liability for back property taxes)] * * *

KLR presents the following consolidated, restated issues for review:
1. Did the trial court err in excluding expert testimony regarding whether the Wax Museum & Auto Sales and Clean Car caused or contributed to the contamination at the Site?
2. Did the trial court err in entering summary judgment against KLR on its common-law claims?
3. Did the trial court err in dismissing KLR’s complaint pursuant to Trial Rule 41(B) on grounds that KLR failed to present sufficient evidence to show Spicklemire caused or contributed to chlorinated solvent and petroleum hydrocarbon contamination of the Site?
We affirm.

In Paul D. Woodcox v. State of Indiana, a 9-page opinion, Judge Riley concludes:
In the present case, Woodcox was adjudged guilty of a Class A felony—which merits a fifty-year sentence, but the entry of judgment mistakenly refers to a Class B felony. Thus, it is an error of form rather than substance. If we were to hold that Indiana Code section 35-38-1-15 requires correction of Woodcox’s sentence when the error is in the entry of the judgment of conviction, Woodcox would receive a sentencing windfall based on a clerical error—i.e., he would get the benefit of a Class B felony sentence on a Class A felony conviction. The interests of justice demand that he serve the sentence for the Class A felony that he committed. Therefore, we find the appropriate remedy is to remand with instructions for the trial court to make a nunc pro tunc correction of the clerical error contained in both the sentencing judgment and the abstract of judgment to accurately reflect that Woodcox was convicted of Class A felony rape, for which he was properly sentenced.

Based on the foregoing, we conclude that the trial court did not err in denying Woodcox’s Motion to Correct Erroneous Sentence. We affirm his fifty-year sentence, enhanced by thirty years, for Class A felony rape. However, we must remand with instructions for the trial court to correct the sentencing judgment (judgment of conviction) and the abstract of judgment to reflect that Woodcox was convicted of rape as a Class A felony.

NFP civil decisions today (3):

Boris Mudd v. Jason Johnson (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of J.M., Mother, and C.W., Child, J.M. v. Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: Br.S & B.S. and E.S. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (6):

Leona Rae Hawk v. State of Indiana (mem. dec.)

James E. Manley v. State of Indiana (mem. dec.)

Rex A. Shannon v. State of Indiana (mem. dec.)

Stephen A. Jones v. State of Indiana (mem. dec.)

Joshua Donica v. State of Indiana (mem. dec.)

Bradley S. Stock v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, April 14, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Senate limits high-fenced hunting to existing facilities"

That is the headline to Niki Kelly's story today in the Fort Wayne Journal Gazette. A quote:

But [Senator] Glick said repeatedly the bill allows the license to be sold or transferred but limits it to four preserves at all times.

The legislation has bounced back and forth this session between expanding the industry to anyone versus grandfathering it to existing preserves only.

House Bill 1453 adds guidelines to the facilities, including a minimum of 100 acres; a 10-foot-tall fence [ILB- actually it is now 8 foot] and special hunting licenses. Also, the preserves could only use deer born and raised in Indiana for hunting purposes.

Another key provision is the state will no longer be on the hook financially for any disease outbreaks at a high-fenced hunting facility.

Ryan Sabalow's long IndyStar story reports in part:
Sen. Susan Glick, R-LaGrange, added amendments to House Bill 1453 that cut out a provision that would have allowed any fenced hunting preserve larger than 160 acres to open.

Instead, the amended bill would allow only the four hunting preserves now operating in Indiana to stay in business.

Glick's amendment also adds the threat of a Level 6 felony charge if a preserve owner is caught deliberately violating the regulations set forth in the bill.

The amendment does offer some concessions to Indiana's captive-deer industry. It would allow current owners to sell or move to a new location as long as the hunting area is at least 100 acres, and it would reduce the fence height requirements for a preserve from 10 feet to 8 feet.

Under the current version of the bill, owners of Indiana's fenced hunting preserves would be forbidden from selling a deer for a hunt within 24 hours of it being sedated, and only animals born and raised on Indiana deer farms could be hunted.

The bill also includes a provision that says Indiana taxpayers wouldn't have to pay a preserve owner if state officials kill his or her deer in the event of a disease outbreak.

The bill also would set record-keeping requirements and some hunting ground rules, would forbid owners from releasing animals into the wild and would require owners to report escapes into the wild within 24 hours.

Even with the additional regulations, it's still not what opponents of the industry want: a complete ban on what they disparagingly call "canned hunting."

"There are issues you aren't able to compromise on, and this is one of them," said Jeff Wells, president of the Indiana Conservation Officer Organization.

ILB: So, the current, April 14th version of the bill allows hunting preserve licenses to be issued to anyone who owned and operated a preserve in 2014. Reportedly, there are four such entities. They would be eligible for transferable, assignable licenses which could be sold or leased and which would exist in perpetuity.

Posted by Marcia Oddi on Tuesday, April 14, 2015
Posted to Indiana Government

Ind. Gov't. - "Which of those two stories — RFRA or Ritz — will have the longest legs by November 2016, when voters get their next crack at state lawmakers and a supermajority Republican House and Senate?"

That question is asked today by Dave Bangert in his Lafayette Journal & Courier column, headed "RFRA to Ritz, the next perception fight: Statehouse Republicans missed how the Religious Freedom Restoration Act would be perceived. Will they miss things again as they finalize plans to marginalize Glenda Ritz?" It begins:

In a state still licking its wounds from 15 brutal minutes in the national spotlight, the Religious Freedom Restoration Act remains the gift that keeps on giving.

A week after a Senate committee set aside $1 million in the state budget for some damage control, the Indiana Economic Development Corp. hired Porter Novelli, a New York-based firm, to lead “ongoing public relations initiatives” to help brand Indiana “as a welcoming place to live, visit and do business.”

In other words, come up with a plan to explain away the perception that the Religious Freedom Restoration Act cleared the deck for blatant discrimination of gays and lesbians — no matter how innocent the law was intended by lawmakers, totally blindsided by the blowback.

But as the ILB tweeted this morning:
Perhaps a more direct and effective approach to improve our image would be to broaden our civil rights law.

Posted by Marcia Oddi on Tuesday, April 14, 2015
Posted to Indiana Government

Ind. Gov't. - Changing the rules after the horse is out of the barn?

Yes, a mixed metaphor.

In Wisconsin the voters passed a constitutional amendment to change the way a chief justice is selected. The current chief justice holds her position because of tenure - she is the most senior member. The constitutional amendment says that the chief justice shall be selected by her peers. The question is whether the amendment goes into operation immediately, impacting the term of the current chief justice; its language does not address the issue of retroactivity.

But we have equally interesting questions here in Indiana. This is what has my attention:

Posted by Marcia Oddi on Tuesday, April 14, 2015
Posted to Indiana Government

Monday, April 13, 2015

Ind. Decisions - CJ Vaidik harshly criticizes attorney for citing a NFP

Earlier this month a reader called the ILB's attention to this footnote in a March 31st NFP decision by Chief Judge Vaidik. The language appears on the last page of the decisions, as footnote 3:

We note that SVT relies in part on an unpublished memorandum opinion in support of its argument. This is contrary to Indiana Appellate Rule 65, which provides: “[A] memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.” See Ind. App. R. 65(D). A court-rule violation of this nature significantly undermines our confidence in counsel’s credibility.
This is consistent with CJ Vaidik's position from an oral argument, quoted in this Sept. 10, 2014 ILB post headed "Ind. Courts - NFP Decisions Cannot Be Cited — Or Can They?" From the earlier post:
CJ Vaidik: You're aware of the fact that you can't cite nonpublished opinions, aren't you?

Attorney: I am aware that some judges accept them and some don't.

CJ: No. The rules provides that you are not to cite not for publication opinions and you have done so in this case and there's not some judges that accept them and some judges don't. The rules are the rules. So I wonder, as I look through your brief, what rules you have chosen to follow and what rules you haven't.

Attorney: [apologizes and offers to withdraw the case cited]

CJ: I'll tell you right now, as far as I'm concerned it is cut out of the brief and no one is considering it.

Posted by Marcia Oddi on Monday, April 13, 2015
Posted to Indiana Decisions

Ind. Gov't. - Senate bill directs a look at the Tax Court backlog

A reader has pointed the ILB to SB 423, a bill on property tax issues, currently eligible for Senate concurrence. See the language in SECTION 8, p. 15 of the April 3rd printing, which has been a part of the bill since its introduction by Sen. Kenley:

SECTION 8. IC 33-38-9-11 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]: Sec. 11. (a) This section applies after December 31, 2015, and before January 1, 2017.

(b) The Indiana judicial center shall review the workload and backlog of cases in the Indiana tax court and submit a report to the legislative council based on the center's review by December 1, 2016. The report must contain the following information:
(1) A review and analysis of the methods and procedures for case disposition in the Indiana tax court, including:
(A) findings concerning efficiencies of the methods and procedures in the Indiana tax court; and
(B) recommendations (if any) for necessary improvement of case dispositions in the Indiana tax court.
(2) Consideration of any reports and recommendations concerning the Indiana tax court prepared and published by the division of court administration under IC 33-24-6-3.

(c) The tax court judge and tax court personnel under IC 33-26-4-2 shall furnish to the Indiana judicial center or the center's employees all requested tax court information necessary for purposes of this section and that is not otherwise confidential.

(d) The Indiana judicial center may employ contract services for purposes of this section.

(e) The report submitted to the legislative council must be in an electronic format under IC 5-14-6.

ILB: On Sept. 14, 2014, the ILB had a lengthy post headed "Ind. Courts - A look at the Indiana Tax Court." An update followed on Nov. 18, 2014.

The ILB has heard some talk that the Tax Court is part of the business court mix that the Chief Justice is working on.

(Some readers may recall that in 2013 the General Assembly enacted IC 33-23-17, creating the Judicial Technology Oversight Committee (JTOC), with a sweeping charge - see this March 19, 2915 ILB post. Nothing that the JTOC has done has ever been released to the public. SB 423, however, requires that a written report be submitted to the legislative council.)

Posted by Marcia Oddi on Monday, April 13, 2015
Posted to Indiana Government

Ind. Gov't. - Some bills the ILB is following this afternoon

Both houses covnene at 1:30. Some bills the ILB is following this afternoon:

All are on 2nd reading today.

Posted by Marcia Oddi on Monday, April 13, 2015
Posted to Indiana Government

Environment - "Porter County residential, agriculture interests clash over proposed pig facility"

That is the headline from a long story in the NWI Times reported by Bob Kasarda. Some quotes:

VALPARAISO | Residential and agricultural interests are clashing over a request for Porter County to rezone 40 acres in Morgan Township to allow for a confined feeding operation designed to raise 5,600 pigs at a time.

Robert Sands, who has been farming in the area for 20 years, said the proposal will allow him to diversify his business and create a new opportunity for his 23-year-old son, Brandon.

"This is my family farm," he said.

But opponents, such as Rebecca Tomerlin, who started an online change.org petition that had generated more than 2,000 signatures by the end of the week, sees the proposed feeding operation as a threat.

She fears real estate values in the area and infrastructure, such as the roads, will suffer, along with groundwater quality. Tomerlin is also concerned about the quality of life for the pigs raised in the confined conditions, but realizes that is not likely an issue the Porter County Plan Commission can consider when it takes up the rezoning request May 27.

"There's nothing wrong with farming," she said. "It's one thing to live next a cornfield, (but) another to live next to a CAFO (concentrated animal feeding operation) for hogs."

Robert Sands declined comment on the concerns, saying he has hired an engineering firm to address all those issues during the May 27 county meeting.

Robert and Tammy Sands have asked the plan commission to change the zoning of the 40-acre site at 181 S. Smoke Road from general agriculture to a high impact use district. The proposed use will also need approval of a special exception from the Porter County Board of Zoning Appeals.

As with many similar operations, the family will not own the pigs, the pigs will be the property of a business group; the family will simply tend to them. The story does not go into the financial terms of the related extensive and expensive construction:
The proposal calls for the construction of two 101-by-10-by-245-feet "wean-to-finish pig buildings," according to the application. The buildings will have self-contained, below-building concrete manure storage areas and mechanical ventilation.

Brandon Sands, a student at Ivy Tech's agriculture program, said he was the one to initiate the new pig operation after meeting with representatives of Belstra Group Farms of DeMotte during a career fair.

"It's always been a dream of mine to get back into livestock," he said.

The proposed business deal calls for Belstra to provide and own the pigs, with the Sands family "growing" the animals at its new facilities. * * *

Porter County Plan Commission Executive Director Bob Thompson has said the proposed operation would be the largest of its type in Porter County.

The new high impact zoning sought for the site would also allow for other uses, such as an asphalt plant, amusement park, race track, incinerator, junk yard and prison, unless specifically limited by county officials, he has said.

In other words, the zoning would need to be changed from an agricultural to an industrial designation.

Here is an earlier, April 7th story, by Amy Lavalley of the Gary Post-Tribune. A few quotes:

The concentrated animal feeding operation, or CAFO, is up for a hearing at the plan commission's May 27 meeting. The proposal requires a land rezoning from general agriculture to high impact use because it needs a permit from the Indiana Department of Environmental Management.

"These are Valparaiso residents. They are homeowners, and they are not happy about their property values going down or the roads being torn up," Tomerlin said, adding that there are also worries that if the rezoning is approved, there would be nothing to stop the hog operation from growing even larger.

Posted by Marcia Oddi on Monday, April 13, 2015
Posted to Environment | Indiana Government

Environment - "Bat-Preservation Rules Rile Industry"

From the April 7th $$ WSJ, a story by Kris Maher - a few quotes:

A recent federal decision to list the northern long-eared bat as a threatened species has come under fire from industry groups, which say new regulations will raise costs for businesses in more than two dozen states without addressing the disease that is decimating the flying mammals.

Millions of bats in the Northeast have died from white-nose syndrome since 2006, when the fungus that causes the condition was discovered in a cave in upstate New York. In some areas, 99% of the bat population has been wiped out, raising alarms since bats keep a check on mosquitoes as well as insect pests that damage crops.

The fungus has been detected in 28 of the 37 states inhabited by the northern long-eared bat, one of seven species affected by the syndrome and the first to be listed as threatened.

The U.S. Fish and Wildlife Service issued regulations Thursday that prohibit harming northern long-eared bats or cutting down trees where they roost, except under certain conditions. The agency exempted some forest-management practices and timber harvesting as long as they occur more than a quarter mile from caves where bats hibernate or trees where they roost.

The story includes a map; counties in southern Indiana are impacted.

Posted by Marcia Oddi on Monday, April 13, 2015
Posted to Environment

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

For publication opinions today (1):

In Israel Munoz v. Jerome Woroszylo,an 11-page opinion, Judge Bailey writes:

After a car accident, Israel Munoz (“Munoz”), an Indiana resident, was sued by Jerome Woroszylo (“Woroszylo”), an Illinois resident, in a federal court in Illinois. Woroszylo filed his case in the federal court shortly before the limitations period for a suit expired. Concluding that it lacked personal jurisdiction over Munoz, the federal court in Illinois dismissed Woroszylo’s action.

Woroszylo subsequently filed suit in Tippecanoe County, relying upon the Journey’s Account Statute to preserve his action. Munoz moved to dismiss, contending that the statute did not operate to preserve Woroszylo’s claim. The trial court denied Munoz’s motion to dismiss. Munoz sought leave to pursue a discretionary interlocutory appeal of the trial court’s order; we granted Munoz’s motion. * * *

The [Journey’s Account] Statute is a legislative enactment that takes the place of common law remedies intended to permit lawsuits to continue after dismissals on technical grounds. * * *

Woroszylo’s decision to file suit in the Northern District of Indiana was bad judgment. Bad judgment is not, however, bad faith. Id. Indeed, we note that while the federal court had discretionary authority to decline Woroszylo’s request that his case be transferred into the U.S. District Court for the Northern District of Indiana, see 28 U.S.C. § 1404(a), if Woroszylo had brought suit in an improper venue in an Indiana state court, transfer to an Indiana court with proper venue would have been mandatory under Indiana’s venue rules. See T.R. 75(B). This reflects Indiana courts’ general preference for deciding cases on their merits and for avoiding the construction of procedural obstacles to the presentation of such cases. Lindsey v. De Groot Dairy LLC, 867 N.E.2d 602, 606 (Ind. Ct. App. 2007), trans. denied. Indeed, the very same policy is served by the Journey’s Account Statute.

For all the foregoing reasons, we find no reversible error in the trial court’s denial of Munoz’s motion to dismiss. Affirmed.

NFP civil decisions today (2):

Jack Weichman; Medical Management and Data Services, Inc.; and Weichman and Associates, P.C. v. Domenico Lazzaro, M.D.; Joseph Pabon, M.D.; et al. (mem. dec.)

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

NFP criminal decisions today (4):

Sheba Sorrells v. State of Indiana (mem. dec.)

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

Titus S. Dunn v. State of Indiana (mem. dec.)

Myron B. James v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, April 13, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending April 10, 2015

Here is the Clerk's transfer list for the week ending Friday, April 10, 2015. It is one page (and 11 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, April 13, 2015
Posted to Indiana Transfer Lists

Ind. Courts - Highlights of the Court of Appeals 2014 Annual Report

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

The Court of Appeals 2014 annual report is available online, issued at some point in the past few days or weeks without a press release. Appellate lawyers and those who follow the appellate courts will find much of interest in the eleven-page report, and I’ve included below some highlights similar to those I noted in recent years.

The most surprising statistic in the report is the average age of pending cases. Some of the judges will often note they are the fastest intermediate appellate court in the nation, and annual reports for the past several years included the age of pending cases at just one month. At the end of 2014, however, the average age of pending cases had increased 50%:

Average Age of Cases Pending
12/31/2014 1.5 months
12/31/2013 1.0 months
12/31/2012 1.0 months
12/31/2011 1.2 months
12/31/2010 1.1 months
12/31/2009 1.0 months
12/31/2008 1.1 months

Beyond that statistic, most of the 2014 report looked similar to those issued in recent years.

The number of majority opinions rebounded a bit from recent years, as shown in the following table:

Indiana Court of Appeals Majority Opinions, 2008 - 2014
Year Criminal/PCR Civil Expedited/Other Total
2014 1257 574 315 2146
2013 1232 557 269 2058
2012 1271 594 278 2143
2011 1408 654 335 2397
2010 1411 610 583 2375
2009 1613 583 373 2569
2008 1700 716 323 2739

The number of majority opinions written by each judge again varied considerably, from 101 (written by Judge Pyle, who also had the fewest last year with 91 opinions) to 156 (by Judge Baker, who reclaimed top honors from Judge Crone, who was second this year at 149). The average among the fifteen judges was 135 opinions (up from 130 last year). (Six senior judges collectively wrote 125 opinions for the court.) As mentioned in last year’s post, these numbers are much lower than during the higher caseload years when Judge Baker would often top the list with numbers like 313 (2007) or 242 (2008).

Again this year, the vast majority of opinions were unanimous. The fifteen judges penned an average of only 5.5 dissenting opinions (83 total, up from 72 last year). Judge Pyle again authored zero dissenting opinions, the only member of the Court to hold that distinction this year. Topping the list of dissenters were Judge Riley (16) and Judge Baker (10), who wrote the same number of dissents as last year, and who were joined this year by Judge Robb (10) as the only other judge in double digits.

The Court of Appeals published an average of 24% of its opinions, again with wide variations among judges. As in 2013, the same three judges again published more than 30% of their opinions: Judges Brown (32.6%), May (34.1%), and Pyle (39.6%). At the other end of the spectrum, the same three judges again, as in 2013, published less than 17%: Judges Friedlander (11.1%), Kirsch (12.0%), and Bailey (16.3%). Judges Friedlander and Kirsch also published the lowest percentage of their opinions in 2012.

The court heard slightly fewer arguments (69) in 2014 than in recent years. Excluding senior judges, most judges were near the average of 13, except for Judge Brown (4), who was again at the low end, and Judges Baker (22), Bradford (21), and Robb (25) on the high end. As explained in this post, the court denies more requests for oral argument than its grants. It denied 77 requests in 2014, and many of the 69 arguments were scheduled without a request from counsel. The odds of oral argument is a meager 3.2%.

Similar to last year, the court granted 38% (70) of the 186 petitions for permissive interlocutory appeals filed in 2014.

Finally, the court received a petition for rehearing in about 10% (218) of its decided cases. It granted fewer than 11% (23) of those petitions, which is down considerably from 16% (42) last year.

Posted by Marcia Oddi on Monday, April 13, 2015
Posted to Schumm - Commentary

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

From Sunday, April 13, 2015:

From Saturday, April 12, 2015:

Posted by Marcia Oddi on Monday, April 13, 2015
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/13/15):

Next week's oral arguments before the Supreme Court (week of 4/20/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/13/15):

Monday, April 13

Tuesday, April 14

Thursday, April 16

Next week's oral arguments before the Court of Appeals (week of 4/20/15):

Monday, April 20

Friday, April 24

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, April 13, 2015
Posted to Upcoming Oral Arguments

Sunday, April 12, 2015

Ind. Gov't. - More on the Indiana Dunes Pavilion improvement project

Updating a now long list of earlier ILB posts on the Indiana Dunes State Park and particularly the Pavilion project, here is an April 7th story from the NWI Times headed "Indiana Dunes State Park named one of nation's best," and a Gary Post-Tribune story, also from April 7th, headed "Dunes gets spot on national top 10 parks list."

On the same day, however, the NWI Times reported "Save the Dunes opposes pavilion, expansion project." Some quotes:

MICHIGAN CITY | Save the Dunes announced Tuesday its opposition to the Indiana Dunes State Park pavilion and expansion project and calls for the halt the project to gather more public input.

Members of Save the Dunes, an environmental group dedicated to preserving the Indiana Dunes, attended Monday's open house held by the DNR and Pavilion Partners LLC, and said it was disappointed with the lack of authentic stakeholder engagement at the meeting.

The group said it believes the DNR and Pavilion Partners LLC have missed an opportunity to involve the public in the re-imagining of the beachfront structure.

Save the Dunes said it opposes the project due to what it says is a lack of transparency and stakeholder input. It asks the DNR and Pavilion Partners stop the project and set meetings to discuss details rather than rushing through a project "that clearly does not have broad public support at this time. * * *

The organization said the DNR should have held public meetings months ago, after receiving proposals and before signing a contract. It said the open house was crowded and there was no opportunity for meaningful conversation. Save the Dunes believes this has been a flawed process and has resulted in a flawed plan.

"I think it was clear looking at the crowd that was there last night they haven't achieved as much public input as they need and that's really all we're asking to do is to slow down," Barker said.

Barker said they are concerned about design of the banquet center, which is being built next to the pavilion, and also want to know more about green building aspects, light pollution and the prevention of bird collisions. She said the group is also concerned with the type of activities that may occur once the banquet center is built next to the pavilion and whether people will be "running up and down the dunes and causing erosion."

"We really want to be a part of a dialog because it's so much more than just a building," she said. "The public has so much interest in this property."

The story includes a copy of the only photo the ILB has seen of the proposed banquet center, intended to adjoin the historic pavilion.

A long April 3rd story in the Chicago Tribune headed "Funding, experience handcuffed other pavilion bidder," reports:

While state officials with the Indiana Department of Natural Resources said 18 groups asked for the specs on the pavilion renovation, only two – Dunes Pavilion Renaissance and Pavilion Partners, LLC – turned in proposals. With plans to build an adjacent banquet and conference facility, Pavilion Partners won the project.

"The one thing that really stuck out in my mind was that Mr. (Chuck) Williams had done this before with a historic building in Valparaiso," said Dan Bortner, director of the division of parks and reservoirs with the Indiana Department of Natural Resources, referring to the Valparaiso businessman who is one of the key players in Pavilion Partners.

This Apil 6th Tribune story is headed "Dunes pavilion plan gets public viewing." A quote:
"My main concern is the lack of transparency with this," Desi Robertson said, holding a petition against the banquet facility. "The fact that none of us knew this was coming is outrageous."

Though she supports plans to renovate the pavilion, she called the planned 30,000-square-foot banquet and conference center planned adjacent to and east of the pavilion a "big, shiny eyesore."

"I think the dunes are pretty as they are," she said, adding the structure's glass could confuse migrating birds, and it's being built on public space. "It shouldn't be for private profit."

The Porter County chapter of the Izaak Walton League has raised similar concerns about opening a public beach up for private profit.

In a media briefing before the open house, representatives from the Indiana Department of Natural Resources and Pavilion Partners LLC, which is handling the project, answered questions about the perceived secrecy around the plans and said they hoped the event would educate the public about the planned structure.

Renovation work on the interior of the pavilion started in February. * * *

The DNR has similar public-private partnerships for marinas at its reservoirs and for hotels at two state parks, Bortner said, adding 70 percent of the department's budget comes from user fees, with the remainder from the legislature, and the state is always looking for ways to increase revenue and decrease its reliance on state funds.

Ellen Adams, of Jackson Township, was trying to fight the crowd to get to display tables and have her questions answered.

"I'm concerned about why it was so secretive and the impact it's going to have on the beach," she said. She also was concerned about access to the park in heavy traffic when events are held at the banquet facility. "It's hard enough in the summer to get in."

An April 10th Tribune story is headed "2nd Dunes pavilion meeting Wednesday."

[More] The Chesterton Tribune (Chesterton is "The Gateway to the Dunes" and the ILB's home town) has an April 10th story announcing "DNR sets public meeting on Dunes State Park pavilion project Wednesday, April 15 at Chesterton Middle School." The story includes links to earlier Chesterton Tribune news stories. See especially these April 7th stories from Luke Nevers, which are the most probing the ILB has seen so far. (This is the second of them.)

Posted by Marcia Oddi on Sunday, April 12, 2015
Posted to Environment | Indiana Government

Courts - "The Case Against Gay Marriage: Top Law Firms Won’t Touch It"

From Adam Liptak's law column this weekend in the NY Times:

WASHINGTON — The stacks of Supreme Court briefs filed on both sides of the same-sex marriage cases to be heard this month are roughly the same height. But they are nonetheless lopsided: There are no major law firms urging the justices to rule against gay marriage.

Leading law firms are willing to represent tobacco companies accused of lying about their deadly products, factories that spew pollution, and corporations said to be complicit in torture and murder abroad. But standing up for traditional marriage has turned out to be too much for the elite bar. The arguments have been left to members of lower-profile firms.

In dozens of interviews, lawyers and law professors said the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.

“Firms are trying to recruit the best talent from the best law schools,” said Dale Carpenter, a law professor at the University of Minnesota, “and the overwhelming majority of them want to work in a community of respect and diversity.”

ILB: Readers will recall this April 7th post "AG Zoeller will not file amicus brief in historic SSM case now pending before SCOTUS", that concluded with a note on Attorney General Zoeller's past participation, as lead author of anti-gay marriage amicus curie briefs, in numerous same sex marriage challenges across the county where the State of Indiana was not a party.

Posted by Marcia Oddi on Sunday, April 12, 2015
Posted to Courts in general

Ind. Gov't. - "OWI or reckless driving charge? It may depend on county where you're caught"

NWI Times reporter Ed Bierschenk analyzed drunken driving convictions in Lake, Porter and LaPorte counties for 2014. A three-day special report lays out his findings.

Today's story begins:
The majority of operating while intoxicated cases filed in Lake County courts in 2014 have been reduced to reckless driving, according to an analysis conducted by The Times.

The numbers are far different in Porter County, where only a handful of operating while intoxicated cases were reduced to a lesser charge.

Drunken driving goes by different terms, including driving under the influence. Indiana, like Wisconsin, uses the term operating while intoxicated, called OWI.

For years, Lake County has been known as a place where drunken driving cases are routinely pleaded down to reckless driving charges. The practice, opposed by organizations such as Mothers Against Drunk Driving, is still seen by Lake County prosecutors as a reasonable way to move a case through a crowded court system over the years.

Lake County Prosecutor Bernard Carter said the plea deals to reckless driving still resulted in convictions of these people for a serious traffic offense. He said if his office did not reduce most drunken driving cases to reckless driving charges, the county would see a large-scale dismissal of cases -- at least in the short term.

Lake County prosecutors, like those in other counties, don't often go to trial on the cases. Still, in Porter and LaPorte counties, the charges are rarely reduced.

The Times recently reviewed 2014 operating-while-intoxicated cases in Lake, Porter and LaPorte counties, and a number of those cases still need to be resolved. In Porter and LaPorte counties, the statistics include boating under the influence and driving under the influence of alcohol and/or drugs; Lake County's number only includes county courts and not some city and town courts.

Posted by Marcia Oddi on Sunday, April 12, 2015
Posted to Indiana Government

Friday, April 10, 2015

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 5 NFP memorandum decisions)

For publication opinions today (3):

In M. Shane Faulkinbury, by his next friends/guardians John M. Faulkinbury and Olivia J. Faulkinbury v. Michael Broshears and BAM Outdoor, Inc., a 21-page opinion, Judge Kirsch writes:

On appeal, Guardians contend that the newly discovered evidence creates a genuine issue of material fact that precludes a grant of summary judgment in favor of BAM as to both the tort claim and the counterclaim. Additionally, this newly discovered evidence shows that Guardians’ tort claim was not frivolous, and as such, the trial court erred in granting attorney fees to BAM upon such a finding. For this reason, Guardians argue that the trial court erred in denying their motion to correct error pursuant to Trial Rule 59(A)(1), in which they prayed for the trial court to vacate its orders in favor of BAM. Appellant’s App. at 27. We need only address one dispositive issue, whether the trial court erred in denying Guardians’ Trial Rule 59(A)(1) motion to correct error on the basis of newly discovered evidence. * * *

BAM contends that under our Supreme Court’s reasoning in Mitchell, the trial court was precluded from looking at Guardians’ three affidavits containing the newly discovered evidence. We disagree. * * *

In the absence of the trial court having made a determination that Shane is incompetent to testify, Shane’s affidavit is uncontested and worthy of credit, and at trial, he will have the opportunity to testify as to his version of the events. The factfinder will have the opportunity to weigh the evidence and judge Shane’s credibility. In light of this newly discovered evidence, we believe that Shane should have his day in court. Considering the above factors, we find that the trial court abused its discretion in denying Guardians’ motion to correct error. Reversed and remanded.

In Johnathon I. Carter v. State of Indiana , a 27-page opinion, Judge Kirsch writes:
Following a jury trial, Johnathon I. Carter was convicted of three counts of Class A felony child molesting2 and two counts of Class C felony child molesting. He raises four issues on appeal that we restate as:

I. Whether the manner in which the jury was instructed concerning the requirement of jury unanimity constituted fundamental error;
II. Whether the trial court abused its discretion in admitting certain expert testimony;
III. Whether the State presented sufficient evidence to convict Carter;
IV. Whether Carter’s ninety-eight-year sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm the convictions, revise the sentence, and remand with instructions.

In Jeremy Middleton v. State of Indiana , a 6-page opinion, Judge May writes:
Jeremy Middleton challenges the sufficiency of evidence support his conviction of Class D felony theft. We reverse. * * *

Middleton’s charging information pertaining to the theft stated:

On September 19, 2013, in Clark County, State of Indiana, JEREMY LEE MIDDLETON did knowingly or intentionally exert unauthorized control over a range-finder of Rural King, with intent to deprive Rural King of any part of its value or use.
As to this charge, the testimony of Mundy that was offered for the truth of the matter asserted was that she followed Middleton through the store; she saw him cutting on a security device, but she could not see the product he was attempting to extricate; and she followed him outside. The testimony of Burdin and Watkins that was admitted for the truth of the matter asserted related only to Middleton’s actions after leaving the store.

With the removal of the hearsay testimony, which the jury was admonished was “not . . . offer[ed] . . . for the truth of the matter asserted, simply, so the Jury can understand what she did,” and “not saying anything for the truth of the matter asserted,” the evidence presented against Middleton as to the charge of theft amounts to Mundy’s statements that she followed him, she saw him using a knife on a security device, and he left the store. Although Mundy saw Middleton using a knife on something, she was unable to identify the product. No other evidence was presented to prove Middleton took a range-finder. That is not sufficient evidence from which a reasonable jury could infer Middleton knowingly or intentionally exerted unauthorized control over a range-finder. * * *

The evidence was insufficient to support Middleton’s conviction of Class D felony theft; therefore, we reverse.

NFP civil decisions today (4):

In re the Matter of: B.S., D.S. v. K.S. and M.S. (mem. dec.)

Victoriano Medina-Noralez v. Sally Medina (mem. dec.)

Moussa Dahab v. Massadjitte Abdelkerim (mem. dec.)

In Re the Marriage of: J.D.S. v. B.S. (mem. dec.)

NFP criminal decisions today (1):

Malcolm M. Pettis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, April 10, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court opinion filed April 9th, re placing documents under seal

In ESPN Productions, Inc. v. Indiana Department of State Revenue, a 10-page opinion, Judge Wentworth writes:

ESPN Productions, Inc. has requested the Court to place certain documents within the judicial record under seal so they cannot be accessed by the general public. Being duly advised in the matter, the Court grants that request in part and denies it in part. * * *

CONCLUSION. The tax returns, Production Services Agreement, and Cable Television License Agreements submitted by ESPN Productions as designated evidence in support of its motion for summary judgment are protected from public disclosure under both APRA and Administrative Rule 9(G)(2). That protection does not extend, however, to ESPN Productions’ Supplement to Protest.

Accordingly, the Clerk of the Tax Court is ORDERED to return any green copies of the Supplement to Protest (Pet’r Des’g Evid., App. B., Ex. 14) to ESPN Productions. ESPN Productions may, if it so chooses, resubmit the Supplement to Protest as a public access document.

Posted by Marcia Oddi on Friday, April 10, 2015
Posted to Ind. Tax Ct. Decisions

Courts - "Some 'Teachable' 1st Amendment Moments in the SCOTUS Oral Argument About Confederate Flags on Texas License Plates"

This is a valuable article by constitutional scholar Vikram David Amar today in Verdict. He begins:

In today’s column, I analyze the Supreme Court oral argument held a few weeks ago in Walker v. Texas Division, Sons of Confederate Veterans, a case involving the First Amendment and Texas’s regulation of license plates. Motor vehicles registered in the State of Texas must display a state-sanctioned license plate. Most vehicles use a standard-issue Texas plate that has a simple no-frills design and displays a random series of letters and numbers. Texas, like many other states, also permits individuals to submit personalized, or vanity, plates in which the numbers and letters on the plate form a message (such as “HOTSTUFF,” a hypothetical example Justice Scalia used at oral argument).

In addition, Texas permits what are called “specialty” license plates, in which the overall design of the plate (but not the sequence of numbers and letters), is custom-made and might contain symbols, colors and other visual matter that is more elaborate than the relatively plain design of the standard-issue plates. Specialty designs may be adopted by the Texas legislature or proposed by private individuals or organizations. Specialty plate designs that come from outside the legislature must be approved (as must personalized vanity plates) by the Texas Department of Motor Vehicles Board, and the Board by law “may refuse to create a new specialty license plate if the design might be offensive to any member of the public” (a term that Texas authorities construe as meaning offensive to a significant segment of the public.) At least some specialized designs, once approved, can be used by members of the general public. As of a month ago, there were about 450 specialty designs that had been approved in Texas, around 250 of which are usable by the public. Although the majority of license plates in Texas are the plain-vanilla non-specialty plates, it is not uncommon on the Texas roadways to see license plates that make use of one of the approved specialty designs.

ILB: All that should sound familiar; Indiana has had many issues with license plates. A quick search turned up many posts involving legal disputes about "OINK' plates, Indiana Youth Group plates, "GOD" plates, etc.

Posted by Marcia Oddi on Friday, April 10, 2015
Posted to Courts in general | Indiana Government

Courts - Wisconsin Chief Justice resists efforts to remove her from position as CJ

On Dec. 22, 2014, the ILB quoted from a Milwaukee Journal Sentinel story about upcoming efforts by the Wisconsin legislature to force out Supreme Court Chief Justice Shirley Abrahamson, 81.

Governing reports today in a long story by Patrick Marley that begins:

Voters on Tuesday approved letting state Supreme Court justices choose who will lead them -- a change to a 126-year-old system that is likely to result in the demotion of Chief Justice Shirley Abrahamson.

With 97% of precincts reporting, the proposed amendment to the state constitution had 53% "yes" votes and 47% "no" votes. * * *

Since 1889, the job of chief justice has gone to the most senior member of the Supreme Court. The chief justice serves as the administrative head of the state's judiciary and sets agendas for the high court.

Opponents of the proposed constitutional amendment portrayed it as a proxy fight over Abrahamson, a liberal leading a court controlled by conservatives. Supporters of the measure denied that, saying the measure was aimed at making the court more democratic and the chief justice more accountable to other members of the court. * * *

Wisconsin is one of seven states that determine who is chief justice based on seniority, while 22 others have court members choose, according to the National Center for State Courts. In the remaining states, the chief justice is appointed or directly elected by voters. [ILB: In Indiana, the CJ is selected from the current Court members, every 6 years, by the Judicial Nominating Commission.]

To get the question on the ballot in Wisconsin, Republican lawmakers had to approve the proposal in 2013 and again this year. The decision by voters is binding.

The amendment will allow justices to elect one of the court's seven members to serve as chief justice for a two-year term. It will be left to the court to decide how to conduct the elections. * * *

Legal observers have said a court challenge to the amendment is possible, in part because Abrahamson could lose pay if she were no longer chief justice.

A story, also by Patrick Marley, in the Journal-Sentinel yesterday, reported:
A federal judge declined Thursday to put an immediate halt on an amendment to the state constitution adopted by voters this week that would allow the members of the Wisconsin Supreme Court to choose the chief justice.

The job of chief justice has automatically gone to the most senior member of the Supreme Court for the last 126 years. Chief Justice Shirley Abrahamson and her supporters sued to keep her position as the court's leader on Wednesday, a day after voters approved changing how the chief justice is selected.

She argues the provision can't go into effect until her current term on the court ends in 2019.

U.S. District Judge James Peterson on Thursday denied Abrahamson's motion to issue a temporary restraining order that would keep the amendment from going into place.

In a four-page order, he wrote it was inappropriate to do that without hearing from the defendants in the case, particularly when the measure wouldn't go into effect until after Tuesday's vote is certified on April 29.

In effect, Peterson wrote there was no need to immediately rule on the issue because Abrahamson won't suffer any harm in the short term. He is to hear from all sides on April 21.

"I have made no determination on the merits of the plaintiffs' case," Peterson wrote.

The situation leaves Abrahamson with a chance to try to block the amendment from taking effect while she pursues her case. * * *

Abrahamson — who has been on the court since 1976 and served as chief justice since 1996 — contends in her lawsuit that she should remain chief justice until 2019, when her current term on the court ends.

She was last elected in 2009 and she said there was no reason at the time for voters to think she might not remain chief justice for her full term.

Part of Abrahamson's argument is that she would be deprived of $8,000 in pay a year if she were no longer chief justice. The chief justice makes $155,403 and the other justices make $147,403.

ILB: The CJ's claim may be based on a Wisconsin constitutional provision that is similar to Indiana's Art. 7, sec. 19, which says in essence: Judges shall receive "a compensation which shall not be diminished during their continuance in office."

Posted by Marcia Oddi on Friday, April 10, 2015
Posted to Courts in general

Courts - "The Clooneys dine with Supreme Court Justice Sotomayor"

Page Six story by Emily Smith, with photos! Who could resist?

H/t How Appealing

Posted by Marcia Oddi on Friday, April 10, 2015
Posted to Courts in general

Ind. Courts - More on "ESPN and Notre Dame argue in court about police records"

Updating this ILB post from April 2nd, here is another take on:

... a case to determine if Notre Dame Security Police (NDSP) violated Indiana’s Access to Public Records Act (APRA). The unresolved issue at the crux of the case is whether or not the law considers NDSP a private agency.
The April 9th story here, from the NDSM Observer, is reported by Katie Galioto.

Posted by Marcia Oddi on Friday, April 10, 2015
Posted to Indiana Courts

Ind. Courts - "Prosecutor orders Elkhart Truth reporter to surrender notes and recordings"

Tha is the headline to this story this morning in the Elkhart Truth, reported by Michelle Sokol. Some quotes from the long story:

An Elkhart Truth reporter has been ordered by the Elkhart County Prosecutor’s Office to appear for testimony and surrender interview notes and recordings related to a story she wrote in late March about a felony murder investigation.

Emily Pfund, who covers crime and courts for the newspaper, was issued a subpoena Wednesday, April 8, from Vicki Becker, the chief deputy prosecuting attorney.

The notice, filed in Elkhart Circuit Court, commands Pfund to appear at an upcoming hearing and produce “any and all written notes and/or memorabilia, and audio and/or video recordings ... relating to any contacts with one Freddie Rhodes, or information that has come from Freddie Rhodes or is attributed to have come from Freddie Rhodes.”

The Elkhart Truth will fight the subpoena. * * *

Rhodes, 19, was charged with felony murder in September 2014 after an alleged attempted drug robbery in which 18-year-old Dre Tarrious Rodgers was shot and killed. Rhodes, who is not being accused of pulling the trigger, was arrested about two hours after Rodgers died.

Part of the evidence prosecutors used to formally accuse Rhodes came from his statements the night of his arrest, according to court documents.

Those statements were the focus of an article by Pfund published March 22. In an interview at the Elkhart County Jail, Rhodes shared his account of the night of his arrest with Pfund. Pfund also interviewed Rhodes’ mother, Wanda Malone-Shorter, about the arrest. * * *

The hearing to suppress that evidence is scheduled for Monday, April 13. It’s the same hearing where Pfund has been commanded to appear and hand over notes and recordings.

The act of subpoenaing reporters is rare in Indiana, said Steve Key, executive director and general counsel for the Hoosier State Press Association.

The Indiana law granting journalist’s privilege, or shield law, is strong and protects reporters from being forced to reveal information about their sources, Key said.

The law states reporters “shall not be compelled to disclose in any legal proceedings or elsewhere the source of any information procured or obtained in the course of the person’s employment or representation of a newspaper.”

Posted by Marcia Oddi on Friday, April 10, 2015
Posted to Indiana Courts

Thursday, April 09, 2015

Ind. Gov't. - "The ACLU of Indiana's Next Steps on RFRA"

Jane Henegar, Executive Director, has put out this news release today. Some quotes:

What a difference a week makes. Last week, we and others were engaged in negotiations to "fix" Indiana's just-passed Religious Freedom Restoration Act, or RFRA. Today, we can say that while the situation in our state is far from perfect, we ended up in a place that is both historic and significant. * * *

For the first time in our history, Indiana now recognizes protections based on sexual orientation and Jane Henegar webJane Henegargender identity — even if they currently exist in only a few local human rights ordinances. And the passage of RFRA here, and the resulting backlash, has brought about a startling transformation that has advanced the cause of LGBT equality all across the country. This tipping point has helped defeat similar proposals in Georgia and Nevada, pared back the legislation in Arkansas, and dimmed prospects for passage of RFRAs in North Carolina and Michigan. Further, it has opened up the door for introducing LGBT non-discrimination protections not only in Indiana, but in Arizona, Florida, Ohio and Pennsylvania.

Though we have made a major step forward, we have more work to do. The ACLU of Indiana, along with our partners, is working diligently to change the status quo for all gay and transgender people in Indiana. We will push for legislation that extends statewide protections against discrimination on the basis of sexual orientation and gender identity — one of the common-sense provisions we requested, but did not receive, in the Fairness for all Hoosiers Act that we proposed last week.

Posted by Marcia Oddi on Thursday, April 09, 2015
Posted to Indiana Government

Ind. Courts - Some traveling COA oral arguments will now be captured on video

From a news release:

INDIANAPOLIS – The Court of Appeals is now recording selected oral arguments conducted at high schools, colleges and other venues for archived viewing on the Court’s oral arguments webpage. Live streaming is not currently available.

The first publicly available recording was conducted Feb. 17 at Wabash College and posted to the court’s website Feb. 18. The next scheduled recording will occur April 16 at the Merrillville Branch, Lake County Public Library, in Merrillville.

The Court routinely webcasts and records oral arguments in its Statehouse courtroom, which is equipped with a sophisticated digital recording system. Until now, however, the Court lacked portable equipment to record Appeals on Wheels arguments, which the Court conducts about 30 times per year across Indiana.

Posted by Marcia Oddi on Thursday, April 09, 2015
Posted to Indiana Courts

Ind. Gov't. - "How local press could have influenced the religious freedom law" Columbia Journalism Review takes on the local press

That is the headline to a story that is roiling the local press, at least in Twitter feeds; it appeared in the Columbia Journalism Review yesterday. The author was Jackie Spinner. Some quotes:

Indeed, both the national media and local press extensively—and sometimes sensationally—covered the possible impact of the law after it was passed. Once it got going, the Indiana media, led by the Indianapolis Star, gauged local reaction, talked to legal experts, and dissected the governor’s claim that law was just like one that exists at the federal level, an erroneous assertion he made repeatedly, including in a piece for the Wall Street Journal. The Star even published a frontpage editorial urging state leaders to fix the law.

But the story was slow to get traction among the Indiana press until it was almost approved, meaning reporters were scrambling to cover backlash on a story happening on home territory. By the time the press did pick up on the story—and the opposition to the law—it was really too late to influence the debate or even to give readers and viewers a clear idea of what the law might do.

“What is disappointing in all of this is that they took this stance after all the business leaders and huge demonstrations,” said Dennis Ryerson, editor of the Star from 2003 to 2012 “They kind of followed the crowd rather than leading the crowd. I wish they would have done it a lot sooner when legislature was considering all this.”

The bigger story of the legislative session in local outlets were cuts in education spending and Pence’s successful effort to remove the state’s school superintendent as head of the Board of Education.

Read the story yourself, there is much of interest.

The ILB has looked back at earlier posts and found that the IndyStar did have an Oct. 6, 2014 story headed "Debate over religious freedom looms ahead," that began:

Although many observers hailed Monday's U.S. Supreme Court decision on gay marriage as a boon for equality, debates and legal battles over religious freedom and discrimination based on sexuality remain simmering in Indiana and nationwide.

Socially conservative advocacy groups such as the American Family Association of Indiana and the Indiana Family Institute now plan to focus lobbying efforts on legislation that would protect religious organizations, nonprofit groups and businesses that deny services to gay couples based on religious grounds. Curt Smith, president of the Indiana Family Institute, said his organization already has spoken with three lawmakers about possibly creating legislation to protect religious liberty in the marketplace.

And the ILB did a compilation of stories with links on Feb. 2, 2015 which is worth checking; it began:
There have been stories about this topic for weeks, but two bills on "religious freedom" have now been set for hearing in committee.
The ILB has a very long list of posts on "RFRA", both before and after it was signed into law by Governor Pence.

It looks to me like the concern about the impact of RFRA was there all along, this bill wasn't overlooked by any means. But it seemed to be on the super-majority fast track, unstoppable, and indeed it was, until after the fact.

There was plenty of news coverage. Look at this post from March 19th, headed "RFRA: 'The lawyers will all get some really sweet lake homes out of this' writes one columnist." And this post from March 16th, before the House committee hearing on SB 101. Or this post from Feb. 10, quoting a Star story on the initial public hearing on SB 101, in Senate Judiciary.

SB 101 was signed into law by the Governor on March 26, a Thursday. The following day the ILB had this post titled " Indiana's RFRA and the perception of intolerance," (with a number of links) that began:

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. * * *

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.]

Posted by Marcia Oddi on Thursday, April 09, 2015
Posted to Indiana Government

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

For publication opinions today (1):

In Terrence Strong v. State of Indiana, a 15-page, 2-1 opinion, Judge Robb writes:

Following a bench trial, Terrence Strong was convicted of operating a vehicle while intoxicated (“OWI”), a Class A misdemeanor, and sentenced to 365 days, all but ninety days suspended to probation. He was also found to have committed the traffic infraction of failing to stop at a stop sign, for which a fine was imposed. Strong did not file a notice of appeal within thirty days of the final judgment in his case, but he was later granted permission to file a belated notice of appeal. Strong now raises the sole issue of whether his traffic infraction and fine must be vacated because he was subjected to double jeopardy in violation of the Indiana Constitution. The State cross-appeals, contending the trial court improperly granted Strong’s motion to file a belated notice of appeal. Concluding the trial court did not abuse its discretion in allowing Strong to file a belated notice of appeal but that Strong was not subject to double jeopardy, we affirm. * * *

For the foregoing reasons, we hold the trial court’s decision to grant Strong permission to file a belated notice of appeal was not an abuse of discretion. We further reject the State’s invitation to dismiss and instead consider Strong’s appeal on its merits. * * *

Strong contends there is a reasonable possibility that evidence of a single act—failure to stop at a stop sign—was used to prove that he committed a traffic infraction and also to establish endangerment supporting the elevation of the OWI offense from a Class C misdemeanor to a Class A misdemeanor. * * *

Thus, Strong’s double jeopardy argument fails because the actual evidence is not the same.

Conclusion, The trial court did not abuse its discretion in granting Strong’s motion(s) to file a belated notice of appeal and Strong properly proceeded under Post-Conviction Rule 2. However, Strong’s OWI conviction and traffic infraction do not constitute the same offense for Indiana double jeopardy purposes, and Strong is therefore not entitled to the relief he seeks. His OWI conviction and sentence and his traffic infraction and fine are affirmed.

Brown, J., concurs.

Bailey, J., dissents with opinion. [which begins, on p. 13] I agree with the State that the Indiana Post-Conviction rules do not entitle Strong to challenge a nominal fine on belated appeal. See Reed v. State, 856 N.E.2d 1189, 1193 (Ind. 2006) (observing that post-conviction proceedings do not afford a petitioner a “super-appeal” and that the post-conviction rules contemplate a narrow remedy for subsequent collateral challenges to convictions). In my view, dismissal is appropriate. I therefore respectfully dissent. * * *

As the majority has observed, the trial court was unaware of the issue upon which the post-conviction petition would proceed. But when presented to this Court, it is clear that the only issue upon which the petitioner can be afforded relief involves a civil infraction. Broadening the post-conviction rules by judicial fiat will foster belated collateral challenges to any infraction, undermine the principle of finality, and increase strain upon limited judicial resources.Court, it is clear that the only issue upon which the petitioner can be afforded relief involves a civil infraction. Broadening the post-conviction rules by judicial fiat will foster belated collateral challenges to any infraction, undermine the principle of finality, and increase strain upon limited judicial resources. Accordingly, I dissent.

NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: A.R. & T.R. and B.R., & A.B. v. The Ind. Dept. of Child Services (mem. dec.)

Lyn Magee v. Brent Welke (mem. dec.)

NFP criminal decisions today (1):

Todd Stewart v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, April 09, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "COA deals setback to $1.2 billion NIPSCO modernization plan"

Yesterday's Court of Appeals ruling in NIPSCO Industrial Group, and, Indiana Office of Utility Consumer Counselor v. Northern Indiana Public Service Company, et al. is the subject of a story today by Keith Benman in the NWI Times. Some quotes:

The Indiana Court of Appeals on Wednesday dealt a setback to NIPSCO's $1.2 billion electric modernization plan, issuing a ruling that could affect similar plans by other utilities.

The court ruled the Indiana Utility Regulatory Commission erred in several respects in its Feb. 17, 2014 orders approving NIPSCO's plan. It affirmed some parts of the IURC's orders, including its interpretation of a 2 percent cap, which is a key victory for the utility.

In addition to authorizing the $1.2 billion in improvements in its February orders, the IURC approved customer charges to pay for them. Those come in the form of yearly rate increases that will total 4.9 percent by 2020, according to NIPSCO estimates. * * *

The IURC's February 2014 order had been challenged by some of NIPSCO's largest industrial customers as well as the Indiana Office of Utility Consumer Counselor.

NIPSCO brought the case for its electric modernization plan before the IURC under legislation passed by the General Assembly in 2013. It was the first utility in the state to do so.

The industrial group challenging the IURC's orders before the Court of Appeals was composed of BP Products North America, Praxair, USG Corp., and ArcelorMittal USA.

"We are pleased with the Court of Appeals decision finding NIPSCO's plan really failed to follow the requirements of the statute," said Jennifer Terry, an attorney with Lewis & Kappes, the law firm representing the industrial group.

Terry said it is possible the industrial group could ask the IURC to order NIPSCO to refund customer charges already collected under the IURC's orders.

The industrial customers have long contended the utility should be more specific about projects it intends to undertake. The court sided with them, ruling the IURC was not provided with enough detail on the projects to approve the special charges to pay for them.

There is more of interest in the story.

Posted by Marcia Oddi on Thursday, April 09, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Still more on bill proposing changes to the 2009 mortgage settlement conference law

Updating this most recent ILB post on SB 415, from March 13th, John Russell of the Indianapolis Star reports today:

A program that has helped thousands of distressed Hoosiers save their houses will remain in place after all.

An Indiana House panel has voted to kill a controversial amendment that would have sharply curtailed the loan-modification program. * * *

The Indiana Mortgage Bankers Association had pushed hard for the amendment, saying Indiana is one of the nation's slowest states in completing foreclosures, or about 610 days on average.

The controversial amendment would have exempted large banks, which account for the vast majority of mortgages issued in Indiana, from complying with the state-required mortgage settlement conferences.

The Mortgage Bankers Association argued that homeowners are already protected by a federal law, the Dodd-Frank Reform and Consumer Protection Act, that went into effect a year after the Indiana program. The bankers said it was pointless, expensive and time-consuming to have two separate laws, one state and one federal, pertaining to consumer rights during foreclosures.

But housing advocates and consumer groups said the federal law did not offer as many protections and did not include court-supervised settlement conferences.

Indiana Attorney General Greg Zoeller pushed hard in recent weeks to kill the controversial amendment and keep the state program, saying homeowners needed the protection. He testified last week before the House Local Government Committee to keep the law intact.

The controversial amendment supported by the bankers was tacked onto Senate Bill 415, a bill that deals with the tax sale process and a registry for vacant and abandoned properties. It sailed through the Senate on a 50-0 vote.

The House Local Government Committee voted April 2 to kill the amendment and keep the state program as is. The bill is likely to be presented to the House in coming days.

Sen. James Merritt, R-Indianapolis, the author of the bill, said he did not fight to keep the controversial amendment and would concur with the House action when the bill returns to the Senate.

Posted by Marcia Oddi on Thursday, April 09, 2015
Posted to Indiana Government

Ind. Gov't. - Proposed Court budget from Senate Appropriations Committee [Updated]

Here, from the digest of Proposed Amendment #43 to HB 1001, is a description of the proposed appropriations to the judicial branch, from the Senate Appropriations Committee this morning. This is not necessarily the final word, after adoption by the Senate, HB 1001 normally goes to Conference Committee.

Provides that a problem solving court that is a veteran's court may assume jurisdiction over a veteran who: (1) meets certain eligibility requirements; and (2) is referred to the problem solving court by a court in another jurisdiction.

Specifies that a court may consider as a mitigating factor that a person convicted of a crime has posttraumatic stress disorder, traumatic brain injury, or a post-concussive brain injury. Provides that if a court suspends a sentence and orders probation for such a person, the court may require the person to receive treatment for the person's injuries.

Provides that the document storage fee is $5 after June 30, 2015, and before July 1, 2017, and $2 after June 30, 2017.

Provides that after June 30, 2015, and before July 1, 2017, the automated record keeping fee collected for all civil, criminal, infraction, and ordinance violation actions is $19. Provides that the automated record keeping fee is $5 after June 30, 2017.

See SECTIONS 225-226 (p. 213-224).

The main approproation provisions for Judicial begin on p. 11 of the document.

[Updated] The automated recordkeeping fee increase from $5 to $19 is located in SECTION 207, page 193.

Posted by Marcia Oddi on Thursday, April 09, 2015
Posted to Indiana Government

Wednesday, April 08, 2015

Ind. Decisions - Supreme Court decides two today

In Donald W. Myers, III. v. State of Indiana, a 20-page, 4-1 opinion, Justice David writes:

Donald W. Myers, III, has a history of mental illness, and has been diagnosed with paranoid schizophrenia. Unprovoked, Myers fired a shotgun several times at multiple vehicles, including a police cruiser. Myers was ultimately convicted on four counts of attempted murder. The jury found Myers guilty but mentally ill. Myers claims that no reasonable jury could have reached this conclusion and that he should have been found not guilty by reason of insanity. Myers also asserts that any reference during trial to his request for an attorney and refusal to speak to the police after the incident violated his constitutional right to due process.

We hold that there was no due process violation. Additionally, we seek to emphasize the great adherence our judicial system affords to the right of a trial by jury and the verdicts reached by those juries. * * * Having completed our review, we affirm the jury’s verdict finding Myers guilty but mentally ill. * * *

There was sufficient evidence for a jury to draw a reasonable inference that the defendant was able to appreciate the wrongfulness of his conduct at the time of the offense. The admission of testimony regarding Myers’ convoluted request for counsel and refusal to speak to police did not constitute a due process violation. In addition, Myers’ sentence is not inappropriate given the nature of the offense and his character, nor was it inappropriate for the trial court to order his sentences to be served consecutively. Therefore, we affirm Myers’ convictions of guilty but mentally ill, and affirm his sentence of one hundred and twenty years for four counts of Class A felony attempted murder.

Rush, C.J., Dickson and Massa, J.J., concur.

Rucker, J., dissents with separate opinion. [which begins, at p. 18] In Galloway v. State [ILB: which was a 3-2 opinion], this Court evaluated the circumstances under which a defendant is entitled to a verdict of not guilty by reason of insanity despite a fact-finder’s verdict to the contrary. See 938 N.E.2d 699 (Ind. 2010). Because today’s opinion retreats from and thus undermines Galloway, I respectfully dissent. * * *

Because I can discern no appreciable difference between the facts in this case and those in Galloway, I agree with my colleagues on the Court of Appeals that “the jury clearly erred in rejecting Myers’s insanity defense.” Myers v. State, No. 76A03-1305-CR-173, 2014 WL 1478844, at *10 (Ind. Ct. App. Apr. 14, 2014). Accordingly I would reverse Myers’ four Class A felony attempted murder convictions[1]
__________
[1] I also note the observations of my Court of Appeals colleagues: “Myers has been and remains institutionalized in a secure facility within Indiana’s mental health system. Unless new psychotropic medications sufficient to treat his serious mental illness are developed, he will likely remain institutionalized for the rest of his life.” Myers, 2014 WL 1478844, at *5 n.1.

In Cohen & Malad, LLP v. John P. Daly, Jr., Golitko & Daly, P.C., and Golitko Legal Group, P.C., a 2-page, 5-0, per curiam decision in a fee dispute between two law firms, the Court concludes:

Absent agreement otherwise, “a lawyer retained under a contingent fee contract but discharged prior to the contingency is entitled to recover the value of services rendered if there is a subsequent settlement or award[,]” and in that case, “the fee is to be measured by the proportion of the total fee equal to the contribution of the discharged lawyer’s efforts to the ultimate result[.]” Galanis v. Lyons & Truitt, 715 N.E.2d 858, 860 (Ind. 1999). The trial court’s findings of fact and conclusions of law do not acknowledge Galanis or apply its standards. Accordingly, we reverse and remand with instructions to determine, in accordance with Galanis, what proportional contributions toward the results in the cases at issue were made by attorneys working for C & M, and to enter a corresponding judgment in C & M’s favor. We summarily affirm the part of the Court of Appeals opinion addressing whether C & M should have sued its former clients to recover attorney fees from them. See Ind. Appellate Rule 58(A)(2).

Posted by Marcia Oddi on Wednesday, April 08, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (4):

In Steven Matthies v. The First Presbyterian Church of Greensburg Indiana, INC., a 12-page, 2-1 opinion, Judge Friedlander writes:

Steven Matthies appeals from the grant of summary judgment in favor of The First Presbyterian Church of Greensburg Indiana, Inc. (First Presbyterian). * * *

We conclude that the trial court properly determined that review of the issues presented would have necessitated the court to interpret and apply religious doctrine or ecclesiastical law. The First Amendment requires civil courts to refrain from interfering in such matters. See McEnroy v. St. Meinrad Sch. of Theology, 713 N.E.2d 334. We therefore conclude that the trial court properly entered summary judgment in favor of First Presbyterian.

Kirsch, J., concurs.
Crone, J., concurs in part and dissents in part with separate opinion.

I agree with the majority that reviewing the issues presented by Matthies’s breach of contract claim would require us to interpret and apply religious doctrine or ecclesiastical law, which is prohibited under the First Amendment. Therefore, I concur in the affirmance of summary judgment in favor of First Presbyterian on that claim.

Respectfully, however, I do not believe that the First Amendment would preclude us (or the trial court or a jury) from considering Matthies’s claim for unpaid vacation wages under the Wage Claim Statute. That claim, in my opinion, simply requires a determination of whether or not there was any vacation time accrued as of the date of Matthies’s termination. If there was, I believe that claim could be viable regardless of the basis for his termination. Addressing that claim might involve resolving disputed facts, interpreting the Contract, and applying the Wage Claim Statute, but it would not involve interpreting or applying religious doctrine or ecclesiastical law. Consequently, I would reverse the grant of summary judgment in favor of First Presbyterian on
that claim.

In NIPSCO Industrial Group, and, Indiana Office of Utility Consumer Counselor v. Northern Indiana Public Service Company, et al., a 31-page opinion, Judge Barnes writes:
In this consolidated appeal, the Indiana Office of Utility Consumer Counselor (“OUCC”) and the NIPSCO Industrial Group (“Industrial Group”) appeal the decision of the Indiana Utility Regulatory Commission (“Commission”) regarding two petitions filed by Northern Indiana Public Service Company (“NIPSCO”) to establish increased rates under a new statute, Indiana Code Chapter 8-1-39. We affirm in part, reverse in part, and remand. * * *

We conclude that the Commission improperly approved NIPSCO’s seven-year plan under the TDSIC statute because it lacked detail regarding the proposed projects for years two through seven. We also conclude that the Commission improperly established a presumption of eligibility for the projects in years two through seven. However, we conclude that the Commission properly interpreted the two-percent cap language in the TDSIC statute, and we give deference to the Commission’s decision regarding the rate recovery of retired assets. Finally, we conclude that the Commission was within its discretion to adjust the rate allocation factors to remove non-firm load; however, the Commission exceeded its statutory authority when it adjusted the allocation factors based on transmission and distribution considerations. We affirm in part, reverse in part, and remand.

In 5200 Keystone Limited Realty, LLC v. Netherlands Insurance Comp., Consolidated Insurance Comp., and Indiana Insurance Comp, a 15-page opinion, Judges Barnes writes:
5200 Keystone Limited Realty, LLC (“KLR”) appeals the trial court’s grant of summary judgment in favor of Netherlands Insurance Company (“Netherlands”), Consolidated Insurance Company (“Consolidated”), and Indiana Insurance Company (“Indiana”) (collectively “the Insurers”). We affirm.

Issue. KLR raises several issues on appeal. We need only address one issue: whether the common law “known loss” doctrine precludes KLR’s action against the Insurers to compel them to provide a defense for KLR in an action brought by the Indiana Department of Environmental Management (“IDEM”) to remove pollution from land owned by KLR. * * *

Indiana has adopted the common law “known loss” doctrine as applicable to all third-party liability insurance policies. See General Housewares Corp. v. National Sur. Corp., 741 N.E.2d 408, 413 (Ind. Ct. App. 2000). This doctrine, which is not dependent upon particular policy language, derives “from the fundamental concept in insurance law that the loss be fortuitous.” Id. at 413, 415. “Simply put, the known loss doctrine states that one may not obtain insurance for a loss that has already taken place.” Id. at 413. A loss that exists at the time insurance is purchased, or one which is “‘probable or imminent,’” is not a proper subject of insurance. Id. (quoting 7 Couch on Insurance, § 102:8 at 20 (3d. ed. 1997)). * * *

[J]ust as in Crawfordsville Square, KLR as a purchaser of environmentally contaminated property was made aware of the existence of the contamination at levels above IDEM regulatory levels and that remediation definitely would be required. KLR, through adoption of Apex’s lawsuit, had taken steps to protect its financially against the costs of testing and remediation, just as the buyer in Crawfordsville Square had done by demanding an escrow payment by the seller to cover such costs. And, as we held in Crawfordsville Square, the lack of an existing IDEM enforcement action at the time KLR bought the property and obtained insurance is “essentially irrelevant . . . .” Crawfordsville Square, 906 N.E.2d at 939. This evidence conclusively demonstrates as a matter of law the existence of a known loss by KLR prior to the time it obtained insurance from the Insurers. * * *

Any claim by KLR against the Insurers related to the IDEM remediation action is conclusively barred by the known loss doctrine. The trial court properly granted summary judgment in favor of the Insurers, and they are not required either to defend or indemnify KLR. We affirm.

In Bruce Schaadt v. State of Indiana, a 7-page opinion, Judge Friedlander writes:
Schaadt challenges his sentence on appeal, raising the following restated issues:
1. Does the savings clause of the 2014 criminal code revision violate the Equal Privileges and Immunities Clause of the Indiana Constitution?
2. Is Schaadt’s forty-year sentence inappropriate in light of his character and the nature of his offenses? * * *

Schaadt argues that the savings clause unconstitutionally and arbitrarily creates “two classes of drug offenders: those who committed their offenses before the change in law and those who committed their offenses after the change in law.” We find nothing arbitrary about the savings clause.

We affirm.

NFP civil decisions today (4):

In Re: The Marriage of: Regina A. Niccum v. Matthew B. Niccum (mem. dec.)

C.R. v. V.R. (mem. dec.)

Michael W. Hawkins v. Julie M. Hedge (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of W.P., Jr., and W.P., SR. and S.D.: S.D. and W.P. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (5):

Cody Silvers v. State of Indiana (mem. dec.)

Samuel Trahan IV v. State of Indiana (mem. dec.)

Katyun Marsh v. State of Indiana (mem. dec.)

Anthony C. Martin v. State of Indiana (mem. dec.)

Andrew J. Lessing v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, April 08, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Local Communities Updating Ordinances In Response To RFRA"

Gretchen Frazee has this report for WFYI:

Community leaders across Indiana are updating their ordinances to make sure people can’t be discriminated against based on sexual orientation. The changes are in response to the state's new Religious Freedom law known as RFRA.

Some Hoosiers feared the original version of the law that aims to protect religious liberties would nullify local nondiscrimination ordinances. The legislature amended RFRA last week to say it cannot be used to discriminate against someone based on sexual orientation or gender identity.

But some cities are still strengthening their own laws.

Terre Haute Human Relations Commission executive director Jeff Lorick is tasked with creating a proposal to update the city’s 16 year-old ordinance.

“Terre Haute is in a unique position," Lorick said. "As our ordinance stands, the Human Relations Commission office does not have enforcement power, or investigative power or subpoena power.”

That means the city can request people accused of discrimination to rectify the problem but it can’t force them to do so. Lorick says giving his commission that power will save the city money on potential lawsuits and make people in the community feel more valued.

Martinsville is considering passing a human rights ordiance that includes sexual orientation and the Muncie city council Monday added sexual identity to its existing civil rights ordinance.

Read the above in conjunction with this April 5th post, headed "'Do local laws really protect rights of LGBT Hoosiers?' plus a look at some local ordinances."

In addition, the ILB has learned of this April 6th New Albany News & Tribune story by Daniel Suddeath, that reports:

In 2012, the council approved a Human Rights Commission that was sponsored by Councilman Greg Phipps. The commission’s establishing ordinance is stronger than state laws, as it forbids the discrimination of gays when it comes to commerce, housing and work.

According to Phipps, there have been three alleged cases of discrimination reported to the body since 2012. Two involved alleged discrimination regarding gender identity, and the other dealt with a contractor who apparently refused to work on a project for a gay couple.

Phipps said the two gender identity cases have been resolved. It’s critical to create a community where people know their rights will be protected, he continued.

“We will not tolerate any form of discrimination in the city of New Albany,” Phipps said.

But will the council allow the Lord’s Prayer to return to the onset of its meetings? The prayer was pulled from the agenda about two years ago, and was replaced with a “moment of reflection.”

Councilman Dan Coffey voted in favor of the resolution opposing the RFRA, and said it’s also discriminatory to keep the Lord’s Prayer out of the meetings.

He vowed to bring a resolution before the council soon calling for the prayer to be restored. Coffey suggested legal action had been threatened over the prayer before it was pulled, but added “that’s not enough” to remove the act from the meetings without the council’s approval.

Councilman John Gonder — who sponsored the resolution opposing the RFRA — said the removal of the Lord’s Prayer from the meetings was “not intended to denigrate Christians by any means.”

But in a country with religious freedom, it doesn’t seem fair to have a Christian prayer if Muslims, Jewish followers and other religious groups aren’t afforded the same opportunity, Gonder said.

Phipps added he would oppose the resolution because he doesn’t support public prayer as organized in a secular environment. There are even differing versions of the Lord’s Prayer within the Christian religion, so how could the council fairly pick which account to use, Phipps questioned.

What if other council members decide they want to have communion or other religious observances during meetings, he continued to ask.

“If we really want to Christianize it, we could be here for two hours before the start of the meeting,” Phipps said.

Posted by Marcia Oddi on Wednesday, April 08, 2015
Posted to Indiana Government

Ind. Gov't. - More on: Some bills the ILB is following

Updating yesterday's post:

These bills are being considered Tuesday, April 7th in House Judiciary Committee at 8:30 AM:

Also on Tuesday in the House Government and Regulatory Reform Commitee at 10:30: On 2nd Reading Tuesday in the House:

On 2nd Reading Tuesday in the Senate:

Posted by Marcia Oddi on Wednesday, April 08, 2015
Posted to Indiana Government

Tuesday, April 07, 2015

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

In USA v. Mark Bozovich (ND Ind., Lozano), an 11-page opinion, Judge Hamilton writes:

Mark Bozovich was convicted of conspiracy to distribute heroin. He now appeals, seeking a new trial or at least a lower sentence. Bozovich argues that he is entitled to a new trial on the theory that the district court erred by allowing the government to cross-examine him well beyond the scope of his direct testimony. He also argues that his 235-month prison sentence was based on an erroneous drug quantity finding. We affirm both the convic-tion and the sentence.

Posted by Marcia Oddi on Tuesday, April 07, 2015
Posted to Ind Fed D.Ct. Decisions

Courts - Wisconsin Justice "David Prosser turned sleuth in OWI case before high court" and more on independent research by judges

Patrick Marley reported in a long April 3rd story in the Milwaukee Journal-Sentinel:

Madison— Wisconsin Supreme Court Justice David Prosser abruptly stepped down from a case earlier this year after a state lawyer said Prosser had apparently contacted a state lab asking questions related to a case before the state's high court.

His withdrawal leaves six justices on the case, raising the possibility of a 3-3 split that would leave unresolved an issue that has repeatedly cropped up in drunken driving cases.

Wisconsin's ethics code for judges says that in general judges cannot engage in discussions outside the courtroom with witnesses. They are to make their decisions based on the facts presented to them, rather than ones they gather on their own.

Prosser appears to have sought answers directly from the state Laboratory of Hygiene that analyzed the blood sample in the drunken driving case before the Supreme Court. The same day the contact became public, Prosser notified the court he was withdrawing from the case. * * *

The case could be a significant one because it deals with an unsettled area of law in intoxicated driving cases.

Michael Griep was charged in Winnebago County Circuit Court in 2007 with third-offense drunken driving after a test showed he had a blood-alcohol level of 0.152, nearly twice the level considered evidence of intoxication. He was convicted in 2009.

Griep appealed, arguing his constitutional right to confront witnesses was violated because the technician who analyzed his blood sample did not testify at trial. Instead, a supervisor who had not handled the sample testified.

The Waukesha-based District 2 Court of Appeals panel upheld the conviction last year in an opinion that said the case addressed "a recurring and unsettled question of law." While the appeals court sided with the prosecution, it said Griep made a strong argument and emphasized the need for the state Supreme Court to clarify the issue.

The question of when analysts must appear in court is a persistent one because of "the muddled state of the relevant law and the arguable conflict between binding state court opinions and subsequent United States Supreme Court opinions," Judge Richard Brown wrote for the unanimous appeals court.

The ILB has had a number of posts on the question of research by judges. Here are a few:

Posted by Marcia Oddi on Tuesday, April 07, 2015
Posted to Courts in general

Ind. Gov't. - "Big pay not only for top officials" in Fort Wayne Water Maintenance Department; and more

This story April 5th in the Fort Wayne Journal Gazette, by Dave Gong, surveys Fort Wayne’s top 10 salaries for 2014, "according to salary data provided by the city to The Journal Gazette through a records request."

It reminded the ILB of this post from August 19, 2014, on the Indiana public employee salary databases, and the IndyStar database, through which the ILB discovered:

If you filter the Star database for "local government," and start with highest paid, it is not until the 6th screen of 10 names each that you find anyone other than Citizens Energy: #56 highest paid is Riggs, David T., Marion County Director of Public Safety. If you continue clicking, Citizens Energy names predominate screen after screen, until the 17th screen, where the annual salaries have fallen into the $105,000 range.

Posted by Marcia Oddi on Tuesday, April 07, 2015
Posted to Indiana Government

Ind. Gov't. - AG Zoeller will not file amicus brief in historic SSM case now pending before SCOTUS

That is gleaned from this story yesterday by Gannet's Richard Wolf and Maureen Groppe, here in the Muncie Star-Press, headed "Briefs urge high court to keep gay marriage bans." It begins (ILB emphasis):

WASHINGTON – Republican officials and religious organizations dominate a growing list of more than 50 groups urging the Supreme Court to uphold state bans on same-sex marriage.

The flood of "friend of the court" briefs arriving at the court by Friday's deadline easily made the upcoming case the most heavily lobbied in the court's recent history. Last month, more than 70 briefs were filed by proponents of gay marriage, including one signed by more than 200,000 people.

Indiana was not among the 15 states, all led by Republican governors, that filed briefs calling for the bans in Michigan, Ohio, Kentucky and Tennessee to be upheld.

Bryan Corbin, a spokesman for Indiana Attorney General Greg Zoeller, said the state did not weigh in because the Supreme Court let stand last year a lower court's rejection of Indiana's ban. Corbin said Zoeller felt his office had "fulfilled our duty to defend the statute."*

There were also no Indiana lawmakers on the brief filed by 57 members of Congress urging the court to allow states to ban gay marriage.

But Indiana attorney Jim Bopp wrote a brief for himself and other members of the 2012 Republican National Convention platform committee.

"The Republican Party has long known that the key to a free society is the family, based on a marriage between a man and a woman," Bopp wrote.

The signers of that brief notably did not include GOP Chairman Reince Priebus. * * *

Indiana University argued in a brief filed last month that if the court allows states to ban gay marriage, Indiana is likely to go back to doing so. That, IU said, would damage the school's efforts "to make its academic environment welcoming to diverse students, faculty and staff" and could reverse its policies that treat same-sex relationships as equals of opposite-sex marriages.

There are four same-sex marriage appeals, all out of the 6th Circuit, combined by SCOTUS and scheduled for oral argument on April 28, 2015. The issues:You may see all the documents on the SCOTUSblog case pages. Here is the case page for Bourke v. Beshear, the appeal of the State of Kentucky. Among the amicus briefs listed is the Indiana University brief. I am not finding the Bopp brief on the list, but it is available here.
__________

*In the past, Indiana's Attorney General has been the lead author on many amicus briefs in same-sex marriage cases in circuits across the country where the State of Indiana was not a party, as well as in the two SCOTUS cases last term. The ILB has commented on this a number of times, including this June 23, 2014 post, and this one from July 23, 2014.

Posted by Marcia Oddi on Tuesday, April 07, 2015
Posted to Indiana Government

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

For publication opinions today (3):

In Glenn Sciaraffa v. State of Indiana , a 16-page opinion, Judge Riley concludes:

Based on the foregoing, we hold that no fundamental error occurred during the admission of the presumptive positive test for methamphetamine or the State’s closing arguments. We also conclude that the State presented sufficient evidence beyond a reasonable doubt to sustain Sciaraffa’s conviction for dealing in methamphetamine.
In John W. Light v. State of Indiana , a 7-page opinion, Judge Riley writes:
Light raises one issue on appeal, which we restate as follows: Whether the trial court erred when it ordered Light’s conviction for operating a motor vehicle while privileges are forfeited for life to be served consecutively to his habitual substance offender sentence enhancement, attached to his Class A misdemeanor conviction. * * *

Unlike Sweatt, Light’s two enhancements were not based on the same prior felony convictions: his Class C felony enhancement is based on the underlying Cause DF-190; while his HSO enhancement is based on the underlying Cause CF-89 and Cause CM-32. See Brock v. State, 983 N.E.2d 636, 642 (Ind. Ct. App. 2013), reh’g denied (when two separate enhancements are not based on the same prior felony conviction, Sweatt is not controlling and the trial court’s imposition of consecutive sentences is not an improper double enhancement). We therefore conclude that the trial court’s imposition of consecutive sentences does not constitute an improper double enhancement under the facts and circumstances of the present case.

In Mark M. Jervis v. State of Indiana, a 14-page opinion, involving an appellant pro se, Judge Riley writes:
Jervis argues that his appellate counsel should have raised his own incompetence—specifically his own failure to challenge the State’s destruction of the evidence, and failure to raise jury misconduct—as grounds for ineffective assistance of trial counsel. As discussed above, we determined that Jervis’s unfounded assertion that the State destroyed the oral swab is without merit. As for the jury misconduct claim, we have already concluded that it is barred by res judicata. Here, Jervis has not demonstrated that appellate counsel’s own failure to challenge the State’s destruction of the evidence and failure to raise jury misconduct were “clearly stronger” than the issues raised by his appellate counsel. See Bieghler, 690 N.E.2d at 194.

In light of the foregoing, we find that Jervis has not demonstrated that but for his appellate counsel’s alleged error, there is a reasonable probability that the result of the proceeding would have been different. See McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002). Therefore, we find that Jervis has failed to show that his appellate counsel’s performance was deficient or that he was prejudiced as a result of counsel’s performance.

NFP civil decisions today (0):

NFP criminal decisions today (1):

Jon Jerricco Haupert v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, April 07, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending April 3, 2015 (with Clerk's corrections)

Note: The Indiana Courts has just sent out a tweet saying last week's transfer list has been corrected. And indeed it has, the replacement list is now 2 pages rather than one, and covers 26-cases rather than 14. But the official link is still the same, and the two cases granted transfer remain the same.

The revised transfer list also includes the vacating of transfer in Kopetsky, the environmental insurance case, about which the ILB wrote on April 6th.


Here is the Clerk's transfer list for the week ending Friday, April 3, 2015. It is one page (and 14 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Tuesday, April 07, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - Some bills the ILB is following

These bills are being considered Tuesday, April 7th in House Judiciary Committee at 8:30 AM:

Also on Tuesday in the House Government and Regulatory Reform Commitee at 10:30:On 2nd Reading Tuesday in the House:On 2nd Reading Tuesday in the Senate:

Posted by Marcia Oddi on Tuesday, April 07, 2015
Posted to Indiana Government

Ind. Gov't. - "Canned hunting bill sneaks under fence"

This editorial from the Sunday Fort Wayne Journal Gazette:

Not only may the operators of Indiana’s canned hunting preserves soon get official blessing, but anyone who wants to open one of these killing pens may be able do so.

In a hearing Monday held while outrage over the Religious Freedom Restoration Act preoccupied much of the nation, the Senate Natural Resources Committee patiently listened as a line of witnesses representing sporting and hunting organizations once again asked lawmakers not to pass House Bill 1453, the latest effort to legitimize the business of charging faux-“hunters” thousands of dollars to shoot tame deer in an enclosed “preserve.”

Over the years, opponents have made two main arguments. One is that the whole enterprise glorifies slaughter, not sport.

And the other is that importing and raising deer commercially magnifies the risk that deer will contract and spread chronic wasting disease, which has devastated wild deer herds in other states.

The Senate is considering a bill passed out of committee that makes a tiny curtsy to sportsmanship by specifying that imprisoned deer can’t be “hunted” for 24 hours after they’ve been drugged.

But though an earlier version of the bill only grandfathered in the four existing canned-hunting centers, the version that left committee Monday apparently would allow anyone with 160 acres of forest and some 10-foot-high fencing to start a “preserve.”

Maybe the legislature will, by some miracle, decide to outlaw this inhumane travesty instead of letting it grow. Maybe, too, we’ll see the Easter Bunny on Sunday.

ILB: HB 1453 is eligible for 2nd reading today in the Senate. The sponsor has filed a motion to amend, but the basics of the bill, providing for the "licensing and operation of hunting preserves on which farm raised and released cervidae are hunted," remain.

For earlier ILB posts, start with this one from April 1, headed ""Would bill expand 'canned hunting' in Indiana?" It sure seems so ...."

Posted by Marcia Oddi on Tuesday, April 07, 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 4/6/15):

Thursday, April 9

Friday, April 10 Next week's oral arguments before the Supreme Court (week of 4/13/15):

Webcasts of Supreme Court oral arguments are available here.


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

Wednesday, April 8

Next week's oral arguments before the Court of Appeals (week of 4/13/15):

Monday, April 13

Tuesday, April 14

Thursday, April 16

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

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


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

Posted by Marcia Oddi on Tuesday, April 07, 2015
Posted to Upcoming Oral Arguments

Monday, April 06, 2015

Ind. Gov't. - "Deadlines loom for legislative action"

For those of you unfamiliar with the details of the legislative process, Dan Carden of the NWI Times has written a quick summary:

It will be a sprint to the finish over the next three weeks as state lawmakers strive to enact their policy priorities, block proposals they don't like and desperately hope not to attract another worldwide boycott of Indiana.

Three key deadlines will shape most of the action at the Statehouse this month. The Legislature is required by law to adjourn April 29.

On Thursday, all legislation that has passed one chamber must advance out of committee in the second chamber to remain eligible for consideration.

Then, by April 15, all House-approved measures must pass the Senate and all Senate-approved proposals must pass the House, or else they are dead for the year — for the most part.

That's because April 16 is the start of House-Senate conference committees: ad hoc meetings of a few representatives and senators who get together to work out differences in the separately approved versions of specific legislation.

Any compromises reached by a conference committee setting identical language for a legislative proposal must be re-approved by both the House and Senate to go to the governor for his signature or veto.

But any measure that has passed just one chamber is eligible to be inserted in legislation revised by a conference committee — so long as it is related to the main proposal under consideration (and sometimes even if it is not).

Skilled lawmakers often use that opportunity to resurrect legislation that appeared to be dead, or to package something that couldn't pass both chambers on its own with popular proposals that have strong support.

The conference committee period typically is a whirlwind of scheming and dreaming. Though it is extremely time-limited, given the April 29 session end date.

House Bill 1001, the state budget, traditionally is the last proposal voted on by the House and Senate — in part because legislative rules allow anything to be inserted in the budget measure.

The governor also has little choice but to sign it, as a veto would require he call a special session of the General Assembly to devise a new state spending plan before the budget year begins July 1.

Posted by Marcia Oddi on Monday, April 06, 2015
Posted to Indiana Government

Ind. Law - IU-Bloomington Professor Emeritus F. Thomas Schornhorst passed away last week

Here is a tribute from Indiana defense attorney Stacy Uliana:

In Memorium – F. Thomas Schornhorst (1934-2015)

Tom Schornhorst, longtime friend of the Indiana Public Defender Council, passed away at the age of 80 on March 30, 2015. In June 2014, the IPDC honored Tom with a Lifetime Achievement Award for his work "in improving criminal justice in Indiana as a teacher, litigator and mentor to younger lawyers." Unfortunately, Tom was unable to be present to receive his award due to illness. He anticipated returning to an IPDC seminar in Fall, 2014, but could not make it.

Tom had many roles in life. To his family, he was a beloved husband, father and grandfather. To the community of criminal defense attorneys, he was a teacher, friend, and relentless advocate. To his clients, he was a “crusader for justice.” Tom took on their cases when little hope was left, at the post-conviction and federal habeas levels. Tom would breathe hope back into these convictions and often even win. But regardless of the outcome, Tom’s clients knew that he took their injustices personally and their cause was his. One long-time client described Tom as a “beacon of hope for me when I felt like my life was being tossed around in the sea of impersonal preconception at every level of appeal.”

The one thing at which Tom Schornhorst did not do well was retirement. Although Tom “retired” from Indiana University School of Law – Bloomington in 1998, he remained on their faculty as a professor emeritus. For a time, Tom would teach alternating semesters at Bloomington and Ole Miss Law School in Oxford, Mississippi. He often taught on evidentiary and constitutional issues at IPDC seminars, and was frequently a helpful voice on the Defendnet listserve with case law, insights and answers. Despite undergoing radiation treatments for lymphoma, Tom gave a presentation on child hearsay and vouching at the IPDC’s Exclusionary Motions seminar on December 6, 2013. Although Tom was a professor who practiced and was busy with his own cases, he always made time to help others. He prepared an amicus brief in the appeal from David Camm’s second convictions. The Indiana Supreme Court, when reversing Dave’s convictions, relied on Tom’s brief. I am sure Dave is just one of many people who owe their freedom to Tom.

Tom will always be remembered for his round-faced smile, his willingness to help and his fearless fight. But above all, he will be remembered for his passion. If Tom Schornhorst believed there was an injustice, you better hope you were on the right side of that injustice. He feared nothing and no one, not even the U.S. Supreme Court. In the early seventies, he, along with the late IU Law Professor Patrick Baude, took a Bloomington case all way to the U.S. Supreme Court and created a turning point for First Amendment rights. See Hess v. Indiana, 414 U.S. 105 (1973) (reversing the Indiana Supreme Court and holding that an IU’s students statement to police, “We’ll take the f- street later,” was not obscene or “fighting words”). Although I never had Tom as a professor, he taught me, through his example, the most valuable lesson for a lawyer – if you see an injustice, fight like hell to fix it. Thank you, Tom. Stacy Uliana

Posted by Marcia Oddi on Monday, April 06, 2015
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 2 NFP memorandum decisions)

For publication opinions today (1):

In Demetrius L. Grant, and Vickie O. Grant v. The Bank of New York Mellon Trust Co., a 9-page opinion, Judge Friedlander writes:

Demetrius and Vickie Grant appeal the trial court’s denial of their motion to dismiss and grant of summary judgment in favor of The Bank of New York Mellon Trust Company (the Bank). The Grants present the following dispositive issue for review: Was dismissal of the Bank’s second foreclosure action against the Grants required where the first action was dismissed under Indiana Trial Rule 41(E)? We reverse and remand.
NFP civil decisions today (1):

Kelli Alvarez f/k/a Kelli Galanos v. Horizon Bank, N.A. (mem. dec.)

NFP criminal decisions today (1):

Jeffery W. Moore v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, April 06, 2015
Posted to Ind. Adm. Bd. Decisions

Ind. Gov't. - More on "Needle exchange bill advances in Indiana House" but faces veto threat [Updated]

Supplementing this March 30th story from Maureen Hayden of CNHI, Shari Rudavsky of the Indianapolis Star also had a report on the same day. Some quotes:

The Indiana House Committee on Public Health passed a measure Monday that would allow Indiana counties at the highest risk of an HIV outbreak from intravenous drug use to institute needle exchange programs.

Under the proposal, counties with high hepatitis C rates could establish such programs, which public health officials say effectively combat HIV, the virus that causes AIDS. Health officials consider a community’s high rate of hepatitis C, which is spread through contaminated needles, as a harbinger of a potential HIV outbreak.

Needle exchange programs came to the fore last week when Gov. Mike Pence declared a public health emergency in Scott County, which has seen more than 80 new HIV cases in recent weeks, all of which have been linked to intravenous drug use.

Pence’s 30-day order allowed local health officials to establish a temporary needle exchange program as one of many tools to halt the outbreak, considered an epidemic because the numbers are so far outside Scott County’s norm of about five HIV cases a year.

However, Pence also made it clear that he still does not support needle exchange programs as “anti-drug policy” and that he would veto any broad-based legislation allowing for them.

Committee Chairman Ed Clere, R-New Albany, said he tweaked an original amendment broadly legalizing needle exchange programs in response to Pence’s concerns.

“We have the opportunity to prevent the next Scott County by being proactive instead of reactive,” he said. * * *

Clere said he did not think the proposal in any way conflicts with Pence’s beliefs.

“I have been explicit in saying this is not introduced as anti-drug policy,” he said. “This is a harm reduction measure.”

The Chicago Tribune had a story this weekend, datelined Austin, Indiana.

[Updated] "Needle Exchanges Gain Currency: As infections spread among intravenous drug users, officials reconsider syringe exchanges" is the headline to a March 29th WSJ story ($$$) by Arian Campo-Flores at arian.campo-flores@wsj.com and Jeanne Whalen. A few quotes:

In Kentucky, Democratic Gov. Steve Beshear last week signed a bill into law aimed at combating the state’s epidemic of heroin and painkiller abuse. One provision allows local health departments to set up needle exchanges after obtaining approval from city and county governments.

And in Indiana, a surge in HIV cases linked to injecting the prescription painkiller Opana in a rural county prompted Republican Gov. Mike Pence to declare a public-health emergency last week. He issued an executive order authorizing the temporary dispensing of clean needles in Scott County, near the Kentucky border, despite his personal opposition to such programs and a state law barring them.

Exchanges allow drug users to anonymously obtain clean syringes and dispose of used ones. The aim is to help people avoid sharing needles that may be contaminated with viruses or other pathogens.

Political opposition to such exchanges can run deep, especially in conservative areas. While backers contend the programs reduce the transmission of disease and potentially connect addicts with treatment programs, opponents say they sanction drug use and dissuade users from seeking help.

Now, “the opiate epidemic is changing the political calculus around syringe exchanges,” said Daniel Raymond, policy director at the Harm Reduction Coalition, an advocacy organization on health issues related to drug use. * * *

While the HIV outbreak in Indiana alarms public-health experts, many worry more about hepatitis C. It spreads more easily among people who share needles and other injection equipment than HIV does, because it can live outside the body longer, said Kathie Kane-Willis, director of the Illinois Consortium on Drug Policy. Hepatitis C can survive outside the body for at least 16 hours, and possibly up to four days, the Centers for Disease Control and Prevention said; HIV doesn’t survive long outside the body.

Hepatitis C, which attacks the liver and sometimes leads to cirrhosis or liver cancer, can be expensive to treat. New drugs have hit the market in the past year that are highly effective at curing patients, but their high price—$84,000 for a 12-week course of treatment—has made them unaffordable for many. That is particularly the case for those lacking insurance, or covered by programs such as Medicaid that have restricted access to the drugs due to cost.

The long story also includes graphics mapping the rise of HIV and hepatitis C infections.

Posted by Marcia Oddi on Monday, April 06, 2015
Posted to Indiana Government

Ind. Gov't. - Car drives off the ramp to the demolished Cline Avenue bridge in East Chicago

From a March 28th story by Joseph S. Pete in the NWI Times:

The tragedy isn't the first at the Cline Avenue bridge, which collapsed during construction in 1982, killing 14 construction workers and injuring 16 more.

In 2009, it was closed after decades of heavy semi-trucks hauling steel coil out of the Indiana Harbor steel mills caused it to deteriorate. In 2010, the Indiana Department of Transportation condemned the bridge.

Then-Gov. Mitch Daniels promised to swiftly rebuild the bridge, which had served the Midwest's largest refinery and the biggest steelmaking complex in North America, and gave Chicago residents an easy route to visit casinos in East Chicago and Gary. But the state reneged after deciding a replacement bridge would be too costly.

Plans to build a privately financed toll bridge have dragged on for years. Construction of a new bridge over the Indiana Harbor and Ship Canal is supposed to begin this spring.

Re the accident itself, from the same story:
EAST CHICAGO | A woman died and her husband was injured after they drove off the ramp to the demolished Cline Avenue bridge, which has been closed since 2009. * * *

Barriers block the long-gone bridge, but [Iftikhar] Hussain drove around them.

"The Cline Avenue bridge is marked with numerous barricades including orange barrels and cones, large wood signs stating ROAD CLOSED with orange striped markings," Lake County Sheriff's Department spokeswoman Patricia Van Til said. "There are concrete barricades across the road to further indicate the road is closed."

The couple appears to have been on their way to visit family since they had food in the vehicle, a police investigator said. They were from Chicago and were likely unfamiliar with the area.

The driver was believed to have been following GPS navigation that told him to continue on Cline Avenue, and was apparently paying more attention to the navigation system than what was in front of him, according to a police investigator.

A story in the Times on March 31, reported by Sarah Reese, included a photo of the approach, and is headlined "Official: Cline Avenue barricades were moved before fatal crash." Some quotes:
At least one concrete barrier and one barricade sign on Cline Avenue were moved sometime before a Chicago woman died last weekend when her husband drove off a section of road leading to a demolished bridge, an official said.

Indiana Department of Transportation crews check the barricade signs and barriers in the eastbound lanes leading up to the demolished Cline Avenue Bridge at least once a week to ensure they're properly placed, the road closure is clearly posted and vehicles cannot travel on the road, agency spokesman Matt Deitchley said.

Deitchley said he didn't have information about whether the barricade sign and concrete barrier were moved by hand or with a vehicle.

The Lake County Sheriff's Department is investigating, he said.

"The concrete barriers are heavy. They are heavy, and it would be difficult to move them by hand," he said. * * *

Iftikhar Hussain may have been following a GPS navigation when he drove off the bridge deck, an investigator said.

INDOT learned the barricade sign and concrete barrier had been moved after responding to Cline Avenue at the request of the Sheriff's Department, Deitchley said.

Lake County Sheriff's Deputy Police Chief Dan Murchek said the sheriff's traffic unit continues to investigate the crash. * * *

INDOT closed the Cline Avenue Bridge in November 2009 and condemned it a month later after inspectors determined the bridge's interior cables were badly corroded and the bridge was gravely weakened. The state paid $9 million to demolish the bridge in 2013.

In 2012, East Chicago and INDOT entered into an agreement with the Figg Group to build a new, privately owned and operated toll bridge. The city and INDOT transferred the right of way in 2013 to Cline Avenue Bridge LLC, a partnership associated with the Figg Group.

Officials have repeatedly pushed back the anticipated start date for construction of a new bridge. Figg told the Indiana House Roads and Transportation Committee on Feb. 11 that construction will being this spring. * * *

Scott Green, of Wilmette, Ill., said he came within 4 feet of driving off the bridge deck a month ago while on his way to Indianapolis.

Green, who is not familiar with the area and decided to take Cline Avenue after looking at a map, said he was able to drive around concrete barriers after entering eastbound Cline Avenue from the Indiana Toll Road.

Green said he encountered at least one and perhaps two concrete barriers, but they were blocking only two of the three lanes on the road.

Green said he didn't recall seeing any signs saying the road is closed or that the bridge is out. He saw frozen tire tracks, he said.

"I saw a car coming the other way on the other side," he said. "I saw that and I thought, 'OK, the road must be open.' That sort of gave me the confidence to keep going," he said.

When he realized the road was ending, he slammed on the brakes, he said.

Green admitted he felt stupid following his close call, but he wanted to speak out to prevent anyone else from making the same mistake.

"It happened to one person, and it almost happened to me," he said. "Something is wrong. There should be no physical way a car can get down there."

Deitchley said INDOT crews do not drive on the closed section of road for any reason. He has not heard of anyone driving other than the Hussains driving around the barriers, he said.

"To my understanding, the barriers are placed in such a way to prevent that," he said. "There's no room for doubt."

Anyone caught driving on the road, such as people drag racing, will be prosecuted, he said.

This March 30th story from C/Net has a good photo of the bridge from the side.

Posted by Marcia Oddi on Monday, April 06, 2015
Posted to Indiana Government

Ind. Gov't. - Some articles on moving forward after the RFRA debacle [Updated]

"Postponing anti-discrimination debate risky" was the headline to Lesley Weidenbener's Sunday column in the Louisville Courier Journal. Some quotes:

The relief seemed almost palpable Thursday as the attacks on Indiana eased — but the break may be only temporary.

Analysis button in JPGRepublicans and some business leaders had struck a deal on a so-called fix for the divisive Religious Freedom Restoration Act.

The goal was simple: Stop the bleeding.

And maybe the fix did that. But at best, it's only a bandage. Certainly, it fails to address the very thing that most of RFRA's critics were actually complaining about: Indiana law does nothing to protect people who are lesbian, gay, bisexual or transgender from discrimination.

That was the case before the legislature started down a road that led to economic upheaval, and it's the case now – save for the few communities in Indiana with local ordinances that ban discrimination based on sexual orientation.

Until that changes, the state remains at risk of reprisal.

Instead, the fix — a sort of compromise between GOP legislative leaders and some in the business community — ensures only that RFRA can't be used as the reason a business or individual discriminates. And the change says that RFRA can't be used as a defense in a lawsuit or prosecution about discrimination.

It's a move that made religious conservatives angry because they believe it watered down the law, which likely speaks volumes about their original goals. Democrats and LGBT groups, meanwhile, say it doesn't go far enough. * * *

Certainly, the new language essentially wipes out the possibility that discrimination could result from RFRA. But that just means the state is back where it was before the session began. The fix did nothing to actually ensure that gays and lesbians are protected from discrimination.

And regardless of where you stand on that issue, it was at the center of the virulence directed during the past two weeks at Indiana, its people and its economy. If state leaders want to avoid a repeat of that outrage — and the business boycotts that came with it — the anti-discrimination debate seems a must.

House Speaker Brian Bosma, R-Indianapolis, said there's no time for it this session, which ends April 29. That's curious given how quickly lawmakers came up with their RFRA fix.

Senate President Pro Tem David Long, R-Fort Wayne, said the discussion about anti-discrimination legislation is likely next year. However, 2016 is an election year, which could make such a controversial debate too scary for lawmakers.

But if the past two weeks are any indication, it could be just as risky to ignore the issue – for the state's economy and maybe even for lawmakers at the ballot box.

In this Sunday story for the Fort Wayne Journal Gazette, Niki Kelly gives an in-depth history of the Religious Freedom Restoration Act both nationally, and in Indiana. She explains, for instance, that:
Indiana legislators had filed the bill multiple times here. Rep. Jeff Thompson, R-Lizton, filed it every year from 1999 through 2004. But Democrats controlled the House chamber, and the bill never received a hearing.

Then in 2005, he filed it again. This time, Republican House Speaker Brian Bosma was in charge, but the bill didn’t move forward. So Thompson stopped filing it. No such legislation was filed by any Indiana lawmaker from 2006 through 2014.

The last four states adopted it since 2010, and the conversation shifted to religious liberty of the majority against government overreach. That also coincides with the rise of marriage equality; Indiana’s fight over gay marriage left a lot of hard feelings among social conservatives.

On April 2 Dave Bangert had a column in the Lafayette Journal & Courier titled: Only halfway there on RFRA fix: The General Assembly scrambled to save face on the religious freedom bill. Next up: Equal protection for gays and lesbians. It shouldn't be this hard.

[Updated] See also this strong weekend editorial from the Lafayette Journal & Courierheaded "After RFRA's supermajority debacle."

Posted by Marcia Oddi on Monday, April 06, 2015
Posted to Indiana Government

Ind. Gov't. - A few of the stories on the impact of the RFRA controversy

"Wesco's proud image: Photo caught triumph before outcry over law" is the headline to a lengthy Sunday story by Jeff Parrott of the South Bend Tribune. Some quotes:

Osceola Republican state Rep. Timothy Wesco is smiling broadly in the photo, standing to the right of Gov. Mike Pence and flanked by nuns, brothers, priests and evangelical Christian lobbyists.

In a private ceremony, Pence was signing the Religious Freedom Restoration Act.

Wesco, lead House sponsor of the bill, quickly posted the image from Pence's Twitter account to his Facebook page. That was 5:42 p.m. Thursday, March 26.

Earlier that day, Advance America, the fundamentalist Christian advocacy group headed by Eric Miller, who was also invited to the bill signing, had issued a press release headlined, "Victory at the Statehouse!"

But dark storm clouds were swirling. * * *

Wesco suddenly found himself at the center of a national and international firestorm, as business and government leaders at home and abroad threatened to boycott Indiana, saying the law would give businesses the right to discriminate against gays and lesbians.

In an interview with The Tribune this past week, Wesco said the bill was never intended to allow for such discrimination, and he was shocked by the world's reaction.

"The level of national blowback was far beyond anything I anticipated," Wesco said. "It was hijacked by a broader cultural battle that it doesn't necessarily apply to."

Longtime General Assembly watcher Brian Howey, editor and publisher of the Howey Political Report, said the Pence signing photo was especially incendiary.

"It had to be one of the proudest moments of his life being at that signing ceremony with Pence," Howey said of Wesco, "but the optics of that kind of alarmed people. Our forefathers went out of their way to establish a separation of church and state. That's tough for social conservatives to reconcile."

But no one should have been surprised to see Wesco leading this charge, noted Rep. Ryan Dvorak, D-South Bend.

"I know he's never shied away from these issues in the past," Dvorak said. "They've come up in his campaigns, and he's been elected. The voters in his district seem to be OK with that." * * *

Standing next to Wesco in the Pence signing photo were anti-gay marriage activists Eric Miller and Micah Clark, executive director of the American Family Association of Indiana.

Wesco has long shared their beliefs. In a 2007 letter to the editor published in The Tribune, he called homosexuality an "unnatural choice."

"Thankfully, choices can be reversed," Wesco wrote then. "There is hope for those trapped in this unnatural lifestyle."

This lengthy weekend story by Jessie Higgins in the Louisville Courier Journal, headlined "RFRA possibly `fixed', but now the damage is done," begins with the obvious:
INDIANAPOLIS - In the eyes of the nation, Indiana fell on the wrong side of history.
And continues:
Nearly two weeks of national media coverage and commentary on Indiana’s Religious Freedom Restoration Act left countless Americans believing it’s legal to discriminate against gay and lesbian people in Indiana.

The nation’s response was staggering. A movement to boycott Indiana sprung up almost overnight; Individuals, businesses, sports teams, municipal and state governments all pledged they would avoid traveling to or investing in Indiana.

“When you’re splashed across the national media with discrimination and absolute junk, I don’t think it does your state a service,” Arizona resident Joe Lunne said when randomly contacted by the Courier & Press. “I certainly won’t visit (Indiana). And, I know, if little old Joe down in Arizona isn’t going to visit that’s not going to have any effect. But when NASCAR is saying stuff like that, and the NCAA, that is going to have a tremendous impact.” * * *

“Before this, we would have identified Indiana with basketball,” said D’Ann Bishop, a Texan who used to work for the Democratic Party in Oregon. “I don’t know much about Indiana. It’s not like I had any plans to go to Indiana. In general, though, I would not choose to spend money in a state that actively supported discrimination. One of the greatest powers we have in our democracy is the power of our own dollar. We should express that power.”

Even Gov. Mike Pence acknowledged Indiana’s “perception problem” last week. Days later, he signed an amendment “clarifying” that the law can’t be used to discriminate or deny services to anyone.

But will it be enough to undo the damage to Indiana’s reputation? Or will the country forever associate Indiana — and Hoosiers — with intolerance and discrimination?

From Lauryn Schroeder, Associated Press, here in the NWI Times:
INDIANAPOLIS | Indiana tourism agencies are rolling out campaigns emphasizing that everyone is welcome, but it might not be enough to quickly restore the state's battered image after a backlash over its religious objections law.

An uproar sparked by fears that the law would allow discrimination against gays and lesbians led a few convention organizers and performers to cancel events and some state and local governments to ban travel to the state last week. Revisions to the law's language have eased some of the criticism, but experts say the state could be dealing with a damaged reputation for years to come.

In a sign that Indiana is still under close scrutiny, hundreds of gay rights supporters marched to the site of the NCAA Final Four in Indianapolis on Saturday as college basketball fans were arriving for the games. The marches called for the state to go further and enshrine in its civil rights law protection for gays and lesbians.

Chris Gahl, vice president of Visit Indy, the lead promoter for Indianapolis, said he has been in "full crisis mode" since the furor erupted after Gov. Mike Pence signed the law late last month. * * *

The crisis isn't confined to Indianapolis. Fort Wayne, the state's second-largest city, has had six national conventions express concerns about continuing business in Indiana. If all six pulled out, it would represent about $1.2 million in revenue, said Dan O'Connell, president and CEO of Visit Fort Wayne.

Businesses say they've been inundated with emails from people asking for reassurance that they are welcome in Indiana, or canceling orders or plans. The famed French Lick Resort, a hotel in an historic town in southern Indiana, issued a statement Friday saying it has "always been open and inclusive" and that the new law won't change that.

Traci Bratton, owner of the Hoosier Candle Company in Dayton, about 50 miles northwest of Indianapolis, said she's received emails from out-of-state customers who like her products but say they won't be bringing their business to Indiana because of the law.

"Hoosier Hospitality has been thrown out the window," Bratton said.

But the impact is being most keenly felt in Indianapolis, which has earned national praise for its transformation from a place once referred to as "Naptown" and "India-No-Place" to a vibrant, friendly city that used sports and a downtown renaissance to land a Super Bowl and become a popular pit stop in what was once called "flyover country." * * *

Even though lawmakers have revised the language of the religious objections law to make clear that it's not intended to discriminate, Indiana still lacks statewide civil-rights protections for the gay and lesbian community. And economic experts said perceptions about the law could prevent companies from attracting and retaining young talent.

Kyle Anderson, a business economics professor at Indiana University said Indiana already had a hard time competing on a national level to bring in top talent. For young professionals who tend to be more progressive about social issues, the law could be another reason for them to avoid jobs within the state.

"The last week will perpetuate the notion that it's not a great place to live," he said. "And I think that will live on for quite a while, unfortunately."

Doug Ross, NWI Times columnist, began his Sunday column:
At a time when Indiana should have been putting its best foot forward, the state’s political leaders were wearing clown shoes.

The Religious Freedom Restoration Act didn’t bring brimstone, but it sure lit a firestorm that has consumed Indiana. Gov. Mike Pence, as the state’s chief executive, felt most of that fallout, but the legislation was rammed through the Indiana General Assembly before it even got to him. House Speaker Brian Bosma, of Indianapolis, and Senate President Pro Tem David Long, of Fort Wayne, fed the legislative chute rather than pausing to consider the potential backlash.

And oh, what a backlash! When I visited Fort Wayne last weekend, I couldn’t escape it. Downtown, where I was photographing the architecture, I saw protestors lining more than two blocks of a main street to voice their opposition to the new law.

My own denomination, the Christian Church (Disciples of Christ) decided last week to move its 2017 convention from Indiana, and other groups pulled business in the state. Indiana’s reputation was built over decades. In just a week, it has become pitted, not just tarnished, and it will take a long time to burnish it.

Posted by Marcia Oddi on Monday, April 06, 2015
Posted to Indiana Government

Ind. Courts - Judicial Center's Legislative Update: 13th weekly installment

Here is the 13th weekly installment of the Indiana Judicial Center's Legislative Update for the 2015 legislative session. This week of April 6th is the final week for bills to be considered in the 2nd house committee.

Posted by Marcia Oddi on Monday, April 06, 2015
Posted to Indiana Courts

Ind. Decisions - Supreme Court, 3-2, reinstates COA opinion in environmental insurance case

The Supreme Court heard oral argument April 2nd in the case of Indiana Insurance Company v. Patricia Kopetsky.

In an order filed that same day, but posted this morning, the Court writes:

By orders dated February 26, 2015, the Court granted petitions seeking transfer of jurisdiction from the Court of Appeals. After further review, including consideration of the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinions reported as Indiana Insurance Co. v. Kopetsky, 11 N.E.3d 508 (Ind. Ct. App. 2014), and Indiana Insurance Co. v. Kopetsky, 14 N.E.3d 850 (Ind. Ct. App. 2014), should be reinstated as Court of Appeals precedent.

Accordingly, the orders granting transfer are VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

Rucker, Massa, and David, JJ., concur.
Rush, C.J., and Dickson, J., dissent from the denial of transfer.

Posted by Marcia Oddi on Monday, April 06, 2015
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Sunday, April 05, 2015

Ind. Gov't. - "Do local laws really protect rights of LGBT Hoosiers?" plus a look at some local ordinances [Updated]

That is the headline to a good story today by Stephanie Wang, in the Sunday Indianapolis Star. Some quotes:

In the absence of a state law banning discrimination against gays and lesbians — and in the explosive wake of Indiana's Religious Freedom Restoration Act controversy — more cities are considering their own protections of LGBT rights at the local level.

But even though Marion County and 10 other Hoosier communities already have local nondiscrimination ordinances that include sexual orientation, experts say such protections can be so weak that they are virtually unenforceable.

In Bloomington, Evansville, Fort Wayne and Michigan City, for example, civil rights agencies cannot pursue complaints of discrimination based on sexual orientation, unless the accused person or business agrees to an investigation. * * *

"It offers the most meager statement possible," said Robert Dion, Evansville-Vanderburgh County human rights commission chair. "It's weak sauce. It's pretty damn thin."

The lack of enforcement power for sexual orientation discrimination complaints becomes even more stark, he said, because those cities have a lot more authority to protect other groups of people.

For groups that also have state-level protections — such as race, religion, color, sex, disability or national origin — discrimination claims result in mandatory investigations. Local human rights commissions can often compel accused parties to participate through subpoenas, and, if needed, go to court to enforce case resolutions.

But because the state statute does not include sexual orientation or gender identity, some local officials say cities may not be legally enabled to enforce such protections with the same weight given to others.

"Any assessment that suggests that gay people are protected in a dozen cities in Indiana is an overstatement," Dion said.

The battle over RFRA exposed the lack of a statewide law shielding rights for gay and lesbian Hoosiers — and a majority Republican reluctance to implement one. LGBT advocates continue to push for statewide protections but failed to win them when the religious freedom law was clarified.

So without a statewide law, will municipalities be able to actually protect against sexual orientation or gender identity discrimination in a meaningful way?

The long story explains:
Indiana University law professor Carlton Waterhouse said voluntary compliance for sexual orientation or gender identity discrimination complaints essentially means the ordinance has no effect.

"It becomes more like a suggestion," he said. "It becomes more like an aspiration, a hope."

"It would only be meaningful," Waterhouse added, "if a person is claiming they did not discriminate, and they seek to show they did not discriminate by some voluntary process."

In the cities with voluntary compliance for LGBT discrimination complaints, the complaint is dismissed if the accused party chooses not to participate.

The reason why Bloomington's ordinance doesn't go as far as the one in Marion County is in part because some officials disagree about what state law entitles them to do.

Some disagree over whether adding sexual orientation and gender identity protections at equal protection levels would mean cities are legally enacting stricter laws than the state, or whether cities that do so could be unlawfully restricting what the state permits.

"It's my legal opinion that state home rule law prohibits local governments from enacting and enforcing ordinances prohibiting sexual orientation or gender identity discrimination with the same enforcement teeth" as other discrimination cases, said Bloomington director of human rights Barbara McKinney in an email.

The disagreement over how strong local ordinances can be is likely to remain unless the courts weigh in, said Dion, who is also the political science department chair at the University of Evansville.

"That's the gray area," he said, adding that Evansville adopted its ordinance modeled after Bloomington's on legal advice.

In Bloomington, McKinney said people often cooperate in cases of possible discrimination, "but yes," she wrote, "the lack of enforcement authority could undermine our ability to provide adequate protections to people who feel they have been discriminated against on the basis of sexual orientation or gender identity."

To adequately protect against LGBT discrimination, McKinney said, sexual orientation and gender identity would need to be added to the state's civil rights law.

Looking specifically at South Bend:
Over the past week, Indiana's new "religious freedom" law created a controversial perception that the state was unwelcoming toward the LGBT community, since some portrayed RFRA as a legal claim to refuse service to gays and lesbians on religious grounds.

"When such negative attention was coming to Indiana from the business community nationally, it was very helpful for me to be able to point to our own local law as a way to prove South Bend was open to everybody," Mayor Pete Buttigieg said.

Violations of the city's nondiscrimination ordinance carry the potential of a $1,500 fine — a signal, Buttigieg said, that South Bend takes discrimination seriously.

The change to include sexual orientation and gender identity in South Bend's ordinance also carved out specific religious exemptions.

Protections for sexual orientation and gender identity do not apply to religious organizations when they would conflict with religious beliefs or practices.

"We are a community that prides itself on being open to everyone," Buttigieg said. "We're also a community of deeply held religious convictions. We wanted to make sure our ordinance was true to what South Bend is about. We believe — and I certainly believe — that there is room for religious protections and GLBT equality to coexist, and this was our way of trying to find that balance.

"The idea that you have to pick one," he added, "is a false choice."

ILB: The ILB has located the text of South Bend's Human Rights Ordinance, available via the site of the South Bend Human Rights Commission.

Here is the link to the SB Ordinance Sec. 22-127.1 - Prohibited Conduct. Sec. 2-131 deals with enforcement by the Commission; Sec. 2-132.1 with private enforcement.

Here is a copy of the Monroe County Human Rights Ordinance. The final section of the 18-page ordinance, Sec. 520-13, reads:

In complaints of discrimination on the basis of sexual orientation or gender identity, the commission's authority shall be limited to voluntary investigations and voluntary mediation.
Here is the page of the Bloomington Human Rights Commission. Here is the 14-page ordinance, which is similar. Also of interest are the Bloomington Human Rights Commission's Gender Identify Guidelines regarding gender identify discrimination.

Finally, here is the Indianapolis-Marion County Human Relations/Equal Opportunity Ordinance, Chapter 581. Some religious exceptions are detailed in Sec. 581-404(a), which is part of the lengthy Article 4, dealing in Complaint Adjudication.

[Updated April 6th]
Chris Sikich and Vic Ryckaert have a story in today's Star surveying surrounding communities that begins:

In Central Indiana, only Marion County bans discrimination based on sexual orientation and gender identity at local businesses.

That might change.

An Indianapolis Star survey of various community leaders in suburban Indianapolis found general support for expanding such protections, especially in the state law.

Republican mayors Jim Brainard of Carmel, Scott Fadness of Fishers and John Ditslear of Noblesville, as well as Shelbyville Democratic Mayor Tom DeBaun each told The Star they would support providing further protections for sexual orientation and gender identity in state law, or through local ordinances.

That's significant because the revision to the Religious Freedom Restoration Act signed by Gov. Mike Pence on Thursday only extends protections to the LGBT community in places that have such local ordinances.

The mayors are concerned about equality. But they also face the potential loss of businesses. Until the past two weeks, they acknowledge sexual orientation and gender identity had not been a prevalent issue in the suburbs.

ILB Note: A reader has written, updating the earlier Star story, that the City of New Albany also has a human rights ordinance including "sexual orientation" and "gender identy." It is found at Sec. 33.071 of the New Albany Code.

[More]
See also this article in JDSupra.

Posted by Marcia Oddi on Sunday, April 05, 2015
Posted to Indiana Government

Friday, April 03, 2015

Ind. Gov't. - Two not to be missed on RFRA

Sheila Kennedy's post today headed Karma's a Bitch," that begins:

[T]he ignominious conclusion of the Christian Right’s spiteful effort to send a message to the LGBT community is what we professors call “a teachable moment.”
Emily Baselon's comments on "the fallout from Indiana’s and Arkansas’ controversial Religious Freedom Restoration acts," on Slate's Political Gabfest - begins at about 25:00 into the podcast.

Posted by Marcia Oddi on Friday, April 03, 2015
Posted to Indiana Government

Ind. Gov't. - A second PAC ruling on "Is the General Assembly subject to the public records law?"

As the ILB exclusively reported March 23rd, the Energy and Policy Institute and the Citizens Action Coalition, on March 23rd, submitted to the PAC a new, refined public access complaint against Rep. Koch and the House Republican Caucus.

This after the March 18th exclusive ILB report 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.
Now, in an opinion dated April 1, 2015, the Public Access Counselor has responded. Beginning on page 2:
The public policy of the APRA states that "a (p)roviding person with 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." See Ind. Code § 5-14-3-1. As it stated in Opinion of the Public Access Counselor 15-FC-69, the Indiana House Republican Caucus is a public agency for the purposes of the APRA. See Ind. Code § 5-14-3-2(n)(I). Any person has the right to inspect and copy the Caucus'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).[1]
__________________
[1] The holdings in Masariu v. The Marion Superior Court No. 1,621 N.E.2d 1097 (Ind. 1993) and Berry et al. v. Crawford, et al., 990 N.E.2d 410 (Ind. 2013), relied upon by the Caucus, exclusively address judicial enforceability of intenal legislative procedures. The case does not address applicability of the Access to Public Records Act to the legislature. There is no authority in case law or statute exempting the Indiana General Assembly from the APRA. Judicial enforceability and applicability are mutually exclusive. This Office has traditionally been consistent in this holding. See also the Opinions of the Public Access Counselor 03-FC-62; and 03-FC-3 J ("The House of Representatives is clearly a public agency for the purposes of the APRA").
From p. 3 of the opinion:
In your amended request, you have seemingly satisfied the elements of specificity considered to be reasonably particular. Your request appears to meet the standard set forth by the APRA.
But then:
Furthermore, buttressing the applicability argument, the General Assembly has carved itself out an exception for work product pursuant to Ind. Code § 5-l4-3-4(b)(14). The Caucus references this exception to disclosure in its denial. The disclosure or denial of the work product is at the discretion of the legislature.

As discussed in the footnote above, this Office - charged with the responsibility of making recommendations to the General Assembly in regard to access issues - considers the legislature to be subject to the APRA. The intent of the APRA is to foster trust and good faith between the public and the government. It is a safeguard for accountability and stewardship for civil servants. I am confident the General Assembly strives to espouse those virtues. As Indiana Public Access Counselor, I humbly and respectfully request the Caucus reconsider its position on the blanket inapplicability of the Access to Public Records Act and treat public records requests in a manner consistent with the spirit of transparency and openness. That being said, this Office also recognizes the importance of maintaining the integrity of the legislative process. This includes legislator-constituent communication channels. Work product of legislators is not defined in Indiana Code or case law. Although there is no explicit legislator-constituent privilege, the Masariu and Berry cases suggest the General Assembly has the discretion to define their own work product. To the extent the legislature may define work product to include the type of information you seek, I implore the General Assembly to be judicious in deciding what to withhold and what to release. It indeed requires a delicate balance, but the scales should favor transparency.

ILB: The public access law definitions section includes only, at IC 5-14-3-2(r), the definition of "work product of an attorney" - "information compiled by an attorney in reasonable anticipation of litigation."

IC 5-l4-3-4(b) contains a long list (sec. 4 is 7 pages long in the Code; start at p. 14 of this document, where it says "Version b" and continue through p. 20) of specific exclusions made over the years by the General Assembly to the Public Records law, probably one at a time on a case by case basis (judging from the history line at p. 20, which shows the section has been amended at least once and often twice almost every year since it was passed in 1983). Some might consider this the "soft underbelly" of the public records law. The exclusion at IC 5-14-3-4(b)(14) reads:

(14) The work product of individual members and the partisan staffs of the general assembly.
"Work product" is not defined. The April 1st PAC opinion notes that it:
... recognizes the importance of maintaining the integrity of the legislative process. This includes legislator-constituent communication channels. [ILB emphasis]
The question though, is, should emails, correspondence, or other documents between a legislator and specifically named utility companies, including Vectren, Duke, IPL, and their lobbyists, pertaining to “net metering,” “solar energy,” “distributed generation,” “electric fairness,” or "fixed charge,” be deemed to be excluded from public access under this undefined "work product" exclusion?

The House Republican Caucus response has been:

In determining the rules of its proceeding, the House has a long history of treating all correspondence as confidential. This encourages constituents - and anyone else - to communicate all necessary information to their - or any - legislator without fearing that the information (which is often personal and private in nature) could be released to an outside party.
But is this broad, self-defined, veil of secrecy that the law-making branch claims to have granted to itself, sustainable, and is it good public policy?

Posted by Marcia Oddi on Friday, April 03, 2015
Posted to General Law Related

Ind. Gov't. - "When sports becomes a force for social change"

"NCAA chief plays hardball with ‘religious freedom’ law" is the headline to Maureen Hayden's April 2nd CNHI story, here in the New Albany News & Tribune. Some quotes:

INDIANAPOLIS — As national attention turns to the Final Four here in the state’s capital city, NCAA President Mark Emmert blamed the uproar over the “religious freedom” law on the inability of Gov. Mike Pence and Republican legislative leaders to recognize the “sea change” in public opinion about gay rights.

“(T)hey all grossly underestimated, to be polite, the reaction of the citizens of Indiana,” Emmert said Thursday of the firestorm ignited after Pence signed the Religious Freedom Restoration Act into law a week ago. Critics of the law said it was a license to discriminate against gays and lesbians under the guise of religion.

In past days, Emmert said the NCAA would consider pulling its major sporting events — including the Final Four and the $700 million it generates for the tourism industry in Indiana — if the Legislature didn’t act.

Emmert opened the press conference, attended by scores of national media outlets in town to cover the NCAA men’s basketball championship, by saying the public furor sparked by the law had “overshadowed” the games.

But he elevated the issue by saying that the furor was deserved: He said a law that would allow business owners to refuse service to individuals based on their sexual orientation was “more important than a basketball tournament.” * * *

Emmert also said he would recommend the Indianapolis-based NCAA move its headquarters from any area “that didn’t prohibit discrimination.”

“I hope we don’t find ourselves in that place,” he said. “We hope they can resolve it quickly, not just because of this event but because it’s an important issue to get the law right on and get it right fast.”

The NCAA moved its headquarters to Indianapolis in 1999, after the state and city offered the organization a $50 million incentive package to re-locate here from Kansas. * * *

Emmert said he personally supported adding sexual orientation and gender identity to the list of classes of people protected by Indiana’s civil rights law and would bring the issue to NCAA governing board next month.

“I think it would be appropriate. It’s, again, consistent with the values of our office and staff,” he said. * * *

The NCAA was among the first major organizations to publicly threaten a boycott of Indianapolis when the law, known as RFRA, was passed last week. It went public soon after sports analyst Jason Collins, the NBA’s first openly gay player, directed a sharp tweet at Pence, asking: “Is it going to be legal for someone to discriminate against me & others when we come to the "FinalFour?” * * *

University of Notre Dame women’s basketball Muffet McGraw chimed in, asking the NCAA to consider pulling the women’s tournament in 2016 from Indianapolis. The University of Connecticut basketball coach, whose team won the national championship last year, decided to boycott the Final Four after the Connecticut governor barred all state-sponsored travel to Indiana.

The threats to move the Final Four didn’t sound empty to Indianapolis tourism and business officials. They knew NCAA already doesn’t hold post-season games in South Carolina and Mississippi because those states still fly the Confederate flag. The Indiana Sports Corp., which manages the Final Four host committee, also joined in the intense lobbying efforts to pressure Pence and legislators to fix the law.

Emmert promised the NCAA would keep an eye on the new law’s effects in both the near future and the long term. But he expressed support for actions taken Thursday by the Legislature, as they were working on a fix.

“Now they’re taking the actions that they’re taking,” Emmert said. “And we all hope, we all up here hope, that they get there.”

Brookings' John Hudak reported April 1st in a story headed "Women’s college basketball could change Indiana’s religious freedom law":
In 2016, Indianapolis will host the NCAA Women’s Basketball Final Four. While women’s college sports are not always seen as the biggest draw in terms of athletics, this event is one of the highest profile in women’s—or any—athletics. It generates high levels of attendance, TV viewership and substantial revenue for the cities that host the event. (Last year’s event brought between $20-25 million in direct revenue to the host city, Nashville.)

The impact and importance of this event pushes cities to vie for the opportunity to host and reap the economic and advertising benefits that come with it. However, Indianapolis’ hosting of next year’s Women’s Final Four was dramatically complicated by the Religious Freedom Restoration Act. * * *

Losing the Women’s Final Four will not mean economic devastation for Indiana, but the NCAA (headquartered in Indianapolis) and other athletic organizations could follow UConn’s lead and create serious economic pressure to change this new law. And thus, a college hoops team from Connecticut could end up playing a huge role in national politics and state-level public policy.

Mark Alesia put it all together today in this long story in the Indianapolis Star, headed "When sports becomes a force for social change." Some quotes:
Thursday at the Statehouse, where many of the most powerful people in Indy sports gathered, it wasn't about building a dome before the city even had an NFL team. It wasn't about race cars. Or confetti raining down on Final Four champions. Or national acclaim from hosting a Super Bowl.

It was about using the local clout of sports to help move a seemingly intractable social issue — even if it didn't move nearly far enough for many — and to do so with urgency. Downtown Indy is about to be flooded with thousands of college basketball fans for the Final Four.

Purdue history professor Randy Roberts, who has written several books about sports, couldn't think of anything else like it in Indiana.

Ryan Vaughn, president of the Indiana Sports Corp, was among the city's sports leaders who stood behind lawmakers at the Statehouse as they announced a "fix" to the "religious freedom" law. The law has brought national scorn onto Hoosiers as bigots with little regard for LGBT people.

It was clear that the people who run sports in this city had much to lose from the national perception problem, and they played huge roles in trying to correct that.

"It's always about more than a game here," Vaughn said. "It's about who we are."

Mark Miles, head of the company that owns Indianapolis Motor Speedway, was behind closed doors with lawmakers as they tried to hammer out a solution.

NCAA President Mark Emmert spoke with Gov. Mike Pence and explained to him "the seriousness with which universities and colleges take issues like this. These are not sidebar issues for a university. These go right at the heart of who a university is and what they stand for. I made that really clear."

Allison Melangton, who ran the Super Bowl host committee for Indy, stood behind the lawmakers at a news conference, as did Tony Mason, senior vice president of the Super Bowl host committee. IMS President Doug Boles was there, too.

"I think we have a higher percentage of people here in Indianapolis who are leading the sports industry and also happen to be business and community leaders," Melangton said.

No one fits that description more than Pacers vice chairman Jim Morris, an architect of the strategy to use sports to grow the city.

"For 50 years, Hoosiers, people who live in Indianapolis, have worked as hard as humanly possible with the most collegial, inclusive mindset, to tell the world that we want them to come to Indiana, to Indianapolis," Morris said. "That they're welcome here. That this is a dynamic, upbeat, happy, positive place. And the results of that effort have been extraordinary."

But the law still threatens to dismantle that reputation. And that's not to mention major events scheduled for Indianapolis that are in jeopardy — next year's women's Final Four, early-round men's tournament games in 2017, the men's Final Four in 2021.

And, of course, the NCAA headquarters is in Indianapolis, an easy walk from the Statehouse. While praising Indy as a great home for the NCAA at Thursday's news conference, Emmert wouldn't absolutely rule out moving. * * *

Emmert, who has endured endless criticism during his time as NCAA president, has won praise for his role in the RFRA debate.

"The issue here was, first of all, near and dear to us because we have 500 employees in this state," Emmert said. "We run the enterprise from here. We have to attract a diverse workforce, we have to have a workforce that is attractive to all walks of life. We have a particularly young staff. These issues for young people are very, very different than they are for old codgers like me."

Polls show people under 30 having vastly more tolerant views of LGBT rights than older people.

"When we talk about the role of sports," said IPFW professor Andy Downs of the Downs Center for Indiana Politics, "a lot of people will talk about it as just sports."

But the events of the last couple of days — and the show of force at the Statehouse on Thursday and in private meetings with lawmakers and the governor — demonstrated it can be about something much more.

Finally, a story late Wednesday in USA Today from Erik Brady and Paul Myerberg, titled "How sports world is driving changes to disputed Indiana religious freedom law."

ILB: As the NCAA's Emmert said, the second part of this effort will be: "adding sexual orientation and gender identity to the list of classes of people protected by Indiana’s civil rights law." Hopefully, this can be accomplished quickly in Indiana, without additional drama.

Posted by Marcia Oddi on Friday, April 03, 2015
Posted to Indiana Government

Thursday, April 02, 2015

Ind. Gov't. - Foreshadowing Indiana RFRA controversy

This ILB post, from February 23, 2014, foreshadowed Indiana's current controversy. It was headed ""Religious Right in Arizona Cheers Bill Allowing Businesses to Refuse to Serve Gays."

Posted by Marcia Oddi on Thursday, April 02, 2015
Posted to Indiana Government

Ind. Gov't. - Who represented the gay community in the Bosma negotiations? [Updated]

If you watched Speaker Bosma's news conference this morning, where he was backed by several dozen members of business who had participated in the negotiations on the revisions to the RFRA, two were introduced as representatives of the gay community. The ILB has learned from a source that they were:

Log Cabin Republican Kathy Sarris, formerly of Aesop's Tables, and Rainbow Chamber's Chris Douglas, who, I think, founded the Indiana Chapter of the Log Cabin Republicans, are players in gay GOP politics and have been on a first-name basis with GOP leadership through the years.
[Updated] This WISHTV story by Rebecca Sapakie gives much more detail.

Posted by Marcia Oddi on Thursday, April 02, 2015
Posted to Indiana Government

Ind.Gov't. - She told them so: "GOP allies warned RFRA wasn't wanted, needed"

Maureen Hayden of CNHI writes today in the Tribune-Star:

INDIANAPOLIS – When Denise Moe privately warned Republican legislators months ago that a proposed "religious freedom" bill could blow up in their faces, she was hoping they’d listen.

Cautioning that the measure could be seen as a license to discriminate against gays and lesbians under the cover of religious belief, Moe offered the advice as a loyal friend.

For 20 years, the Hendricks County mother of two has been a Republican party activist: stuffing envelopes, knocking on doors, raising money, and managing campaigns to get GOP leaders elected across the state.

At 17, attracted to the idea of small government, she signed up to be a Young Republican in the Democratic stronghold of Lake County. She’s been a devoted soldier since.

But last week, Moe stood on the steps to the Indiana Statehouse, in front of a crowd of several thousand protesters, and made public her objections to the Religious Freedom Restoration Act.

“This has really turned into pure ‘March Madness’,” said Moe, borrowing on basketball imagery to describe the escalating uproar over a GOP-backed bill signed by Republican Gov. Mike Pence.

Days later, as the governor and legislative leaders scrambled to “fix” the law to quell a growing list of businesses, governments and organizations boycotting Indiana, Moe could have rightly said: I told you. * * *

Moe now fears no fix to the language of the law can undo the harm to Indiana’s reputation and its Republican party brand.

“I knew this was going to be bad for Indiana, that it would make us look backward and foolish,” she said. “And I knew it would hurt and damage the Republican Party.”

As the spotlight intensified on Indiana, Pence and GOP leaders said they were caught off-guard by the firestorm of criticism that exploded on social media. At a news conference in front of national media, the governor blamed the press for “smearing” him and the law.

“Was I expecting this kind of backlash? Heavens, no,” he said.

Moe wasn’t buying it. Warnings from Republican allies had come long before.

Posted by Marcia Oddi on Thursday, April 02, 2015
Posted to Indiana Government

Ind. Gov't. - "Indy senator who co-authored RFRA faces challenge in 2016"

The IBJ is reporting, in a story by Kathleen McLaughlin:

Of the three senators who authored Indiana’s religious freedom act, Indianapolis Republican Scott Schneider could be the most vulnerable in 2016.

Moderate Republicans and Democrats alike are gunning for Schneider’s seat, which he hung onto in 2012 with less than 50 percent of the vote.

“If I were him, I wouldn’t even run. He’s definitely going to be challenged,” said Megan Robertson, a Republican campaign consultant and past coordinator of the Freedom Indiana campaign. * * *

Schneider’s 2012 opponent, Democrat Tim DeLaney, said he’s seriously considering another run. “The district is a well-educated, high-turnout district that wants people focused on what’s important.”

A story March 31st in the IndyStar, by Jeff Swiatek, was headed "RFRA opponents urge boycott of legislator's ice business," and included:
Opponents of the Indiana 'religious freedom' act want to hit one of its chief legislative authors, state Sen. Scott Schneider, in the pocketbook. They've launched a boycott of his family's business, Mister Ice Indianapolis, one of the largest suppliers of ice machines in Central Indiana.

The 50-year-old ice machine distributor is owned by the family of Schneider, an Indianapolis Republican. He's one of the prime authors of the Religious Freedom Restoration Act measure that's come under withering public attack since Gov. Mike Pence signed it into law last week.

RFRA opponents are calling for a boycott of Mister Ice, using Facebook posts and other ways to spread the word. Several restaurateurs — their number is unknown — have joined the boycott and notified Mister Ice they will drop their ice machine leases or maintenance contracts. They include the 11-restaurant group Patachou Inc. and Some Guys Pizza, which has two stores, in Carmel and on Indianapolis' Northside.

Posted by Marcia Oddi on Thursday, April 02, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 1 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (1):

Nicholas A. Rushlow v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, April 02, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "ESPN and Notre Dame argue in court about police records"

Updating this ILB post from Jan. 21st that was headed "ESPN sues Notre Dame over police records", Jeff Parrott reports in the South Bend Tribune today on the resultant trial, now in process. Some quotes:

Should a police department with armed officers and arrest powers be subject to public scrutiny, or should it be allowed operate without such scrutiny if it works for a private institution?

St. Joseph Superior Court Judge Steven Hostetler was pondering that question Wednesday after he heard arguments from the University of Notre Dame and ESPN. The judge said he hopes to rule by April 20.

The Bristol, Conn.-based cable sports network and its reporter, Paula Lavigne, in January sued the university, arguing it violated Indiana's Access to Public Records Act when its police department in November denied her request for incident reports related to specified individuals.

The university refused to provide the records, maintaining that its police department is not a public law enforcement agency, despite an advisory opinion to the contrary issued Oct. 31 by Indiana Public Access Counselor Luke Britt. Britt filed one opinion to cover the ESPN complaint and another similar complaint filed that same fall by The Tribune.

Attorneys for both sides have filed their written legal arguments, and on Wednesday they took turns verbally stating their cases during an hour-long hearing. Both declined comment afterward.

Damon Leichty, a Barnes and Thornburg attorney representing the university, argued that its police department's arrest powers are delegated from the school's trustees rather than the state's executive power, while acknowledging that the trustees receive that power from the state. He also noted that it's the trustees, not the state, that arms, equips and controls the department. * * *

But Indianapolis attorney James Dimos, representing ESPN, said its lawsuit maintains that only the department's law enforcement functions, meaning records related to arrests and incidents of suspected criminal activity, are public records. Student records are confidential by the Family Educational Rights and Privacy Act, and the university's claim that other private records would be at risk of disclosure amounts to a false "parade of horribles," Dimos said.

"This is a request for accountability of those who have arrest powers," Dimos said, noting the university has chosen to exercise police and arrest powers, so it has subjected itself to this scrutiny called for by state law.

Posted by Marcia Oddi on Thursday, April 02, 2015
Posted to Indiana Courts

Ind. Courts - Another big Indiana story coming up Sunday in NYT Magazine

Emily Bazelon has a feature in the upcoming Sunday NYT Magazine, titled "Purvi Patel Could Be Just the Beginning." Some quotes:

The prosecution of Purvi Patel began in sorrow and ended in more sadness this week. Patel, a 33-year-old woman who lives in Indiana, was accused of feticide — specifically, illegally inducing her own abortion — and accused of having a baby whom she allowed to die. The facts supporting each count are murky, but a jury convicted Patel in February, and on Monday she was sentenced to 20 years in prison. * * *

[P]rosecutions like these are growing more frequent. In Indiana, before Purvi Patel, there was Bei Bei Shuai, a Chinese immigrant who tried to commit suicide while pregnant and was also charged with feticide. The charges against Shuai were dropped in 2013 after she pleaded guilty to a lesser charge and spent a year in custody. In Iowa, Christine Taylor faced charges for attempted fetal homicide after falling down the stairs, going to the hospital and being reported for trying to end her pregnancy.

ILB: Here is a long list of ILB entries on the Bei Bei Shuai prosecution.

Posted by Marcia Oddi on Thursday, April 02, 2015
Posted to Indiana Courts

Ind. Gov't. - Where are we now on RFRA? [Updated again]

Here is today's Indiana Senate calendar. It convenes at 1:30 and its 5-page calendar includes many important matters, including on 2nd reading HB 1453 (hunting preserves).

Here is today's Indiana House 2-page calendar. The House convenes at 10:00.

Here is the Conference Committee grid. It contains one bill, SB 50, and reports that it will meet at 9:30 in the Senate Chamber. The is the bill selected to contain the proposed resolution to the RFRA issue. Here is the agenda.

Before that, at 9:00 AM, Speaker Bosma has announced:

Speaker @Brian_Bosma, Sen. Long and business leaders will make RFRA announcement this morning at 9 AM in #INHouse chamber.
You will be able to watch it here.

For background, see this morning's story in the Indianapolis Star, reported by Tony Cook and Tom LoBianco.

Check back for updates. And follow the ILB on Twitter.

[Updated at 9:15]
Thanks to the Indy Star, here is the language of the "fix".

[Updated at 9:19] Here is the actual Conference Committee report language, that will be considered at 9:30.

[Updated at 10:00 AM]
Niki Kelly of the FWJG: A full rundown of this morning's presser and the 'fix' - read it here.

Posted by Marcia Oddi on Thursday, April 02, 2015
Posted to Indiana Government

Wednesday, April 01, 2015

Ind. Gov't. - "Would bill expand 'canned hunting' in Indiana?" It sure seems so ...

Updating this ILB post from March 31st, Ryan Sabalow of the Indianapolis Star has posted a second story, this one headed "Would bill expand 'canned hunting' in Indiana?" Some quotes:

Fenced deer-hunting preserves in Indiana could greatly expand under language quietly slipped into an amended bill that passed a state Senate committee on Monday.

The amendment to House Bill 1453 says that any Indiana property owner with at least 160 acres can offer hunts for farm-raised deer so long as the property has a hunting area of at least 125 contiguous acres surrounded by a 10-foot-tall fence.

When HB 1453 passed the Indiana House in February, the bill only grandfathered in preserves that had been in business prior to 2015. [ILB: see below]

Critics say they're deeply troubled by the language in the amendment, which they say creates the potential for a massive statewide expansion of what they call "canned hunting."

"I think the bottom line it allows for unlimited expansion of these operations that the overwhelming majority of Hoosiers find distasteful," said Jeff Wells, president of the Indiana Conservation Officer Organization.

In a Feb. 18th story, Niki Kelly of the FWJG pointed that the then-current draft allowed "only pre-existing facilities to be eligible for a license," but, in addition to the four "in operation under a court injunction – in Harrison, Blackford, Kosciusko and Marshall counties"
[A]bout a dozen existed before a long legal battle when the Department of Natural Resources tried to shut them down in 2005. Those would be eligible as well.

Posted by Marcia Oddi on Wednesday, April 01, 2015
Posted to Indiana Government

Ind. Gov't. - "Report: Indy can build, maintain justice center for less"

Supplementing this January 15, 2015 post, titled "My view: Rethink plan for justice center in Marion County" (quoting a letter to the Star by Les Zwirn is a retired Methodist Hospital executive), today the IndyStar has a long story by Brian Eason that includes:

A new report commissioned by the City-County Council argues that Marion County can build and maintain the proposed criminal justice center for substantially less with traditional financing than under the public-private partnership advocated by Mayor Greg Ballard.

The report also challenges the administration’s claim that the contract would effectively pay for itself through savings and new revenue, raising new questions about whether the county can truly afford the $1.75 billion, 35-year deal without new taxes. * * *

Ballard’s proposal relies on a type of public-private partnership that’s common in road projects but rarely used to finance a building. The administration and its advisers argue that it would be cheaper over the long haul to hire private consortium WMB Heartland Justice Partners to design, build, operate and maintain the facility for an annual fee, rather than borrow money, hire a contractor to build it and pay the maintenance costs along the way.

The council’s report recommends a more traditional design-build model but also uses an uncommon financing tool — one that the administration writes off as a “Frankenstein model.” Rather than float a bond backed by property taxes, the county would borrow against the county option income tax, or COIT, which funds general government operations.

Neither mechanism calls for a tax increase, although the council’s version likely would be backstopped by property taxes as a contingency.

The report was co-authored by Bart Brown, the council’s chief financial officer, and H.J. Umbaugh and Associates. They said they relied heavily on studies out of California and Ontario, Canada, that questioned the use of this sort of public-private partnership. One found that taxpayers spent $160 million too much on a courthouse in Long Beach, Calif.

“My recommendation is it’s not the best model,” Bob Clifford, a financial consultant with Umbaugh, told The Indianapolis Star. “The city could’ve done it cheaper.”

Posted by Marcia Oddi on Wednesday, April 01, 2015
Posted to Indiana Government

Ind. Gov't. - What is happening with RFRA? [Updated]

The news reports are that there is a draft version of changes to the RFRA, that is being reviewed first by the House Republican caucus. That caucus, which constitutes a super-majority of the House of Representatives, has been meeting, in private as always, since mid-morning. If they can come to some agreement, the same process, vetting the same draft, would be followed by the Senate Republican caucus.

Here is the most recent update (12:16 PM, as of this writing) of the IndyStar coverage by Tom LoBianco and Tony Cook. They reportedly have been shown a draft of the measure, and write:

A copy of the language obtained by The Indianapolis Star was being presented to Gov. Mike Pence Wednesday morning. The measure would specify that the new religious freedom law cannot be used as a legal defense to discriminate against residents based on their sexual orientation.

The measure goes much further than a "preamble" that was proposed earlier in the week, explaining exactly what the RFRA law does. But it doesn't go as far as establishing gays and lesbians as a protected class of citizens or repealing the law outright, both things that Republican leaders have said they could not support.

The clarification would say that the new "religious freedom" law does not authorize a provider – including businesses or individuals – to refuse to offer or provide its services, facilities, goods, or public accommodation to any member of the public based on sexual orientation or gender identity, in addition to race, color, religion, ancestry, age, national origin, disability, sex, or military service.

The proposed language exempts churches or other nonprofit religious organizations – including affiliated schools – from the definition of "provider."

Specifying "services, facilities, goods, or public accommodation" is a good step forward.

In response to an ILB tweet to Tom LoLoBianco about whether the draft made clear that the RFRA did not pre-empt any local ordinances that were more protective, however, LoBianco said "It doesn't look like it."

[More] A new, 1:23 update to the Star story, includes:

It's unclear how the clarifying language will be received by socially conservative advocacy groups, which hold significant sway among Republicans at the Statehouse. Leaders of three of those groups – the American Family Association of Indiana, the Indiana Family Institute, and Advance America – declined comment or did not immediately return messages from The Star.

Democrats continue to call for a repeal of the law and full statewide protections against discrimination of gays and lesbians.

"They're trying to thread the needle between the old-fashioned-thinking, anti-equality advocates in this building and the business community," House Minority Leader Scott Pelath said.

"There's a much simpler path if they're willing to accept it and that is to promptly repeal the law and have hearings resulting in passage of protections for everybody and that includes people based on their sexual orientation," he said. "To repair Indiana's image, you've got to get rid of it and you've got to decisively and understandably demonstrate that we're welcoming to everybody."

[Updated at 2:06 PM] Here is a copy of the new RFRA. It is hard to see where the changes reported above would fit within its context.

Posted by Marcia Oddi on Wednesday, April 01, 2015
Posted to Indiana Government

Ind. Decisions - None today from COA

No opinions or decisions today from the Court of Appeals.

Posted by Marcia Oddi on Wednesday, April 01, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court decides one today

In Johnson Co. Property Tax Assessment Board of Appeals and the Johnson Co. Assessor v. KC Propco LLC d/b/a Kindercare Learning Center, a 14-page opinion, Judge Wentworth writes:

In this case, the Court is asked to examine whether the Indiana Board of Tax Review erred when it determined that the real property of KC Propco LLC d/b/a KinderCare Learning Center (KC Propco) qualified for an educational purposes exemption for the 2009 tax year. The Court finds that the Indiana Board did not err. * * *

As previously noted, when a building is exempt from property taxation because it is owned, occupied, and used for an educational purpose, the exemption also extends to the land upon which it sits. I.C. § 6-1.1-10-16(c). KC Propco’s building sits on a 2.607 acre parcel of land. (See Cert. Admin. R. at 12.) That entire parcel is exempt, not just the land attributable to the building’s footprint. See I.C. § 6-1.1-10-16(c). See also DeKalb Cnty. E. Cmty. Sch. Dist. v. Dep’t of Local Gov’t Fin., 930 N.E.2d 1257, 1260 (Ind. Tax Ct. 2010) (explaining that the Court will read statutes logically and in such a way as to prevent an absurd result). The Court will therefore not reverse the Indiana Board’s final determination on this basis.

Posted by Marcia Oddi on Wednesday, April 01, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - 7th Circuit posts one, decided March. 31st

In U.S.A. v. Miller (SD Ind., Pratt), a 20-page opinion, Judge Tinder writes:

Joshua Bowser, Christian Miller, and Frank Jordan were convicted as part of a large-scale prosecution of people associated with the Indianapolis Chapter of the Outlaws Motorcycle Club. For those not familiar with the Club, it was founded in 1935 in the Chicagoland area as group of motorcycle enthusiasts, and its website now boasts chapters all over the world. See Outlaws History, http://www.outlawsmcworld.com/history.htm (last visited Mar. 23, 2015). The Club, or at least some of its members, have had a spotty history of compliance with criminal laws. See Outlaws Motorcycle Club, Wikipedia, http://en.wikipedia.org/wiki/Outlaws_Motorcycle_Club (last visited Mar. 23, 2015). On appeal, the defendants challenge various aspects of their convictions and sentences. We remand in regard to a single issue related to a condition of Bowser’s supervised release, a point on which the government confesses error. In all other respects, we affirm. * * *

Accordingly, the judgments against Jordan, Miller, and Bowser are AFFIRMED, with the exception that Bowser’s case is REMANDED to the district court for further consideration of the term of his supervised release authorizing suspicionless searches.

Posted by Marcia Oddi on Wednesday, April 01, 2015
Posted to Ind. (7th Cir.) Decisions