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Saturday, May 30, 2015

Ind. Courts - "The Seventh Circuit’s NonRandom Assignment Process" criticized at length in SCOTUS petition [Updated]

Maryland/DC attorney Steve Klepper of @MDAppeal just posted a tweet calling attention to the pending cert petition in Motorola Mobility LLC v. AU Optronics (here is the SCOTUSblog case page) - the tweet:

Steve Klepper ‏@MDAppeal 1h1 hour ago Tom Goldstein, at pp 33–39 of this petition, fearlessly calls out Judges Posner & Easterbrook on appellate procedure [link to the case page]
ILB: Indeed, pp. 33-39 [pdf pp. 45-51] are must read. Some quotes from the petition:
This case also presents the Court an opportunity to exercise its supervisory power to put an end to a practice, unique among the circuits, that dramatically undermines the real and perceived impartiality of the appellate process in the Seventh Circuit.

This case illustrates what has just been an acknowledged for the first time as a practice in the Seventh Circuit and, as far as petitioner can determine, nowhere else. Seventh Circuit judges hearing applications to permit an interlocutory review regularly assign to themselves the merits of cases they find particularly significant and interesting, rather than leaving the case to the ordinary random assignment process. Although not permitted by the circuit’s own procedures, see supra at 12, Chief Judge Wood and Judge Easterbrook recently acknowledged the practice publicly.[6] * * *

The fact that a handful of judges are routinely reaching out to decide particular kinds of cases and legal questions illustrates the danger of the practice. The result is not simply a deviation from the general principle of random assignment of cases – as might occur, for example, when judges swap panels as a matter of convenience or a randomly selected panel is assigned a related case. Instead, the Seventh Circuit has effectively given judges with particular jurisprudential interests or agendas an opportunity to thumb through the docket and assign themselves cases in which to advance those interests.

The effect of this practice has been pronounced. One scholar found that the “Seventh Circuit issued seventeen reported Rule 23(f) opinions during the Rule’s first nine years on the books, every single one of which was written by Judge Easterbrook or Judge Posner.”

[More] See also this Dec. 4, 2014 ILB post, quoting from an "On the Case" column by Alison Frankel that asked: "Are judges in the 7th U.S. Circuit Court of Appeals quietly taking advantage of their unusual assignment system to effect particular results?"

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

Ind. Decisions - 7th Circuit decided one Indiana case, a prisoner appeal, May 29th

In Shane Kervin v. La Clair Barnes (ND Ind., Moody), a 7-page opinion, Judge Posner affirms the trial court's dismissal of the suit, after finding:

The judge made two errors in finding that Kervin could not establish a violation of the Sandin standard, though they were not consequential.
The opinion concludes:
The serious psychological consequences of such quasi-solitary imprisonment have been documented. See, e.g., Elizabeth Bennion, “Banning the Bing: Why Extreme Solitary Confinement is Cruel and Far Too Usual Punishment,” 90 Indiana Law Journal 741 (2015); Stuart Grassian, “Psychiatric Effects of Solitary Confine-ment,” 22 Washington University Journal of Law & Policy 325 (2006); Craig Haney & Mona Lynch, “Regulating Prisons of the Future: A Psychological Analysis of Supermax and Soli-tary Confinement,” 23 N.Y.U. Review of Law & Social Change 477 (1997).

Kervin, however, was placed in segregation for at most 30 days and, more importantly, does not allege that he suf-fered any significant psychological or other injury from it. So the judge was right to dismiss his suit. But we take this op-portunity to remind both prison officials and judges to be alert for the potentially serious adverse consequences of pro-tracted segregation as punishment for misbehavior in prison, especially the kind of nonviolent misbehavior involved in the present case. AFFIRMED

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

Friday, May 29, 2015

Ind. Courts - "Dress code part of proposed Vanderburgh court rule"

A story from Mark Wilson of the Evansville Courier-Press this evening about "a new rule being considered by Vanderburgh County's judges":

The proposed rule was released Thursday for public comment. It as sent to the Evansville Bar Association to distribute to members, and it was posted in locations around the Civic Center Complex and courthouse, said Krista Hamby, Superior Court administrator.

The rule titled "Conduct, Dress, and Court House Policies" addresses behavior for "lawyers, litigants and spectators." Some of what it covers, such as not bringing food and drink into courtrooms, not smoking in the court house and not creating disturbances in court, are already enforced.

However, the proposed rule also would prohibit chewing gum and it dictates that people "refrain from unnecessary conversation in the courthouse that would disturb the proceedings."

While cameras and making audio or visual recordings of court proceedings are not generally allowed in Indiana, the Vanderburgh rule would prohibit from courtrooms cameras, video cameras or "any devices capable of audio and/or video recording."

Although the proposal has been generating some discussion among lawyers already, the extent of the proposed rule's content was news to Vanderburgh County Sheriff David Wedding, who said he understood it was going to just address court security.

The sheriff's office would be responsible for enforcing the rule. * * *

The rule would apply uniformly to all seven judges and five magistrates in Superior Court as well to Circuit Court, which operates with one judge and one magistrate.

[Superior Court Judge Richard] D'Amour said the rule is patterned off one in from St. Joseph County. He said it began as an attempt to put into writing a local rule for courthouse security. It then evolved into a broader attempt to codify court decorum.

"The judges, by and large, agreed that the overall decorum of attire in society has changed over the years to the point that maybe we should remind people it's a courthouse, a court of law," he said. "I've actually had on two occasions people come to appear before me in court in pajamas. You wouldn't go to work that way. No one would go to church in pajamas." * * *

He also said that the proposed rule's prohibition on recording devices is not an attempt to keep smartphones, which many lawyers relay on for keeping calendars and information, out of court.

The proposed rule is open for public comment until June 28 and will become effective July 1.

Posted by Marcia Oddi on Friday, May 29, 2015
Posted to Indiana Courts

Ind. Gov't. - "Lawmakers won't study Indiana's anti-discrimination laws" [Updated]

Updating this ILB post from yesterday, Dan Carden reported this morning in the NWI Times:

INDIANAPOLIS | Hoosier lawmakers will meet in small groups over the summer to study 44 topics approved Thursday by the General Assembly's Legislative Council, but the issue that is almost certain to dominate the 2016 session didn't make the cut.

The Republican leaders of the House and Senate said there is no need for special review of Indiana's anti-discrimination protections or whether they should be expanded to include sexual orientation and gender identity.

"I fully expect there will be some legislation coming next year and I expect we'll be talking about it, but there won't be a formal study committee on it this summer," said Senate President David Long, R-Fort Wayne. * * *

Senate Democratic Leader Tim Lanane, D-Anderson, said he was disappointed GOP leaders rejected his request to study how best to accomplish that, since the issue certainly is not going away and polls show a plurality of Hoosiers favor a nondiscrimination statute.

"Sooner or later, this issue needs to be discussed, debated, and in my opinion we need to amend our laws to protect the categories of sexual orientation and gender identity," Lanane said.

Study committee review is not required for legislation to be considered during the next meeting of the General Assembly. Still, more complicated issues typically undergo the extra scrutiny, often featuring testimony by outside experts, to speed consideration of proposals during the 10-week legislative session that starts in January.

The story goes on to list topics that will be studied, and includes a link to the 10-page Legislative Council study committee resolution (15-01):
Topics lawmakers will study this summer include: student testing and education data collection requirements, public records access to police body camera videos, medical malpractice caps, various issues relating to rape and child abuse, special education funding, access to broadband Internet service, reforms to solid waste management districts and the effectiveness of business tax incentives.

Also, whether to open old adoption records for now-adult adoptees to more easily find their birth parents, a review of post-prison employment barriers, agricultural property tax assessments, food and beverage taxes, the potential impact of a stronger statewide smoking ban, penalties for extra-long trains blocking street crossings and legislative redistricting, among others.

Also not making the cut was a recommendation in House Enrolled Act 1540, sponsored by state Rep. Tom Dermody, R-LaPorte, to examine how local governments spend their gaming tax revenue.

[Updated 5/30/15]From Dave Bangert's column in the Lafayette Journal&Courier:
Even after the way the Religious Freedom Restoration Act blew up in their faces last spring, General Assembly leaders this week punted again on a chance to make a clear statement about appropriate and equal civil rights protections for gay and lesbian Hoosiers. The issue wasn't good enough to make the legislature's list up for study this summer. * * *

The summer study list is meaty. Up for discussion: the terminal mismanagement, overcharges and dubious auditing skills at the Bureau of Motor Vehicles; public records use of police body camera footage; possible regulations on e-cigarettes; a look at alternatives to the standardized ISTEP test used in Indiana schools; smoking regulations in bars; and more.

But when it comes to an issue that ground the legislature to a halt and put Indiana up to the white-hot spotlight of national ridicule, the Republican supermajority in the Statehouse finds no cause?

Senate President David Long, R-Fort Wayne, told The Statehouse File's Keith Kassen not to read too much into the fact that anti-discrimination laws didn't make it into the summer study rotation. Long said discussions would "go on quietly through the summer."

Maybe so. But here's the thing.

Senators and representatives missed the optics of RFRA as the situation played out in real time. They ignored or misread warnings about how a bill they considered to be innocuous would be perceived — rightly or wrongly — as anti-discriminatory at best and pure payback for failed efforts to carve a gay marriages ban into the Indiana Constitution at worst. They perked up only after businesses threatened to leave; the NCAA railed against the bill that officials said would factor into decisions about Indianapolis' shot as a Final Four host, not to mention the future of NCAA offices in Indy; and big-time conventions considered other locales.

This is still about optics.

And what Republican leaders in the Statehouse don't see is that each time they ignore the easiest, most proactive way to make things right, it shows. And glaringly so.

If you don't agree that Indiana is in a hole on this one, take it from Gov. Mike Pence. As pro-RFRA as you can get, Pence is now willing to spend hundreds of thousands of dollars — and potentially more than $2 million by the time it's over, according to some estimates — on a New York City public relations firm to shore up Indiana's reputation as a welcoming place.

How does that not include signaling to the world that equal protection is in the works?

Indiana cities and counties already took those steps this spring with anti-discrimination resolutions of their own. Still, the city resolutions don't add up to much beyond public statements of community values. Cities and counties with human relations ordinances that include protections based on sexual orientation — early adopters Lafayette, West Lafayette and Tippecanoe County among them — don't have much enforcement power beyond mediation. The teeth of a state law would make it a different animal.

Posted by Marcia Oddi on Friday, May 29, 2015
Posted to Indiana Government

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

For publication opinions today (2):

In State of Indiana v. Scott Zerbe, a 13-page, 2-1 opinion, Judge Crone writes:

Scott Zerbe was convicted of a felony sex offense in Michigan in 1992. After he was released from prison in 1999, he was required by Michigan law to register as a sex offender for twenty-five years. Indiana’s Sexual Offender Registration Act (“SORA”) was enacted in 1994. In 2006 and 2007, SORA was amended to provide that that a person required to register as a sex offender in any jurisdiction shall register as a sex offender in Indiana for the period required by the other jurisdiction. In 2012, Zerbe moved to Indiana. Under SORA, he was required to register as a sex offender in Indiana for the remainder of the period required by Michigan law. Zerbe filed a petition to remove his designation as a sex offender, claiming that SORA is an unconstitutional ex post facto law as applied to him because it was enacted after he committed the Michigan offense and did not give him “fair warning that his conduct would result in a penalty requiring him to register as a sex offender.” Appellant’s App. at 5. The State opposed Zerbe’s petition, which the trial court granted.

On appeal, the State argues that SORA is not an unconstitutional ex post facto law as applied to Zerbe. We agree: Zerbe had fair warning of SORA’s registration requirement before he moved to Indiana, and SORA imposed no additional punishment because he was already required to register in Michigan. Therefore, we reverse. * * *

Brown, J., concurs.
Baker, J., dissents with opinion [which begins on p. 11, and concludes] Our Supreme Court, plus three panels of this Court, have plainly held that the date of primary importance is the date of the original conviction. Notwithstanding the state of the law at the time Zerbe moved to Indiana, he is a resident of this State and “is entitled to the protections afforded to him by the Indiana Constitution. Therefore, even though he would be required to register as a sex offender under [Michigan’s] laws, Indiana’s law controls.” Hough, 978 N.E. 2d at 510. Zerbe was convicted of a sex offense before Indiana enacted SORA. Therefore, I believe that requiring him to register as a sex offender would violate Indiana’s constitutional prohibition against ex post facto laws and would affirm the trial court’s judgment.

In Shaheen Zamani v. State of Indiana, a 28-page, 2-1 opinion, Judge Brown writes:
Shaheen Zamani appeals his conviction for attempted murder and raises two issues, which we revise and restate as:
I. Whether the trial court abused its discretion in denying his belated request to assert an insanity defense; and
II. Whether the prosecutor committed misconduct during closing argument which resulted in fundamental error.
We affirm. * * *

Bailey, J., concurs.
Robb, J., dissents with separate opinion [which begins, on p. 27, and concludes] Because I believe Zamani showed good cause for allowing the filing of a notice of intent to assert an insanity defense and that such filing would be in the interest of justice, I would hold that the trial court abused its discretion in denying the notice to assert an insanity defense and remand for a new trial.

NFP civil decisions today (1):

Mitchell Sigman v. State of Indiana and Sharon Hawk (mem. dec.)

NFP criminal decisions today (2):

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

Matthew T. Dickerhoff v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, May 29, 2015
Posted to Ind. App.Ct. Decisions

Thursday, May 28, 2015

Ind. Gov't. - In spite of new staff, the Governor's Office appears to be having trouble keeping track of its mail

"Pence grows communications team following stumbles" was the heading to this long story yesterday by Dan Carden in the NWI Times. A few quotes:

Combined, Pence's [new] messaging team takes home more than $400,000 a year in salaries. Though that total appears smaller in state records because Cleveland is paid by the Office of Technology and Hodgin by the Department of Health, despite working at cubicles less than 200 feet from Pence's desk.

Pence's predecessor, Republican Gov. Mitch Daniels, got by with three communications staffers. Republican Illinois Gov. Bruce Rauner spends $508,125 a year on six, just one more than Pence, even though Illinois has twice Indiana's population.

The office shake-up follows Pence's inability to defend the "religious freedom" law he enacted March 26 against claims that it licensed discrimination against homosexuals, which prompted a worldwide "Boycott Indiana" movement.

The Republican-controlled Legislature later approved a second measure prohibiting discrimination under the guise of religious liberty, which Pence reluctantly signed and then left the country for several days without speaking to reporters.

The Pence administration has since announced plans to spend up to $2 million in state funds with national public relations firms trying to restore Indiana's reputation as a welcoming state.

ILB: The ILB has learned that, in spite of all this new staff, the Governor's Office appears to be having trouble keeping track of its communications.

On May 26th the Public Access Counselor issued Re: Formal Complaint 15-FC-144; Alleged Violation of the Access to Public Records Act by the Office of Governor Mike Pence. You may access it here. It reads in part:

On April 3, 2015, you made APRA requests to the Governor's Office. You stated you are seeking documents and correspondence relating to the signing of Senate Bill SB-101 [RFRA].

As of the filing of your complaint, the Governor's Office has not responded. Counsel for the Governor's Office replied on April 27, 2015. Despite the tracker stating the request was delivered, counsel contends it was not received by the Office, but rather by the Statehouse mailroom. * * *

While the Post Office tracker states the letter was delivered to the Indiana Statehouse Mailroom, apparently it was never actually received by the Governor's Office. As this Office does not make value judgments as to factual disputes, it is unclear what became of your request. The Governor's Office has made it clear they are willing to respond to your request. Based upon your complaint, I encourage them to do so expeditiously.

The author of the FOIA tells the ILB that his request, which was sent by:
... certified mail, return receipt requested request, was lost between the mailroom. and the governors office (it was addressed directly to the governor.)

Posted by Marcia Oddi on Thursday, May 28, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 additional opinion(s) today (and 10 additional NFP memorandum decisions)

ILB: Notice the word additional in the heading. When the ILB checked the COA site at mid-morning, opinions had been posted, and the ILB posted these summaries. Sometime later the COA posted more opinions, intermixed with the earlier... Those who use the Courts site should be aware that the COA sometimes does this with no alerts to the public; while the Supreme Court, at least since the new CJ, posts timely Twitter alerts whenever it posts opinions.

Additional for publication opinions today (1):

In Tony Hatchett v. State of Indiana, an 11-page opinion, Judge Pyle writes:

Appellant/Defendant, Tony Hatchett (“Hatchett”), appeals his two convictions of Class D felony invasion of privacy1 which were based on his violation of a protective order and a no-contact order. He objected to one of the trial court’s final jury instructions at trial, arguing that it misled the jury on the law regarding invasion of privacy. The trial court tendered the instruction over Hatchett’s objection, and now on appeal he argues that the trial court improperly instructed the jury. We conclude that the trial court did not improperly instruct the jury and that, regardless, any potential error did not prejudice Hatchett’s substantial rights because there was sufficient evidence to support his conviction. However, sua sponte, we conclude that Hatchett’s two convictions, both based on the same telephone call, violate the actual evidence test for double jeopardy under the Indiana Constitution. We reverse and remand to the trial court with instructions to vacate one of Hatchett’s convictions for Class A misdemeanor invasion of privacy as well as its enhancement to a Class D felony.
Additional NFP civil decisions today (3):

S.M. v. Indiana University Health, Bloomington Hospital and Centerstone (mem. dec.)

In the Matter of the Paternity of B.K. and L.K., Kathryn D. McCallaham v. Joy X. Khotxay (mem. dec.)

Melissa Roberts Gannon v. Jesus A. Gomez-Rocha (mem. dec.)

Additional NFP criminal decisions today (7):

Carlos Miles v. State of Indiana (mem. dec.)

Sergio A. Villanueva v. State of Indiana (mem. dec.)

David Pannell v. State of Indiana (mem. dec.)

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

Anthony Edward Stewart v. State of Indiana (mem. dec.)

Jeffrey Cowart v. State of Indiana (mem. dec.)

Phillip Killebrew v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, May 28, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Editorial: Good money for bad causes - Indiana wasted more than a million on same-sex marriage legal battle"

The editorial is in yesterday's Terre Haute Tribune-Star. Some quotes:

[O]ur state had to pay more than $1.4 million to plaintiffs’ attorneys in its unsuccessful effort to maintain its ban on same-sex marriages, even when it was obvious to the world that such discriminatory practices were destined to be things of the past.

Federal judges had been striking down same-sex marriage bans in state after state when a U.S. district court judge in Indiana did the same last summer. That ruling was stayed for several months as the U.S. Supreme Court took up the issue, and Indiana joined in the effort to defend the state bans. But in October, the high court decided to let stand the lower court rulings that the bans were unconstitutional, which made same-sex marriage legal in Indiana. The ruling settled five lawsuits in favor of the plaintiffs and left the state to foot huge legal bills.

We understand that the state must defend its laws, but there comes a time when some laws are not worth defending. This was one of those. It wasted good money on a losing cause.

Unfortunately, Indiana has shown a propensity to waste money fighting ideological battles that cost the state in both taxpayer funds and public image. It had lost other challenges in recent years, and today it is in the process of spending up to $2 million to clean up the PR mess it created this legislative session over the so-called “religious freedom” law, which many saw as opening the door to discrimination against individuals based on sexual preference or gender identity.

Posted by Marcia Oddi on Thursday, May 28, 2015
Posted to Indiana Government

Law - "For Loretta Lynch, a stunning debut on the world stage"

Politico has a long story by Josh Gerstein on the soccer probe. It begins:

For almost six months, Loretta Lynch was known mostly as the woman who couldn’t get an up-or-down vote on her nomination as attorney general.

But after only a month in office she could hardly have crafted a more attention-grabbing debut than the dramatic announcement she made Wednesday of an American-led takedown of corruption in FIFA, the governing body of international soccer.

So as it was only "after only a month in office," the ILB at first assumed that AG Lynch was announcing the latest developments in a case the DOJ had been working on long before she took office. But not so. From later in the story:
Top officials often swoop in on cases they know little about and claim credit, but the facts of the soccer probe defied that kind of analysis.

The case was built in Lynch’s Brooklyn office over a period of years, with some of the most intense activity taking place during her most recent tenure as U.S. attorney from 2010 to 2015.

Lynch’s intimate knowledge of the investigation was clear during Wednesday’s news conference. She confidently fielded questions about the complicated international situation, including the potential impact the indictment could have on upcoming election of FIFA’s next president.

Posted by Marcia Oddi on Thursday, May 28, 2015
Posted to General Law Related

Ind. Gov't. - Legislative Council meets today to decide summer study topics [Updated]

A story by Tony Cook of the Indianapolis Star asks:

When Indiana legislative leaders meet today to determine which topics to study this summer, they'll have to decide whether to include statewide nondiscrimination protections for gays, lesbians, and transgender people.

Democrats have pushed for a study of the issue in anticipation of a debate during next year's legislative session. But Republicans who control both chambers have blocked such efforts in the past.

It's unclear whether the issue will even make it onto the list of potential study topics. The Legislative Council — a group of top lawmakers from both chambers — is expected to make final decisions about which topics to study during a 1:30 p.m. meeting today. * * *

Other topics being considered for study this summer include BMV reforms, drug testing for welfare recipients, casino taxes and how to draw new districts for legislative races after the next census.

Here is the agenda for today's meeting. The documents referred to in the agenda do not appear to be available to the public. But you may be able to watch the meeting, beginning at 1:30, here.

[Updated at 1:54 PM]
A tweet from Tony Cook ‏@indystartony:
Indiana lawmakers have approved topics for summer study committees. Not on the list: statewide LGBT nondiscrimination law

Posted by Marcia Oddi on Thursday, May 28, 2015
Posted to Indiana Government

Ind. Gov't. - "Lawsuit says Mourdock gave chief deputy 3-year contract" [Updated]

The AP and WIBC reported yesterday:

INDIANAPOLIS | A lawsuit by former state Treasurer Richard Mourdock's chief deputy challenging his firing claims the official gave him a three-year, $300,000 contract before he resigned from office last year.

The former deputy, Jim Holden, is suing current state Treasurer Kelly Mitchell in Marion County Superior Court, alleging that Mitchell fired him upon taking office.

Holden says that in the final months of Mourdock's term, Mourdock gave Holden a three-year, $300,000 contract as counsel for the Indiana Board for Depositories, which the treasurer's office oversees.

That contract was to take effect on Mourdock's last day in office and cover most of the next treasurer's term, with an automatic extension if Holden was called up to active duty with the National Guard, WIBC-FM reported).

The WIBC headline:"Court Documents: Mourdock Sought to Lock In Job for Top Aide Before Leaving Office. Ex-chief deputy suing new treasurer over firing; Mitchell says 3-year contract inked with Mourdock was invalid."
A contract which would have guaranteed a job for former state treasurer Richard Mourdock's chief deputy after Mourdock left office in 2014 has sparked a court fight with Mourdock's successor.

In the final months of Mourdock's term, he gave Jim Holden a three-year, $300,000 contract as counsel for the Indiana Board for Depositories, which the treasurer oversees. That deal was to take effect on Mourdock's last day in office and cover most of the next treasurer's term, with an automatic extension if Holden was called up to active duty with the National Guard.

Mourdock resigned three months later, four months before the scheduled end of his term. When fellow Republican Kelly Mitchell was sworn in to replace him, she fired Holden.

The ILB vaguely recalls at least one on point Indiana court decision. But all I can locate right now are examples such as "Can a council grant a multiyear employment contract that extends beyond the terms of a majority of its members?," from Oct. 30, 2004; and cases involving two different Lake County police chiefs, fired when the council makeup changed, from Nov. 16, 2004.

[Updated]
These are not precisely on point (i.e. they do not involve separately elected state officials such as the auditor, treasurer, superintendent, AG, etc.), but a reader has sent Delaware County Commissioners v. Beverly J. Evans, where the 2-1 COA panel wrote:
The Board argues that Evans’s employment contract violates “the very essence of elected government.” By binding the Board to its predecessor members’ choice for H.R. Director, Evans’s contract prevents the Board’s successor members from implementing the policies desired by the majority of the public who elected them. (See Figuly v. City of Douglas, 853 F. Supp. 381, 381 (D. Wyo. 1994) (discussing this “critical facet of democracy”). We agree.
And the ILB located Ronald Taylor v. The Town of New Chicago, where the issue was "Whether a town council and a chief of police may enter into a valid and enforceable employment contract that permits termination only for good cause is a question of first impression."

Posted by Marcia Oddi on Thursday, May 28, 2015
Posted to Indiana Government

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

For publication opinions today (2):

In Terry Huber v. Roger Hamilton, a 17-page opinion, Chief Judge Vaidik writes:

We agree with the trial court that the Statute of Frauds applies to the parties’ oral agreement to modify the written land contract and, therefore, the oral agreement is unenforceable because it was not reduced to writing. Furthermore, we find that neither party has met its heavy burden of removing the oral agreement from the Statute of Frauds based on the equitable doctrine of promissory estoppel. Finally, because the oral agreement is unenforceable, we agree with the trial court that the buyer breached the written land contract by failing to make the balloon payment when it was originally due.
In John R. Myers II v. State of Indiana , a 67-page opinion, Judge Friedlander writes:
John R. Myers II appeals from the denial of his petition for post-conviction relief (PCR). He raises the following restated issues on appeal:
1. Did the post-conviction court err in concluding that Myers was not denied the effective assistance of trial counsel?
2. Did the post-conviction court err in concluding that Myers’s due process rights were not violated by the State’s alleged failure to disclose all exculpatory evidence to the defense?
3. Did the trial court err in concluding that Myers was not entitled to relief based on his claims of prosecutorial misconduct?
We affirm.
[ILB: Myers was convicted in 2006 of killing IU student Jill Berman. ]

NFP civil decisions today (2):

In the Matter of the Paternity of B.K. and L.K., Kathryn D. McCallaham v. Joy X. Khotxay (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of D.S. (Minor Child), and B.T. (Mother) v. The Indiana Department of Child Services and Court Appointed Special Advocate (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Thursday, May 28, 2015
Posted to Ind. App.Ct. Decisions

Wednesday, May 27, 2015

Ind. Decisions - Three new disciplinary rulings, filed May 19

In the Matter of: Darren T. Cole (St.George, Utah) - Order imposing reciprocal discipline:

Respondent was admitted to practice law in Indiana and in Tennessee. On November 5, 2014, the Chancery Court for Williamson County, Tennessee, issued an order suspending Respondent in Tennessee for three years, beginning November 7, 2014. On February 3, 2015, the Supreme Court of Tennessee issued an order approving and adopting the Chancery Court’s order.

The Court finds that there has been no showing, pursuant to Admission and Discipline Rule 23(28)(c), of any reason why reciprocal discipline should not issue in this state.

Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state as of the date of this order.

In the Matter of: Bruce N. Munson (Muncie) - Order approving statement of circumstances and conditional agreement for discipline:
The Commission received an overdraft notice for Respondent’s attorney trust account. An investigation revealed that Respondent made several cash withdrawals from his trust account, that Respondent did not keep accurate and contemporaneous individual client ledgers, and that Respondent’s internal trust account records did not reconcile with the bank statements. There is no allegation that client funds were missing from Respondent’s trust account.

In aggravation, the parties cite Respondent’s substantial experience in the practice of law and the fact that Respondent’s failure to keep accurate and contemporaneous records was not an isolated event but rather his established means for maintaining his trust account. * * *

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of six months, beginning on the date of this order, all stayed subject to completion of at least two years of probation.

In the Matter of Diane R. Hurtt (Lafayette) - Order finding respondent in contempt of court and imposing suspension and fine. Respondent did not timely respond to a Commission motion:
... asserting Respondent accepted a new client and legal matter during the time she was prohibited from doing so. * * * We therefore find, as asserted by the Commission, that Respondent accepted a new client and legal matter during a time she was prohibited from doing so, in violation of this Court’s order of October 24, 2014, and Indiana Admission and Discipline Rule 23(26)(b).

Being duly advised, the Court GRANTS the Commission’s motion. Respondent shall be suspended from the practice of law for a period of not less than ninety (90) days, without automatic reinstatement, beginning June 25, 2015.

Posted by Marcia Oddi on Wednesday, May 27, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 7 NFP memorandum decisions)

For publication opinions today (5):

In Kathy L. Siner, Deceased, and John T. Siner, prior Enduring Power of Attorney and Medical Representative of the Deceased v. Kindred Hospital Limited Partnership, et al., a 19-page, 2-1 opinion, Judge Bradford writes:

In 2013, Appellants-Plaintiffs Kathy and John Siner (collectively “the Siners”) brought a medical malpractice suit against Appellee-Defendant Kindred Hospital and its employees Appellees-Defendants Dennis Nicely and David Uhrin (collectively “Kindred”) as well as Appellee-Defendant Dr. Mohammed Majid. The Siners alleged that Kindred and Dr. Majid (collectively the “Defendants”) were negligent in their medical treatment of the Siners’ mother, Geraldine Siner, resulting in her injury. The Siners filed their complaint after a medical review panel determined, in 2012, that the Defendants were negligent and that their negligence may have caused injury to Geraldine. The trial court granted separate motions for summary judgment in favor of Dr. Majid and Kindred, finding that the Siners had failed to designate evidence which created an issue of material fact with regards to whether Defendants’ allegedly negligent conduct proximately caused injury to Geraldine. We affirm the trial court’s grant of summary judgment with regards to Dr. Majid and reverse with regards to Kindred. * * *

[T]he medical panel’s decision was inconclusive regarding causation, so the burden was on the Siners to offer evidence sufficient to create a material issue of fact on causation. As such, the Defendants were under no duty to offer such evidence and the existence of Dr. Krueger’s affidavit, valid or not, is irrelevant to our decision. See Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388, 393 (Ind. Ct. App. 2010) (A medical review panel’s opinion stating that it cannot determine from the evidence whether a defendant’s conduct caused the injury to patient affirmatively negates the causation element and shifts to the patient the burden of demonstrating the existence of a genuine issue of material fact as to causation). * * *

[T]he medical panel opinion is not sufficient to support a verdict under the Noblesville Casting standard. “A court must grant summary judgment…against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Briggs, 631 N.E.2d at 963. Therefore, the medical panel opinion did not create an issue of material fact regarding causation sufficient to preclude Dr. Majid’s motion for summary judgment. * * *

Vaidik, C.J., concurs.
Kirsch, J., concurs in part and dissents in part with opinion. [That begins, at p. 17] I fully concur in the decision to reverse the trial court’s grant of summary judgment with regard to the Kindred defendants, but I respectfully dissent form the decision to affirm the grant of summary judgment for Dr. Majid. * * *

To me, the fact that Dr. Krueger issued a different opinion several months after the process is immaterial. The expert medical opinion arising from the Medical Review process remains that Dr. Majid “failed to comply with the appropriate standard of care, and that [his] conduct may have been a factor of some resultant damages, but not the death of the patient.”

The second basis from my dissent rises from the fact that the Medical Review process was created by our General Assembly. That process is mandated in nearly all legal proceedings alleging medical malpractice. The process includes a number of mandated procedural and evidentiary safeguards to protect the rights of all parties to the proceeding. That process should not be impeached or undermined months after it is concluded by an affidavit from a member of the panel issued without those procedural safeguards.
______________
[ILB: The opinion includes a significant footnote [3] at pp. 9-10 that begins: "We note that the Defendants have cited to the cases Colaw v. Nicholson, 450 N.E.2d 1023, 1030 (Ind. Ct. App. 1983) and Topp v. Leffers, 838 N.E.2d 1027, 1033-1034 (Ind. Ct. App. 2005). These cases reiterate the standard provided in Noblesville Casting. However, the court in Colaw misquotes Noblesville Casting, and that misquotation is subsequently repeated in Topp and cited in Kindred’s appellate brief.]

In Tommy Lampley v. State of Indiana , a 7-page opinion, Judge Pyle concludes:
Lampley argues that “the record is barren of any evidence that [he] engaged in unlawful conduct . . . .” (Lampley’s Br. 6). We disagree. As we previously observed, Lampley admitted at the evidentiary hearing that he smoked marijuana in celebration of leaving the Department of Correction, resulting in his positive urine screen at work release. Though Lampley was not arrested, the State does not have to show that he was convicted of a new crime. * * *

Lampley’s confession to smoking marijuana is sufficient evidence to support revocation of his probation, and we find no abuse of discretion with the trial court’s order. See, e.g., Smith v. State, 504 N.E.2d 333, 334 (Ind. Ct. App. 1987) (probation revocation affirmed where defendant confessed to new crime).

In Lamont Wilford v. State of Indiana , a 19-page opinion, Judge Bailey writes:
Wilford presents one issue for review: whether the trial court abused its discretion in admitting into evidence the handgun and photographs of the gun discovered during a vehicle inventory search. * * *

“In determining the reasonableness of an inventory search, courts must examine all the facts and circumstances of a case.” Id. Here, the police initiated a traffic stop of an unsafe car, which was in the sole possession of a driver with suspended privileges who did not own the vehicle. As a result of the driver’s arrest for the driving-related offense, the car would be left unattended for an unknown period of time. The officer testified that, based on the totality of the circumstances, police procedure provided for impoundment in that situation. Under these circumstances, we hold that Officer Raisovich’s decision to impound the vehicle was reasonable. * * *

Based on our review of the facts and circumstances of this case, it was reasonable under the Fourth Amendment for the police to impound the car Wilford was driving and inventory the contents before towing. Accordingly, the trial court did not abuse its discretion in admitting the gun and photographs of the gun into evidence. * * *

For the same reasons the search in this case was reasonable under the Fourth Amendment, the officer’s decision to impound and conduct an inventory search of the car Wilford was driving was reasonable under Article 1, Section 11 of the Indiana Constitution.

In Nickole Nichols v. State of Indiana , a 9-page opinion, Judge Pyle writes:
Appellant/Defendant, Nickole Nichols (“Nichols”), appeals her conviction, after a bench trial, for Class A misdemeanor prostitution.1 Nichols was arrested for prostitution after she agreed to have sex in exchange for money with an undercover detective outside of a strip club. At trial, she filed an Indiana Trial Rule 41(B) motion to dismiss the charge after the State presented its case-in-chief, raising the affirmative defense of entrapment and arguing that the State had not presented sufficient to rebut the defense. In support of this argument, she noted that the undercover detective had solicited the criminal activity. The trial court denied the motion, finding that, while there was evidence that the detective had induced Nichols’ behavior, there was also evidence that she was pre-disposed to prostitution and, therefore, the detective did not entrap her. On appeal, Nichols disputes the trial court’s denial of the motion and argues again that she was entrapped into committing prostitution. Because we find that the undercover detective presented Nichols with a mere opportunity to commit prostitution, but did not otherwise induce the offense, we conclude that there was no entrapment. In addition, there was sufficient evidence to support Nichols’ conviction. We affirm.
In Somchanh Amphonephong v. State of Indiana , a 16-page opinion, Judge Pyle writes:
Following a jury trial, Somchanh Amphonephong was convicted of three counts of child molesting, one as a Class A felony and two as Class C felonies. At sentencing, Amphonephong informed the trial court that he wanted to appeal his convictions. The trial court told Amphonephong that it would appoint appellate counsel, but it failed to do so. Eighteen months later, Amphonephong filed a petition seeking permission to file a belated notice of appeal. The trial court, acknowledging that it had failed to appoint appellate counsel, granted Amphonephong’s petition.

On appeal, Amphonephong challenges only his Class C felony child molesting conviction as charged in Count III, arguing that there is insufficient evidence to support the conviction. The State cross appeals the trial court’s order granting Amphonephong permission to file a belated notice of appeal. The State acknowledges that Amphonephong was not at fault for the failure to timely file a notice of appeal but contends that we should reverse the trial court’s order and remand for a hearing on Amphonephong’s petition because: (1) the trial court did not make an express finding that Amphonephong was not at fault and was diligent in his attempt to file the belated appeal; and (2) Amphonephong failed to specifically allege that he was diligent.

Concluding that the trial court did not abuse its discretion by allowing Amphonephong to file a belated notice of appeal and that there is sufficient evidence to support Amphonephong’s Class C felony child molesting conviction as charged in Count III, we affirm.

NFP civil decisions today (4):

Sophia L. Masters v. Ryan E. Masters (mem. dec.)

Shellie S. Gryniewicz f/k/a Shellie S. Shih v. Daniel Shih (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: P.N., A.N. v. Ind. Dept. of Child Services (mem. dec.)

J. Richard Presser, Rachel E. Presser, Kevin Kelley, Richard Sanderson, Rosemary Sanderson, Thomas Reis and Mary Reis v. North Indiana Annual Conference of the United Methodist Church, et al (mem. dec

NFP criminal decisions today (3):

Darrel Warren v. State of Indiana (mem. dec.)

Dominic Lowe v. State of Indiana (mem. dec.)

Dominique Hamler v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, May 27, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 22, 2015

No transfer list for last week has yet been posted by the Court.

Posted by Marcia Oddi on Wednesday, May 27, 2015
Posted to Indiana Transfer Lists

Ind. Courts - Man settles with Indy in federal court for 11 months in jail - wrongful imprisonment

Jill Disis reported May 23rd in the Indianapolis Star:

Carlos Starks will never regain the 11 months he spent behind bars, awaiting trial for a murder he knew he didn't commit.

But nearly five years after his initial arrest, the days Starks spent mired in court battles are over. The lawsuit he filed against an Indianapolis Metropolitan Police Department detective and the city for what he says was a wrongful arrest and imprisonment has been settled for $650,000 in federal court — the largest amount in such a case in recent city history and perhaps ever.

The 2012 lawsuit filed against Detective Lesia Moore alleged that she made false and misleading statements to pursue a murder warrant for Starks' arrest in the 2010 slaying of Douglas Craft * * *

Although the suit was settled April 28, the city's first public acknowledgment of the resolution came in an e-mailed news release early Saturday morning that did not include the settlement amount. In addition to the financial agreement, the city said it also supports the expungementof the murder charge from Starks' record, though it does not admit to any liability in the case. * * *

An e-mail reply from Samantha DeWester, the city's public access counselor, indicated she was unavailable until Tuesday. Attempts to reach Moore through police authorities for a comment on the settlement were unsuccessful. * * *

Bob Hammerle, a local defense attorney, called the settlement "profound" – but he stressed that it will prove most valuable only if it extends to the city's future training of police investigators.

"It will only have meaning down the road," he said, "if they're going to instruct their detectives to use this case as a model not to make this mistake again."

The ILB has been advised that the Star reporter ultimately learned the amount of the settlement from Starks' attorney Kevin Betz.

Posted by Marcia Oddi on Wednesday, May 27, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Fish farm facing big court judgments, questions"

Keith Roysdon of the Muncie Star-Press reported May 21st (also available in a 5/23 shortened version from the Indiana Economic Digest):

An Albany-area fish farm that fell out of contact with Delaware County economic development officials is now facing more questions — and more than $200,000 in court judgments stemming from lawsuits.

Bell Aquaculture has been sued by businesses owed money by the fish farm. In at least two cases, Bell officials lost in court because they never responded to the lawsuits, court records show.

People who have done business with Bell tell The Star Press the company’s behavior is baffling and wonder if it indicates a business in serious trouble. Companies that won court judgments hope that is not the case. * * *

When it opened in Albany and Redkey in the mid-and-late-2000s, the company promised to create jobs by growing millions of pounds of fish for consumers. Bell’s products have been sold in restaurants and stores.

The company has said it hoped to raise $15 million from private investors and, in 2012, Bell — through the Economic Development Alliance — asked the county to issue $16.6 million in economic development revenue bonds. The county created a tax increment financing (TIF) area for Bell and subsequently also agreed to build a $1-million-plus road to Bell to get truck traffic off Albany streets.

After hearing nothing from Bell this year, the county stopped that road project, although land had already been purchased for the road’s construction.

Ramey, who successfully sued Bell over his bill for trucking, said he was owed $10,000. The company is negotiating with companies it owes to bargain down its debt, Ramey said.

“They’ve got $20 million worth of equipment on the floor crated and not in use,” Ramey said. The Star Press was also told that electric service to Bell was cut off earlier this year for non-payment of utility bills.

"Bell Aquaculture" may sound familiar -- the ILB posted another Star-Press story, just last year, on Feb. 26, 2014, headed "Fish farm plans $30 million expansion; but neighbors raising a stink." This was followed by a March 31, 2014 post quoting the Star-Press: "The Metropolitan Board of Zoning Appeals on Thursday night voted 4-3 to approve a variance that will allow Bell Aquaculture to install a fish feed mill that supporters say will act as a catalyst to grow the state’s aquaculture industry."

Posted by Marcia Oddi on Wednesday, May 27, 2015
Posted to Environment | Indiana Courts

Tuesday, May 26, 2015

Law - "The fall and rise of lawyers" - A cold-eyed examination

Benjamin H. Barton, a law professor at the University of Tennessee, has this commentary today at CNN.com. This section on the futility of mandatory pro bono efforts caught my eye:

Study after study show that legal fees are too high for most middle- and low-income Americans, even when they face a very serious legal problem.

Even junior lawyers charge more than $200 an hour, and relatively simple matters like drafting a will or incorporating a business take 10 hours or so. As a result, many Americans cannot afford to get divorced, change child custody arrangements or defend themselves in eviction/foreclosure proceedings.

Bar associations have argued for years that increased legal aid funding, required pro bono service, or a constitutional right to a free lawyer in civil cases are the answers to these problems, i.e. more individualized legal services by more lawyers.

This is an unrealistic analog, 1960s-era solution to a very serious problem. There will never be sufficient funds to pay for enough individualized legal work to meet the needs of the poor, let alone the middle class.

This is followed by:
Fortunately, except for in-court representation, computerization is on the verge of bypassing the legal profession altogether and solving these problems. Start with the basics of American law -- statutes, regulations, and reported court decisions.

Nonprofits and government entities have put almost all of the raw materials of American law online and Google and other search engines have made that law easier to find than ever. An American with a smart phone now has more access to legal sources than most lawyers or judges did fifteen years ago.

After a wrenching period of change, the profession itself will be improved. The profession will benefit greatly as fewer students enter law school with a more realistic idea of what lawyers do and earn. The actual job of being a lawyer will also improve.

Virtually all of the legal work that is repetitive or simple -- whether corporate document review or a basic divorce -- will be automated, outsourced or handled by less expensive non-lawyers. Only the most complicated, important and interesting work will remain. As Richard Granat puts it, "lawyers will practice at the top of their license."

Posted by Marcia Oddi on Tuesday, May 26, 2015
Posted to 21st Century Law | General Law Related

Ind. Decisions - Tax Court posts opinion filed May 22nd

In Marion County Auditor v. State of Indiana, a 10-page opinion, Judge Wentworth writes:

The Marion County Auditor has filed an appeal with this Court challenging the constitutionality of Indiana Code § 6-1.1-15-12. * * *

Indiana Code § 6-1.1-15-12 permits only taxpayers to appeal to the Indiana Board from a PTABOA determination on a Form 133. I.C. § 6-1.1-15-12(e). See also Musgrave, 658 N.E.2d at 141. Consequently, the Auditor lacks statutory standing to appeal the PTABOA’s determination on Grandville’s Forms 133 to the Indiana Board and, ultimately, to this Court. The Auditor acknowledges as much.

Despite the lack of statutory standing, the Auditor urges the Court not to dismiss her case because she has “traditional standing” in that she has been “aggrieved” (i.e., she has suffered an injury). Specifically, she states:

* * * However, [Indiana Code § 6-1.1-15-12] does not provide a similar remedy to [county auditors and assessors across the State] nor does it provide [them] with a direct avenue for judicial review of a PTABOA determination, effectively foreclosing [them] from judicial review of an administrative tax determination . . . [A]s a result ... [Indiana Code § 6-1.1-15-12] is invalid under the Indiana Constitution. ... Th[is] issue before the Court affects all county auditors across the State and is likely to recur. Thus, this Court should . . . address the merits of [my] claims[.]
* * *
By its plain terms, Indiana Code § 6-1.1-15-12 denies standing to the Auditor to appeal the PTABOA’s decision on Grandville’s Forms 133 to this Court. Consequently, the fact that she is a governmental official who is challenging the constitutionality of a statute is of little significance here. * * *

This Court is a creature of statute. As such, it may only determine the constitutionality of Indiana Code § 6-1.1-15-12 when a case containing such a claim is properly before it. Here, the Auditor does not have statutory or common law standing to appeal the PTABOA’s decision on Grandville’s Forms 133 to this Court. Accordingly, the issue of whether Indiana Code § 6-1.1-15-12 is unconstitutional must be decided another day.[3] The State’s motion to dismiss the Auditor’s appeal pursuant to Trial Rule 12(B)(6) is hereby GRANTED.
____________
[3] The Auditor has asked the Court to declare Indiana Code § 6-1.1-15-12 unconstitutional but that very statute bars the Court from deciding the issue. The irony of this situation is not lost on the Court. Nonetheless, the Auditor’s remedy lies with the Indiana General Assembly.

Posted by Marcia Oddi on Tuesday, May 26, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - SCOTUS reverses 7th Circuit opinion on authority of bankruptcy judges

The SCOTUS today, 6-3, reversed the 7th Circuit decision in Wellness International v. Sharif. Here is the SCOTUSblog case page.

The ILB had posts on the case Jan. 14th and a longer one Jan. 15th.

As Patrick Fitzgerald reported in the $$$ WSJ late this morning:

The ruling clarifies the role of some 1,000 judges in the federal court system, a group whose constitutional authority has come into question since a 2011 high-court decision involving the late Playboy playmate Anna Nicole Smith.

Bankruptcy-court judges have worked under a cloud of uncertainty since a 2011 Supreme Court decision that found bankruptcy judges only have the authority to offer a final ruling on a dispute that “stems from the bankruptcy itself”---a phrase whose definition has become cause for much debate. Other issues, the court ruled, must be decided by the district court.

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

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (4):

In James E. Reed v. Review Board of the Indiana Department of Workforce Development, and A.W. Holdings, LLC, a 21-page opinion, Judge Brown writes:

James E. Reed (“Employee”) appeals a decision by the Review Board of the Indiana Department of Workforce Development (the “Board”) denying his claim for unemployment benefits. Employee raises two issues, which we revise and restate as whether the record supports the Board’s decision. We reverse. * * *

We conclude that the record lacks substantial evidence to support a finding that Employee knew that his conduct violated Employer’s professional conduct rule that employees “in no way exploit, neglect or inflict physical or psychological harm on a client.” Exhibits at 18. The record does not establish Employee knew or could be charged with the knowledge or reasonably anticipate that his action to restrain Client D in the vehicle under the circumstances could result in the termination of his employment. We reverse the decision of the Board that Employee was terminated for just cause and denying Employee unemployment benefits and remand for further proceedings consistent with this opinion.

In Willie B. Jenkins v. State of Indiana, a 9-page opinion, Judge May concludes:
The State presented sufficient evidence Jenkins committed Class A felony burglary. Blackmon’s testimony was not incredibly dubious, and any error in the admission of the picture of Jenkins’ co-actor was harmless. Accordingly, we affirm.
In Bobby Dunn v. State of Indiana, a 10-page, 2-1 opinion, Judge May writes:
Bobby Dunn and the State entered into a plea agreement, which the court accepted. Then on the morning of his sentencing hearing, the State moved to withdraw the plea agreement. The court granted the State’s motion. We reverse and remand for sentencing. * * *

The State and Dunn reached a plea agreement and presented it to the court. The trial court accepted it on May 16, 2014, when it found Dunn guilty and scheduled the sentencing hearing. While Dunn had no right to be offered a plea agreement and the State could have withdrawn it at any point prior to acceptance by the court, once it was accepted, the court could not revoke or vacate it. * * *

To the extent the trial court permitted withdrawal based on Deputy Prosecutor Baldwin’s assertion at the sentencing hearing that the victim had not been notified, any error in the trial court’s original acceptance of the plea was invited by the State, as Deputy Prosecutor Kelly’s affidavit represented at the guilty plea hearing that the State had, in fact, notified the victim. * * *

Pyle, J., concurs.
Barnes, J., dissents with separate opinion. [that begins on p. 7 and that concludes] Here, because the victim never knew of the proposed plea agreement, she could not have intentionally relinquished her constitutional rights to be consulted about the plea and to be present at the change of plea hearing. That the original prosecutor may have misrepresented having consulted with the victim, as found by the trial court, does not change that fact.

In my view, this is a case in which withdrawal of the plea agreement before sentencing was warranted. The trial court did not abuse its discretion in reaching that conclusion. I vote to affirm.

In William Bowman v. State of Indiana, a 6-page opinion, Judge May writes:
William Bowman appeals his conviction of and sentence for Class A felony dealing in a narcotic within 1,000 feet of a school and his adjudication as an habitual offender. As the State did not prove Bowman committed Class A felony dealing in a narcotic within 1,000 feet of a school, we reverse. * * *

Because the State did not prove the product of the “controlled” buy was heroin, there was not sufficient evidence Bowman committed Class A felony dealing in a narcotic within 1,000 feet of a school. Accordingly, we reverse.

NFP civil decisions today (3):

In the Matter of the Involuntary Term. of the Parent-Child Relationship of E.T., M.T., J.T., S.T., T.W., Minor Children, and their Mother, J.R., J.R. v. Ind. Dept. of Child Services (mem. dec.)

Lake County Trust Co., as Trustee for Lake County Trust 5434, James L. Gagan and Eugene H. Deutsch v. United Consumers Club, Inc. (mem. dec.)

Jason T. Myers v. Anonymous Medical Group, Anonymous Physician (mem. dec.)

NFP criminal decisions today (5):

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

David S. Murray v. State of Indiana (mem. dec.)

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

Bradley E. Kennedy v. State of Indiana (mem. dec.)

Emmanuel Joseph Cain v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, May 26, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Did patronage lead to BMV overcharges?"

Great reporting this weekend from Tony Cook and Tim Evans of the Indianapolis Star. Some quotes:

The Indiana Bureau of Motor Vehicles' chief financial officer, a man who oversees a $110 million budget, lacks one of the most basic qualifications typical of CFOs.

Harold Day has no college degree.

Day does have something else valued in state government — political connections. He is a longtime GOP ward boss whose wife was an Indianapolis councilwoman. He got his job with a recommendation from former Republican Perry Township Trustee Jack Sandlin. * * *

Despite repeated hints, Day, for example, was unable to say what branch of government he worked for: judicial, legislative or executive.

He also testified that he neglected to collect interest on a BMV account that routinely contains $5 million to $20 million.

"That's a sign that this is not somebody who is well-equipped to do their position," said Trevor Brown, director of the John Glenn School of Public Affairs at The Ohio State University. "The transgression is not that you have a political appointee, it's that you have appointed a political appointee that doesn't have requisite skills required to perform the task."

And Day's credentials were not the only ones called into question.

Ron Hendrickson, who until recently was the BMV's deputy commissioner in charge of driver's licenses, was a former snowplow driver and pizza shop manager without a college degree. But he was a former Republican precinct committeeman from the city's Eastside.

Even Scott Waddell, the former BMV commissioner who ignored warnings that the agency was gouging motorists with excessive and illegal fees, had no experience in government, despite having a college degree. He got his job through Jim Kittle, a prominent political fundraiser and former Indiana Republican Party chairman. * * *

While license fees no longer go directly to the parties, political appointments of top officials are still common at the BMV, and all across government. Experts say that can cause problems when appointments are made with too little consideration for professional expertise. * * *

More clear is that a lack of expertise among top BMV officials likely cost the state money.

In discussing the BMV's primary bank account during a deposition in the ongoing lawsuit, Day explained that it had $5 million to $20 million in it on any given day. When asked if he ever sought interest on those funds, he said: "No."

"Have you ever even thought about the possibility that a bank might be willing to pay interest on somebody whose deposits average between $5 (million) and $20 million every day?" Irwin Levin, the Indianapolis attorney representing plaintiffs, asked.

"No, I have not," Day said.

"Can you think of any reason not to ask the bank to pay the Bureau of Motor Vehicles interest on the $5 (million) to $20 million that it has parked in the bank on any given day?" Levin asked.

"No," Day said.

In another exchange, Day expressed confusion about which branch of government the state budget office falls under. Levin then asked, "Do you know what branch of government the BMV is in?"

"No, I do not," Day said.

There is much more in the lengthy, must-read story. It concludes:
Gov. Mike Pence has said his administration is working to clean up the agency, and lawmakers plan to study potential reforms before next year's legislative session begins.

In the meantime, no one from the BMV has been publicly disciplined or fired, despite the massive financial blunders.

Waddell returned to the private sector in November 2013 as the state was settling the first lawsuit. Hendrickson moved to another state agency, the Family and Social Services Administration, where he receives $80,750 a year. Day is still the BMV's chief financial officer, with an annual salary of $74,000.

The story has sidebars about some of the players, including:
Harold Day: A longtime Republican ward boss, he landed a job at the BMV as a budget analyst in 2007. Before that, he worked in the finance departments of some construction companies. Later, he was a deputy for Republican Perry Township Trustee Jack Sandlin, who recommended him for a job at the BMV when he left office. In less than a year, Day was promoted to chief financial officer, a position he still holds today at an annual salary of $74,000. [ILB: From the main story - "he neglected to collect interest on a BMV account that routinely contains $5 million to $20 million."]

Ron Hendrickson: The former Republican precinct committeeman did stints as a snowplow driver for the state, a pizza store manager and a salesman for a charter airplane company before getting a job as a regional manager at the BMV, overseeing about 20 license branches. He was later promoted to deputy commissioner of policy and programs. He still works for the state, but not at the BMV. He left his job as deputy BMV commissioner of policy and programs in September 2013 and is now an information technology project manager for the Family and Social Services Administration. He receives a salary of $80,750. [ILB: Really.]

ILB: In my experience, "The governor's office wants you to find a place for this guy" is a message decades of state agency heads have received and followed.

Posted by Marcia Oddi on Tuesday, May 26, 2015
Posted to Indiana Government

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

From Monday, May 25, 2015:

From Sunday, May 24, 2015: From Saturday, May 23, 2015:

Posted by Marcia Oddi on Tuesday, May 26, 2015
Posted to Catch-up

Monday, May 25, 2015

Ind. Gov't. - "The In-State Tuition Break, Slowly Disappearing" - Purdue named as example

Kevin Carey, of the NY Times feature, The Upshot, wrote in a column May 18th:

Over the last decade, state governments and universities have been chipping away at a pillar of American opportunity: in-state tuition.

Part of this story is familiar to anyone who has watched public universities raise tuition and fees, in some cases by 50 percent or more. But there’s another, less obvious, part of the story. Many of the most elite public universities are steadily restricting the number of students who are allowed to pay in-state tuition in the first place.

A result is the creeping privatization of elite public universities that have historically provided an accessible route to jobs in academia, business and government. One of the most important paths to upward mobility, open on a meritocratic basis to people from all economic classes, is narrowing.

To understand why, it helps to divide public universities into two categories. The nonprofit Carnegie Foundation classifies 147 public universities as national leaders in conducting research. These are the flagship universities and land-grant institutions that often have selective admissions criteria and Division I football teams. An additional 500 regional public universities conduct less research and often have less selective admissions policies. These two groups — national and regional public universities — each educate about the same number of students. [ILB - Purdue University and Indiana University are examples of national public universities.]

Most students attending public universities stay in the state where their parents reside, in large part because in-state students have traditionally received a steep tuition discount. Out-of-state students have long been in the minority and pay tuition closer to that charged by private universities. As recently as 2000, national and regional public universities were similar in this regard. That year, 80 percent of national public university students were in-state, compared with 86 percent at regional public universities.

But in the years that followed, the two groups began to diverge. At regionals, little changed. College enrollment swelled in every state after 2000 as the baby boom echo generation finished high school and a larger share of high school graduates enrolled in college. The additional students at regional universities looked much like the old ones. From 2000 to 2012 (the latest year of available federal data), nine out of 10 additional regional public university students were in-state.

The pattern at elite national universities was very different. There, the majority of additional students were from other states. Instead of extending their traditional mission of providing an affordable, high-quality education to local residents, national universities focused on recruiting students from other states and nations, many of whom paid much higher tuition rates. As a result, the number of in-state spots relative to the college-going population as a whole declined significantly at national public universities. * * *

Alabama accomplished this in part by substantially expanding the total number of students it enrolls, including in-state students. Other public universities have made space for out-of-state students by allowing fewer in-state ones to attend. * * *

Purdue University cut annual in-state slots for incoming freshmen by more than 500 students, the University of Illinois at Urbana-Champaign by more than 300, and Auburn and Michigan State by more than 200, with each enrolling hundreds of additional out-of-state and international students in their stead.

Replacing in-state with out-of-state students can be easier than raising prices because tuition increases are highly public and are frequently regulated by state legislatures and governing bodies. Universities often have more discretion over the in-state/out-of-state of mix. * * *

The slow death of in-state tuition is a case where declining public investment and selfish institutional interests tend to coincide. National public universities are cutting in-state enrollment in part to make up for state budget cuts. But they also have a strong desire to become more like elite private universities — Stanford, Duke, the Ivy League — that have the freedom to enroll the best and the brightest from around the world and charge whatever prices the market will bear. Budget cuts give them an excuse to become what they wanted to be all along.

Posted by Marcia Oddi on Monday, May 25, 2015
Posted to Indiana Government

Ind. Law - "Cyber sleuths eager to link Messel, other IU cases"

Long, fascinating weekend story in the $$$ Bloomington Herald-Times, like an earlier post today, invoking the power of social media. Reported by Laura Lane and Abby Tonsing, it begins:

A mystery of sorts involving a 14-year-old composite police sketch and possible threads some think might connect the disappearances of three Indiana University students, two slain and one still missing, is solved.

Turns out the sketch, being compared by online sleuths to Daniel Messel’s recent jail mugshot and connected on Facebook and other online sources to 19-year-old IU student Jill Behrman’s 2000 abduction and murder, has no relevance to the Behrman case. Or to Messel, charged with murder in last month’s beating death of 22-year-old IU senior Hannah Wilson.

But the path of the drawing shows how social media and its wide, fast reach can affect public perception.

The sketch actually is the suspect in the attempted abduction of a bicyclist on a rural road near Bowling Green, Kentucky, that happened on Mother’s Day 2001. The woman who was attacked, contacted last week, confirmed that the composite sketch some say resembles Messel is one she helped create after a man knocked her off her bike on Old Richardsville Road and tried to abduct her 14 years ago.

“That is definitely the police sketch that came out of my case,” she said.

The description she gave was of a young white man, 5-foot-11 and 190 pounds, with reddish hair, a fair complexion and acne-scarred face. It does not match Messel, who is taller, heavier and has brown hair. Police in Warren County, Kentucky, actually identified a suspect in the abduction attempt there, a 24-year-old man with a criminal record. Both the victim and a witness picked him out of a series of photographs.

The man was detained and questioned but never charged in the incident, which remains unsolved. When Bowling Green television station WBKO aired a news segment naming the suspect and showing a mugshot of him days after the incident, the Warren County sheriff complained the story foiled the investigation.

Behrman had disappeared while on a bicycle ride near Bloomington. At the time, local police and the FBI looked into the possibility the two bicyclist cases might be linked. Behrman’s body had not been found when the Kentucky abduction attempt occurred, and leads were slim.

Posted by Marcia Oddi on Monday, May 25, 2015
Posted to Indiana Law

Ind. Gov't. - "Flash mob mentality hits political scene"

That is the heading to an insightful Doug Ross column this weekend in the NWI Times illustrating how, using social media, recent objectors have more easily organized their protests than in the past. As in Arab Spring, but here in Indiana. Some quotes:

Perhaps you're familiar with the term flash mob, which refers to the sudden appearance of a big group of people at a single site. Flash mobs often burst into song. Well, there's a different kind of flash mob developing in politics.

This kind of flash comes when an issue suddenly gains a lot of attention, and it can catch people by surprise. We've seen some recent examples of it right here in Indiana.

A Mid-America Press Institute panel discussion for journalists in Schererville last week dealt with coverage of the Religious Freedom Restoration Act. Dan Carden of The Times, Chelsea Schneider of the Evansville Courier & Press and Tom Davies of the Associated Press, the three panelists, were all covering the Indiana General Assembly this session. (Schneider and Davies are proud alumni of The Times.)

The national outcry over RFRA seemed to be spontaneous combustion, a flash mob of public opinion against RFRA. It came a month after the Indiana Senate had already approved the legislation. The opponents of the legislation overwhelmed the proponents, and the law was quickly "fixed" to mollify opponents and keep the tourists coming to Indianapolis, a city where tourism is its bread and butter.

Two days prior to the panel discussion, on Monday, Robert Sands and family pulled the plug on their proposed Morgan Township concentrated animal feeding operation, which would have housed about 5,600 hogs, with a capacity of 7,000 hogs. The Porter County Plan Commission was to have held a public hearing Wednesday on the CAFO operation.

This, too, saw a sudden groundswell of public opinion against the proposal. Anyone who has seen hogs knows that slop goes in the front end and manure comes out the back end. And that manure stinks. * * *

The point here is that a sudden uprising developed in opposition to the hog farm.

It's similar to what happened when news broke of plans to refurbish the pavilion at Indiana Dunes State Park and add a banquet facility to the main structure on an existing concrete pad.

The proponents were clearly unprepared for the backlash, although the Indiana Department of Natural Resources, at least, should have been. The outcry over the proposal to add a hotel at the park several years ago was so strong that Potato Creek State Park near North Liberty was chosen instead for the site of a new inn, the first to be built in decades.

Some of the opponents have even talked about suing over the project to try to stop the building from being erected.

There are other groups that have popped up quickly in opposition to various proposals recently.

With opponents emboldened by the RFRA and hog farm successes, I'm predicting we'll see more of this flash mob mentality in the future.

Posted by Marcia Oddi on Monday, May 25, 2015
Posted to Indiana Government

Ind. Law - "New Indiana law: Move over, slowpokes"

Dan Carden of the NWI Times reported this weekend:

The never-ending battle over use of the left lane on interstate highways almost certainly is intensifying this Memorial Day weekend as millions of motorists travel to or through Indiana, the "Crossroads of America."

Speedy drivers tend to believe the left lane is reserved for them to pass all the slowpokes and trucks in the highway's right lane.

Meanwhile, motorists traveling the speed limit often insist they are free to use the left lane because it is illegal to drive any faster than they are going.

Who is right?

Come July 1, a new Indiana law enacted by Republican Gov. Mike Pence gives speeders the right-of-way and motorists obeying the speed limit in the left lane could get slapped with a fine.

House Enrolled Act 1305 permits police to issue $500 tickets to left lane drivers who fail to move into the right lane if they know, or should reasonably know, another vehicle is overtaking them — even if the other vehicle is exceeding the speed limit.

State Rep. Jud McMillin, R-Brookville, said he sponsored the law to ensure "individuals who are driving in the fast lane slowly are properly incentivized to get out of your way."

The mandate does not apply during traffic congestion, bad weather, when exiting on the left, paying a toll or pulling over for an emergency vehicle, according to the new law.

But at all other times a motorist risks a fine if he or she is in the left lane and does not move to the right when another vehicle wants to pass.

The law was approved by the Republican-controlled House 97-0, but just barely passed the Republican-controlled Senate, 29-20.

State Sen. Karen Tallian, D-Ogden Dunes, said during debate on the measure that it was "the silliest, most unjustifiable proposal of the entire session."

"It really doesn't make sense to put law-abiding citizens as the criminal here," Tallian said. "You can be driving down the road at 70 miles per hour, doing the speed limit, and some joker comes up behind you doing 90 and you're the one who gets the ticket?"

She also pointed out, along with state Sen. Jim Tomes, R-Wadesville, that the new right-lane mandate likely won't be enforced since a police officer probably would pull over and ticket the speeding driver, instead of the person who does not get out of the speeder's way.

The story also points out:
Illinois law prohibits motorists from using the left lane of an interstate highway in all circumstances, except when passing other vehicles or traffic congestion, weather or road conditions necessitate left lane use.
Here is HEA 1305. The amendment is found in SECTION 69, beginning on p. 28.

Posted by Marcia Oddi on Monday, May 25, 2015
Posted to Indiana Law

Ind. Courts - "Changes to slash Tippecanoe Court Services staff in half"

This story by Steven Porter today in the Lafayette Journal & Courier appears to have ramifications beyond Tippecanoe County. Some quotes:

Four of the seven existing full-time staff positions will be cut this summer from the Tippecanoe County Court Services payroll.

The reduction in force, effective June 30, was announced Friday afternoon as part of a broader reorganization effort to streamline the way defendant needs are met locally.

Tippecanoe Superior Court 6 Judge Michael Morrissey, one of the three judges who oversee Court Services, said it will be difficult to part ways with dedicated employees. * * *

The reorganization calls for Court Services to position itself as a division within the Tippecanoe County Probation Department, which means all Court Services evaluators and case managers must be eligible for certification as a probation officer, according to the release.

“It’s a move many counties are making,” Tippecanoe Superior Court 5 Judge Sean Persin said Sunday, citing St. Joseph County as one recent example.

A decline in the number of misdemeanor cases filed in recent years is just one of several factors that have converged to make this a prime time to reorganize, Persin said.

Earlier this month, Gov. Mike Pence signed a new law that, among other things, calls for counties to eliminate redundancies in the services they offer.

The policy change dangles state grant money as an incentive.

“If you duplicate services, you’re not given priority,” Persin said, noting that he, Morrissey and Tippecanoe Superior Court 4 Judge Laura Zeman have interpreted the new rule to mean that jurisdictions with redundancies simply wouldn’t receive the funding.

“You have to prove to the state that your drug and alcohol program, your probation department and your Community Corrections department aren’t doing the same things, which makes sense,” Persin said.

Accordingly, the reorganization will discontinue Case Alert Tracking and pretrial release programs currently offered by Court Services because similar programs are already offered by Probation and Community Corrections. * * *

Court Services, which evaluates low-risk offenders and refers them to outside service providers, will remain distinct from other county entities that serve high-risk populations, Persin noted.

Posted by Marcia Oddi on Monday, May 25, 2015
Posted to Indiana Courts

Ind. Gov't. - More on: "Indiana pays $650,000 in Legal Fees to Marriage Law Challenges - So far"

In this March 13, 2015 post, the ILB reported:

It appears that the $650,000 is likely well less than half of the total payout in legal fees the State will be making to the various plaintiffs who successfully contested the Indiana prohibition against same-sex marriage in federal trial court and then again in the 7th Circuit. There were five sets of plaintiffs. Federal civil rights law awards prevailing parties - in this case the plaintiffs - their attorney fees.
Today Stephanie Wang reports in the Indianapolis Star:
The state paid more than $1.4 million in fees to plaintiffs’ attorneys in five federal court cases that challenged — and ultimately helped overturn — Indiana’s ban on same-sex marriages, according to the attorney general’s office. * * *

Here’s how much Indiana spent on each of the five federal cases, according to information provided by the state attorney general’s office:

  • The most costly case for the state was that of Amy Sandler and Niki Quasney, a Munster couple who fought to have their marriage recognized as Quasney was dying of cancer. Theirs became the lead case in Indiana on same-sex marriage. Quasney died in February — as a legally recognized married woman. The state paid a total of $650,000 to two law firms in this case, including Lambda Legal.

  • The American Civil Liberties Union was part of a lawsuit filed on behalf of six couples, a widow and two children. The widow, Midori Fujii, was not allowed to make funeral decisions after her wife died, because Indiana did not recognize their same-sex marriage, which had been perfomed in California. That also created an inheritance tax issue. In this case, Indiana paid about $196,000 in fees.

  • Four public servants — police officers and a fire battalion chief — sued after the state would not recognize their same-sex spouses as pension beneficiaries. This case, filed by Indiana Equality Action, cost the state about $336,000 in fees.

  • Four same-sex couples filed a federal lawsuit for the legal right to marry or have their out-of-state marriages recognized. The case was brought against Gov. Mike Pence but was dismissed after a question was raised over whether he was the proper defendant to be named, “because the Governor cannot remedy the harms alleged by them,” as the court noted. The state paid $45,000 in fees for this case.

  • Another lawsuit was filed by two same-sex couples seeking to have their out-of-state marriages recognized in Indiana. The state paid $195,000 in fees.

Posted by Marcia Oddi on Monday, May 25, 2015
Posted to Indiana Government

Ind. Gov't. - "The Public Works Committee of the City County Council voted Thursday to sue the Ballard Administration over the Vision Fleet electric car deal"

That was the lede to this lengthy May 21st CBS WTTV4 story by Russ McQuaid that included a number of interesting quotes - here are a few of them:

Council members have complained that the Administration avoided council and Public Works Board scrutiny and approval in awarding the no-bid contract to Vision Fleet as a services agreement instead of a supplies lease deal.

Council Attorney Fred Biesecker told the committee that a deal involving vehicles, though the compensation to Vision Fleet may be based on a miles driven fee, was clearly a lease and under the council’s purview.

“It is voidable for failure to satisfy 202-204 it may well be void from the beginning under IC 36 4 8 12 and a couple other statutes and it’s still not in compliance with state and local procurement law,” Biesecker said.

Union members, the public and councilors complained that they have been denied information on the deal since its inception in the summer of 2013 and only became aware of the ramifications after the release of a heavily redacted version of the company’s contract with the city. * * *

Top aides to Mayor Ballard cautioned the committee to not vote in favor of litigation, claiming Vision Fleet’s reputation as a young company still trying to sign more customers than its single Indianapolis partner was at stake.

“There is a company’s reputation at stake as they go out and get investors and try to move to other cities. They’re unfairly pulled into the situation and that could have all been avoided,” said Deputy Chief of Staff David Rosenberg.

The Ballard aides neglected to mention the well-being of taxpayers, city employees, Metro police officers or respect for the council authority in their plea to halt the committee vote.

Rosenberg encouraged the council committee to direct its attorney and chief financial officer to hire an outside lawyer to mediate the dispute between the council and the mayor as he blamed the threatened legal action on election year politics.

“Third party counsel,” said Rosenberg in a last desperate attempt to head off a political embarrassment for the outgoing mayor who committed to greening Indianapolis government. “A party that has no interest in it can find an appropriate way to move forward again before we drag a company through the mud unintentionally and continue to tarnish the reputation of Indianapolis.”

“I don’t blame the company at all for any of this,” said committee chairman Zach Adamson, a Democrat who told Rosenberg the administration could have avoided this dispute by bringing the council and Public Works Board into the conversation two years ago.

“It’s not the company that did this,” said Councilman Frank Mascari, a Beech Grove Democrat. “It’s Corporate Counsel here in this building that messed this up.”

Ballard told CBS4 News that the Office of Corporation Counsel under Andy Seiwert provided, “sloppy legal work,” on the deal that the mayor intended to last long after he left office.

One legal scholar told CBS4 News that the work under Seiwert’s leadership amounted to, “poor lawyering” that would prove a cautionary tale for his law students.

“You have all this other documentation,” said McKinney Law School Vice Dean Antony Page as he leafed through the contradictory contracts collected by CBS4 News, “and it really looks as though…well, frankly, it looks as though they were trying to hide something.

“Who thought it was a good idea to white these out? To white out these dates?” Page asked rhetorically as he examined clearly altered signature pages that may or may not commit the city to the Vision Fleet deal. “Somebody had to physically do that? Who did that and what were they thinking, you know? Whiting out a document?”

Seiwert, who struggled to answer council questions as he stood by Rosenberg’s side at the end of the meeting, admitted to CBS4 News that, “a clerical error,” led to the signature sheet from a discredited and discarded Lease Agreement, without a page number, being slipped into the final Master Fleet Agreement.

That, “inadvertently included,” page went undetected in a packet of documents handed to the media and city county council members until discovered by CBS4 News.

It was later confirmed as accurate by the mayor’s office only to have Seiwert walk that claim back when confronted repeatedly by CBS4 News.

“It certainly looks suspicious though it were again intended to deceive somebody,” said Page. Though the fact that they have since come clean and said it was a mistake means whatever deception hasn’t lasted particularly long but it’s a curious mistake to make.”

Councilman Mascari told the committee that the city’s failure to revoke the Lease Agreement when it rewrote the Master Fleet Agreement as a rental services deal means Indianapolis has two unenforceable and contradictory contracts with Vision Fleet.

Posted by Marcia Oddi on Monday, May 25, 2015
Posted to Indiana Government

Ind. Gov't. - "Loss of Obamacare subsidies could be dire"

That was the headline to a column this weekend in the Indianapolis Star, by John Ketzenberger. A few quotes:

You would think contingency plans are being readied as we await the Supreme Court’s decision, expected next month.

You would be wrong.

And the consequences reach far beyond those who might lose their subsidies. Many experts think the entire health insurance market could go into a death spiral if the Supreme Court determines the subsidies are illegal. * * *

The Supreme Court’s decision carries high stakes, according to a white paper produced by Gregory and Appel, a large local insurance agency. The decision “could do real damage — even kill the ACA over time and change how health care is paid for in the country,” according to the paper, authored by Gregory and Appel’s Susan Rider and Karl Ahlrichs.

“If those individuals lost access to subsidies, the cost of coverage would be unaffordable for the vast majority of them,” the paper determined. “A subsidy shutdown could result in 9 million fewer people with coverage by 2016, a 70 percent decline. The resulting adverse selection caused by healthy people leaving the risk pool would spike insurance premiums in the individual market.”

That’s the market beyond those who receive subsidies, so those who currently can afford insurance would soon find that’s not the case anymore. If this happens, health insurers like Indianapolis-based Anthem would have a smaller base over which to spread costs, which means rates for group plans provided through employers likely would spike, too.

“The loss of a healthier risk pool would create unprecedented premium price growth and insurers leaving the marketplace would create an even more uncompetitive insurance market,” the Appel paper observed. “The industry would be in a ‘death spiral.’” * * *

Indiana joined several other states in asking the Supreme Court to eliminate the subsidies. What we don’t know is what they’ll do if the court gives them what they want.

For background, see this ILB post from March 4, 2015, headed "Indiana urges high court to terminate Hoosiers health insurance subsidies," quoting a NWI Times story that began: "Gov. Mike Pence and Attorney General Greg Zoeller are asking the U.S. Supreme Court to effectively cancel the private health insurance policies of more than 100,000 Hoosiers by the end of June."

Posted by Marcia Oddi on Monday, May 25, 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 5/25/15):

Next week's oral arguments before the Supreme Court (week of 6/1/15):

Thursday, June 4

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/25/15):

Next week's oral arguments before the Court of Appeals (week of 6/1/15):

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

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


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

Posted by Marcia Oddi on Monday, May 25, 2015
Posted to Upcoming Oral Arguments

Friday, May 22, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decisions)

For publication opinions today (2):

In Charles D. Howard v. State of Indiana [ILB summary revised], a 17-page opinion, Judge Pyle writes:

Howard makes three disjointed arguments on appeal under a general issue of due process. First, he mainly argues that we should reverse and dismiss his convictions for resisting law enforcement and public intoxication because the trial court never ruled on part of his motion to suppress/dismiss. Second, he argues that any evidence obtained after his arrest should have been excluded because the police did not give him a Miranda warning upon his arrest. Third, he contends that the trial court should have dismissed all charges against him pursuant to Criminal Rule 4.

We conclude that Howard’s arguments are either waived or otherwise without merit because: (1) the trial court issued a ruling on his motion to suppress/dismiss, and Howard did not object to the admission of evidence at trial; (2) the State did not introduce or seek to admit into evidence any of Howard’s post-arrest statements; and (3) Howard did not file a motion for discharge under Criminal Rule 4 or object to the trial court’s setting of any of his trial dates. Accordingly, we affirm his convictions. * * *

Howard makes a mish-mash of arguments under the general guise of one issue alleging that he was deprived of his due process rights. His main argument is that the trial court erred because it did not rule on his motion to suppress/dismiss in regard to his argument that there was a warrantless entry and arrest. As an offshoot of this argument, he contends that any evidence of resisting law enforcement and public intoxication should have been suppressed. He also makes peripheral allegations of error, contending that the police did not advise him of his Miranda rights at his house when they arrested him and that his right to a speedy trial, pursuant to Criminal Rule 4, was violated.

The State contends that Howard has waived these arguments because he did not raise a relevant objection at trial, he makes no cogent argument now on appeal, and/or the arguments are otherwise meritless. We agree.

In Leonard Blackmon v. State of Indiana , a 19-page, 2-1 opinion, Judge Baker writes:
Leonard Blackmon appeals his conviction for Intimidation, a Level 5 felony. Finding that the evidence was insufficient to prove that Blackmon acted with the intent that Donald Courtway be placed in fear of retaliation for a prior lawful act, as required by the intimidation statute, we reverse. * * *

May, J., concurs
Bradford, J., dissents with an opinion. [that begins, at p. 17] must respectfully dissent from the majority’s opinion as I would affirm Blackmon’s conviction for intimidation. * * *

Regardless of Courtway’s knowledge, Blackmon seems to have been of the mind that he had been caught and reacted aggressively. As such, I think it was reasonable for the jury to find that Blackmon threatened Courtway in retaliation for the prior lawful act of catching Blackmon stealing water.

Furthermore, I cannot agree with the narrow re-characterization of events to find that Blackmon only threatened Courtway in retaliation for his threatening to call the police, as opposed to his catching Blackmon stealing water. I see little logic in separating the act of catching someone performing illegal activity and subsequently calling the police regarding said activity; the two actions are part of the same series of events and, as such, the same prior lawful act.

NFP civil decisions today (0):

NFP criminal decisions today (4):

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

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

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

Leonard Bond v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, May 22, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "First Church of Cannabis could test RFRA"

Vic Ryckaert of the Indianapolis Star had a long story May 21st subheaded "Courts ultimately might have to decide whether practices amount to sincere religion." Some quotes:

[Bill Levin, the founder of the newly formed First Church of Cannabis] is daring police to arrest him and his followers in what will likely be one of the first tests of the state's new RFRA protections. * * *

RFRA, designed to protect religion from being infringed upon by the government, drew unanticipated attention on the Hoosier state when it became widely viewed as a license to allow business owners to refuse service to same-sex couples.

Under intense public pressure, Indiana lawmakers amended RFRA to specify that it can't be used to undermine local human rights ordinances that protect lesbian, gay, bisexual and transgender people from discrimination in Indianapolis and 10 other cities.

Experts say the act opens a new doorway in Indiana that invites a host of legal challenges from religious practitioners throughout the state. Challenges like this one from the First Church of Cannabis.

"It's not the type of plaintiff that was expected or that probably most supporters of RFRA had in mind," said Robert A. Katz, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

ILB: But perhaps they should not be surprised. From a June 30, 2014 entry in Constitution Daily:
Here is the back story: In Employment Division v. Smith (1990), two American Indians who worked as private drug rehab counselors ingested peyote as part of religious ceremonies conducted by the Native American Church, and they were subsequently fired. The U.S. Supreme Court upheld the firing, with Justice Antonin Scalia saying that using a religious exemption in conflict of a valid law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

A near unanimous Congress passed RFRA in 1993 and President Bill Clinton signed the law. RFRA said that “governments should not substantially burden religious exercise without compelling justification” and “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”

More from the Star story:
Once a case gets to the courts, the state under RFRA must prove a compelling reason for government to interfere with religious practices, said Ken Falk, legal director of the American Civil Liberties Union of Indiana.

This elevated legal scrutiny makes it "very difficult for the government to win," Falk said. "That's something the court will have to wrestle with."

Falk pointed to other well-established religious traditions that are allowed. Catholics, Jews and members of other faiths drink wine at their services. Sometimes that wine is consumed by people who are under age 21.

"If you're drinking wine (and underage) in a nonreligious setting, you would be breaking the law," Falk said. "What's the justification if you smoke marijuana as part of your religion?"

Katz, the IU law professor, said the First Church of Cannabis will have to prove it's a sincere religion, not just an excuse for users to get together and smoke.

Posted by Marcia Oddi on Friday, May 22, 2015
Posted to Indiana Courts

Courts - More on "Indiana church sues JPMorgan for millions"

In Jan. the ILB quoted a long CNNMoney story about a lawsuit by Christ Church Cathedral, which is the church on the Indianapolis Circle: "The church claims that JPMorgan intentionally mismanaged its funds, which shrank in the past decade. Meanwhile, the fees the church paid JPMorgan skyrocketed."

In a 16-page order dated May 21st, federal Judge Larry McKinney concluded:

For the reasons stated herein, the Court GRANTS Defendants JPMorgan Chase and Company’s and JPMorgan Chase Bank, N.A.’s, Motion to Dismiss, with leave to re- plead certain Counts: Count I is DISMISSED WITHOUT PREJUDICE as to both Defendants, with leave to re-plead; Count II is DISMISSED WITHOUT PREJUDICE as to JPMorgan Chase and Company only, with leave to re-plead; Count III is DISMISSED WITH PREJUDICE. Plaintiffs, The Rector, Wardens and Vestrymen of Christ Church Cathedral of Indianapolis, have 28 days from the date of this Order to file an Amended Complaint. Partial judgment shall not issue at this time.

Posted by Marcia Oddi on Friday, May 22, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "In very short order every police department at every private college is going to have to open their records"

That statement is Frank LoMonte, executive director of the Student Press Law Center, who is quoted in this story today by Jake New of Inside Higher Ed:

Sworn police departments at private colleges in Ohio are public entities and subject to state open-records laws, the state’s Supreme Court ruled Thursday, saying that a college being a “private institution does not preclude its police department from being a public office.”

The ruling came a day after the Texas House of Representatives passed a bill requiring private institutions’ police departments to release some records, and one month after a judge in Indiana reached the opposite conclusion in a lawsuit against the University of Notre Dame.

“The handwriting is on the wall,” Frank LoMonte, executive director of the Student Press Law Center, said. “This is the direction the country is going in, and in very short order every police department at every private college is going to have to open their records. The legal fig leaf just got a lot smaller.” * * *

Unlike other sworn law enforcement agencies, sworn police officers at private colleges historically have not been seen as subject to open-records laws, even though they have the same authority as the agencies that are required to release records. That was the case at Otterbein, which has used sworn police officers since 2011.

A recent study by the Bureau of Justice Statistics found that nearly 40 percent of private colleges now use sworn, state-certified police officers, a growing trend that LoMonte said should result in more states requiring private colleges to release police records to the public.

While a judge rejected a similar argument in Indiana, LoMonte said he expects that decision to be appealed. In that case, ESPN is suing the University of Notre Dame for access to campus police records regarding sexual assault cases involving athletes.

In April, a Superior Court judge ruled that while Indiana state law allows private colleges to hire sworn officers, those police departments are not separate legal entities from the university. “If Notre Dame is a ‘public agency’ because it appoints police officers, it is a public agency, period,” the judge wrote.

“The Indiana judge just flat got it wrong,” LoMonte said. “He got really hung up on this idea that you can’t separate the police force from the institution. He treated it as an all-or-nothing question where, in order to open the police department, you have to open every record at Notre Dame. I think the judge really got hung up on a nonexistent technicality, and I think that will get corrected.”

ILB: Here is yesterday's Ohio decision, and here is an April 30th South Bend Tribune call for the General Assembly to clarify Indiana's law. However, ESPN announced May 20th that it will "appeal a northern Indiana judge's ruling that the University of Notre Dame police department is not subject to the state's open records law," as reported in this Chicago Tribune story:
Lawyers for ESPN filed a notice Wednesday with the Indiana Court of Appeals that it would appeal the April 20 ruling by St. Joseph Superior Court Judge Steven Hostetler.
ILB: Here is the 11-page, April 20th opinion by Judge Hostetler.

See also this Jan. 21, 2015 ILB post
on the Indiana Public Access Counseler's opinions which "put Notre Dame on notice about its handling of police records after complaints filed by ESPN and the South Bend Tribune," according to the SBT story.

Posted by Marcia Oddi on Friday, May 22, 2015
Posted to Indiana Courts | Indiana Government

Thursday, May 21, 2015

Courts - "Ohio: Private college police subject to records law"

From the start of an AP story this afternoon in the South Bend Tribune:

COLUMBUS, Ohio — Private colleges' police departments in Ohio are subject to the state open records law, a divided Ohio Supreme Court ruled Thursday in a case involving a lawsuit brought by a student journalist.

The court's 4-3 decision said the police department at Otterbein University near Columbus is a public office because its personnel are state-certified police officers.

"Here, the mere fact that Otterbein is a private institution does not preclude its police department from being a public office," the court said in an unsigned majority opinion.

The case is similar to one in Indiana, in which ESPN this year sued the University of Notre Dame for refusing to release campus police records requested by the Bristol, Conn.-based sports network. Notre Dame officials maintain that, because it's a private university, Notre Dame Security Police records are not subject to Indiana's public records law.

A St. Joseph Superior Court judge last month ruled in Notre Dame's favor. ESPN on Wednesday filed a notice with the Indiana Court of Appeals that it will appeal the ruling.

Here is the story by Cory Shaffer | Northeast Ohio Media Group at Cleveland.com. It includes a link to the opinion and begins:
COLUMBUS, Ohio -- Documents kept by an Ohio private university's police department should be available to the public, the state's high court said in decision Thursday that could open up police records at many private universities across the state.

Otterbein University was ordered to hand over police documents to a campus publication, because the university's police department was established by state law and performs a key action of the government, the Ohio Supreme Court ruled in a 4-3 decision.

The case, Schiffbauer v. Banaszak, was brought by Anna Schiffbauer, editor of Otterbein360.com. Schiffbauer sued campus police chief Larry Banaszak after he denied to release police reports and other documents, claiming that since the university and the police department were private entities, its records are not subject to Ohio's Public Records Act.

Posted by Marcia Oddi on Thursday, May 21, 2015
Posted to Courts in general

Ind. Courts - Updated: Whether SCOTUS will grant cert in Manzano v. Indiana likely to be decided tomorrow [Updated]

Updating this brief post from yesterday, SCOTUSblog now has a new post on petitions to watch at today's SCOTUS conference.

[Updated at 3:43 PM] Still not action, one way or the other, per this SCOTUSblog post this afternoon: "Even with the two-week intermission since the last Conference, the Court didn’t clear out its lingering relists this week."

Posted by Marcia Oddi on Thursday, May 21, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 2 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (2):

In the Matter of the Term. of the Parent-Child Relationship of: J.G. (minor child) and A.G. (mother) v. The Ind. Dept. of Child Services (mem. dec.)

Michael R. Stark v. Cathy S. Stark (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Thursday, May 21, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court dismisses now moot certified question

On July 7, 2014, the ILB posted that the Supreme Court had accepted a certified question from the federal district court for the ND Indiana, in the case of Robertson v. Medical Assurance Co., Inc. n/k/a Proassurance Indemnity Co., Inc.

Today the Court has posted an order, filed May 19th:

The district court tendered its certified question on June 6, 2014.

On May 12, 2015, the District Court entered an order dismissing the underlying federal action with prejudice, based on the parties' stipulation of dismissal, and directing its clerk to notify us that the certified question “has been rendered moot by this dismissal.”

Being duly advised, the Court now DISMISSES this proceeding as moot.

Posted by Marcia Oddi on Thursday, May 21, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Indiana nursing home developer seeks to skirt Wisconsin's nursing home limits"

A lengthy, interesting story this morning in the Milwaukee Journal Sentinel, reported by Kathleen Gallagher, begins:

An Indiana nursing home company that was tied to a legislative ethics scandal in that state last year says it wants to build more than two dozen facilities in Wisconsin, a proposal that would require it to bypass a decades-old cap on nursing home beds here.

Critics worry that an amendment accommodating the proposal could be slipped into Wisconsin's budget bill on Thursday, which would allow it to avoid the public scrutiny given to ordinary legislation.

Posted by Marcia Oddi on Thursday, May 21, 2015
Posted to Indiana Government

Wednesday, May 20, 2015

Ind. Courts - "Newburgh attorney pleads guilty to impersonating public servant"

Mark Wilson of the Evansville Courier & Journal reports today [ILB emphasis]:

PRINCETON, Ind. - A Newburgh attorney who has pleaded guilty to impersonating a public servant could have the charge dismissed if he successfully completes probation.

Brian J. Oberst, 39, was accused of showing a Vanderburgh County Prosecutor’s Office badge to a deputy and claiming to still be with the office during a January traffic stop in Gibson County. He was charged with the crime as a level 6 felony.

Oberst maintains a law practice in Evansville. He has not worked as a prosecuting attorney since 2009.

He appeared in Gibson Circuit Court on May 15 and pleaded guilty to the charge as a class A misdemeanor as part of a plea agreement.

Judge Jeffrey Meade accepted the plea and ordered Oberst to participate in six months of probation in the county’s first-time offender program. The program allows first-time offenders a chance to have their cases dismissed if they successfully complete probation requirements. If Oberst successfully completes probation, no conviction would be entered.

“According to my understanding, the (Indiana Supreme Court) Disciplinary Commission does not take formal action against an attorney if a criminal charge is not recorded,” said attorney Douglas Walton, who represents Oberst. * * *

A second felony charge of impersonating a public servant is still pending in Warrick County for what officials say was a similar incident there two weeks after Oberst’s Gibson County traffic stop. He is next scheduled to appear in court there at 9 a.m. June 15.

Posted by Marcia Oddi on Wednesday, May 20, 2015
Posted to Indiana Courts

Ind. Courts - Whether SCOTUS will grant cert in Manzano v. Indiana likely to be decided tomorrow

On April 10, 2015, SCOTUSblog named the petition for cert now pending in Manzano v. Indiana as its "Petition of the Day." A look today at the SCOTUSblog case page shows that the petition appears to be inching closer to a grant, or at least a decision one way or another, perhaps at tomorrow's SCOTUS conference.

Posted by Marcia Oddi on Wednesday, May 20, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Bond sought for suspect in fatal shooting"

That is the headline to this story today by Mark Wilson of the Evansville Courier & Press, who reports:

EVANSVILLE - Just four days after two brothers turned themselves in to face charges in a fatal Evansville shooting, the Indiana Court of Appeals made a ruling that could influence the case here.

A defense attorney on Wednesday argued that bail should be set for Darius Suggs, one of the brothers charged with murder in the shooting — something not normally granted in Indiana murder cases.

However, the appeals court ruled in an Indianapolis case that a judge erred in not considering all the evidence in a bail hearing for a murder suspect, and that the right to bail "is founded on a presumption of individual innocence."

Darius Suggs, 29, and Robert Suggs, 27, are charged in the death of 28-year-old Chavar "Nupin" Snider, who was shot in the head on South Morton Avenue on May 6. The brothers turned themselves in after a warrant was issued for their arrests on May 8.

"No witnesses said they saw him fire a weapon or that he had a weapon, if we are basing this just off probable cause," said John Brinson, lawyer for Darius Suggs.

Vanderburgh Superior Court Judge Robert Pigman took the arguments under advisement. * * *

Brinson cited the May 12 Indiana Court of Appeals ruling which overturned a Marion County judge's decision not to set bail for James Satterfield because the judge did not consider evidence of self-defense.

The appeals court ruling cited Indiana Constitution wording which says: "Murder or treason shall not be bailable, when the proof is evident, or the presumption strong."

"Thus, the denial of the right to award bail where the proof of guilt is not evident or the presumption of guilt is not strong would be a deprivation of liberty without due process of law, in violation of the Constitution, which would — rightly — call for prompt corrective action," according to the appeals ruling.

The nine-page affidavit mentioned a feud between Robert Suggs and Snider several times but did not specify what the exact issue was between the two men. However, police interviewed several people during the investigation who said the victim and one of the suspects were in an ongoing feud over their rap music.

The affidavit also was unclear on who investigators believed was involved in the gunfire. Witnesses told investigators that they believed several shots were fired during the incident. However, Snider was only shot once — in the back of the head — according to the affidavit.

The May 12th opinion in Satterfield is available here.

Posted by Marcia Oddi on Wednesday, May 20, 2015
Posted to Indiana Courts

Ind. Gov't. - Plans for hog CAFO in Porter County withdrawn

"Porter County residential, agriculture interests clash over proposed pig facility" was the heading of this April 13th ILB post about, to quote the NWI Times, "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."

The Times' Matthew Stefanski reported May 13th on a meeting to review a rezoning proposal to allow the CAFO. The long story includes photos and maps. Some quotes:

The proposal for the concentrated animal feeding operation, which will be owned by Robert Sands at 181 S. Smoke Road, has generated controversy after residents raised concerns about its potential odor, increased traffic and decreased values for nearby properties.

About 50 people attended the meeting, which was not a public hearing and did not offer the opportunity for public comment.

Porter County Plan Commission Executive Director Bob Thompson said the meeting was simply a technical review of the proposal before it goes to the Porter County Plan Commission. Owners of the CAFO are seeking to rezone 40 acres from general agriculture to a high impact district, which would have to be approved by the Plan Commission.

The CAFO proposal calls for two 101-by-10-by-261-feet buildings that will house about 2,800 hogs per building. Pigs will be brought into the buildings when they weigh about 15 pounds, said Mike Veenhuizen of Livestock Engineering Solutions of Greenwood, Ind., who represented Sands at the meeting. They will stay at the CAFO until they weigh about 280 pounds, which takes about six months.

The buildings will house self-contained storage areas to keep manure, where it will be stored for about one year. Veenhuizen said the storage areas will be able to house about seven feet and four inches of manure in an eight foot tank. Veenhuizen asserted Sands would be able to manage the appropriate amount of nutrients in manure, by testing the manure at least once a year in accordance with Indiana Department of Environmental Management requirements.

Committee members voiced their concerns regarding potential odors in the area. Veenhuizen referred to a field test model from Purdue, and said the odors would be 99 percent contained within a half-mile of the facility.

If the proposal is approved, water and sewer would need to be provided to the CAFO through local utilities, due to high impact redistricting. In addition, committee members said Sands would have to comply with a Porter County ordinance that prohibits any discharge other than storm water into water drains.

Porter County Highway Superintendent David James voiced concerns about transportation to the farm on Ind. 8 near the proposed location, which currently doesn't accomodate regular semi-truck traffic. Semis will be used to transport livestock every six months when hogs are shipped out and new shipments are brought in. Trucks will also regularly transport feeding supplies to the facility.

Soil and Water Conservation District engineer Harvey Nix raised concerns about where the remains of dead hogs will be placed. Veenhuizen said there is no current plan regarding a location for dead hogs. He said due to the size of the facility, on-site burials would not be possible. Veenhuizen suggested incineration and composting would be possible options.

On May 18th the same reporter wrote:
The family proposing a hog farm in Morgan Township has decided not to pursue the project after facing wide opposition from local residents.

Robert Sands and family announced their plans to withdraw a rezoning proposal for the concentrated animal feeding operation at a press conference on Monday at the family’s farm.

The same day Amy Lavalley reported in the Gary Post-Tribune in a legthy story:
Opponents of an industrial hog farm proposed for Morgan Township called their efforts a success Monday after they learned that the proposal for the 5,600-hog operation has been withdrawn.

Robert Sands announced Monday afternoon on his property that he had withdrawn a zoning change petition that would have accommodated the proposed facility. His son, Brandon, an agricultural student at Ivy Tech Community College in West Lafayette, had pitched the proposal to his father as a way of growing the family farm at 181 S. Smoke Road. * * *

The proposal, which required a land rezoning from general agriculture to high-impact use because it needs a permit from the Indiana Department of Environmental Management, was scheduled to go before the Porter County Plan Commission for a May 27 hearing. That meeting has been canceled. * * *

On Friday, Mayor Jon Costas filed a letter against the farm with the Porter County Plan Commission. City staff members recently toured Belstra Milling's operation at Fair Oaks.

"I'm glad to hear the petition was withdrawn because it was simply not a good location for this operation," Costas said Monday, adding other places are better suited for industrial farms. "These operations are necessary and everyone likes bacon, but to have such an intense operation that close to a growing city is not good planning."

A plan would not have been the first CAFO in Porter County. One that has 4,000 hogs operates in Kouts.

See also Post-Tribune columnist Jerry Davich's May 19th article, "Grass-roots activism flexes more muscle, less pork."

Posted by Marcia Oddi on Wednesday, May 20, 2015
Posted to Environment | Indiana Government

Ind. Decisions - "Neither party’s appendix is particularly helpful to this court"

A reader points to a footnote in a NFP decision today, In re: The Adoption of A.S.B., S.B. v. K.E. (mem. dec.) that includes useful information of broader interest that might otherwise be overlooked. Footnote 1 on p. 2 [which the ILB has paragraphed]:

Neither party’s appendix is particularly helpful to this court.

S.B.’s appendix consists of the Chronological Case Summary (“CCS”), the appealed order, and excerpts from the transcript and selected exhibits from the contested adoption hearing.

K.E.’s appendix consists of excerpts from the transcript and additional exhibits from the contested adoption hearing.

Indiana Appellate Rule 50(F) provides: “Because the Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties should not reproduce any portion of the Transcript in the Appendix.” The “Transcript” is defined to include any exhibits associated with the proceedings. Ind. Appellate Rule 2(K).

In essence, then, two appendices have provided only the CCS and the appealed order.

In addition, we may not have the entire CCS. S.B. notes that the Noble County Clerk provided a CCS with “a sideways orientation” and was unwilling to provide “a correctly oriented” copy. Appellant’s Appendix, Table of Contents n.1. However, it does not appear that the CCS was printed in landscape orientation but rather, the bottom of each page may be cut off. And if part of each page is not actually missing, it is certainly obscured by the binding.

Posted by Marcia Oddi on Wednesday, May 20, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - So ... Where did the rollercoaster come from?

The ILB sent an inquiry to Martin DeAgostino, the Communications Director for the Indiana Court of Appeals, re the photo of the rollercoaster that appears in the archived videocast of the oral argument yesterday in the challenge to the Indianapolis smoking ban. The response:

The image you’re asking about is a stock image that is preloaded into our recording system. The image inadvertently appeared during the webcast when the system operator made a stray keystroke. It in no way involves any question of system integrity or “hacked” access to the webcast or the Court’s webcasting system.
Good to know!

Posted by Marcia Oddi on Wednesday, May 20, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (3):

In Erica L. Jackson v. State of Indiana , an 11-page opinion, Judge Bailey writes:

Jackson did not deny that the acts charged by the State were committed. She claimed that another individual was the perpetrator. As there was no controversy regarding whether a lesser offense was committed while a greater offense was not, the trial court did not abuse its discretion by refusing the instruction. * * *

Jackson claims that the trial court abused its discretion by admitting State’s Exhibits 5 and 6 and related testimony because Jackson’s photograph was a higher quality close-up causing her features to be more distinguishable than those of the women in jail intake photographs. * * * Here, our examination of the photo array does not lead to the conclusion that the distinction identified by Jackson is critical such as to likely lead to misidentification. Each of the photographs is of sufficient clarity to allow an examination of facial features. * * *

Jackson did not establish that the trial court abused its discretion by refusing her proffered instruction, nor did Jackson establish that the trial court abused its discretion in the admission of evidence.

In Tiras D. Johnson v. State of Indiana , a 9-page opinion, Judge Mathias writes:
Tiras Johnson (“Johnson”) appeals the Madison Circuit Court’s revocation of his probation and argues that the trial court abused its discretion when it denied his motion to suppress evidence seized during a warrantless search of his friend’s residence. * * *

For all of these reasons, we conclude that the trial court acted within its discretion when it admitted evidence that the officers discovered a large quantity of marijuana in Johnson’s backpack when they executed the search warrant. Therefore, we affirm the trial court’s order denying Johnson’s motion to suppress and finding that he violated his probation.

In Michael Whittaker v. State of Indiana, a 7-page opinion, Sr. Judge Darden writes:
Michael Whittaker appeals his sentence for his conviction of theft, a Class D felony, Indiana Code section 35-43-4-2 (2009), and his adjudication as an habitual offender, Indiana Code section 35-50-2-8 (2005). We affirm.

Whittaker presents one issue for our review, which we restate as: whether the savings clause of the 2014 criminal code revision violates the Equal Privileges and Immunities Clause of the Indiana Constitution. * * *

Specifically, he argues that the savings clause improperly prohibits the ameliorative sentencing statutes of the new criminal code to apply to certain offenders, including himself. * * *

Whittaker argues that the savings clause unconstitutionally created two classes of offenders: those who committed their offenses before the new criminal code went into effect on July 1, 2014 but were sentenced after that date and those who committed their offenses after the July 1, 2014 effective date. He maintains that the date of the offense is not reasonably related to any inherent characteristic that distinguishes the two classes. * * *

Whittaker, in an act of free will, selected his offense date as August 31, 2013, thereby choosing to commit theft as a Class D felony subject to a sentence of six months to three years. See Ind. Code §§ 35-43-4-2(a), 35-50-2-7(a). By doing so, he differentiated himself from those offenders who committed the offense of theft after July 1, 2014. Thus, we find that Whittaker is not similarly situated to those defendants who committed offenses after July 1, 2014, and, therefore, he has no viable equal privileges and immunities claim.

NFP civil decisions today (1):

In re: The Adoption of A.S.B., S.B. v. K.E. (mem. dec.)

NFP criminal decisions today (7):

Jonte Twan Crawford v. State of Indiana (mem. dec.)

Jessica Cundari v. State of Indiana (mem. dec.)

Tony R. Johnson, Jr. v. State of Indiana (mem. dec.)

Tyler Michael Cottrell v. State of Indiana (mem. dec.)

Cleverly P. Lockhart v. State of Indiana (mem. dec.)

Elyse S. Barnfield v. State of Indiana (mem. dec.)

Roy G. Dinwiddie v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, May 20, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In Kevin Charles Isom v. State of Indiana, a 5-0, 30-page opinion, Justice Rucker writes:

After a trial by jury Kevin Charles Isom was found guilty of three counts of murder for which the jury recommended and the trial court imposed a death sentence. In this direct appeal Isom raises the following rephrased issues: (1) did the trial court err by denying Isom’s for-cause challenges to certain prospective jurors; (2) did the trial court err in denying Isom’s motions for mistrial; (3) did the trial court abuse its discretion in instructing the jury; (4) did the trial court err by refusing to allow a witness to answer a question posed by a juror; (5) did the State commit prosecutorial misconduct during closing arguments in the penalty phase of trial; (6) is revision of Isom’s death sentence warranted; and (7) did the trial court issue an illegal or void sentence. We affirm Isom’s conviction and death sentence, but remand with instructions to issue a new sentencing order consistent with this opinion. * * *

A trial court cannot impose consecutive sentences in the absence of express statutory authority. Mask v. State * * *

Accordingly, “the death penalty is not ‘a term of imprisonment’” within the meaning of I.C. § 35-50-1-2. Id. In consequence the trial court here exceeded its statutory authority by ordering Isom’s death sentences to be served consecutively.

We affirm Isom’s convictions and remand this cause to the trial court with instructions to issue a new sentencing order consistent with this opinion.

In Roy Bell v. State of Indiana, an 8-page, 5-0 opinion, Justice Rucker writes:
Twenty-four-year-old Roy E. Bell was charged in a multi-count information with murder, felony murder, burglary, robbery, and criminal confinement. The State also sought life imprisonment without parole. After a bench trial Bell was found guilty as charged, and the trial court sentenced him to life imprisonment for the murder conviction. In addition the trial court sentenced Bell to a term of years for the burglary and robbery convictions. Bell now appeals challenging the sufficiency of the evidence supporting his murder conviction. We affirm the judgment of the trial court.

Posted by Marcia Oddi on Wednesday, May 20, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit reaffirms its Notre Dame ACA opinion, notwithstanding the SCOTUS ruling in Hobby Lobby

On March 9th, the SCOTUS sent Notre Dame v. Sebelius (now Burwell) back to the 7th Circuit. As Lawrence Hurley reported on March 9th for Reuters:

The Supreme Court on Monday threw out an appeals court decision that went against the University of Notre Dame over its religious objections to the Obamacare health law’s contraception requirement.

The justices asked the 7th U.S. Circuit Court of Appeals to reconsider its decision in favor of the Obama administration in light of the June 2014 Supreme Court ruling that allowed closely held corporations to seek exemptions from the provision.

The court’s action means the February 2014 appeals court ruling that denied the South Bend, Indiana-based Roman Catholic university an injunction against the requirement has been wiped out. * * *

The Notre Dame case was the only appeals court decision on that issue that pre-dated the Hobby Lobby ruling.

Late yesterday the 7th Circuit decided in a 50-page, 2-1 opinion by Judge Posner, University of Notre Dame v.
Sylvia Mathews Burwell
, joined by Judge Hamilton (beginning on p. 26), with Judge Flaum dissenting (beginning on p. 41), to again affirm the trial court's denial of preliminary relief.

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

Tuesday, May 19, 2015

Ind. Decisions - Supreme Court issues a second opinion today

In Cornelius Hines v. State of Indiana, a 5-0, 14-page opinion, Justice Dickson writes:

Following a jury trial, the defendant Cornelius Hines was convicted of Criminal Confine-ment and Battery. He has appealed claiming violations of both Indiana's constitutional and com-mon law proscriptions against double jeopardy and seeking review of sentence inappropriate-ness. We find that the defendant's two convictions do not violate the common law but do run afoul of the Double Jeopardy Clause of the Indiana Constitution. * * *

The continuous crime doctrine does not apply to the facts of this case, but the circum-stances of the trial establish a violation of the Indiana Constitution's Double Jeopardy Clause un-der the actual evidence test. We vacate the defendant's conviction for Battery as a Class D fel-ony and its concurrent three year sentence but affirm his conviction and eight year sentence for Criminal Confinement as a Class C felony. We decline to grant relief under Appellate Rule 7(B) for sentence inappropriateness. This cause is remanded to the trial court for further proceedings consistent with this opinion.

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

Posted by Marcia Oddi on Tuesday, May 19, 2015
Posted to Ind. Sup.Ct. Decisions

Environment - "Cases of avian influenza have spread through 15 states, including Indiana"

This very concerning story by Lauren Slavin appears in today's $$$ Bloomington Herald-Times. A much shortened version is available through the Indiana Economic Digest.

Posted by Marcia Oddi on Tuesday, May 19, 2015
Posted to Environment

Ind. Courts - More on "Appeals court hears challenge to Indianapolis smoking ban"

A reader watching the oral argument the ILB linked to this AM, in the Indianapolis smoking ban challenge, points out that at about 4:24 into the argument, the video cuts to a shot of a rollercoaster while the judges' voices continue in the background. The ILB was able to take a screenshot:

This does raise some questions about the integrity of the system.

Posted by Marcia Oddi on Tuesday, May 19, 2015
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (1):

In City of Fort Wayne v. Katie Parrish, an 11-page opinion, Judge Pyle writs:

Appellant/Defendant, City of Fort Wayne (“the City”), files an interlocutory appeal of the trial court’s grant of Appellee/Plaintiff, Katie Parrish’s (“Parrish”), motion in limine seeking to exclude evidence from her personal injury/tort claim trial regarding the fact that she was not wearing a seatbelt when a car in which she was a passenger was involved in an automobile accident.

On appeal, the City argues that the trial court abused its discretion when it granted Parrish’s motion because evidence that she was not wearing a seatbelt when she was involved in an accident involving a Fort Wayne police officer was admissible to prove that she was guilty of contributory negligence for her injuries. In support of this argument, the City claims that Parrish was negligent per se for violating Indiana’s mandatory passenger restraint act (“Seatbelt Act”). In response, Parrish argues that a violation of the Seatbelt Act cannot be used as evidence to prove fault under a theory of contributory negligence.

Because we conclude that the Indiana Legislature did not clearly intend to deviate from common law when it enacted the Seatbelt Act, we agree that a violation of the Seatbelt Act may not be used to prove contributory negligence, and therefore the trial court did not abuse its discretion when it granted Parrish’s motion in limine.

NFP civil decisions today (3):

In re the Marriage of: John Mikicich v. Claudia Mikicich (mem. dec.)

In the Matter of the Commitment of A.A. v. Indiana University Health Bloomington Hospital (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of, J.H. (minor child), and K.T. (father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

Lorie Bohannon v. State of Indiana (mem. dec.)

Angela Cash-Hilyard v. State of Indiana (mem. dec.)

Thomas J. Mure v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, May 19, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court suspends former Lake Co. Clerk for 4 years, without automatic reinstatement

In In the Matter of: Thomas R. Philpot, a 3-page, 3-2 per curiam opinion, the Court writes:

We find that Respondent, Thomas Philpot, engaged in attorney misconduct. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least four years without automatic reinstatement. * * *

In September 2011, Respondent was charged in the United States District Court for the Northern District of Indiana with three counts of mail fraud and two counts of theft from a federally-funded program, all felonies. In August 2012, Respondent was convicted by a jury on all counts. After post-trial proceedings, Respondent was adjudicated guilty on the jury’s verdicts as to two counts of mail fraud and one count of theft. Respondent’s convictions were affirmed on appeal. U.S. v. Philpot, 733 F.3d 734 (7th Cir. 2013), reh’g and reh’g en banc denied. Respondent’s convictions resulted from his use of federal funds to pay himself impermissible bonuses in connection with work he performed in his capacity as the elected Clerk of Lake County, Indiana. ** *

All Justices concur except Rush, C.J., and Dickson, J., who dissent, believing Respondent should be disbarred.

ILB: The ILB has many earlier posts on Mr. Philpot's legal troubles.

Posted by Marcia Oddi on Tuesday, May 19, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Task force aims to unclog tax court backlog"

Dan Carden reports in the NWI Times:

INDIANAPOLIS | A state appellate court specializing in difficult tax issues is going under the microscope in hopes of discovering the causes of a growing case backlog.

The Indiana Supreme Court last week established a nine-member advisory task force to study over the next year the workload, resources, staffing, performance and operations of the one-judge Indiana Tax Court.

Chief Justice Loretta Rush said it will be the first comprehensive review of the specialty court in its nearly 30 years of operation, and is needed now because the tax court appears to be concluding fewer cases than in the past.

For example, under Judge Thomas Fisher, a former Jasper County prosecuting attorney who moved to senior judge status in 2011, the tax court typically resolved 70 to 100 cases a year and carried over about 130 into the next year, except in his final year when just 91 cases remained.

Productivity dropped significantly after tax court Judge Martha Blood Wentworth was appointed by Republican Gov. Mitch Daniels to replace Fisher four years ago. She was retained by Hoosier voters in 2014 for a 10-year term.

In 2011, Wentworth's first year on the bench, the tax court ruled in just 48 cases, leaving 140 remaining at the end of the year. The number of pending cases grew to 175 in 2012, 193 in 2013 and totaled 191 on Dec. 31, 2014.

ILB: Although the story also notes:
Tax court cases tend to be among the most complicated in the Indiana judiciary, often involving corporate tax disputes over multiple tax years with significant potential refund ramifications for the state and local governments.
This is often not the case. The area is specialized, but the majority of the cases are straighforward.

For more, see this ILB post from May 15th and the links to background at the end of that post.

Posted by Marcia Oddi on Tuesday, May 19, 2015
Posted to Ind. Tax Ct. Decisions

Courts - "The New Orleans Advocate intervenes in federal litigation, seeking transparency"

From the May 19th story in The Advocate, reported by Gordon Russell:

The matter is before the 5th U.S. Circuit Court of Appeals.

The newspaper’s filing states that the sealed matter before the appellate court “may concern” a petition for writ of mandamus originating from the government’s case against Frank Fradella, a convicted businessman who bribed [former New Orleans Mayor Ray] Nagin and then served as one of the lead witnesses against the former mayor in his 2014 trial.

But determining such basic information is impossible because the entirety of the case is under seal at the appellate level. On the Public Access to Court Electronic Records system, or PACER, the case is listed simply as “In re: Sealed Petitioner” — meaning it’s impossible to know even the names of the parties to the dispute. * * *

The newspaper’s filing cites U.S. v. Moussaoui, in which members of the media were permitted by a federal appeals court to view various aspects of the government’s case against an accused al-Qaida operative that had initially been kept secret.

Posted by Marcia Oddi on Tuesday, May 19, 2015
Posted to Courts in general

Ind. Courts - "Appeals court hears challenge to Indianapolis smoking ban"

An Indiana Court of Appeals panel heard oral argument yesterday in the case of Whistle Stop Inn et al v. City of Indianapolis et al. You may watch the videocast here.

Jill Disis reports today in the Indianapolis Star:

The owners of two Indianapolis bars believe they've found an argument that could overturn the city's 2012 smoking ban once and for all — and it starts with a single question:

Why should the city be allowed to permit smoking in its sole off-track betting facility, while simultaneously prohibiting it in bars that don't offer gambling?

It shouldn't, says attorney Mark Small, who argued Monday before the Indiana Court of Appeals on behalf of the Whistle Stop Inn and the Thirsty Turtle. In fact, Small said, that gambling exemption might be unconstitutional.

"What we have here is simply unequal treatment in Indiana," he said.

The legal challenge heard before the appellate court is the latest attempt to reverse the city's smoking ban, which went into effect in June 2012. A Marion Superior Court judge earlier granted summary judgment to the city in the case.

Small also was involved in a previous case heard before the 7th U.S. Circuit Court of Appeals in November 2013. That court upheld the ban.

What is different now? The story continues:
Small's case hinged in part on a ruling made by the Indiana Supreme Court in February 2014, when it struck down an Evansville ordinance that extended a city smoking ban to bars and restaurants but exempted the Tropicana casino.

In that case, the court rejected the ordinance, ruling 3-2 that the ban violated the Equal Privileges and Immunity Clause of the Indiana Constitution, which says the General Assembly "shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." If the state wants to carve out an exemption, the court said, it needs to show that there is an "inherent difference" in the item or organization for which that exemption is being made.

The exemption made for the Winner's Circle, Small claims, is no different from the one for the Tropicana casino.

"What is there about betting on horses and drinking that inherently involves smoking?" he said. "That's not an inherent part of the activity."

Mark Crandley, the attorney representing Winner's Circle owner Hoosier Park LLC, argued that the Evansville case is not comparable to the latest challenge.

"In this very unique circumstance, it is different than riverboat gambling," Crandley said, pointing to the differences in how off-track betting facilities and riverboat casinos are regulated. "The General Assembly chose to include in the Horse Racing Commission statute a provision requiring review of the smoke handling and other smoking issues. There is nothing like that in the riverboat casino statute."

Adriana Katzen, an attorney representing the city of Indianapolis, backed that argument. She said the regulations put in place by the Horse Racing Commission require those types of gambling facilities to take into account the "public welfare" and "public interest," including a requirement for air ventilation.

Here is a link to the Feb. 11, 2014 3-2 Supreme Court opinion in two combined cases challenging the Evansville smoking ordinance amendment.

Posted by Marcia Oddi on Tuesday, May 19, 2015
Posted to Indiana Courts

Monday, May 18, 2015

Ind. Decisions - Supreme Court denies another transfer petition; revises 5/15/15 transfer list.

In a 4-page published order filed May 15th but just posted this afternoon, the Supreme Court has denied transfer, after oral argument, in the case Thomson Inc. n/k/a Technicolor USA. Inc. v. Insurance Com. The 6/19/14 Court of Appeals opinion is to be certified as final.

The vote is 3-2:

Dickson, David, and Massa, JJ., concur.
Rush, C.J., dissents to the denial of transfer with a separate opinion, in which Rucker, J., joins. [It begins]
I respectfully dissent from the denial of transfer because, like Chief Judge Vaidik, I see no material difference between the policy language in this case and the similar language we interpreted in Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001). Simply changing “all sums” to “those sums,” and placing “during the policy period” in the insuring clause rather than in the definition of “occurrence,” does not unambiguously permit Thomson’s various insurers to prorate coverage between themselves—and any ambiguity in that regard must be strictly construed against the insurer. There is also no principled method to calculate such a proration—only guesswork under the guise of “factfinding.” We should not burden trial courts with that task based on policy language that is ambiguous at best.
This order was not included on the transfer list posted this morning, but it does appear as the next-to-last entry in a list revised and reposted this afternoon.

Posted by Marcia Oddi on Monday, May 18, 2015
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Law - Summer Training Camp for Litigators

The Litigation Section of the ISBA is holding the Summer Training Camp (6 hrs. CLE/1.5 hrs. Ethics) on June 26th in the NCAA Hall of Champions. Details, including the agenda, are available here.

Posted by Marcia Oddi on Monday, May 18, 2015
Posted to Indiana Law

Courts - SCOTUS rules: "Maryland has been illegally double-taxing people who earn income in other states"

Bill Turque has a story in the Washington Post about today's SCOTUS decision in Comptroller v. Wynne. A 1938 decision relating to Indiana is discussed on p. 6:

Our existing dormant Commerce Clause cases all but dictate the result reached in this case by Maryland’s highest court. Three cases involving the taxation of the income of domestic corporations are particularly instructive.

In J. D. Adams Mfg. Co. v. Storen, 304 U. S. 307 (1938), Indiana taxed the income of every Indiana resident (including individuals) and the income that every nonresident derived from sources within Indiana. Id., at 308. The State levied the tax on income earned by the plaintiff Indiana corporation on sales made out of the State. Id., at 309. Holding that this scheme violated the dormant Commerce Clause, we explained that the “vice of the statute” was that it taxed, “without apportionment, receipts derived from activities in interstate commerce.” Id., at 311. If these receipts were also taxed by the States in which the sales occurred, we warned, interstate commerce would be subjected “to the risk of a double tax burden to which intrastate commerce is not exposed, and which the commerce clause forbids.” Ibid.

An AP story reports:
The 5-4 ruling means the loss of hundreds of millions of dollars in revenue for Maryland and affects similar laws in other states, including New York, Indiana, Pennsylvania and Ohio.

Posted by Marcia Oddi on Monday, May 18, 2015
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 2 NFP memorandum decisions)

For publication opinions today (1):

In Gary P. Byers v. Robert E. Moredock and Rhoda S. Moredock, a 14-page opinion, Judge Brown concludes:

In sum, the provisions of the Ordinance cited by Byers were inapplicable to the Moredocks and did not impose any duty on them to confine or restrain a dog in the care of the tenant or residents of the Property; the Moredocks were not the owners or keepers of the dog that struck Byers’s motorcycle and had no duty to confine or control the dog on that basis; and the Moredocks as the owners of the Property and landlords did not have a duty to ensure proper or adequate confinement or control of the dog, or to monitor the tenant or residents of the Property to ensure they properly or adequately confined or controlled the dog. Accordingly, summary judgment in favor of the Moredocks and against Byers was proper.

For the foregoing reasons, we affirm the trial court’s entry of summary judgment in favor of the Moredocks and against Byers.

NFP civil decisions today (1):

In re the Paternity of J.A.S.: H.S. v. N.L. (mem. dec.)

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Monday, May 18, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 15, 2015 [Updated]

Here is the Clerk's transfer list for the week ending Friday, May 15, 2015. It is three pages (and 29 cases) long.

Seven transfers were granted last week:

Also on the May 15th list, the Court's grant of the petition to dismiss in the domain name case, Serenity Springs. See this May 17th ILB post.

In two cases, transfer was denied by a 3-2 vote, with "David, J., dissents to the denial of transfer with separate opinion, in which Dickson, J., joins."

[Updated at 4:10 PM] The transfer list has been updated with the addition by the Court of one more order. See this new post for details.

Posted by Marcia Oddi on Monday, May 18, 2015
Posted to Indiana Transfer Lists

Courts - Revealing who will be sitting on a federal Court of Appeals panel

This question came up when the ILB was looking for the names of the judges who would be sitting on the 7th Circuit panel hearing the same-sex marriage appeals. We didn't know until the morning of the argument, when the names appeared on the court calendar.

But not all circuits do it that way, as Zoe Tillman reported May 18th in a long story in the National Law Journal. Some quotes:

Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit prefers the element of surprise. At least for oral arguments.

The Seventh Circuit, based in Chicago, doesn't reveal the identities of the judges assigned to a case until the morning of oral arguments. Lawyers, Easterbrook said, should "prepare to face the circuit as a whole."

"Even with this policy, many lawyers try to make judge-specific arguments ('You wrote the opinion that said…') and have to be reminded that opinions speak for the court, not for their authors," the judge said in an email to The National Law Journal. "Ad hominem arguments are out of place."

The Seventh Circuit is in the minority. Of the 13 federal appeals courts, only three — the Fourth, Seventh and Federal circuits — wait to disclose the three judges assigned to a case on the day it is argued. The other circuits reveal their panels days or weeks in advance.

Posted by Marcia Oddi on Monday, May 18, 2015
Posted to Courts in general | Ind. (7th Cir.) Decisions

Ind. Gov't. - "As rail shipments rise, public backlash forces costly steps to deal with noise, traffic jams"

That was the headline to a long, well-worth-reading April 30th story in the $$$ WSJ, reported by Laura Stevens. Her story focused on Savannah, Georgia. Here is a sample:

Railroads are facing a growing backlash—not just against dangerous oil trains, but against the noise, delays and traffic jams caused by rail’s rapid expansion and recent success. Rail shipments have increased by more than 6% in the past three years, but a bigger problem is that trains are getting longer, slower and—in many places—more frequent. At least one railroad now averages trains more than a mile long. And trains are federally mandated to honk at most street-level crossings for safety reasons.

Community resistance has historically been just a nuisance to railroads. The rails own their own right of way and operate under federal authority that typically supersedes local ordinances.

Lately, though, public pushback has gotten both serious and costly. It is forcing expensive improvements, interfering with expansion plans and curbing growth. In March, BNSF Railway Co. voluntarily slowed oil trains to 35 mph from 40 mph or higher near populated areas due to community safety concerns, effectively cutting capacity. Canadian National Railway Co. might be on the hook to pay $47 million for an underpass in Barrington, Ill.

Indiana has been seeing the same problems. "St. John wants trains to hold the horns please" is the headline to this NWI Times story by Phil Wieland.

Chris Meyers reported May 17th in the Fort Wayne Journal Gazette:

A new local push is underway to try to get railroad companies to take notice that local cities and towns have hit their limit when it comes to trains stopped across rail crossings.

Crossings in New Haven have been the most recent targets for violations, bringing Allen County into the fray with DeKalb County, which has a stack of pending tickets against a railroad company.

Although New Haven and Allen County police have issued tickets occasionally throughout the years in the city, the beginning of May saw a slew of violations.

Fifteen tickets were filed by the Allen County and New Haven police departments against Norfolk Southern from May 4 to 8, according to court records.

Tickets are issued when trains block crossings for more than 10 minutes, a violation of Indiana law that carries up to a $500 fine upon conviction.

“We have received some complaints, and we have been watching for these types of violations,” New Haven Police Chief Stephen Poiry said.

With the rail yard in town spreading activity over several spurs of track and affecting several streets, his officers are used to such violations.

“It’s been an issue for years,” Poiry said.

All the new tickets, though, have been transferred out of New Haven’s city court to Allen Superior Court and set for bench trial. That’s a change from the pleas that historically put an end to the case.

A similar battle is looming in DeKalb County, where a history of mutual resolutions came to an end recently when a CSX train blocked a crossing for 14 hours.

“That probably caused us to take a pretty hard stance and say maybe we should start taking these to trial,” said Erik Weber, a part-time prosecutor for DeKalb County who is handling the pending tickets.

CSX now has at least 42 pending tickets set for trial that otherwise likely might have been resolved with guilty pleas or dismissals. Forty of those were filed this year.

Posted by Marcia Oddi on Monday, May 18, 2015
Posted to Indiana Government

Ind. Courts - Court of Appeals applicants to be interviewed June10th

Updating this most recent ILB post from last Thursday, the Supreme Court has this morning announced that the eight Court of Appeals candidates will be interviewed Wed., June 10th. In addition, the applications are now available for review online.

Posted by Marcia Oddi on Monday, May 18, 2015
Posted to Indiana Courts

Ind. Gov't. - State of Indiana ranks at or near the bottom in public health and environment

Following on a lengthy list of earlier ILB entries on Indiana's health care crisis, Maureen Groppe of the Star Washington Bureau puts it all today in what is a lengthy, really shocking front-page Star story about the state of our State. Some quotes:

WASHINGTON – When southeastern Indiana became the face of the nation's opioid addiction epidemic, people asked, "Why Scott County?"

But the county's unprecedented HIV outbreak — the first in the nation linked to the injection of oral painkillers — revealed underlying issues in Indiana long noted by public health experts that suggest it could happen elsewhere in the state.

The addiction epidemic has hit Indiana harder than other states, and Indiana has less of a public health infrastructure to deal with the crisis. It ranks among the states with the fewest drug treatment providers and the lowest public health spending.

Other obstacles include the state's previous ban on needle exchange programs, its moratorium on methadone treatment clinics and a criminal justice approach to the problem, instead of one focused on treatment. * * *

When Mitch Daniels first campaigned for governor in 2004, he said Indiana was leaving tens of millions of dollars on the table while other states had mobilized to compete for health care grants from the federal government. During his time in office, his administration tried to rebuild relationships with the Centers for Disease Control and Prevention.

Indiana briefly moved up from last place in per-capita CDC funding in 2008 to as high as 35th in 2010. But it has been back at the bottom since 2012, according to annual rankings from Trust for America's Health in Washington.

Indiana also ranks low — 44th — in the per-capita amount of its own money spent on public health.

Beth Meyerson, co-director of the Rural Center for AIDS/STD Prevention at Indiana University, said the HIV outbreak in Scott County revealed "we're not prepared and our system is kind of broken down."

"I often say that (the Indiana State Department of Health) is fighting the good fight with two hands tied behind their backs," she said. "We really have a notion in the Midwest of 'pull yourself up by the bootstraps' and there isn't a very good communitarian notion of care." * * *

Low public health funding affects a state's ability to detect problems such as an HIV outbreak and to address them quickly, said Jeff Levi, executive director of Trust for America's Health and an HIV expert. "But some of the issues associated with this have less to do with money and more to do with policy and appropriate policy response."

He said the biggest obstacle was the state's previous ban on needle exchange programs, as well as a lack of access to substance abuse treatment. * * *

McCaffrey, the head of Mental Health America of Indiana, said many steps are needed to address the problem. But, for the first time, all the stakeholders in the criminal justice, public health and mental health communities have come together to say "we need to figure out how to provide treatment," he said.

"That has never happened before in Indiana," he said. "We have a history of just locking people up."

Still, the emergency response teams trying to figure out how to control what's happening in Indiana are realizing that substance abuse treatment in Indiana is very minimal and the system can't turn on a dime.

What is evident, health experts says, is that communities with warning signs shouldn't think that what happened in Scott County is an anomaly.

"I really don't think we're unique," said Scott County's Bridgewater. "We just happened to be first."

A second story today by reporter Groppe asks "What counties could be next for HIV outbreak?" A sample:
After the Scott County outbreak, the Centers for Disease Control and Prevention encouraged health departments across the country to identify and track both HIV and hepatitis C cases, and to also look at overdose deaths, drug arrests and drug treatment admissions.

"The situation in Indiana should serve as a warning that we cannot let down our guard against these deadly infections," said Dr. Jonathan Mermin, director of the National Center for HIV/AIDS, Viral Hepatitis, STD and TB Prevention at the CDC.

"Are state regulators hurting Hoosiers' lungs?" is the headline to another front-page Star story this morning, this one reported by Ryan Sabalow. A few quotes from the lengthy story:
Public health researchers say more than 1,000 studies have proved that breathing ozone reduces the ability of even the healthiest lungs to draw in air. Sufferers of bronchitis, emphysema, pneumonia and asthma are particularly at risk, especially the elderly and children, and especially those who live closest to pollution centers, as the Sparks family does.

But the state's top air-quality regulators, with extensive backgrounds in heavy industry, are fighting efforts to further limit ozone pollution. They say the consensus science behind the proposed regulatory changes can't be trusted. Nor, they say, should Hoosiers put much stock in the abysmal rankings that groups such as the American Lung Association give Indiana for its ozone levels.

They're pushing back against the U.S. Environmental Protection Agency's proposal to lower ozone levels and downplaying what medical researchers say is an unacceptable public health risk posed by current EPA standards.

They insist that asthma sufferers such as Damien and London won't be helped much, if at all, by the proposed new rules. Instead, they say the proposal will only kill jobs and diminish the quality of life in Indiana — maybe even for Damien and London.

"Raising the cost of living for Hoosiers without obtaining a corresponding increase in their quality of life, especially in documented health improvements, decreases the overall quality of life for the Hoosiers we are here to protect," Indiana Department of Environmental Management Commissioner Tom Easterly said in a prepared statement.

Such positions have sparked an old-fashioned jobs-vs.-regulation battle. Four public health doctors interviewed by The Indianapolis Star described the science behind Easterly's arguments as "specious" and nothing more than "mirages." One called the arguments "simplistic." Another, "misleading." One brushed it all aside as "Chamber of Commerce talking points." * * *

Indiana is consistently ranked low in air quality. The American Lung Association's 2015 State of the Air Report, released in April, gave "F" or "D" grades to 16 of the 29 Indiana counties that conduct air-quality monitoring.

The group gave "F" grades to heavily populated Lake, Marion, St. Joseph and Vanderburgh counties. Allen County received a "D."

Stephen Jay, a professor of medicine and public health at Indiana University School of Medicine, says the economic costs of ozone are profound. The EPA estimates that the new standard could save up to $38 billion in health care costs and lost productivity.

Posted by Marcia Oddi on Monday, May 18, 2015
Posted to Environment | Indiana Government

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

From Sunday, May 17, 2015:

From Saturday, May 16, 2015: From Friday afternoon, May 15, 2015:

Posted by Marcia Oddi on Monday, May 18, 2015
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/18/15):

Next week's oral arguments before the Supreme Court (week of 5/25/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/18/15):

Monday, May 18

Next week's oral arguments before the Court of Appeals (week of 5/25/15): <

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

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


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

Posted by Marcia Oddi on Monday, May 18, 2015
Posted to Upcoming Oral Arguments

Sunday, May 17, 2015

Ind. Gov't. - A toll bridge but no toll booths - how would that work?

Dan Carden of the NWI Times explained earlier this month in a story headed "Governor grants company building East Chicago bridge access to BMV data for tolls." From the story:

INDIANAPOLIS | The private company set to rebuild the Cline Avenue Bridge in East Chicago and charge drivers tolls for crossing will get assistance from the Indiana Bureau of Motor Vehicles in collecting its revenue.

Republican Gov. Mike Pence has signed into law House Enrolled Act 1397, providing United Bridge Partners free access to BMV registration records and requiring the agency to suspend the license plates of motorists who fail to pay their bridge tolls.

Company officials explained to state lawmakers the records access and registration suspensions are needed because they plan to use open-road tolling on the bridge, similar to the Illinois Tollway, and will have no manned toll booths.

Motorists who cross the bridge without an E-ZPass or I-PASS electronic transponder in their vehicles will be mailed a bill that could not be sent or effectively enforced without the new law, they said. * * *

Construction on the $158 million bridge is expected to start in late spring and is projected to employ 300 workers over a 30-month period.

The Indiana Department of Transportation closed the 26-year-old Cline Avenue Bridge on Nov. 13, 2009, and demolished it in 2013 after inspectors determined the bridge's interior support cables were badly corroded and the bridge gravely weakened.

The state declined to rebuild the 1.2-mile bridge, claiming alternate routes on city streets were sufficient to serve the 30,000 vehicles a day that previously used the bridge to get to major region employers such as ArcelorMittal, BP Whiting Refinery, three Lake Michigan casinos and Chicago.

East Chicago and INDOT later struck a deal with United Bridge Partners to build a new, privately owned and operated bridge in place of the condemned span. The city is due to receive 10 cents from every toll.

Posted by Marcia Oddi on Sunday, May 17, 2015
Posted to Indiana Government

Ind. Decisions - "Domain name dispute settled"

On May 13th the ILB reported the Supreme Court's order granting the joint motion to dismiss in the domain name dispute between Serenity Springs and the LaPorte County Convention and Visitors Bureau.

On Friday, May 15th Matt Fritz wrote in the Michigan City News Dispatch:

La PORTE — For six years, the La Porte County Convention & Visitors Bureau has been in a legal battle with Serenity Springs over a website name.

In April, a settlement was finally reached, with the bureau agreeing to pay $7,500 for visitmichigancitylaporte.com.

According to a settlement and release agreement between the bureau and Serenity Springs, the former agreed to pay for the rights of the domain name while the latter would give no admission of fault, liability or wrongdoing in the case. * * *

According to court records, the issue stems back to Sept. 9, 2009, when the bureau held a public meeting announcing "Visit Michigan City La Porte" was to be the new branding identifier for the area.

A representative from Serenity Springs was allegedly in attendance, and the domain name "visitmichigancitylaporte.com" was allegedly registered by an employee of the company immediately after the announcement was made. The domain was then used to redirect traffic to the employer's website. * * *

After a cease and desist letter was sent to the business, Serenity Springs allegedly claimed it did not commit trademark infringement because it registered and began using the domain name before the bureau made any commercial use of it, and that the domain name was not protectable as a trademark because it was only descriptive and had not acquired distinctiveness.

Back in 2012, La Porte County Superior Court 4 Judge William J. Boklund issued an injunction prohibiting Serenity Springs and its president, Laura Ostergren, from using the name or trademark Visit Michigan City La Porte.

According to court records, the trial court concluded Serenity Springs had committed trademark infringement, as well as cybersquatting and cyberpiracy, and ordered the transfer of the domain name.

But this order was later reversed by the majority opinion of the Indiana Court of Appeals on July 16, 2014, which stated the bureau only intended to use the phrase before Serenity Springs acquired it, so it was not a protected trade name and this was not unfair competition.

The bureau then filed a petition to transfer jurisdiction to the Indiana Supreme Court, but before the court could rule on the petition, the parties filed a joint motion to dismiss the appeal, meaning they had reached a settlement agreement.

This also dismissed the ruling of the last appeal.

The Indiana Supreme Court moved to grant the joint motion for dismissal May 12.

Posted by Marcia Oddi on Sunday, May 17, 2015
Posted to Indiana Decisions

Saturday, May 16, 2015

Ind. Courts - "Attorney Ken Nunn, former associate exchange lawsuits"

Laura Lane of the $$$ Bloominton Herald-Times reported this weekend on a dispute involving Bloomington attorney Ken Nunn and an attorney formerly with his firm. From the story:

Lawyers, accusations and money.

They are at the heart of lawsuits filed recently in Monroe Circuit Court in a dispute between high-profile personal injury lawyer Ken Nunn and attorney Jeffrey Jon Shaw, who until January had worked for Nunn.

Shaw says Nunn fired him without cause, stole his clients and refused to pay him. He accuses his former boss of slander, saying he made false statements to clients that damaged his reputation. “He knew such statements were false or reckless without knowledge of its truth or falsity,” Shaw’s lawsuit states.

Nunn, who started his practice in Bloomington in 1967, counters that Shaw’s allegations are untrue, the words of a disgruntled employee.

“Mr. Shaw has left out important facts and has left out important law in his untrue accusations,” Nunn wrote in a statement in response to Shaw’s lawsuit against him, which was filed on Wednesday. “I have done nothing wrong. My law office has done nothing wrong. I am offended that these untrue allegations have been made against me.”

The two former colleagues now will argue it out in court before Judge Frances Hill.

In March, Nunn and the Ken Nunn Law Office filed a court action asking that any money awarded from the settlement of a case the Nunn law firm took on, and that was assigned to Shaw, be held by the county clerk’s office until the lawyers reached an agreement about how the money would be divided.

The case involves Michael Bean’s claim for damages from an injury resulting from a March 13, 2013, fall in the parking lot at Wal-Mart in Bloomington. A week after the fall, Bean signed a fee agreement with the Ken Nunn Law Office stating he would pay his attorney one-third of any amount recovered in the case, plus the cost of expenses from evidence gathering.

Nunn’s firm filed a lawsuit on Bean’s behalf, seeking compensation for his injuries, on May 8, 2013. A jury trial to decide the matter is scheduled for January 2016.

Nunn fired Shaw Jan. 21. After that, Bean decided to keep Shaw as his lawyer. So Nunn filed his March lawsuit in order to protect his financial interests, claiming his firm is owed $9,705.45 in out-of-pocket expenses incurred before Shaw was terminated. Nunn also claims that under Indiana law, his firm is entitled to half of any future settlement or jury award from the case. * * *

Nunn’s firm employs about a dozen lawyers and another 60 staff members to help process the caseload. In 2011, the Ken Nunn Law Office reported having about 3,000 active cases. Nunn is high-profile, his face and phone number visible on billboards, buses and television ads.

In his lawsuit against Nunn, Shaw, hired by the firm in June 2012, said he was handling 80 to 90 personal injury cases when he was terminated “without warning or consultation.” He said he was the law firm’s top money-making attorney in 2014, bringing in more than $2.7 million. His lawsuit states that during his time at the Ken Nunn Law Office, he made about $4.5 million for the firm.

This appears to be the lawsuit, via MyCase - Ken Nunn, Ken Nunn Law Office vs. Jeffrey Jon Shaw, Michael Bean, Wal-mart Stores East, LPet al, 53C06-1503-CT-000536 and 53C06-1503-CT-000537.

Posted by Marcia Oddi on Saturday, May 16, 2015
Posted to Indiana Courts

Friday, May 15, 2015

Ind. Decisions - Tax Court posts one, filed May 14th

[ILB: This opinion has been password protected by the Court. It cannot be cut and pasted from and it cannot be OCRed.]

In Lee and Sally Peters v. Lisa Garoffolo, Boone County Assessor, and the Indiana Board of Tax Review, an 11-page opinion with pro se petitioners, Sr. Judge Fisher writes:

ILB: See the opinion, the Court upholds the Tax Board; the pro se petitioners fail on procedural grounds.

[Updated May 19] The Tax Court has now posted a useable version of its opinion, in place of the earlier locked version. The filing date remains the same.

Posted by Marcia Oddi on Friday, May 15, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - More on: Supreme Court issues order to study the Tax Court

On April 20th the Supreme Court issued an order creating an ad hoc advisory task force to study resources and caseload of the Indiana Tax Court. The ILB noted at the time:

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.
Today the Supreme Court has posted an order (filed May 13th) amending the earlier document, stating:
... on May 6, 2015, the Governor signed Senate Enrolled Act 423 (SEA 423), calling for the Indiana Judicial Center to review the workload and backlog of cases in the Indiana Tax Court and submit a report to the Indiana Legislative Council by December 1, 2016. To integrate SEA 423 with this Court’s charge, we find that the April 20 Order should be AMENDED
The newly created 9-member task force will include:This appears to be a much better grouping. Judge Kirsch is to serve as chair. "Judge Martha B. Wentworth of the Indiana Tax Court will serve as ex officio liaison from the Tax Court to the Committee and attend meetings by invitation of the Chair."

The amended order provides that:

The Task Force shall provide a written report to this Court not later than May 1, 2016, and provide copies of its report to the Indiana Judicial Center and Indiana Legislative Council.
The earlier order required a report only to the Court.

There is no mention of public meetings or other access.

Background: On Sept. 14, 2014, the ILB had a lengthy post on the Tax Court backlog, headed "Ind. Courts - A look at the Indiana Tax Court." An update followed on Nov. 18, 2014.

Posted by Marcia Oddi on Friday, May 15, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 6 NFP memorandum decisions)

For publication opinions today (3):

In Fight Against Brownsburg Annexation, et al. v. Town of Brownsburg, Indiana, et al., a 26-page opinion, Judge Najam concludes:

The trial court had subject matter jurisdiction to determine the sufficiency of FABA’s remonstrance petition under Indiana Code Section 36-4-3-11. We hold that a Trial Rule 12(B)(1) motion is not a proper vehicle for challenging the sufficiency of a remonstrance petition under Section 36-4-3-11, and the trial court erred when it dismissed FABA’s petition for lack of subject matter jurisdiction. The remonstrance petition is sufficient on its face, and we reverse and remand for a hearing on the merits. On remand, should Brownsburg challenge the validity of the signatures in support of FABA’s petition at the merits hearing, we hold that: (1) any otherwise valid signatures of owners obtained prior to publication of the annexation ordinance are to be counted; and (2) only one owner need have signed on behalf of each parcel.[15] Finally, FABA’s remonstrance petition is not moot. Reversed and remanded for further proceedings.
_____________________
[15] We note that the General Assembly has passed new legislation, effective July 1, 2015, that overhauls the annexation process in Indiana. See S.B. 330, 119th Gen. Assemb., Reg. Sess. (Ind. 2015). The most significant change is that, under a new statute, Indiana Code Section 36-4-3-11.3, an annexation ordinance is void if a remonstrance petition is signed by at least 65% of owners of land in the annexed territory or by the owners of at least 80% in assessed valuation of the land in the annexed territory. Another new statute, Indiana Code Section 36-4-3-11.1(c), provides that, after a proposed annexation ordinance is published, the municipality must “give notice of the applicability of the remonstrance process” to affected landowners. And Indiana Code Section 36-4-3-11.2(c)(1) provides that signatures in support of a remonstrance petition must be dated, and they must be dated no earlier than the date of the notice provided under Section 11.1. Finally, the new statute provides that “[o]nly one (1) person having an interest in each single property as evidenced by the tax duplicate is considered an owner of property and may sign a remonstrance petition.” I.C. § 36-4-3-11.2(e)(2).
In Carlton Hart v. State of Indiana, a 12-page opinion, Judge Pyle writes:
Carlton Hart (“Hart”) appeals his convictions, after a jury trial, for murder, Class B felony criminal confinement, and Class B felony conspiracy to commit criminal confinement. On appeal, Hart argues that the evidence was insufficient to support his convictions as an accomplice and that the trial court erroneously allowed the State to redact details of a peace treaty he brokered between rival rap groups from his statements to police. Concluding that the evidence supported Hart’s convictions as an accomplice and that the trial court did not err in excluding the details of the peace treaty, we affirm Hart’s convictions.
In Dewayne M. Townsend v. State of Indiana, a 12-page opinion, Sr. Judge Sharpnack writes:
Dewayne M. Townsend appeals from his conviction of one count of residential entry as a Class D felony, challenging the admission of a witness’s prior consistent statements and the sufficiency of the evidence. We affirm.
NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: R.J.J., T.J., and R.L.J. (Minor Children) and R.A. (Father) v. The Indiana Department of Child Services (mem. dec.)

In Re: The Estate of Margaret S. Jones: John A. Jones, Jr. v. Joyce E. Schaefer and Suzanne D. VanGombos, Alexandra Margaret Windle, Sean Frances Windle, Charlene J. Windle (mem. dec.)

NFP criminal decisions today (4):

Scott Wolf v. State of Indiana (mem. dec.)

Christian Ricker v. State of Indiana (mem. dec.)

Terry W. Waugh, Jr. v. State of Indiana (mem. dec.)

James Miske, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, May 15, 2015
Posted to Ind. App.Ct. Decisions

Thursday, May 14, 2015

Courts - "The Management of Staff by Federal Court of Appeals Judges"

This is an interesting working paper by G. Mitu Gulati, Duke University School of Law, and Judge Richard A. Posner. The abstract:

Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks; some judges have interns or externs or both (law students working part time). These staffs are essential, given judicial workloads and judges’ limitations. Yet not much is known about how the judges manage their staffs. Each judge knows of course, but judges rarely exchange information about staff management. Nor is there, to our knowledge, a literature that explains and evaluates the varieties of staff management by federal court of appeals judges. This article aims to fill that gap. It is based on interviews, some in person, most by telephone, of more than 70 judges, chosen mainly at random and covering almost all of the thirteen federal courts of appeals.
It, inter alia, discusses different styles of opinion writing: the editing judge, the authoring judge, the delegating judge, etc.

It would be useful if there was something equivalent on staffing the offices of the federal trial court judges.

Posted by Marcia Oddi on Thursday, May 14, 2015
Posted to Courts in general

Ind. Decisions - Supreme Court decides two today

In Billy Young v. State of Indiana and Marquise Lee v. State of Indiana, via a 12-page, 5-0 opinion*, Chief Justice Rush writes:

Defendants have a Due Process right to fair notice of the charge or charges against them, and they are entitled to limit their defense to those matters. The “inherent” and “factual” inclusion tests we established in Wright v. State, 658 N.E.2d 563, 566–67 (Ind. 1995), are a necessary part of deter-mining whether a defendant has fair notice of a lesser included offense—and in the context the question most commonly arises, no further analysis beyond Wright is necessary. But as the unusual facts of these cases illustrate, the ultimate question of fair notice can be broader than the particular issues Wright’s tests address.

And here, fair notice was lacking. Defendants were charged with murder as accomplices in a shooting. At their bench trial, the court found that they intended a group beating of the victim, but that there was insufficient evidence that they knew a member of their group would shoot him. The trial court thus dismissed the murder charge, but convicted Defendants instead of attempted aggravated battery for planning the beating.

Under these circumstances, however, attempted aggravated battery by beating was not just a lesser offense than the charged murder by shooting—it was a completely different offense, based on a completely different “means used” than alleged in the charging informations. This deprived Defendants of fair notice to extend their defense to that very different lesser charge and constituted fundamental error. We therefore grant transfer in both cases by separate orders and reverse both Defendants’ convictions. * * *

Defendants must have “fair notice” of the charges of which they may be convicted, including inherently or factually included lesser offenses. But under the unusual operative and procedural facts of this case—the actual shooter remaining unidentified, the resulting ambiguity as to whether these Defendants intended to carry out a shooting, the State’s choice to rely on the shooting alone in the charging instruments and at trial, and the trial court’s unambiguous finding of reasonable doubt on that particular theory—we hold Defendants lacked fair notice of the charge of which they were ultimately convicted, which under these circumstances establishes fundamental error. We therefore grant transfer, reverse both Defendants’ convictions, and remand to the trial court with instructions to enter judgments of acquittal in both cases.
__________
* "This opinion addresses both cases but without formally consolidating them as Indiana Appellate Rule 38(B) would permit."

Posted by Marcia Oddi on Thursday, May 14, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court denied transfer in NFP marital distribution case [Updated]

Hay v. Hay is a Sept. 11, 2014 NFP COA opinion.

Today the Supreme Court has posted the individual order denying transfer, which had been filed May 11th.

The Court has not posted these individual orders in the past where transfer has not already been granted or an oral argument held, they are simply published on the transfer list each week. This may be a new policy, or the order may have been publicly posted and announced in error...

[Updated on May 18] It turns out there was a dissent to the denial of transfer with separate opinion, by J. David, in which J. Rucker joined. It concluded:

I agree with Judge Crone that the trial court acted within its discretion when it concluded that Carder was in contempt for paying Hay what amounted to one half of the monthly pension benefit as of the parties’ separation date, or $559 per month. Hay v. Hay, Case No. 11A01-1401- DR-22, Slip. op. at *20 (Ind Ct. App. Sept. 11, 2014) (Crone, J., dissenting). Accordingly, I would grant transfer and affirm the trial court’s determination that the Order requires Carder to pay one half of the total monthly amount received from the pension to Hay (after deducting her tax consequences on Hay’s payment).

Posted by Marcia Oddi on Thursday, May 14, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on "Supreme Court slams judge for derogatory remarks"

Reporting on the May 12th Supreme Court decision in In the Matter of J.K. (ILB summary here), Marisa Kwiatkowski of the Indianapolis Star has this news story yesterday.

Today Tim Swarens, also of the Star, has a column headed "Judge was right about 'knuckle-headed' parents." Some quotes:

She's blunt. In your face. With Marilyn Moores, there's usually no doubt about the meaning of her words, or the passion with which they're said.

And I'm fine with that. In fact, I'm great with it.

Because, one, it's obvious that Moores cares — deeply, passionately cares — about children.

Because, two, as Marion County's Juvenile Court judge, she sees thousands of children every year who've been horribly damaged — often at the hands of people who are supposed to love and protect them.

Because, three, Moores' bluntness is almost always in service of a child who desperately needs someone who is an in-your-face, no-doubt-about-what-she-means advocate for kids in distress.

Still, Moores' sharp-edged language and pushiness got her in trouble this week — with no less than the Indiana Supreme Court.

The court ruled that, two years ago, Moores coerced a father in a case involving the custody of his 17-year-old daughter. On strictly legal grounds, the court is probably right.

But on a human, what's best for the child level, I'm sticking by Moores.

After describing the facts of the case in detail, Swarens concludes:
The state's highest court dinged Moores for pushing too hard for the father to waive his rights. Again, the court was probably right. It's also clear, however, that Moores was trying to serve the child's best interests.

Which is exactly what we want juvenile court judges to do.

Yes, a judge is supposed to set the proper tone inside a courtroom, and name-calling isn't behavior we'd normally expect from the bench.

But there's nothing normal about the depravity that presents itself before Moores every day.

In that world, knuckleheads sometimes need to be told that they're knuckleheads.

And Marilyn Moores is the right person for that job.

Another interesting aspect of the decision is that the writing hudge, Chief Justice Rush, was for many years herself a juvenile court judge, in Tippecanoe County.

Posted by Marcia Oddi on Thursday, May 14, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (0):

NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: D.B.S. (Minor Child), and Q. S. (Father) and D.S. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

In Re the Marriage of: Leann Palmer (Lawrence) v. Jeffrey Palmer (mem. dec.), a 2-1 opinion by Judge Baker, may cause some to ask "Why is this NFP?" The 13-page opinion includes a 3-page "dissent in part" from J.Brown with an interesting/important discussion of the impact of a trial court citing an outdated legal standard.

NFP criminal decisions today (1):

Timothy Lee Hyser v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, May 14, 2015
Posted to Ind. App.Ct. Decisions | Why is this NFP?

Ind. Gov't. - "Tribe chairman says new Indiana law violates U.S. law"

That is the headline to this long AP story published May 14th in the South Bend Tribune. Some quotes:

SOUTH BEND — The chairman for the Pokagon Band of Potawatomi Indians who are seeking to build a casino in South Bend said Wednesday a new law approved by the General Assembly prevents Gov. Mike Pence from negotiating in good faith with the tribe on a compact, voiding the need for such an agreement.

Tribal Chairman John Warren said the law specifying the process for the state to enter into a compact violates the Indian Gaming Regulatory Act because it includes stipulations on what the compact must include.

"They just passed legislation that tied the governor's hands in negotiating with us in good faith and everything they had in their bill is against federal law. So we don't have to negotiate with them to open," he said. * * *

The tribe's proposal to build a tribal village, casino, 500-room hotel and medical facility is under review by the federal Bureau of Indian Affairs. The tribe already runs three casinos in Michigan.

A long May 1st Tribune story, by Jeff Parrott, begins:

As the Indiana General Assembly wrapped up its 2015 session Wednesday, it took two parting shots at the Pokagon Band's plans to build a casino in South Bend.

Tacked on to a gambling bill that would allow riverboat casinos to be land-based, and let an Anderson horse track add casino gambling, was a last-minute amendment requiring any gaming compact the governor reaches with an Indian tribe also to require approval by the Legislature.

The House and Senate also passed a joint resolution, on voice vote, asking Congress to change federal law to prohibit Indian tribes from opening casinos in the state. South Bend's delegation opposed the language.

"It's federal law that the governor can negotiate it," said state Rep. B. Patrick Bauer, D-South Bend. "To have the General Assembly hold hearings on it is just delaying the process. Obviously there are gaming interests that don't want the competition."

The bill, HEA 1540, became law without the Governor's signature.

Posted by Marcia Oddi on Thursday, May 14, 2015
Posted to Indiana Government

Ind. Decisions - After oral argument, Court denied transfer in medical malpractice case [Updated]

On March 11th the Supreme Court heard oral argument in the case of Giles v. Anonymous Physician. You can watch the argument here. Today the Court has posted this order, filed May 12th:

The Court has reviewed the decision of the Court of Appeals, and the submitted record on appeal, all briefs filed in the Court of Appeals, and all materials filed in connection with the request to transfer jurisdiction have been made available to the Court for review. The Court also has heard oral argument on the transfer petition. * * *

Being duly advised, the Court DENIES the petition to transfer jurisdiction, and the Clerk is directed to certify the Court of Appeals decision as final.

[Updated 5/15/15] It turns out there is more, the vote to deny was 3-2, with a published dissent:
Rush, C.J., and Rucker and Massa, JJ., concur.
David, J., dissents to the denial of transfer with separate opinion, in which Dickson, J., joins.

I respectfully dissent from the denial of transfer because fact issues remain as to the existence of a physician-patient relationship between the on-call hospitalist and Ruth Giles. * * *

In this summary judgment proceeding, where the facts are construed in a light most favorable to Giles as the non-moving party, I cannot unequivocally say that there are no genuine issues of material fact that the hospitalist did not see Giles or participate in her care, if only to consult with her and move her care forward.

Because summary judgment is appropriate only where the designated evidence shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” Indiana Trial Rule 56(C), and because fact issues remain as to the existence of a physician-patient relationship between the on-call hospitalist and Giles, I respectfully dissent from the denial of transfer in this case.

Posted by Marcia Oddi on Thursday, May 14, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Assuring transparency in the appellate judicial selection process

Updating this ILB post from yesterday afternoon, @IndianaCourts has just tweeted:


Hopefully, they will also be releasing the 8 applications, which [per IC 33-27-3-2(d)(1)] should have been made available at the same time the 8 names were released on April 27th.

Posted by Marcia Oddi on Thursday, May 14, 2015
Posted to Vacancy on COA 2015 | Vacancy on COA 2015

Ind. Law - Editorial: "Rape limitations statute should be struck down"

The session the General Assembly passed SEA 94, but that should be only the first step, according to this editorial in the Anderson Herald Bulletin that begins:

The law closes a loophole that enabled Bart Bareither to avoid prosecution after he confessed last year to the rape of Jenny Wendt in 2004, when Bareither was a teaching assistant at Indiana University Purdue University-Indianapolis and Wendt was a student there.

Authorities could not charge Bareither with the crime because 10 years had passed between the rape and his confession, and Indiana had a five-year statute of limitations for most sexual assault cases.

Jenny's Law enables prosecutors to file charges anytime after the five-year period in cases where DNA evidence is discovered or implicates a suspect, video or photographic evidence is found, or a confession is made.

The legislation of these exceptions to Indiana's statute of limitations in sexual assault cases is clearly a step in the right direction. But it doesn't go nearly far enough.

The state's legislators should have been bold enough to strike down the statute of limitations altogether, as more than 20 states have done.

Within the past two years, both Kansas and Texas, pressed by individuals who had been raped and victimized again by statutes of limitations, have passed laws eliminating limitations in rape cases.

Indiana should have done so, as well.

Posted by Marcia Oddi on Thursday, May 14, 2015
Posted to Indiana Law

Wednesday, May 13, 2015

Ind. Decisions - Supreme Court decides one today, re insurance coverage for damages resulting from Jefferson County Courthouse fire

In The Board of Commissioners of the County of Jefferson v. Teton Corporation, Innovative Roofing Solutions, Inc., Gutapfel Roofing, Inc., and Daniel L. Gutapfel, an 11-page opinion, Chief Justice Rush writes:

Property owners and contractors routinely agree to waive subrogation rights for damages. Here, the parties did so by incorporating an American Institute of Architects (“AIA”) standard form into their contract for the repair of the Jefferson County courthouse. While the repairs were underway, a fire severely damaged the courthouse. The AIA contract waives subrogation rights for all “damages caused by fire or other perils to the extent covered by property insurance.” The parties now dispute the meaning of the subrogation waiver. Owner seeks to subrogate all damages unrelated to repairs, arguing that the subrogation waiver applies only to construction-related damages. Contractor argues that all damages covered by Owner’s property insurance policy are waived. Both parties cite other states’ precedent to support their position, and the decision below created a split of authority in our own Court of Appeals. We granted transfer in this matter of first impression to establish the Indiana approach.

We hold the plain meaning of the contract defines the scope of the waiver based on the extent and source of coverage, not the nature of the property damaged. Accordingly, we agree with the majority of jurisdictions that have applied this plain meaning to bar recovery for all damages covered by the same property insurance policy used to cover construction-related damages—commonly referred to as the “any insurance” approach. Because Contractors have shown that Owner’s insurance covered all damages, the subrogation waiver applies to bar Owner’s claim. Accordingly, we affirm summary judgment in favor of Contractors. * * *

Jefferson County agreed to waive its rights to bring this subrogation claim by relying on its existing “all-risk” property insurance policy that covered the work and all other losses suffered in the courthouse fire. We reach this decision because the plain language of the AIA contract restricts the scope of the waiver based on the source and extent of property insurance coverage, not the nature of the damages. Accordingly, we affirm summary judgment in favor of Contractors and against Jefferson County in all respects.

ILB: WAVE3 News still has accessible its May 20, 2009 story titled "Fire causes heavy damage to Madison, Indiana courthouse," along with photos.

Posted by Marcia Oddi on Wednesday, May 13, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Evansville bankruptcy attorney suspended by Indiana Supreme Court"

Supplementing the ILB case summary from earlier this afternoon, headed "Court suspends Evansville attorney for 240 days, without automatic reinstatement," Mark Wilson of the Evansville Courier & Press is reporting:

Evansville bankruptcy attorney Andrew D. Thomas has been suspended from practice for what the Indiana Supreme Court called a "long-term pattern of misconduct" in a decision released Wednesday.

The order is based on findings including that Thomas neglected a client's case, mismanaged his attorney trust account and converted client funds for personal use, a criminal act.

During the investigation, Thomas admitted to using client money to pay the cost of filing his own bankruptcy and other expenses, according to the court order. * * *

Thomas, who resides in Newburgh, was a one-time Democratic candidate for Circuit Court judge in Warrick County. He has practiced law since 1976.

Posted by Marcia Oddi on Wednesday, May 13, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Assuring transparency in the appellate judicial selection process

On March 2, 2015 the Supreme Court announced that applications for an upcoming vacancy on the Court of Appeals of Indiana were due by April 27, 2015, and that:

The Commission will conduct initial public interviews of qualified candidates on May 20-22 in Indianapolis, followed by second interviews on June 10.
On April 27th the Court issued a news release with the 8 applicants' names, plus the statement:
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.
There has been no further public word from the Court, from which one would conclude that the public interviews of the eight applicants will begin a week from today, on Wed., May 20th.

To confirm this, and to ask when the ILB could access the applications, the ILB wrote to Supreme Court spokeswoman Kathryn Dolan on Monday, May 11th about the upcoming interviews:

Kathryn, I have been getting questions about when you will be posting the applications for the COA?

Additionally, when can the ILB take a look at the grades, writing samples, etc. of the applicants?

The response:
We are working on that. Applications are not public until JQC decides interviews. But when decisions are made we will have applications ready. Sorry I don’t have a date.
This is confusing. The Commission already has announced that interviews will begin May 20th. And the provision cited in the initial announcement, IC 33-27-3-2(d)(1), provides in relevant part [ILB emphasis]:
When the commission's screening has reduced the number of candidates for further consideration to not less than ten (10) or it has less than ten (10) eligible candidates otherwise from which to choose, the commission shall:
(1) publicly disclose the names of the individuals and their applications before taking any further action; and
(2) give notice of any further action in the same manner that notice is given under IC 5-14-1.5.
The ILB believes it is the intent of the legislation creating the judicial nominating commission and prescribing the selection process that it be transparent. This is the public's only opportunity to learn about the qualifications of the various applicants for an appellate vacancy and to assess for themselves the fairness and thoroughness of the commission's evaluation process. This is guaranteed by the law's requirements that the applications, and the interviews, be open to the public. To maintain public confidence in the judiciary, efforts must be made to involve the public in the process as much as possible. That is why the ILB began reviewing the applications and reporting on the interviews in 2010. After all, the candidate who emerges from the nomination process and selection by the Governor may hold a seat on the court for life. The only input the public will have thereafter is a "yes" or "no" on a retention ballot.

Posted by Marcia Oddi on Wednesday, May 13, 2015
Posted to Indiana Courts | Vacancy on COA 2015

Ind. Gov't. - "Tallian launches campaign for governor with call for change"

Here are Dan Carden's stories yesterday and a longer story May 10th in the NWI Times. The May 10th story began:

INDIANAPOLIS | State Sen. Karen Tallian, D-Ogden Dunes, will announce Tuesday she is running for governor to give Hoosiers a new choice in who should lead Indiana into the future.

The 10-year state lawmaker believes voters deserve more than a rerun of the 2012 Mike Pence-John Gregg contest, which featured few significant policy differences between the Republican and Democratic candidates who both plan to run again in 2016.

"Somebody needs to stand for the Democratic, progressive point of view, because in that last election there's almost half the people in the state of Indiana whose voices were not recognized," Tallian said.

"I am a clearer choice, and a more progressive choice."

Despite near-total Republican control of state government, Tallian said she knows Hoosiers of both political parties are not satisfied with the officials representing them at the Statehouse — especially following the recent national attention prompted by legislative passage and Pence approval of the potentially discriminatory Religious Freedom Restoration Act.

"Everywhere I look there are people that are very angry by what's going on down here, or embarrassed by what's going on down here," Tallian said. "Democrats are angry; Republicans are embarrassed."

From May 12th, here is a story by Brian Eason of the Indianapolis Star that began:
Declaring that Indiana "is not as conservative" as many believe, state Sen. Karen Tallian said Tuesday she plans to seek the Democratic nomination for governor to give Hoosiers a progressive voice in the 2016 election.

"I'm running because it's time to step up for everyday Hoosiers," she said at a campaign announcement on the Statehouse steps. "We can sit back and wait for progress, or we can fight to achieve it."

The Democrat from Portage, a Northwest Indiana city near Gary, was appointed to the Senate in 2005, after her predecessor resigned to become Merrillville clerk-treasurer. Since then, she has won three four-year terms and is the top Democrat on the Senate Appropriations Committee.

With Tuesday's announcement, she became the second Democrat to enter the race, after former House Speaker John Gregg, who lost to Republican Mike Pence in 2012. Indiana Superintendent of Public Instruction Glenda Ritz has said she's mulling a run but has not committed to doing so.

Posted by Marcia Oddi on Wednesday, May 13, 2015
Posted to Indiana Government

Courts - Cliches and other issues Md. Court of Special Appeals judges share about appellate briefs

This is an interesting article from the Maryland Appellate Blog. This item "caught my eye":

Judge Zarnoch: There are so many of these cliches: flood gates, slippery slope, first impression, draconian, disingenuous and specious. Too bad you’re not doing argument cliches. “Your Honor, that’s a good question” and “I didn’t try the case below” spring to mind.
But is "first impression" as used in an appellate brief really a cliche. Or is it a term of art?

Posted by Marcia Oddi on Wednesday, May 13, 2015
Posted to Courts in general

Ind. Decisions - "Supreme Court slams judge for derogatory remarks"

Reporting on yesterday's Supreme Court decision in In the Matter of J.K. (ILB summary here), Marisa Kwiatkowski of the Indianapolis Star has this story today. Some quotes:

In a strongly-worded opinion, the Indiana Supreme Court overturned a child welfare case because of what justices said were repeated derogatory remarks made by Marion Juvenile Court Judge Marilyn Moores.

The case involved a 17-year-old girl whose grandmother locked her out of the house for coming home too late, even though the teen had been at work, according to the Supreme Court opinion filed Tuesday. * * *

From the first few minutes of a hearing about DCS’ petition, Moores expressed impatience with the discussion of a potential overlap between custody in the divorce case and the CHINS proceeding, court records state.

“My hair hurts,” the judge said.

Later, she called the parents’ dispute “completely ridiculous and retarded” and told them to figure it out, so their daughter wouldn’t be affected by “the stupidity that is going on in both of your lives,” according to the Supreme Court opinion.

Moores ordered the parents into mediation to try to work out an agreement, but they did not reach one.

During the next hearing, Moores called the parents “knuckleheads” for failing to reach an agreement. She determined the teen was a child in need of services, over the father’s objections.

Moores told the father “If I were you, I’d waive fact-finding, otherwise you’re going to find your butt finding a new job,” because of what she said would be difficulties in getting his daughter to school.

The father ultimately agreed to the court’s determination.

The Indiana Court of Appeals affirmed Moores’ decision, saying the judge’s statements were blunt but didn’t call her impartiality into question or coerce the father. The appellate court said her statements were meant to emphasize that the CHINS case was the wrong place to deal with divorce-related disputes.

But the Supreme Court disagreed. The court reversed the CHINS determination, saying Moores’ remarks and conduct “breached the court’s duty of impartiality and amount to the coercion of (the) father.”

The Supreme Court also said Moores showed a “repeated implication of being unreceptive and hostile” to the parents, especially when she suggested that the father waive fact-finding.

Because the teen has already turned 18, the Supreme Court noted that the reversal of the CHINS determination “is moot, save the issue of public importance this case presented.” * * *

It is unclear whether the Indiana Commission on Judicial Qualifications will investigate Moores for her conduct in this case. The commission investigates allegations of judicial ethical misconduct and prosecutes violations of the Code of Judicial Conduct.

Posted by Marcia Oddi on Wednesday, May 13, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court suspends Evansville attorney for 240 days, without automatic reinstatement

In In the Matter of: Andrew D. Thomas, a May 12th, 9-page, 5-0 per curiam opinion in an attorney disciplinary case, the Court writes:

We find that Respondent, Andrew Thomas, engaged in attorney misconduct by, among other things, neglect of a client’s case, pervasive mismanagement of his attorney trust account, and conversion of client funds. For this misconduct, we conclude that Respondent should be suspended for 240 days without automatic reinstatement. * * *

The hearing officer recommended that Respondent receive a suspension of ninety (90) days with automatic reinstatement, and Respondent agrees with this recommendation. The Commission requests a suspension of at least three years, without automatic reinstatement.

After careful consideration of this matter, we conclude that Respondent should be suspended for a period of at least 240 days and required to go through the reinstatement process before resuming practice. Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the petitioner's remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

Posted by Marcia Oddi on Wednesday, May 13, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In Latoyia Smith v. State of Indiana , a 13-page opinion, Judge Riley concludes:

In light of the above factors and our deference to the fact-finder in sufficiency cases, the trial court was entitled to conclude that Smith’s behavior was excessive, unreasonable, and outside the bounds of appropriate parental discipline, and the mere fact that it was imposed by an out-of-control parent upon her disobedient thirteen-year-old does not shield Smith from criminal liability. See Mitchell, 813 N.E.2d at 427. Under the circumstances, we conclude that Smith committed a battery not protected by the parental privilege.

Based on the foregoing, we conclude that the State produced sufficient evidence to prove beyond a reasonable doubt that Smith committed battery.

In D.F. v. State of Indiana , a 7-page opinion, Judge May writes:
D.F. appeals his adjudication as a delinquent. He asserts the court erred by admitting the handgun found inside his sweatshirt because the search of his sweatshirt violated the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. * * *

Finding no error in the admission of the handgun under either the Fourth Amendment or Article 1, Section 11, we affirm D.F.’s adjudication as a delinquent.

NFP civil decisions today (4):

John R. Royer v. Laurie Royer (mem. dec.)

City of Lawrenceburg, Indiana Board of Public Works & Safety v. Douglas Taylor (mem. dec.)

In the Matter of the Adoption of L.M.Q., C.Q. v. J.G. and M.G. (mem. dec.)

Robert R. Setree, II, and Beverly L. Setree v. River City Bank (mem. dec.)

NFP criminal decisions today (9):

In State of Indiana v. M.P. (mem. dec.), a 12-page opinion, Judge Kirsch writes:

In a delinquency proceeding against M.P., a witness essential to the State’s case failed to appear at two scheduled depositions. The juvenile court granted M.P.’s request to exclude the witness’s testimony, and, thereafter, the juvenile court granted the State’s motion to dismiss without prejudice. The State now appeals, asserting the following restated issue: whether the juvenile court abused its discretion when, as a discovery sanction, it excluded the witness’s testimony. We affirm.
Richard A. Gill v. State of Indiana (mem. dec.)

Darin Jackson v. State of Indiana (mem. dec.)

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

Paul A. Moore v. State of Indiana (mem. dec.)

Kevin S. Wang v. State of Indiana (mem. dec.)

William P. Guffey v. State of Indiana (mem. dec.)

Nicholous L. Finton v. State of Indiana (mem. dec.)

Donald Ray Steger v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, May 13, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "U.S. Senator Coats Calls for Commission to Fill Indiana Judicial Vacancies"

From the news release:

WASHINGTON, DC – Senator Dan Coats (R-Ind.) today called for the establishment of an Indiana Federal Nominating Commission to make recommendations to Indiana’s senators on current judicial vacancies in the Hoosier state.
Three vacancies presently exist: the United States Court of Appeals for the Seventh Circuit, the U.S. District Court for the Southern District of Indiana and the United States Attorney for the Southern District of Indiana. An additional vacancy will arise on the U.S. District Court for the Northern District of Indiana upon Judge Robert Miller’s transition to senior status in January 2016.

“We need to ensure that fair and qualified public servants with Hoosier common-sense are chosen for these important roles,” said Coats. “The citizens of Indiana will be best served by a nomination process that is taken completely out of politics. I hope we can establish an equitable process for the remainder of this Congress that focuses on vacancies where workloads are most urgent.”

Judicial selection commissions have a long history in Indiana. On November 21, 1980, Indiana Senators Richard Lugar and Dan Quayle formed the “Indiana Merit Commission on Federal Judicial Appointments.” This commission recruited, interviewed, investigated and made final recommendations for federal appointments for over 20 years. At the state level, the seven member Judicial Nominating Commission currently recommends applicants to the Governor to fill vacancies on the Indiana Supreme Court, the Court of Appeals, and the Tax Court.

Posted by Marcia Oddi on Wednesday, May 13, 2015
Posted to Indiana Courts

Ind. Courts - "New magistrates could speed up justice for victims in St. Joseph County"

Kelli Stopczynski had this story with video at WSBT22, South Bend, yesterday evening. Some quotes:

ST. JOSEPH COUNTY - Big changes are on the way when it comes to how long it takes for cases to move through the St. Joseph County court system. Indiana lawmakers and Governor Mike Pence recently approved 3 new magistrate judge positions for the county.

It's part of House Enrolled Act 1110, which approves additional magistrates for 7 Indiana counties.

Right now, 1 magistrate in the "1855 Courthouse" in downtown South Bend deals with roughly 200 misdemeanor cases each morning, then handles arraignments for felony and misdemeanor cases for a couple hours in the afternoon and might have time to hear a trial before the end of the day, said St. Joseph County Prosecutor Ken Cotter.

Some judges and Cotter agree - adding three magistrates to the mix will ease some of that workload and efficiently move more cases through the system. * * *

According to St. Joseph Circuit Court judge Hon. Michael Gotsch, two magistrates inside the 1855 Courthouse, the county's oldest court building, handled more than 42,000 court filings in 2013.

"We knew we were going to continue to experience that increase in case load over time," Gotsch explained.

As a result the courts, county commissioners and council developed a plan five years ago, he said.

First on the list: create more courtrooms inside the former St. Joseph County jail, on the first and second floors of the County City Building in downtown South Bend. That work's been underway since 2014 and is scheduled to be finished by September, Gotsch said.

The next step: ask the state legislature for more magistrate judges, which was recently approved.

"We absolutely need this help," Gotsch added.

He will appoint one of the three magistrates to the county's protective order court - something he hopes will reduce the number of victims who file then withdraw protective order requests.

Chief Judge Hon. Jenny Manier will appoint the other two magistrates to superior court - something Cotter called a 'Godsend to the community.'

"Right now we're setting trials about 4 and 5 months in the future," he said. "With this change I think we can set it in 4 or 5 weeks."

The new law also gives more power to magistrates, who are overseen by judges. They'll be able to approve and accept criminal plea agreements, approve settlements in civil matters and approve decrees of dissolution, settlement agreements and any other agreements in domestic relations or paternity actions.

"It's helpful because, for example, right now I have to counter sign every order that the magistrates do with respect to divorces," Gotsch said. "So much of my day is spent just signing orders they've already reviewed and signed. If we're trusting them to be magistrate judges then I think that we could trust them to issue some orders."

The new law goes into effect July 1. According to a study, each new magistrate will receive around $158,000 a year in salary and benefits. That will be paid through state tax dollars and collected court fees, Gotsch said.

The ILB also wrote about HEA 1110 on May 6th, in a post headed "All new Indiana city and town judges will need to be attorneys; and more."

Posted by Marcia Oddi on Wednesday, May 13, 2015
Posted to Indiana Courts

Ind. Decisions - More on: What do the LaPorte County Convention & Vistors Bureau and candidate Carly Fiorina have in common?

Updating this ILB post from May 4th, where the ILB noted that the oral argument scheduled for May 7th had been cancelled, but that no other information was then available, the Supreme Court this morning (May 13th) has posted an order, dated May 12th, advising that before the Court had ruled on the petition to transfer:

... the parties filed a Joint and Verified Motion to Voluntarily Dismiss Appeal representing that they have reached a settlement of all claims and asking the Court to grant transfer and dismiss the appeal.

Being duly advised, the Court GRANTS the Joint and Verified Motion to Voluntarily Dismiss Appeal and GRANTS the petition to transfer, thereby VACATING the Court of Appeals opinion at Serenity Springs, Inc. v. LaPorte County Convention and Visitors Bureau, 13 N.E.3d 487 (Ind. Ct. App. 2014). See Ind. Appellate Rule 58(A). Having transferred jurisdiction, the Court DISMISSES the appeal.

That vacates the COA opinion in Serenity Springs II, a 2-1 opinion decided July 16, 2014 (2nd case). But Serenity Springs I, which was decided by the COA on April 15, 2013 (1st case), remains. In "I" the claims were trademark infringement and cybersquatting.

Posted by Marcia Oddi on Wednesday, May 13, 2015
Posted to Indiana Decisions

Ind. Courts - More on "Judge's Wife Cited Into Court After Threatening Scheme"

Updating yesterday's ILB post, Laura Lane of the $$$ Bloomington Herald-Times has a follow-up story this morning. Some quotes from the long report:

As detectives worked quickly over three days in January investigating threats to harm an appeals court judge and his family, they say they soon discovered that the judge’s wife — who named her son-in-law as the culprit — was actually behind the failed plot intended to get her daughter to leave the man.

Based on allegations to police the evening of Jan. 12 from Bloomington residents Beverly “Star” Cochran and her husband, Indiana Appeals Court Judge Edward “Ted” Najam, police arrested the son-in-law at his Zionsville home at 2:30 the next morning. He faced preliminary charges of threatening the judge and his family, which have been dismissed.

Najam had received a series of messages while in a parking lot at the southside Monroe County YMCA from a TracFone prepaid cellphone at 4:37 p.m. Jan. 12. The messages were described by police as “a direct threat to Mr. Najam’s and his family’s life and personal safety.”

He called the Bloomington Police Department, and a detective went to his house to discuss the text messages, and other threatening incidents attributed to the son-in-law. The detective obtained emergency search warrants for cellphone records to trace the calls, “based on the belief that Mr. Najam and/or members of his family faced immediate danger of death or serious physical injury.”
But the phone records turned suspicions toward Cochran after it was proved that the son-in-law made calls to his wife — Cochran’s daughter — from Zionsville around the same time Najam had received the text messages from a cellphone in Bloomington. * * *

But then investigators learned the TracFone had been purchased the afternoon of Jan. 11 at the Walmart Supercenter in Bloomington. A surveillance video showed Cochran buying the phone with her Peoples State Bank debit card for $104.68.

On Jan. 15, two ISP lieutenants went to Najam and Cochran’s Bloomington home — where she said someone had carved “die judge” in the wooden front door, scratched the word “snitch” in the paint on her car and spray painted “I’m aware” on the house exterior – and confronted them with the evidence.

Cochran admitted sending the threatening texts and also committing the vandalism, the affidavit said she told police she blamed the son-in-law for her daughter’s heroin use, and that she took desperate measures trying to convince her to end the relationship.

She also said she feared Najam might kill the son-in-law, claiming her husband had purchased a laser aiming device and had it installed on a handgun. The judge told police he would not have sought out the man, but would have used the gun to protect his family, if necessary. * * *

Indiana Court of Appeals spokesman Martin DeAgostino said on Tuesday no one there knew about the allegations against the judge’s wife. “The Court of Appeals had no knowledge of this before today, and trusts the judicial system will handle the matter appropriately,” he said in an email.

The case has been filed in Monroe Circuit Judge Mary Ellen Diekhoff’s court. Bob Miller, a spokesman for the Monroe County Prosecutors Office, said it is likely a special judge, possibly a retired one who would not have any cases before the appeals court, will be assigned to oversee the case.

Posted by Marcia Oddi on Wednesday, May 13, 2015
Posted to Indiana Courts

Tuesday, May 12, 2015

Ind. Decisions - Tax Court issues an opinion today

In Property Development Company Four, LLC v. Grant County Assessor, a 10-page opinion, Judge Wentworth writes:

Property Development Company Four, LLC appeals the Indiana Board of Tax Review’s final determination that upheld the Grant County Assessor’s assessments of its real property for the 2004, 2005, and 2006 tax years. * * *

While the Indiana Board correctly determined that the Assessor was authorized to assess the subject properties under Indiana Code § 6-1.1-9-1 et seq., it erred in determining that Property Development had received sufficient notice of those assessments. The Court, therefore, AFFIRMS the Indiana Board’s final determination in part, REVERSES it in part, and REMANDS the matter to the Indiana Board for action consistent with this opinion.

Posted by Marcia Oddi on Tuesday, May 12, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court issues third opinion today, re pro hac vice admissions

In YTC Dream Homes, Inc., et al. v. DirectBuy, Inc., et al., a 3-page per curiam opinion that concludes:

As the trial court correctly recognized, “temporary admission of an out-of-state lawyer pursuant to Admission and Discipline Rule 3(2) is within the discretion of the trial court.” State ex rel. Indiana Supreme Court Disciplinary Comm’n v. Farmer, 978 N.E.2d 409, 414 (Ind. 2012) (citing Matter of Fieger, 887 N.E.2d 87, 90 (Ind. 2008) (per curiam)). See Admis. Disc. R. 3(2)(a). We agree with the Court of Appeals’ conclusion that Local Rule 5(C) does not create a presumption against pro hac vice admissions. YTC Dream Homes, 18 N.E.3d at 649. The local rule cannot vitiate the trial court’s discretion to find good cause for temporary admission under Admission and Discipline Rule 3(2).

Accordingly, we reverse and remand to the trial court with instructions to determine, without restriction by local rule and within the discretion granted by Indiana Admission and Discipline Rule 3(2), whether good cause exists for the admission of the Attorneys. We summarily affirm that part of the Court of Appeals opinion addressing the meaning of the “good cause” requirements of Admission and Discipline Rule 3(2). See App. R. 58(A)(2).

Posted by Marcia Oddi on Tuesday, May 12, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Some bills that passed and some that failed in 2015

Jacob Rund of the Indianapolis Star has the story here.

Also check Gov. Pence's 2015 Bill Watch.

Posted by Marcia Oddi on Tuesday, May 12, 2015
Posted to Indiana Law

Ind. Decisions - Supreme Court decides two today

In In the Matter of J.K., A Child in Need of Services: M.K. v. Marion County Department of Child Services and Child Advocates, Inc., an 8-page, 5-0 opinion, Chief Justice Rush writes:

Every Child in Need of Services (CHINS) proceeding has the potential to interfere with parents’ rights in the upbringing of their children—and so the parents’ due process rights, including the right to an unbiased and uncoercive forum, are paramount. But the judicial conduct in this case deprived Father of those rights. After making several derogatory remarks over the course of two hearings about the parties and the nature of their dispute, the trial court pressured Father to waive his right to a fact-finding hearing and instead admit that his daughter was a CHINS. Though Father did not object to the trial court’s statements, their combined effect was sufficiently coercive to constitute fundamental error. We therefore reverse the CHINS adjudication. * * *

From the first few minutes of the hearing, the court expressed impatience—responding to the parties’ discussion of the potential overlap between custody in the divorce and placement in the CHINS case by commenting, “My hair hurts.”

Minutes after that, Father proposed placement in his home as “possibly . . . a solution” to that overlap. But Mother objected (and J.K. confirmed) that Father had prevented J.K. from contacting Mother during previous times J.K. had stayed with him. When Father replied to express willing-ness to permit communication and establish a parenting-time schedule, the court interjected, “Just for giggles, how does this affect the CHINS? All I want to know is does he admit or are we trying it? I don’t want the divorce either. It’s not my job.” When Father’s counsel reiterated that he did not admit J.K. was a CHINS, the trial court interrupted, “Then . . . call your first witness.” It then went on to call the parties’ dispute “ridiculous and retarded,” fault the parties for “stupidity,” and continue the hearing to a new date to order the parties into mediation: [ILB - to continue reading, start at the end of p. 2] * * *

Here, the prejudicial effect of the statements compounded with repetition through two hearings. Moreover, the court’s repeated implication of being unreceptive and hostile to the parties came to a head when it told Father, “If I were you I’d waive fact-finding” or else “find your butt finding a new job,” unless he wanted to “play that game” of having a contested hearing. The cumulative effect of the trial court’s comments and demeanor had a direct impact on Father accepting the court’s leading suggestion to “waive fact-finding.” Such coercion is fundamental error, and we reverse J.K.’s adjudication as a CHINS accordingly.

Conclusion. Because the trial court’s remarks and conduct, in their cumulative effect, breached the court’s duty of impartiality and amounted to coercion of Father, we reverse the CHINS adjudication.

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

[ILB: This case (J.K.) was an appeal from the Marion Superior Court, No. 49D09-1305-JC-16154 The Honorable Marilyn A. Moores, Judge. The Court of Appeals affirmed.]

In Daniel Lee Pierce v. State of Indiana, an 18-page 5-0 opinion, including a brief, separate "concurring in result" opinion, Justice Massa writes:

Daniel Pierce appeals his convictions for molesting his three young granddaughters, arguing he was entitled to separate trials on the allegations of each individual victim. We are asked to decide whether his offenses were joined not only for being “of the same or similar character” but also because they were based “on a series of acts connected together” under Indiana Code section 35-34-1-9(a)(2). Because we find Pierce’s abuse of girls in his care was sufficiently connected, we hold he is not entitled to new and separate trials. We affirm Pierce’s convictions, and we remand only for the purpose of resentencing on one count. * * *

Rush, C.J., and David, J., concur.
Rucker, J., concurs in result with separate opinion in which Dickson, J., concurs. [It reads in part] I continue to believe, however, “our traditional approach in resolving claims of severance fails to provide meaningful guidance to either the bench or the bar, and thus lends itself to inconsistent results, even where the facts are very similar.” * * * We would be well-advised to provide greater clarity to an area of the law that remains in a state of confusion.

Posted by Marcia Oddi on Tuesday, May 12, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Judge's Wife Cited Into Court After Threatening Scheme"

WBIW Bloomington reported at mid-morning in a story that begins:

(BLOOMINGTON) - Police say the wife of of Indiana Court of Appeals Judge Edward "Ted" Najam of Bloomington carried out a scheme in which she made threatening cellphone calls to the judge and carved a threatening message into the door of their home to make others believe her son-in-law was doing the crimes.

Police cited 53-year-old Beverly "Star" Cochran into court on charges of obstruction of justice and false reporting.

According to police, she was acting in retribution, telling police she and Judge Najam believed their son-in-law was to blame for their daughter's heroin addiction.

She told police she believed her husband might harm their son-in-law so she was attempting to get the man arrested on harassment charges.

Investigators say Cochran admitted to purchasing a disposable cellphone from Walmart to send threatening messages to her husband from the parking lot at the U.S. Post Office on Pete Ellis Drive and then she threw away the phone in an apartment complex trash dumpster in the area.

She was hoping she could persuade her daughter to leave her husband if she showed her the text messages.

Laura Lane of the $$$ Bloomington Herald-Times reports in a story headed "Wife of Indiana Appeals Court Judge Najam charged with obstruction of justice." Some quotes:

Police allege that the wife of Indiana Court of Appeals Judge Edward “Ted” Najam of Bloomington carried out a scheme in which she made threatening cellphone calls to the judge and took other actions — including carving “die judge” on the door of their Spicewood home — to make him believe her daughter’s husband was threatening the family.

Investigators say 53-year-old Beverly “Star” Cochran was acting in retribution, telling police she and Najam believed their son-in-law was to blame for her daughter’s heroin use. Cochran also said she feared her husband might harm the man, so she tried to deflect that possibility by attempting to get the son-in-law arrested for harassment.

Instead, an Indiana State Police lieutenant reviewed video surveillance tapes and traced a disposable cellphone purchase to Bloomington’s Wal-Mart Supercenter and a charge card used by Cochran.

She was charged Monday in Monroe Circuit Court with obstruction of justice and false reporting. Bob Miller, speaking on behalf of the Monroe County Prosecutor’s Office, said that because of the passage of time and since there is no imminent danger to anyone, Cochran will be issued a summons to appear in court for an initial hearing instead of being arrested. * * *

When police confronted Najam about the evidence against his wife, he said he had no idea she was behind the actions, the affidavit said. He admitted talking to her about protecting his family “by any means necessary.”

But he said he would only take action in self-defense or to defend Cochran or her daughter. “Mr. Najam denied making the statement that he would seek out (the son-in-law) for the purpose of shooting him.”

Posted by Marcia Oddi on Tuesday, May 12, 2015
Posted to Indiana Courts

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

For publication opinions today (4):

In Mary Ellen Stump v. St. Joseph County Treasurer, St. Joseph County Auditor, Cavallino Financial, LLC, Donald Wertheimer, James H. Shallenbarger, Jr., and Phillip Miller, a 14-page opinion, Judge Riley writes:

Stump raises three issues on appeal, which we restate as follows:
(1) Whether Stump’s claim for the tax sale surplus was timely made pursuant to Indiana Code section 6-1.1-24-7;
(2) Whether Stump’s lien on the tax sale surplus takes priority over the other claims; and
(3) Whether Stump is entitled to Shallenbarger’s interest in the tax sale surplus based on the joint tenancy in the real estate. * * *

Based on the foregoing, we conclude that Stump’s claim for the tax sale surplus was timely made pursuant to Indiana Code section 6-1.1-24-7; and that Stump’s judgment lien takes priority. However, we remand to the trial court to determine the extent, if any, of Shallenbarger’s interest in the tax sale surplus.

In James E. and Tamara L. Dunmoyer, Jr., Linus and Karen Harrold, Theron and Clara Miller, et al. v. Wells County, Indiana Area Plan Commission, Wells County Wind II, LLC, et al., a 26-page opinion, Judge Kirsch writes:
The Wells County, Indiana Area Plan Commission (“Plan Commission”) approved a petition for the development of a large wind energy conversion system (“WECS”) project that was filed by Wells County Wind II, LLC, Apex Clean Energy Holdings, LLC, and Apex Wind Energy, Inc. (collectively, “Apex”), thereby allowing the construction of approximately sixty-eight wind turbines on private property located in southern Wells County, Indiana (“Zoning Decision”). Adjacent landowners, James E. and Tamara L. Dunmoyer, Jr.; Linus and Karen Harrold; Theron and Clara Miller; Clarence and Beverly Zimmerman, individually and as Trustees of the Clarence Zimmerman and Beverly Zimmerman Revocable Living Trust; Michael and Barbara Butche; and Jeffrey and Janet Harshman (collectively, “Landowners”), filed with the trial court a two-count petition. In Count I, Landowners requested judicial review of the Zoning Decision, and in Count II they sought declaratory judgment. Landowners now appeal the trial court’s grant of summary judgment in favor of Apex and the Plan Commission as to Count I. Landowners raise four issues, which we consolidate and restate as whether the trial court erred in granting partial summary judgment in favor of the Plan Commission and Apex upon a finding that Landowners were not aggrieved and not prejudiced by the Zoning Decision.

We affirm and remand with instructions.

In Christa Allen v. State of Indiana, Indiana Department of Correction, a 6-page opinion, Judge Crone writes:
Christa Allen appeals the trial court’s order granting a motion for judgment on the pleadings after she filed a complaint for personal injury damages against the State of Indiana and the Indiana Department of Correction (collectively “the DOC”). The sole restated issue presented for our review is whether the trial court erred when it granted judgment on the pleadings in favor of the DOC. Finding no error, we affirm. * * *

In sum, the JAS is inapplicable, and it is clear from the face of Allen’s complaint that her claim is time-barred and that under no circumstances could relief be granted. The trial court properly dismissed the action pursuant to Indiana Trial Rule 12(C). Consequently, we affirm.

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. * * *

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.

May, J. concurs
Bradford, J. concurs in result

[ILB Note: The above opinion replaces the initial April 16th COA opinion, which was withdrawn without comment shortly after it was posted online (but not before the ILB had summarized it).]

http://indianalawblog.com/archives/2015/04/ind_decisions_c_2550.html

In Floyd Carr v. State of Indiana, a 4-page opinion with a pro se appellant, Judge May writes:

Floyd Carr appeals the court’s denial of his motion to modify sentence. The court did not abuse its discretion as it had no authority to modify Carr’s sentence without approval of the prosecutor. * * *

However, contrary to Carr’s assertion, the sentence modification statute that became effective in 2014 does not apply to him. * * *

Because the new version of the sentence modification statute does not apply to Carr, we cannot find an abuse of discretion in the trial court’s denial of Carr’s motion to modify. Accordingly, we affirm.

NFP civil decisions today (2):

Melvin H. Sandock, et al. v. Garland Aschenbrenner (mem. dec.)

In the Matter of the Marriage of Christina Estes (Sapp) v. Shaun Allen Sapp (mem. dec.)

NFP criminal decisions today (7):

Sam J. Spicer II v. State of Indiana (mem. dec.)

Angela M. Beck v. State of Indiana (mem. dec.)

David Miller v. State of Indinaa (mem. dec.)

Tracy Souviner v. State of Indiana (mem. dec.)

Larry A. Jones v. State of Indiana (mem. dec.)

Cleverly Lockhart v. State of Indiana (mem. dec.)

Christopher M. Brooks v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, May 12, 2015
Posted to Ind. App.Ct. Decisions

Monday, May 11, 2015

Ind. Courts - "Prosecutor: St. Joseph County can investigate rapes at Notre Dame"

Margaret Fosmoe wrote Sunday in a lengthy story in the South Bend Tribune:

SOUTH BEND — Students at the University of Notre Dame and neighboring Saint Mary's College have for years been told to report to Notre Dame's police force if they are sexually assaulted on the Notre Dame campus.

Notre Dame Security Police officers investigate the case, notify the St. Joseph County prosecutor's office and then forward the results to the prosecutor, who determines if criminal charges should be filed.

Ken Cotter, elected prosecutor last year, has his own message for sex assault victims.

He said in an interview last week that victims of assault on the Notre Dame campus are free to report their cases directly to the St. Joseph County Special Victims Unit and have the cases investigated by county officers, rather than the Notre Dame Security Police.

"They have that right," Cotter said. "County police can go anywhere. County police jurisdiction is all of St. Joseph County." * * *

Cotter's statements about cases being reported directly to the county are a departure from years of practice and advice to students about reporting procedures and the role of campus police.

Just last month, in an email to the Notre Dame student body about support services for sex assault, a university administrator said reports should go to NDSP.

"Students are strongly encouraged to consider reporting a sexual assault to the University and/or the police. Notre Dame Security Police is a duly authorized police agency in the state of Indiana, and is the law enforcement agency with which to file a report for any incident that occurred on Notre Dame property," Erin Hoffmann Harding, the vice president for student affairs, wrote in the email.

The story continues that except for Notre Dame, which so far has elected not to participate:
All other rapes and sexual assaults reported in St. Joseph County are investigated by the Special Victims Unit, a unit of detectives drawn from South Bend, Mishawaka and county police who are trained in handling domestic violence, sex assault and child abuse cases. * * *

Notre Dame is the only local college that conducts sex assault investigations.

Other local colleges — Saint Mary's, Holy Cross, Bethel and Ivy Tech — have campus security officers, not police departments. When a serious crime occurs on one of those campuses, local police are called, and sex assault cases are investigated by the SVU. Indiana University South Bend's campus police department includes sworn Indiana officers, but none trained as sex assault investigators. Sex assaults reported at IU South Bend are investigated by the SVU.

Last month, in an interview with The Tribune, Patrick Cottrell, a retired 20-year investigator with NDSP, voiced concerns about the university's handling of sex assault cases. He said he investigated about 30 cases that involved allegations of sexual assault by students against other students but not a single one resulted in criminal charges.

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

For more, see this post from April 20th.

Posted by Marcia Oddi on Monday, May 11, 2015
Posted to Indiana Courts

Ind. Courts - "Johnson County prosecutor blasts criminal code revisions in rape case"

Jill Disis of the Indianapolis Star reported May 8th in a story that begins:

Johnson County Prosecutor Brad Cooper this week announced formal rape, burglary and confinement charges against the Beech Grove man accused of raping and assaulting an elderly Greenwood woman last Friday.

If convicted on every count, Ira S. Link could face up to 63 years in prison, of which he would have to serve at least 47 years.

But for Cooper, that potential prison sentence isn't enough. Instead, he said the amount of prison time Link faces spotlights what he called several major concerns with the state's recently revamped criminal code.

"Based on the changes that they made for the exact same acts, the exact same crime, he's facing substantially less," Cooper said. "He is facing half as much time this year as he was last year because of the change to the criminal code." * * *

"Repeal the entire damn thing," Cooper said. "Go back to the old system. It wasn't broken."

Lawmakers, however, felt it was. The criminal code overhaul legislation, known as House Enrolled Act 1006, went into effect July 1. It was the most significant change to the state's criminal code in 30 years. * * *

Indiana State Rep. Jud McMillin, R-Brookville, a major player involved in the revised code, said * * * the new code still preserved the harshest sentences for the worst offenders, and he pointed to a requirement in the new code that prisoners are required to serve 75 percent of their sentence, rather than the 50 percent that was required under the old code.

Refer to the story for much more detail.

Prosecutor Johnson also issued a one-page press release on the charges against Ira Link. It includes a reference many may find offensive. It addition, the release appears to prejudge the guilt of Mr. Link:

Johnson County Prosecutor Bradley D. Cooper announces that he formally charged Ira Link (42) with the following: * * *

Had Link committed these crimes prior to the Indiana Legislature changing the criminal laws last year, Link would have faced up to 168 years in prison if convicted and would not be eligible for early release.

Prosecutor Cooper refers to these new sentence reduction laws as "Hug a Thug" legislation and believes this instance is a prime example of why these laws should be repealed.

Posted by Marcia Oddi on Monday, May 11, 2015
Posted to Indiana Courts

Ind. Gov't. - "Pence vetoes records search fee, online horse bets"

Supplementing the ILB's post Sunday headed "Bill to permit charges for public record searches vetoed by Gov. Pence," Dan Carden of the NWI Times has a story this afternoon on both the Pence vetoes and what may happen next. Some quotes:

INDIANAPOLIS | Gov. Mike Pence has issued the fourth and fifth vetoes of his administration, rejecting Legislature-approved plans to charge a fee for long public records searches and permitting Hoosiers to bet horse races online.

The Republican governor, who acted before leaving Saturday on a week-long trip to China, said little about his reasons for turning down the proposals, which both easily passed the Republican-controlled General Assembly.

Pence eventually must submit a veto message to the House and Senate detailing his objections. Lawmakers tentatively are scheduled to meet June 8 to consider enacting the measures without the governor's consent.

A veto override takes only a simple majority in both chambers — the same support needed to advance the measures to the governor in the first place. The Legislature also can act on the vetoes during its 2016 session. * * *

Since taking office in 2013, Pence has vetoed five measures and permitted six to become law without his signature.

The General Assembly only has overridden one veto: House Enrolled Act 1546 (2013) retroactively authorizing higher county income tax rates in Pulaski and Jackson counties after officials collected revenue at the new rate for several years without statutory authority.

Lawmakers let stand Pence's 2013 vetoes of plans to require state licensing of anesthesiologist assistants (Senate Enrolled Act 273) and diabetes educators (House Enrolled Act 1242).

Posted by Marcia Oddi on Monday, May 11, 2015
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case today and an Ind.-related case May 8th

In USA v. Bob Henson (SD Ind., Pratt), a 11-page opinion, Judge Rovner writes:

Michael Knoll and Dax Shephard were members of the Outlaws Motorcycle Club (“Outlaws”). Both men pled guilty to racketeering and Knoll also pled guilty to running an illegal gambling business. Both men agreed in their plea deals to forfeit certain real and personal property that was used in the crimes. Bob Henson intervened to object to the forfeiture of property in which he claimed an interest. Henson now appeals the district court’s grant of summary judgment in favor of the government, and we affirm. * * *

The indictment sought the forfeiture of real and personal property from Knoll, Shephard and some of their fellow Outlaws on the basis of the racketeering count. See 18 U.S.C. §§ 1962 and 1963. Specifically, the indictment sought the forfeiture of real property located at 305 North Jefferson Avenue and 2204 East New York Street, both in Indianapolis, Indiana (“Indianapolis Properties”); as well as real property located at 1202 West Main Street, Fort Wayne, Indiana (“Fort Wayne Property”).

In the May 8th Indiana-related case, Megan Runnion v. Girl Scouts of Greater Chicago and NW Indiana (ND Ill., ED), a 29-page opinion, Judge Hamilton writes:
This appeal presents substantive issues concerning the scope of the federal Rehabilitation Act’s coverage of private organizations (like the Girl Scouts) that receive federal funding. Before addressing the merits, though, we must address some recurring procedural issues involving Federal Rule of Civil Procedure 12(b)(6) dismissals and plaintiffs’ opportunities to amend complaints before en-try of a final judgment of dismissal. In particular, we focus on how the 2009 amendment to Federal Rule of Civil Proce-dure 15(a)(1) affects amendment practice in district courts.

Plaintiff Megan Runnion was active in a Girl Scout troop run by defendant Girl Scouts of Greater Chicago and Northwest Indiana, which is the largest regional Girl Scout organization in the United States. Megan is deaf. For several years she benefitted from sign language interpreters provid-ed by the Girl Scouts that enabled her to participate fully in the troop’s activities. The Girl Scouts then stopped providing interpreters. When her mother complained, Megan’s entire troop was disbanded.

Megan alleges that the Girl Scouts violated the Rehabili-tation Act by refusing to provide her with sign language ser-vices and then by disbanding her troop because her mother complained. The district court ultimately dismissed the case under Rule 12(b)(6), finding that Megan had failed to allege sufficiently that the Girl Scouts are subject to the Rehabilita-tion Act. Thinking amendment would be futile under its in-terpretation of the Rehabilitation Act, the district court dis-missed the case without leave to amend.

We reverse. We first set out the facts and procedural his-tory of the case, including the substantive issue about the scope of the Rehabilitation Act’s coverage. We then turn to the procedural issues and seek to clarify the proper ap-proach to motions for leave to amend complaints. We then resolve the substantive issues under the Rehabilitation Act and conclude that the district court erred by dismissing the entire case without giving plaintiff an opportunity to amend her complaint. The district court corrected that error in part by vacating its judgment but then erred again by refusing to allow a proposed amended complaint that is more than sufficient to state a viable claim for relief.

Posted by Marcia Oddi on Monday, May 11, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - BMV problems may be even worse than the worst we have heard before

That is the conclusion of this independent 39-page audit of the Bureau of Motor Vehicles, dated May 11th, released by the BMV. The observations and recommendations begin on p. 7 and begin by pointing to problems that underpin the compliance issues:

But that is just the start. Tim Evans and Tony Cook of the Indianapolis Star have a preliminary story that begins:
An outside audit of the Indiana Bureau of Motor Vehicles released today revealed a sweeping lack of oversight and accountability in the wake of a long string of internal problems, including the overcharging of motorists by at least $60 million.

The report prepared by accounting firm BDK reinforced a host of systemic shortcomings and failures uncovered by a lawsuit and an Indianapolis Star investigation over the past year. * * *

The report was released and new changes announced less than two months after an Indianapolis Star investigation revealed agency officials knew for years they were likely gouging Hoosier motorists with tens of millions of dollars in excessive and illegal fees for driver's licenses and other services.

But those officials chose to ignore or cover up the overcharges rather than refund the extra money and adjust to significant budget losses, The Star found. The investigation also revealed many of the other shortcomings found in the BDK report.

The agency, which was targeted by two class action lawsuits focused on the overcharges, has so far agreed to return more than $60 million to motorists.

Posted by Marcia Oddi on Monday, May 11, 2015
Posted to Indiana Government

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

For publication opinions today (3):

In Jennifer L. Barwick v. Joseph A. Ceruti, a 14-page opinion, Chief Judge Vaidik writes:

Jennifer Barwick (Mother) moved to Indiana from Canada in March 2013. She lived with Joseph Ceruti (Father) and became pregnant six weeks later. Mother and Father were married in May 2013. After marital difficulties, Mother returned to Canada three months after she arrived in Indiana. Father filed a petition for dissolution and a motion to preserve and retain jurisdiction of final orders for the child that was expected to be born on December 25, 2013. Following a hearing where Mother appeared telephonically, the trial court issued a December 2, 2013 order concluding that it had jurisdiction over the unborn child’s custody. When the child was born two weeks later, Mother did not tell Father about the child’s birth or include Father’s name on the birth certificate. On December 20, the Ontario Superior Court of Justice, which is the Canadian trial court, issued an ex parte order that K.M. would reside with Mother. In May 2014, the Indiana trial court held a hearing on the dissolution petition and awarded custody of the child to Father.

Mother argues that the trial court never obtained exclusive and continuing jurisdiction and, even if it did, the court should have deferred jurisdiction to the Canadian court when it became involved in the case at the end of December 2013. However, because the trial court made a child-custody determination, we find no error. Mother also argues that even if the Indiana court had jurisdiction, it should have relinquished it to Canada because Canada is a more appropriate forum. However, our review of the evidence reveals that Indiana was the appropriate forum, and the trial court did not err. We therefore affirm the trial court.

In Mary K. Davis v. State of Indiana, an 8-page opinion, Judge May writes:
Mary K. Davis appeals the denial of post-conviction relief. We reverse. * * *

Certain of the post-conviction court’s findings and conclusions were error. * * *

The remainder of the post-conviction court’s findings and conclusions are premised on the erroneous determination Davis’ probationary period began February 14, 2005, and ended February 14, 2009. * * *

As the post-conviction’s findings and conclusions were contrary to law, we reverse the denial of post-conviction relief, which subsequently reverses the trial court’s revocation of probation. Therefore, Davis should not be returned to incarceration as part of this matter.

In T.S. v.State of Indiana, a 9-page opinion, Chief Judge Vaidik writes:
The Indiana Supreme Court held in Smith v. State, 765 N.E.2d 578 (Ind. 2002), reh’g denied, that where the parties to criminal proceedings in question are not identical, the doctrine of judicial estoppel does not apply against the State.

T.S., a juvenile, argues that Smith does not apply to juvenile-adjudication proceedings because they are civil. We find, however, that the rationale for not applying judicial estoppel against the State in criminal proceedings applies equally in the context of juvenile-delinquency proceedings. We therefore affirm the trial court. * * *

Because juvenile-delinquency proceedings are civil proceedings, T.S. claims that Smith, a criminal case, does not apply here. We find, however, that the rationale for not applying judicial estoppel against the State in criminal proceedings applies equally in the context of juvenile-delinquency proceedings. Therefore, accepting a plea agreement from Leethanel based on one theory of the case and pursuing a delinquency adjudication against T.S. in a separate action based on an alternate theory cannot be construed as playing fast and loose with the courts. Moreover, applying judicial estoppel to juvenile-delinquency proceedings but not criminal proceedings would be illogical. That is, a juvenile would be immunized against an adjudication based on an adult defendant’s conviction, but there would be no correlating immunization if the juvenile was convicted first. Thus, we find that judicial estoppel does not apply to juvenile-delinquency proceedings for the same reasons that it does not apply to criminal proceedings. We therefore affirm the juvenile court.

NFP civil decisions today (2):

Senad Keserovic and M1 Transport, Llc v. Set Transport, Llc (mem. dec.)

Paul B. Deigan v. Shawn E. Deignan (mem. dec.)

NFP criminal decisions today (5):

Terry Lee McCollum v. State of Indiana (mem. dec.)

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

Bruce Jackson v. State of Indiana (mem. dec.)

Harlan T. Praul v. State of Indiana (mem. dec.)

Joshua Wayne Holliman v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, May 11, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 8, 2015

Here is the Clerk's transfer list for the week ending Friday, May 8, 2015. It is two pages (and 23 cases) long.

No transfers were granted last week. There were several 3-2 splits. There was one 2-2 split, with J. Dickson not participating, in Roger Long v. Advanced Pain Management, which means the COA decision stands.

A notable denial of transfer, 4-1 with J. Massa voting to grant, is in the case of Walgreen Co. v. Abigail E. Hinchy. To refresh your memory on the Nov. 14, 2014 COA decision, see this Nov. 18, 2014 ILB post headed "Incidents involving alleged patient privacy violations can lead to negligence lawsuits that invoke HIPAA as a benchmark."

Finally, earlier today the Court posted this order, in which, after hearing oral argument on May 7th in Montgomery v. State, the Court has ordered:

By order dated April 2, 2015, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including consideration of the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Montgomery v. State, 22 N.E.3d 768 (Ind. Ct. App. 2014), should be reinstated as Court of Appeals precedent.

Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

Posted by Marcia Oddi on Monday, May 11, 2015
Posted to Indiana Transfer Lists

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

From Sunday, May 10, 2015:

From Saturday, May 9, 2015: From Friday afternoon, May 8, 2015:

Posted by Marcia Oddi on Monday, May 11, 2015
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/11/15):

Next week's oral arguments before the Supreme Court (week of 5/18/15): Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/11/15):

Thursday, May 14

Next week's oral arguments before the Court of Appeals (week of 5/18/15):

Monday, May 18

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

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


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

Posted by Marcia Oddi on Monday, May 11, 2015
Posted to Upcoming Oral Arguments

Sunday, May 10, 2015

Ind. Gov't. - Bill to permit charges for public record searches vetoed by Gov. Pence

On Friday Governor Pence vetoed SEA 369, the bill which, inter alia, "would allow government agencies to charge a searching fee for record requests that take over two hours." This April 29th ILB post discussed the provision, which was slipped into the bill via a conference committee report.

The language had originally been buried within SB 500, a bill on education deregulation, until it was deleted during the course of the session.

As one can see from reading the digest of the CCR on SB 369, the addition of the search fee language ultimately became a poison pill to what was otherwise a bill with many good new transparency provisions that have now died with it. Here is the final, enrolled printing of SEA 369, as it was presented to the governor.

The language allowing agencies to charge a fee for any time in excess of two hours was supported by the Hoosier State Press Association both this year and last year, apparently as a trade-off for other new, useful language that would have provided that:

... a public agency shall provide a public record in electronic form or in paper form, at the option of the person making the request for a public record.
It is unclear why such a trade-off, or bargain, was necessary ...

Regardless, another noteworthy item about the veto of SEA 369 by Governor Pence was the manner of its veto announcement...

It was by Twitter.

It was the final bill the Governor acted on late Friday afternoon. As can be seen from his list of news releases for the day, unlike the other bills he acted on May 8 before leaving for China:

5/8 - Delegation, Schedule for Governor’s Mission to China
5/8 - Governor Allows Two Gaming Bills to Become Law Without Signature, Vetoes Third; Governor vetoes measure that would have allowed online gaming
5/8 - Governor Pence Pens Op-ed Regarding Accomplishments of 2015 Legislative Session
5/8 - Governor Pence to Allow Partial Moratorium on New Nursing Facility Construction to Become Law
5/8 - Governor, First Lady to Depart for Trade Mission to China
nothing is said about the veto of SEA 369.

The ILB did see this tweet at 4:56 PM:

but, assuming there was also a more formal statement, as there had been with the other bills, wrote to the press office, which promptly responded:
Marcia,

No there was not a statement. We did put out a tweet:

@GovPenceIN: I vetoed SEA 369 over fee for public records searches - the cost of public records should never be a barrier to the public's right to know

Thank you,

Bridget Cleveland
Deputy Press Secretary
Office of Governor Mike Pence

Well, okay. No veto statement. Just a tweet. But presumably there will be a formal veto message submitted to the General Assembly. As I wrote in April, 2006:
Fortunately, [formal] veto messages are preserved in the Journals of the Indiana House and Senate, and have been throughout the State’s history.

Posted by Marcia Oddi on Sunday, May 10, 2015
Posted to Indiana Government

Ind. Gov't. - "Could Open Door Law Changes Begin With State Board of Education?"

That question was asked by WFYI reporter Eric Weddle in a story May 7th on the enactment of SEA 1. A quote:

[W]hen Gov. Mike Pence signed Senate Enrolled Act 1 Thursday -- the controversial piece of legislation that changes the makeup of the State Board of Education -- the 11-member board became the only public agency in the state required by law to post its meeting agenda on the Internet five days in advance of a meeting.

During the past General Assembly there was little-to-no discussion that the legislation also included a provision that goes far beyond the transparency requirements in Indiana’s open door laws.

But Republican Sen. Travis Holdman, the bill's co-author, says increasing transparency for public agenices will likely be a focus next year at the Statehouse.

The speed of social media and ubiquity of the web makes some of Indiana’s traditional open door laws out of date, he said. Posting meeting notices online would make the public more aware and involved in public policy discussions.

Agencies who hold public meetings with a majority of members are typically required to only post notice outside the physical location of the meeting 48 hours in advance. While a few agenices are required to post notices in newspapers, there are no provisions that include using the Internet.

“I think this is one way we force that accountability on state agencies, is to say something as simple as making your agenda available online,” Holdman said. “I can't see any drawback to that whatsoever."

The State Board of Education was already posting its agenda on its website five days in advance. Marc Lotter, board spokesman, said the board’s own rules mirror that portion of the new law.

Yet Holdman said a better policy than an agency making its own rules -- rules that could later be changed -- is considering a blanket state policy for all state and municipal agencies. That change could be taken up during next year’s general assembly.

Posted by Marcia Oddi on Sunday, May 10, 2015
Posted to Indiana Government

Courts - "Roads don't have to meet new safety standards, Arizona Supreme Court rules"

From the Arizona Daily Star, a story by Howard Fischer of Capitol Media Services that begins:

PHOENIX — State agencies don’t have to keep highways free of unreasonably dangerous hazards if they simply warn motorists about them, the Arizona Supreme Court ruled Friday.

In a decision one justice said has serious implications for public safety, the majority concluded the Department of Transportation has no legal obligation to upgrade roads, bridges or other structures if they were built to the standards in effect at the time of construction.

The court concluded the fact traffic patterns have changed and speed limits have increased does not require the state to upgrade the roads. All ADOT needs to do, the court concluded, is provide “adequate warning” of the dangers.

Chief Justice Scott Bales criticized the ruling, saying it “effectively replaces the state’s duty to keep its highways reasonably safe with a duty to warn the public that highways have become unreasonably dangerous.”

This post from How Appealing includes a link to the opinion.

Posted by Marcia Oddi on Sunday, May 10, 2015
Posted to Courts in general

Environment - Examples of "Off-target ag pesticide sprayers cited"

Seth Slabaugh of the Muncie Star-Press reports this weekend in a long, interesting story that begins:

MUNCIE – Illegal agricultural pesticide applications damaged adjacent corn, soybean and Red Gold tomato crops, an organic hayfield, vegetable/flower gardens and trees, and dampened a man repairing his roof last year.

The Office of Indiana State Chemist (OISC) investigated 102 off-target pesticide drift complaints statewide last year, 37 of which resulted in warnings or fines, according to the agency's 2014 annual report.

On average, there are only 70 complaints and 25 warnings/fines per year.

Use of the corn herbicide atrazine is so widespread that traces of it (up to 0.15 parts per billion) are detectable in the finished drinking water leaving Indiana-American Water Co.'s treatment facility in Muncie, according to the company's 2014 Consumer Confidence Report released in December.

Three other herbicides, including 2,4-D, which is also used on row crops, also were detected in Muncie's drinking water, though, like atrazine, at levels at which there are no known or expected risks to health.

On May 10, 2014, some of the clover and rye in the organic hay field behind Middletown resident Jennifer Kreegar's house turned yellow and then became stunted and bleached after a neighbor sprayed an adjacent corn field.

Posted by Marcia Oddi on Sunday, May 10, 2015
Posted to Environment

Environment - "Ohio calls on neighbours for help as Lake Erie turns green"

A March 31,2014 ILB post was headed "Ohio mulls fertilizer rule in Lake Erie algae fight."

This weekend The Guardian has a long AP story, dateline Toledo, headed:"Ohio calls on neighbours for help as Lake Erie turns green: ‘We can’t do it alone’: Pollutants contributing to toxic algae blooms come from Michigan and Indiana farms and Canadian septic tanks." Some quotes:

Pollutants feeding the toxic algae blooms that have been turning parts of western Lake Erie green and contaminating drinking water in recent summers are not just coming from Ohio.

They are flowing into the lake from farm fields in Michigan and Indiana, leaky septic tanks in southern Canada, and Detroit’s wastewater plant. That is why Ohio’s governor and environmental chief are starting to ask some of their neighbors to look into what else they can do to cut down on the pollutants – primarily phosphorus – that end up in the lake’s tributaries.

“We can’t do it alone, and they can’t do it alone,” said Craig Butler, director of the Ohio Environmental Protection Agency. “I think everybody really understands that we need collaboration.”

Discussions with officials from Indiana, Michigan and southern Ontario have centered on the overall goal of reducing phosphorus in waterways and not on specifics about what needs to be done, Butler said.

“We want everybody to come up with their own prescription based on whatever symptom they have,” he said. * * *

Greg Lake, a farmer near Fort Wayne, Indiana, who also heads up the Allen County Soil and Water conservation District, thinks stricter regulations could be coming if the algae continue to thrive.

He has taken busloads of farmers and agribusiness retailers to Lake Erie to show them firsthand how the algae affect the water and those who depend on it. “It helps solidify why this is a fairly significant issue that shouldn’t be ignored by other states,” he said.

Blaine Baker, who operates a large dairy in Clayton, Michigan, went on a similar outing with farmers from Michigan the past two summers.

“Until you really see how green the water is, it’s really hard to believe,” he said. “That was the big eye-opener to me.”

Here are some NOAA photos of the algae bloom in western Lake Erie in past years. The Guardian's story includes "A 2014 file photo shows algae near the City of Toledo water intake crib, in Lake Erie, about 2.5 miles off the shore of Curtice, Ohio."

Posted by Marcia Oddi on Sunday, May 10, 2015
Posted to Environment

Ind. Gov't. - "Dems, GOP Ready to Act If Supreme Court Axes House Districts"

That is the headline to a May 9th AP story by Alan Fram. The case before the SCOTUS involves congressional districts and, although Indiana is one of the 13 states listed in the story because it has a congressional redistricting commission, the immediate impact here will be nil however the decision turns out. A few quotes:

Political advisers from both parties say Republican-run Arizona and Democratic-led California are the likeliest states where lawmakers could need to redraw House district lines if the plaintiffs prevail. * * *

The justices are considering whether Arizona's independent redistricting commission, created by voters in 2000, has usurped a role the Constitution intended for state legislatures. Republicans running the state legislature filed the lawsuit after complaining that the commission helped Democrats by packing large numbers of GOP voters into just a few districts.

California voters gave similar power to an independent commission in 2010. Both states left virtually no redistricting role for their legislatures, and most experts think both would be affected if Arizona's commission is deemed unconstitutional. * * *

The nonpartisan National Conference of State Legislatures says commissions share redistricting power with legislatures in 11 other states. Combined, those states hold 152 seats in the 435-member House.

Since no one knows how far-reaching the justices' ruling will be, those states might also be affected in a decision expected by July. But the impact could be limited and no one expects the GOP to lose control of the House, which it dominates 247-188, including two Republican-leaning vacancies.

Control of the legislature and governor's office is divided between Democrats and Republicans in six of those 11 states, meaning neither party could dominate a redrawing of congressional lines. Those states are Iowa, Maine, Montana, New Jersey, New York and Washington.

In three others — Connecticut, Hawaii and Idaho — one party controls state government but already holds all of the state's House seats. That means a new map probably wouldn't cede House seats to that state's minority party.

That leaves Indiana and Ohio, where Republicans run state government and the House delegations are divided. Democrats hold four of 16 House seats from Ohio and two of nine from Indiana, and analysts from both parties say Republicans would be hard-pressed to win additional House seats by drawing new lines.

How is a redistricting commission involved in drawing Indiana's congressional districts? According to Ballotpedia:
In the event that both chambers of the state legislature do not approve a congressional redistricting plan, a backup commission must draw the lines.
The commission is made up of the house speaker, the senate president pro tem, the chairs of the house and senate elections committees, and an appointment made by the governor.

The case is Arizona State Legislature v. Arizona Independent Redistricting Commission. It was argued March 2, 2015. Here is the SCOTUSblog case page.

Posted by Marcia Oddi on Sunday, May 10, 2015
Posted to Indiana Government

Friday, May 08, 2015

Ind. Gov't. - "New groups join opposition to state park pavilion proposal"

Adding to what has grown to a long list of ILB posts on the DNR's plan to build a banquet center on the Indiana Dune State Park beachfront, the NWI Times reports this afternoon:

CHESTERTON | Three statewide organizations on Friday announced their opposition to a proposed new banquet and conference facility at Indiana Dunes State Park.

Hoosier Environmental Council, Hoosier Chapter Sierra Club and Citizens Action Coalition announced they support renovating the existing park pavilion, not adding a new banquet hall to the east.

"The fact that the DNR would even consider building a new banquet hall with huge windows on the beach there shows how poorly thought out this was," Tim Maloney, senior policy director for the Hoosier Environmental Council, said in a statement issued Friday.

The Indiana Department of Natural Resources partnered with Pavilion Partners LLC to design and operate the proposed pavilion and banquet center. The plans include a new concession area and "comfort center" with restrooms, showers and family dressing rooms for beachgoers in the existing building.

Restaurants and a new elevated banquet center to the east side of the pavilion are also proposed.

Opponents from environmental groups, including Save the Dunes and Izaak Walton League of Porter County, fear the new construction of the banquet center on the beach will be detrimental to the environment, provide a hazard for migratory birds, cause beach erosion and set a precedent for more beachfront development.

The groups also allege the IDNR has not been transparent in their plans for the location.

"The DNR just built a beautiful bird observation platform at the park, and now they are adding a new structure that may become a major bird hazard," Maloney said.

The Chesterton Tribune story has a number of great quotes:
Opposition to the proposed construction of a banquet center at Indiana Dunes State Park continues to grow among the state’s environmental organizations who have been joined by a prominent consumer group.

Today the Hoosier Environmental Council and the Hoosier Sierra Club released a joint statement with the Citizens Action Coalition, a utility watchdog, formally taking a position against the DNR’s plan to lease land next to the Pavilion at the Dunes State Park beach to private developers.

All three voiced support instead for the simple renovation of the Pavilion, what they call a “compromise” which would have “limited adverse impacts to the park, its visitors, and the natural resources it protects.”

The DNR’s contract with Pavilion Partners LLC to rehab the Pavilion, then build a comfort center to the west and a banquet center to the east, would “harm the park’s beach environment by contributing more light pollution at night, creating an attractive--even deadly--nuisance for birds given the banquet hall’s huge glass windows, and setting the stage for more beach-front development in the form of a hotel and marina (described in the developer’s original proposal as possible future projects at the site).”

The three organizations specifically accuse the DNR of “touting the project as a Pavilion re-use” but omitting to inform the public of the plan to build a banquet center.

“This was intentionally misleading on their part to keep the public out of the process after their experience in 2006,” said Bowden Quinn, chapter director of the Sierra Club’s Hoosier Chapter, referring to the organized opposition nine years ago to the DNR’s proposal to build a hotel in the same general area. The DNR withdrew that proposal after failing to attract potential vendors to the project.

“Here is yet another conversion of public land to benefit private development interests,” said Tim Maloney, senior policy director for the Hoosier Environmental Council. “Dunes State Park and its beach are public lands and held in trust for the people of Indiana. With this project the developers will retain the majority of profits from the project, while paying a very cheap lease payment--no more than a family would pay for a four-bedroom home--for as long as 65 years.”

Citizens Action Coalition Executive-Director Kerwin Olson, for his part, criticized a lack of transparency in the plan. “The DNR and the developers have been negotiating this deal since 2012,” he said. “The public should have been advised then about the new building,” plans for which were announced only in February and only after the Chesterton Tribune made inquiries about ongoing construction work at the Pavilion.

“The fact that the DNR would even consider building a new banquet hall with huge windows on the beach there shows how poorly thought out this was,” said Maloney. “The DNR just built a beautiful bird observation platform at the park, and now they are adding a new structure that may become a major bird hazard.”

“The Lake Michigan shoreline is critically important to millions of migratory birds, which use the shoreline as an important resting area,” the statement noted.

“The paltry amount of money the DNR will get from putting a private banquet hall on the most desirable real estate on Lake Michigan in Indiana amounts to a give-away of public land,” added Quinn. “We strongly object to DNR's secrecy, lack of transparency, and failure to get adequate public participation, which are vital to any proposal to increase human impacts on our state's precious natural areas.”

The organizations are encouraging letters, e-mails, and phone calls to Governor Pence to cancel this project. Contact information can be found at http://in.gov/gov/2333.htm

Posted by Marcia Oddi on Friday, May 08, 2015
Posted to Indiana Government

Courts - "Illinois Supreme Court rules landmark pension law unconstitutional"

Rick Pearson and Kim Geiger of the Chicago Tribune reported at mid-morning:

The Illinois Supreme Court on Friday unanimously ruled unconstitutional a landmark state pension law that aimed to scale back government worker benefits to erase a massive, $105 billion pension debt.

At issue is a law approved by the legislature and signed in December 2013 by then-Democratic Gov. Pat Quinn which was aimed at gradually reducing Illinois' worst-in-the-nation unfunded public employee pension liability.

The law called for curbing automatic and compounded annual cost-of-living increases for retirees, extending retirement ages for current state workers and limiting the amount of salary used to figure pension benefits. * * *

For decades, governors and state lawmakers failed to put enough money into the public employee pension systems covering most state workers, university employees, as well as suburban and downstate teachers.

Now, state spending on pensions amounts to almost a quarter of every tax dollar that goes into the state's general bank account. * * *

The decision not only affects Illinois, but taxpayers in Chicago and towns throughout Illinois struggling to cope with growing pension debts that are straining government budgets.

Previously, the state’s highest court ruled an effort to make state retirees pay more for their state-subsidized health care violated the constitution's pension protection clause.

In that case, the court found that the constitutional guarantee was "aimed at protecting the right to receive the promised retirement benefits, not the adequacy of the funding to pay for them."

Posted by Marcia Oddi on Friday, May 08, 2015
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decisions)

For publication opinions today (2):

In In the Matter of the Guardianship of N.R., N.R. v. Eva Willis and Charles Reagins, Peoples Bank, SB, a 4-page opinion, Judge Robb writes:

Eva Willis and Charles Reagins, the former temporary guardians of N.R. (collectively, “Former Guardians”), petition for rehearing of this court’s opinion in In re Guardianship of N.R., 26 N.E.2d 97 (Ind. Ct. App. 2015). In that opinion, we held that the trial court abused its discretion in excluding evidence relevant to the determination of whether it was reasonable to award fees and costs from the guardianship estate on behalf of the Former Guardians. We grant rehearing to address the Former Guardians’ claims, but reaffirm our opinion in all respects.

We are not persuaded by the Former Guardians’ arguments for rehearing any more than we were persuaded by their original arguments for affirming the trial court.

In Jay R. Thompson v. State of Indiana, a 10-page opinion, Judge Bradford writes:
Appellant-Petitioner Jay Thompson was convicted of two counts of murder and conspiracy to commit burglary and sentenced to an aggregate 120-year term. On appeal, the Indiana Supreme Court affirmed the sentence in 1990. Thompson filed a petition for post-conviction relief (“PCR”) in 1992. Thompson filed several amendments to his petition in the subsequent twenty years but neglected to prosecute the petition until 2014. Appellee-Respondent the State of Indiana (“the State”) filed a motion to dismiss pursuant to the doctrine of laches and the PCR court granted the motion. On appeal, Thompson argues that laches can only be used as a defense to a PCR petition based on delay in filing of the petition and may not be based on delay in prosecuting the petition. We disagree and affirm the decision of the PCR court.
NFP civil decisions today (4):

New Carlisle-Olive Township Public Library v. Review Board of the Ind. Dept. of Workforce Development and Stephen J. Boggs (mem. dec.)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of T.T. & J.T., Minor Children, and Their Mother, C.T., C.T. v. Ind. Dept. of Child Services (mem. dec.)

In the Matter of J.M.C., A Child Alleged to be a Delinquent Child (mem. dec.)

Bill J. Bowers v. Jack Weichman (mem. dec.)

NFP criminal decisions today (2):

Charles Edward Mayo v. State of Indiana (mem. dec.)

Misty Padgett-Essex v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, May 08, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - What bills hasn't Gov. Pence acted on yet?

Check the list here. Included in not acted upon yet is SEA 369, the bill allowing charges for public records searches.

(h/t Niki Kelly)

Posted by Marcia Oddi on Friday, May 08, 2015
Posted to Indiana Government

Law - "The Price of Nice Nails"

Yesterday the ILB tweeted this May 7th NY Times story; as it turns out, I was not alone. It is their most tweeted story in history, exposing the exploitation of young Asian and Hispanic women in NYC and many other areas.

The lengthy story is in two parts, the second part appears today: "Perfect Nails, Poisoned Workers."

Just a sample:

Once an indulgence reserved for special occasions, manicures have become a grooming staple for women across the economic spectrum. There are now more than 17,000 nail salons in the United States, according to census data. The number of salons in New York City alone has more than tripled over a decade and a half to nearly 2,000 in 2012.

But largely overlooked is the rampant exploitation of those who toil in the industry. The New York Times interviewed more than 150 nail salon workers and owners, in four languages, and found that a vast majority of workers are paid below minimum wage; sometimes they are not even paid. Workers endure all manner of humiliation, including having their tips docked as punishment for minor transgressions, constant video monitoring by owners, even physical abuse. Employers are rarely punished for labor and other violations.

Asian-language newspapers are rife with classified ads listing manicurist jobs paying so little the daily wage can at first glance appear to be a typo. Ads in Chinese in both Sing Tao Daily and World Journal for NYC Nail Spa, a second-story salon on the Upper West Side of Manhattan, advertised a starting wage of $10 a day. The rate was confirmed by several workers.

Lawsuits filed in New York courts allege a long list of abuses: the salon in East Northport, N.Y., where workers said they were paid just $1.50 an hour during a 66-hour workweek; the Harlem salon that manicurists said charged them for drinking the water, yet on slow days paid them nothing at all; the minichain of Long Island salons whose workers said they were not only underpaid but also kicked as they sat on pedicure stools, and verbally abused. * * *

The juxtapositions in nail salon workers’ lives can be jarring. Many spend their days holding hands with women of unimaginable affluence, at salons on Madison Avenue and in Greenwich, Conn. Away from the manicure tables they crash in flophouses packed with bunk beds, or in fetid apartments shared by as many as a dozen strangers.

Posted by Marcia Oddi on Friday, May 08, 2015
Posted to General Law Related

Ind. Courts - "Marion County small claims court wrongly charged for weddings despite new rules"

Kara Kenney had the story last evening on WRTV 6. Here is a report, with video. Some quotes from the lengthy story:

INDIANAPOLIS -- A hidden camera investigation revealed the Warren Township Small Claims Court has been charging couples for weddings, despite new rules banning the practice.

The rules, which went into effect Jan. 1, say judges can’t charge a fee if a wedding ceremony is performed on court premises and during regular court hours. * * *

Center Township Small Claims Court Judge Michelle Scott resigned last year amid allegations she used government resources to promote a private wedding business she ran with her husband.

In response to Scott’s case, Marion County adopted the new rules for its small claims courts and how they handle weddings.

In March, the Call 6 Investigators took hidden cameras into all nine small claims courts in Marion County to see if they were following the new wedding rules.

Most townships either don’t charge, or don’t perform weddings at all.

“I don’t do marriages during the week anymore after the fallout of some of the stuff that happened in Center Township Small Claims Court,” Pike Township Small Claims Court Judge Douglas Stephens told a Call 6 staffer.

But Warren Township on Indy’s east side did try to charge for a wedding.

“It’s an $80 ceremony fee,” a court employee said.

We went back a week later to make sure.

“$80 ceremony fee,” the same court staffer said. “We accept cash, money order or credit card.” * * *

[Warren Township Small Claims Court Judge Gerald Graves] and other small claims court judges gave their own input into the wedding rule-making process.

Our initial requests to interview Graves were ignored, so we showed up at court to get his response.

“Prefer not,” Graves said when asked if he would talk about why the court was charging for weddings.

A week later, Graves agreed to sit down for an on-camera interview.

“I was aware of the rule as proposed, but I was unaware the rule had been passed,” Graves said. “There’s been a lot of rules changes since 2012.”

Graves admitted he was part of the rule-making process but said some of the sources he uses to look up rules, such as LexisNexis, contained old information on weddings.

However, the Indiana Supreme Court website did have the correct information.

Judge Graves acknowledged it is his responsibility to know the rules.

“Yeah, I admit the rule as proposed and passed was not being followed,” he said. “It was inadvertent, it was not intentional.”

Documents show the money charged went into the township fund.

In response to our findings, Warren Township refunded the $400 to couples who wrongly paid for weddings.

Refund letters sent to couples said the fees prior to Jan. 1 were set at $80.

“Unfortunately, I was unaware of a rule change that came into effect on January 1, 2015, which removed this fee for marriage ceremonies,” read Graves’ letter to couples. “The rule change came to my attention on March 13, 2015, and therefore, I have enclosed a refund of the $80 fee that you paid for your marriage ceremony. I apologize for any inconvenience that this situation may have caused you.” * * *

Judge Sheryl Lynch now oversees small claims courts in Marion County, taking over for Judge Louis Rosenberg who retired at the end of the year.

“We as judges are expected, just like the citizens of Marion County, to know what the rules are,” Lynch said. “From my heart, I do believe it was an honest mistake, because as judges we have a lot of rules and a lot of case law that we have to keep track of.”

The wedding rules also state that if a couple asks about a paid wedding, the court staff cannot recommend any particular officiant, including the judge.

But the Call 6 Investigators found the Wayne Township Small Claims Court handing out flyers advertising the judge’s weekend wedding business and $125 fee. * * *

Marion County is the only county in Indiana with separate small claims courts.

ILB: Another excellent investigative report from Kara Kenney.

This April 17th ILB post explains that for years now the Supreme Court has urged that the Marion County small claims courts be transitioned into a unified section within the civil division of the Marion County superior courts.

Instead, as the ILB reported on April 29th, this 2015 General Assembly passed a bill that will raise the nine Marion County small claims judges' salaries, make them full time positions, turn the courts into courts of record, 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 Friday, May 08, 2015
Posted to Indiana Courts

Courts - "Paternity Case for a New Jersey Mother of Twins Bears Unexpected Results: Two Fathers"

This was a case of first impression in New Jersey, according to a NY Times story today by Benjamin Mueller, who references a report yesterday in The New Jersey Law Journal. From the Times:

It was a tangled web of love and biology that gave rise to what The Law Journal called a precedent-setting ruling, one of only a few of such cases across the country. The man originally described as the twins’ father, identified in court documents only as A.S., will now have to pay child support only for the toddler who a DNA test showed was reliably his own.

The case took root when the mother, identified only as T.M., told the Passaic County Board of Social Services in the course of applying for benefits that A.S., her romantic partner, had fathered her twins, The Law Journal reported. The board, in turn, filed an application to establish his paternity and force him to pay child support for the twins, born in January 2013.

But the woman’s claim slowly fell apart. She revealed in testimony that she had had sex with a second, unidentified man within a week of having sex with her romantic partner. A paternity test was ordered.

And when the results came back last November, a routine case became a curiosity destined for legal textbooks.

Judge Mohammed accepted the results after testimony from Karl-Hans Wurzinger, the laboratory director of the Identity Testing Division at Laboratory Corporation of America, The Law Journal reported. Dr. Wurzinger, who has published a study saying that one in 13,000 reported paternity cases involved twins with separate fathers, testified that this was one of those rare cases: The woman’s twins were fertilized by different fathers during the same menstrual cycle.

Jennifer Wu, an obstetrician-gynecologist at Lenox Hill Hospital in Manhattan, called it a case of superfecundation, a rare phenomenon classically illustrated in medical textbooks with a black baby and a white baby who are twins.

A sperm can be viable for up to five days, Dr. Wu said. So if the mother in this case had sex with one of the men, ovulated, and then had sex with the other — all within the course of just under a week — one man’s sperm could have fertilized one egg, while the other’s fertilized another.

The phenomenon has become more common with the spread of assistive reproductive technologies, she said, as men in gay couples sometimes both contribute sperm to a pregnancy.

“That’s why we’re seeing it more often than we were in the past,” Dr. Wu said, “when we were relying on nature and women who have more than one sexual partner in the same cycle around the time of ovulation.”

Posted by Marcia Oddi on Friday, May 08, 2015
Posted to Courts in general

Thursday, May 07, 2015

Ind. Gov't. - "Finally, we can get wine to our doors"

That was the heading to this editorial yesterday in the Fort Wayne News-Sentinel. Some quotes:

Indiana tiptoes into the world of 21st century online shopping.

It was relatively minor legislation in the grand scheme of things, but the bill allowing direct shipment of wine to Indiana residents was a major victory for common sense and a reluctant acceptance of the online-retailing phenomenon that is shaping commerce in the 21st century.

Actually, wineries already had the legal right to ship directly to homes, but only to people who had made an in-person visit so the wine seller could know an adult was doing the online ordering. Now customers can order the wine without that visit, but they still have to fax or scan an ID with the order.

Both requirements are just short of stupid. Once a bottle of wine enters a household, all control over it is lost. But at least now the stupidity doesn’t require a pointless trip.

The ILB has had many, many posts on wine shipping, dating back to 2004.

The most recent was a brief Jan. 28, 2015 mention when SB 113 passed the first house, and this more detailed, Jan. 22nd post when the bill passed the Senate committee.

Here is Senate Enrolled Act 113.

Posted by Marcia Oddi on Thursday, May 07, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 5 NFP memorandum decisions)

For publication opinions today (3):

In In Re the Marriage of: Teasha J. Harris v. Anthony J. Harris , a 13-page opinion, Judge Baker writes:

Teasha Harris (Wife) appeals the trial court’s denial of her motion to correct error. She argues that the trial court erred in determining that it lacked personal jurisdiction over Anthony Harris (Husband) as to the division of certain marital assets. She also argues that the trial court erred in determining that Husband’s military pension was not a marital asset. Finding that Husband had consented to the trial court’s jurisdiction over him in regard to all matters necessary to the disposition of this cause, we reverse the portions of the trial court’s judgment that were affected by this determination. However, we affirm the trial court’s judgment that Husband’s military pension was not a marital asset. Accordingly, we remand to the trial court for further proceedings consistent with this opinion.
In Jonathan Grott, Sr. v. State of Indiana , a 12-page opinion, Judge Baker writes:
Jonathan Grott appeals his conviction for Auto Theft, a class D felony, claiming that the evidence is insufficient to sustain his conviction. Finding that the evidence is sufficient, we affirm. * * *

On appeal, Grott frames his argument in general terms. He argues that this is “a civil case—pure and simple” and characterizes his dispute with Enterprise as “simply a misunderstanding.” He contends that “it was an abuse of discretion to even charge this as a criminal cause” and that “prosecutor offices [should not] be free collection attorneys to large corporations.” On the other hand, Grott concedes that failure to return a rental car by the agreed-upon return date can, in appropriate circumstances, rise to the level of auto theft. * * *

There is no serious dispute that Grott had direct and physical control over the vehicle at the relevant times; indeed, his whole argument on this issue is simply that Enterprise could have taken it out of his possession whenever it wanted to do so. But no one else was physically in possession of the vehicle while Grott was. That Enterprise had the authority to repossess the vehicle does not mean that Grott was not in possession of it. Thus, Grott had actual possession of the vehicle, and his argument to the contrary is without merit.

In Leonard L. Suggs v. State of Indiana, an 8-page opinion, Judge Baker writes:
Leonard Suggs appeals his convictions for Domestic Battery, a Level 6 felony, and Battery, a Level 6 felony. Suggs contends that the evidence is insufficient to support his convictions. Finding sufficient evidence, we affirm. * * *

Suggs’s sole argument on appeal is that the evidence is insufficient to support a conclusion that Warren was his family or household member. * * *

In this case, Warren and Suggs were related because Suggs’s aunt was married to Warren’s brother. While we acknowledge that this is an attenuated familial relationship, in looking at the many broad factors set forth by the legislature in defining “family or household member,” it is apparent that the legislature intended this to be a far-reaching term. In other words, the legislature attempted to capture as many types of familial and household relationships as possible, acknowledging that these types of relationships can arise even without a direct blood connection. * * *

Under these circumstances, we find that a reasonable juror could infer from these facts that Warren is a family or household member of Suggs. In other words, the evidence is sufficient to support Suggs’s conviction for Level 6 felony battery.

NFP civil decisions today (2):

In Re the Marriage of: Adena Vanderwielen v. Adam Vanderwielen (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of E.M. (minor child) and L.M. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

Darrin C. Martin v. State of Indiana (mem. dec.)

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

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

Posted by Marcia Oddi on Thursday, May 07, 2015
Posted to Ind. App.Ct. Decisions

Wednesday, May 06, 2015

Ind. Courts - All new Indiana city and town judges will need to be attorneys; and more

For years, part of the Strategic Plan urged by the Indiana Judicial Conference has been a change in the statutes to require that all city and town judges be attorneys. For example, this Feb. 3, 2011 ILB post quotes an opinion piece by Judge Mark Stoner, Marion Superior Court, and Judge Terry Shewmaker, Elkhart Circuit Court, in support of a 2011 bill. Their statement read in part:

Indiana also has approximately 75 city and town courts. In 2009, 375,000 cases, including criminal misdemeanors and speeding tickets, were heard in these courts. Not all of the judges in those courts are lawyers. Some cities and towns do not require it.

Senate Bill 312 would require all judges in the State of Indiana to be lawyers. Judges who are not lawyers would be allowed to complete their current term. Their replacements would have to be lawyers in good standing, admitted to practice law in Indiana.

The Indiana Judicial Conference (judges from across the state) and the Strategic Planning Committee of the Conference, strongly support Senate Bill 312. Indiana judges believe that non-lawyers serving as city and town court judges attempt to perform their duties to the best of their abilities. We simply believe that in matters of great importance to Indiana citizens, a person who has graduated from law school and passed the bar exam should hear the case.

That bill, and another similar bill, both died in committee in 2011. Similar efforts in subsequent sessions also failed to move.

Until this year.

HEA 1110, signed by the Governor yesterday, requires via an amendment in SECTION 1 that before a candidate may file for a city or town judgeship, "the candidate must be an attorney in good standing admitted to the practice of law in Indiana." However, there is a grandfather provision: an amendment to the Code added by SECTION 17 allows a city or town judge who is serving on June 30, 2015, who is not attorney to (a) complete their term, and (b) to continue to serve consecutive elected terms.

The language was not in the original bill, which was a product of the interim study committee on courts and the judiciary. It first appears in the Engrossed House Bill, reprinted April 14, 2015. The language was added by amendment #6 on 2nd reading in the Senate, by Senator Steele and passed by voice vote.

And more. One other thing about HEA 1110 that caught the ILB's eye. Although the bill creates many new magistrate judges, effective July 1, SECTION 14 eliminates the position of full-time magistrate in Sullivan County, who the law had authorized to be jointly appointed by the judge of the Sullivan circuit court and the judge of the Sullivan superior court. The ILB had a very long post on March 17, 2015 about the effort to eliminate this position, including the comment that it "tells a lot about the power of legislative committee chairs, local politics, and the county courts."

Posted by Marcia Oddi on Wednesday, May 06, 2015
Posted to Indiana Courts

Ind. Courts - "Appeals court hears Evansville gun case" [Updated]

The oral argument before the Indiana Court of Appeals today in the case of City of Evansville et al v. Magenheimer, held in Evansville, will not be available to view online, but Mark Wilson of the Evansville Courier & Press has posted this story, along with a 2-minute video. Some quotes:

Benjamin Magenheimer was removed from Mesker Park Zoo while openly wearing a handgun in 2011. A Vanderburgh Circuit Court judge ruled against the city’s motion to dismiss the lawsuit and the appeals court agreed to hear the city’s appeal on a single issue.

Magenheimer’s lawsuit was filed in September 2011 under Indiana’s Firearms Preemption Act barring local governments from regulating guns, which had only been in effect a few months at the time. He contends the city violated that law when he was removed from the zoo.

City attorneys argued Magenheimer should have filed the lawsuit as a tort claim, the legal means by which citizens can sue government agencies or their employees. If so, the city argued, Magenheimer’s claim would be invalid because he did not serve proper notice of it under that law’s conditions.

Magenheimer’s attorney, Guy Relford, of Indianapolis, argued the state statute included language allowing adversely affected individuals to bring such lawsuits.

For some of the ILB posts on this case and the related Hammond gun case (Dykstra v. The City of Hammond), start with this list.

[Updated at 8 PM] The Tristate Homepage also has a brief story on today's oral argument, and includes a one-minute video clip that shows both the panel and the audience.

Posted by Marcia Oddi on Wednesday, May 06, 2015
Posted to Indiana Courts

Ind. Gov't. - More on "Tax scofflaws get chance to pay without penalty" [Updated/Corrected]

The ILB has already had some questions on the tax amnesty plan reported on earlier this afternoon. A sample:

Saw your article on this topic. I’m shocked I hadn’t heard anything about this proposal (or now, law) prior to today, as I try to stay quite well-informed on local legislation, especially in my own practice area. (Your blog helps immensely in this regard!)

Does this appear to have been on the radar anywhere else? Was there any debate on the issue in the General Assembly?

I’m concerned that there wasn’t any chance for public input on this, or for input from the tax practitioner community.

It turns out this was a "budget surprise," language not passed by either house, but added to the budget conference committee report. According to an IBJ story:
Both the House and Senate versions of the budget had provided money for the Hoosier State [railroad from Indianapolis to Chicago], but the funding was withdrawn during a late conference committee because of a lower state revenue forecast.

Olson said fiscal leader Sen. Brandt Hershman, R-Buck Creek, came up with the tax-amnesty program. The program is expected to generate more than the $90 million allocated to the IEDC and INDOT.

Another IBJ story, this one by Ed Feigenbaum, says:
Surprises included ... the decision to fund the governor’s heavily lobbied and little-understood Regional Cities initiative via a tax amnesty program — not a stirring endorsement, but a win for him, nevertheless.
This long May 1st story by Chris Morissse Vizza of the Lafayette Journal and Courier is headed "Hoosier State train forging ahead," and reports, deep into the story:
Funding was restored after State Senator Brandt Hershman came up with a plan to allocate money from a new tax amnesty fund to reimburse INDOT for the cost of operating the Hoosier State.
This May 1 story from Niki Kelly of the Fort Wayne Journal Gazette reports, also deep within the story:
[Pence] also is pleased that lawmakers found $84 million in funding for a new regional cities initiative. The funding had been slashed and legislators weren’t particularly enthused about, it but Pence worked the issue hard. Eventually, they settled on allowing the governor to use money from an upcoming tax amnesty program.
The answers are found in the as-passed 2015 budget, HEA 1001, starting at SECTION 91 [pdf page 146]. SECTION 93 [pp 147-148] explains:
(1) The first eighty-four million dollars ($84,000,000) collected must be deposited into the
Indiana regional cities development fund established by IC 5-28-38-2.
(2) After making the deposits required under subdivision (1), the next six million dollars
($6,000,000) collected shall be transferred to the Indiana department of transportation to
reimburse the Indiana department of transportation for money expended by the Indiana
department of transportation under IC 8-23-2-18.5 for the operation of the Hoosier State Rail
Line. However, the total amount transferred under this subdivision to the Indiana department
of transportation may not exceed the lesser of:
(A) six million dollars ($6,000,000); or
(B) the total amount expended by the Indiana department of transportation under
IC 8-23-2-18.5 for the operation of the Hoosier State Rail Line after June 30, 2015, and before
July 1, 2017.
(3) Any remaining amounts collected must be deposited into the state general fund.
[Updated/Corrected at 2:50 PM] Niki Kelly of the Fort Wayne Journal Gazette writes to point out:
The tax amnesty program was included in two bills - 1349 and 441 - from day one. It was part of tax simplification Pence was pushing. It passed both the House and Senate multiple times. It was not a budget surprise except that they dedicated the money to Regional Cities.
Kelly adds that she noted at the end of a Jan. 30th story on one of those bills:
The bill also would provide for another one-time tax amnesty program expected to bring in up to $160 million in fiscal year 2017. Those who participated in the amnesty program under then-Gov. Mitch Daniels would not be allowed to enroll again.

Posted by Marcia Oddi on Wednesday, May 06, 2015
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending May 1, 2015

Here is the Clerk's transfer list for the week ending Friday, May 1, 2015. It is one page (and 2 cases) long.

One transfer was granted last week:

In addition, the Supreme Court granted the joint motion to dismiss petition to transfer, and dismissed the transfer petition, in Wesco Distribution, Inc. v. Arcelormittal Indiana Harbor LLC, and ESPU, Inc.

Posted by Marcia Oddi on Wednesday, May 06, 2015
Posted to Indiana Transfer Lists

Ind. Courts - "Lake community courts gain expanded civil jurisdiction"

Dan Carden reported yesterday in the NWI Times:

Lake County residents filing civil lawsuits worth up to $6,000 can bring their cases to most city courts and one town court starting July 1, instead of being required to seek relief at the county's small claims court.

Republican Gov. Mike Pence has signed into law House Enrolled Act 1307, increasing the the maximum amount in controversy eligible for a decision by the city courts in Crown Point, East Chicago, Gary, Hammond and Hobart, as well as the Merrillville Town Court.

The current civil case limit in those municipalities is $3,000, which will remain the maximum for the Lake Station, Lowell, Schererville and Whiting courts.

Supporters of the change believe having the county's largest municipal courts match their civil jurisdiction limit to the small claims court will improve the efficiency of the county courts and produce more revenue for cities and towns, since they keep a larger share of filing fees from their courts.

Interesting.

Posted by Marcia Oddi on Wednesday, May 06, 2015
Posted to Indiana Courts

Ind. Gov't. - "Tax scofflaws get chance to pay without penalty"

According to this Sept. 3, 2005 ILB post, 2005 was the last time that Indiana had a tax amnesty program.

As Maureen Hayden of CNHI reports today, the 2015 General Assembly has granted delinquent taxpayers a new opportunity. The story begins:

INDIANAPOLIS — Tax evaders are in for a deal. If they’re willing to own up and pay up, the state will waive penalties and interest on their delinquent tax bills.

Analysts say money generated by a tax amnesty program passed by the General Assembly before session's end last week could top $100 million — one-quarter of the back-taxes owed to Indiana by individuals and businesses across the country.

Details of the program, including when it will kick off, are still in the works. Lawmakers decided it has to be done before the end of next year, during an eight-week window in which errant taxpayers can settle up or arrange a payment plan with the state.

“It’s a win for both sides,” said Rep. Todd Huston, R-Fishers, a co-sponsor of the measure that was included in the $31 billion biennial budget. “It gives delinquent taxpayers a chance to catch up, and it accelerates our tax collections.”

There’s a catch for taxpayers, though. The amnesty will only apply to errant taxpayers who owed money to the state before Jan. 1, 2013.

The program takes a carrot-and-stick approach. For most delinquent taxpayers, the state will waive penalties, interest and the threat of legal action. For those who refuse the amnesty offer, the state will double the penalties owed on their back taxes.

Some late-payers won’t qualify, including those against whom the state has already initiated criminal action.

State officials don’t know how many taxpayers are eligible or how many will take part. But they do know $400 million in back taxes are owed to the state, dating from before Jan. 1, 2013.

The last time Indiana offered a tax amnesty, in 2005, more than 98,000 taxpayers took part.

The first such program in the state’s history, the 2005 program was expected to recover about $65 million of $1.5 billion in back-taxes owed to the state when former Gov. Mitch Daniels took office.

It exceeded revenue collectors’ wildest dreams, taking in more than $244 million, including payments from 38 taxpayers who handed over more than $1 million each.

The majority of those who participated owed and paid less than $1,000.

Posted by Marcia Oddi on Wednesday, May 06, 2015
Posted to Indiana Government

Ind. Law - "South Bend bar targeted neck tattoos in dress code policy"

Lincoln Wright reported April 30th in a long story in the South Bend Tribune, that includes:

... But Brothers, as a private business, is well within its rights to make customers follow a dress policy, said Jane Henegar, executive director of the Indiana Chapter of the American Civil Liberties Union. There are rare occasions where refusal to provide service on the basis of a customer's dress or appearance has been found to be pretext for racial or religious discrimination, she said, but that's not the usual case. "As a general matter," Henegar said, "there is no constitutional issue implicated in a restaurant's dress code."

Posted by Marcia Oddi on Wednesday, May 06, 2015
Posted to Indiana Law

Ind. Decisions - "Subpoena to Elkhart Truth reporter in Freddie Rhodes case partially quashed by judge"

This April 27th ILB post quoted an April 24th Elkhart Truth story by Michelle Sokol that "Within 30 days, judge will rule on motion to reject subpoena to Elkhart Truth journalist."

Yesterday Judge Terry Shewmaker issued his ruling. Here are quotes from reporter Sokol's Truth story late yesterday, which also included a copy of the ruling:

The Elkhart Truth reporter who interviewed a felony murder suspect in jail will not need to surrender her notes to the court but is ordered to stand by for testimony.

Circuit Court Judge Terry Shewmaker issued a ruling Tuesday afternoon, May 5, on the newspaper’s motion to quash a subpoena issued to crime and courts reporter Emily Pfund.

The subpoena was issued by the Elkhart County Prosecutor’s Office after The Elkhart Truth published an article March 22 about Freddie Rhodes, who was charged with felony murder in connection with the shooting death of Dre Tarrious Rodgers.

For that article, Pfund spoke with Rhodes and his mother, Wanda Malone-Shorter, about the night of his arrest, during which the family alleges medical treatment was withheld. Medical records show Rhodes was admitted to a hospital with a concussion and broken nose more than 11 hours after his arrest.

The family filed a motion for the court to throw out the statement Rhodes made that night, and it was for that hearing that Pfund was ordered to turn over her notes and appear for testimony. * * *

Shewmaker ruled that the subpoena would be partially quashed — Pfund will no longer be required to surrender her notes and recordings from the interviews — but also partially upheld.

“She is not being asked to divulge ANY source not already known; she cannot use the Shield Law to protect against revealing a conversation that was printed in the newspaper, and the court considers that if you speak to an 18- to 19-year-old defendant charged with felony murder, a reporter, just like any other citizen, should have a reasonable expectation that the reporter may become a witness in the criminal case,” Shewmaker wrote in a 13-page ruling.

The hearing to suppress evidence for Rhodes will take place at 10 a.m. Wednesday, May 6. Pfund could be called to testify if Rhodes contradicts the statements published in the article or to the court.

Posted by Marcia Oddi on Wednesday, May 06, 2015
Posted to Ind. Trial Ct. Decisions

Tuesday, May 05, 2015

Ind. Decisions - "Vanderburgh case could set precedent for evidence admission in methamphetamine trials"

From the Evansville Courier & Press today, this story reported by Mark Wilson:

EVANSVILLE - The appeal of a Vanderburgh County methamphetamine dealing conviction could set a precedent for the use of pseudoephedrine purchase logs as evidence in Indiana.

The Indiana Supreme Court will hear oral arguments in the case on Thursday in Indianapolis. [ILB: Montgomery v. State, check here for videocast]

At issue is whether admission of National Precursor Log Exchange records violates a defendant's right to confront witnesses and evidence under the Sixth Amendment of the U.S. Constitution.

Robin Eugene Montgomery, 57, of Newburgh, was convicted of dealing methamphetamine and other charges in a March 2014 jury trial in Vanderburgh Superior Court. He was sentenced to 12 years in prison.

Montgomery appealed his conviction on several issues, including the admission of the precursor log records. An Indiana Court of appeals panel ruled against Montgomery in December.

However, the state Supreme Court took up the issue of the log's admissibility — and vacated the appeals court ruling — because it is a question of law that has never been considered before in Indiana.

Pseudoephedrine from over-the-counter medications is used to make methamphetamine. Indiana law requires retailers to keep sales records of such medications, which is then shared with state police.

The Sixth Amendment guarantees the rights of criminal defendants, including the right to confront witnesses. Because of this, out-court-statements are barred from being used as testimony if the person making it is unavailable and the defendant has not had the chance to cross-examine the witness before the statement is admitted as evidence, according to the appeals Court ruling.

The appeals court ruling sided with prosecutors, saying that it had previously ruled in other cases that National Precursor Log Exchange records qualified as business records. As such, according to the appeals court, they could be admitted as evidence because they were created for administrative use and not for proving something at a trial — a ruling the appeals court ruling said was consistent with federal court rulings.

Montgomery's appeal argues that the precursor logs should not qualify as business records because they were not used for any legitimate business purpose — something the appeals court disagreed with.

Posted by Marcia Oddi on Tuesday, May 05, 2015
Posted to Indiana Decisions

Ind. Gov't. - How the farm industry fared in the 2015 session [Updated]

From Hoosier Ag Today, a story by Andy Eubanl headed "Some Farm Bureau Wins during 2015 Indiana Session."

From AgriNews, this story by Erica Quinlan that begins: "For Indiana Farm Bureau, the session ended on a high note, with progress being made on several key issues."

“The 2015 session of the Indiana General Assembly was a very successful one for Indiana Farm Bureau and its farmer members,” said Don Villwock, INFB president. “We were able to gain significant victories in each of our four legislative priorities: farmland taxes, forced annexation, water resources and the state budget.”
[Updated at 4:03 PM] Dan Carden of the NWI Times reports this afternoon:
... Gov. Mike Pence has signed legislation creating a state-run news service for farm commodity prices.

House Enrolled Act 1170, which takes effect July 1, permits Pence's Department of Agriculture to operate a market news service pilot program intended to provide Hoosier farmers unbiased reports on the prices paid for their products in different regions of the state.

Posted by Marcia Oddi on Tuesday, May 05, 2015
Posted to Indiana Government

Ind. Gov't. - "Lawmaking Behind Closed Doors Under Fire in States "

From the May issue of Governing, a story by Alan Greenblatt. Some quotes:

It’s sometimes easier and more efficient to make decisions at informal meetings, but that doesn’t mean it’s necessarily a good idea to do things that way -- particularly for people in government.

Until recently, most committees in the Tennessee House held “pre-meetings,” where legislators would discuss issues and take vote tallies. All of this took place sometimes minutes before matters were officially decided at hearings. Members of the press and the public were not welcome. * * *

It’s hard to argue against transparency, yet there are constantly efforts to weaken public record and open meeting requirements, or work around them. * * *

But there’s a reason they call it public office. Even with public access, it’s tough to know when lawmakers are trading favors or arranging sweetheart deals. Without it, forget it.

Even states with strict access laws sometimes have glaring loopholes. In keeping with its nickname, Florida has some of the strongest sunshine laws in the country. But legislators often find ways around such requirements. Anytime three or more legislators meet, they have to announce that fact and do so in public. But that only applies to prearranged meetings. If a few legislators happen to bump into one another in the hallways, why, they can sit and talk a while without alerting the press.

Posted by Marcia Oddi on Tuesday, May 05, 2015
Posted to Indiana Government

Ind. Gov't. - What happened re the taxation of big box stores during this General Assembly

The ILB has several posts earlier this year on the appraisal/assessment of big box stores. This Jan. 29th story by Rachel Bunn has in the Bloomington Herald-Times about the Dec. 1 and Dec. 31 Indiana Tax Board rulings in Meijer and Kohl's gave a good overview.

Language addressing the issue eventually was agreed to by the CCR on SB 436. SEA 436, SECTION 8 [p. 8], adding a new IC 6-1.1-4-43, and et seq, now address the issue. They are retroactive to March 1, 2014.

As for exactly what they do ...

Posted by Marcia Oddi on Tuesday, May 05, 2015
Posted to Indiana Government

Courts - New specialized intermediate courts contemplated in several states

Supplementing this April 29th ILB post on specialized courts, Gavel to Gavel reported April 30th that:

Legislatures in three states are now debating creation of special intermediate appellate courts (IACs), or divisions of existing IACs, to handle business and tax matters.
ILB: It is interesting to read about the various approaches. Indiana currently has one specialized intermediate court, the Indiana Tax Court, which will be the subject of a study during the coming year.

Posted by Marcia Oddi on Tuesday, May 05, 2015
Posted to Courts in general

Ind. Decisions - 7th Circuit decides one Indiana case May 4th

In USA v. Christopher Boultinghouse (SD Ind., Young), a 33-page opinion, Judge Rovner writes:

At the conclusion of a hearing at which defendant-appellant Christopher Boultinghouse waived his right to representation by counsel, the district court found that Boultinghouse had violated multiple conditions of his supervised release, revoked that release, and ordered him to serve an additional prison term of 24 months. Boultinghouse appeals, contending that the district court did not do enough to ensure that his decision to proceed without the assistance of counsel at the revocation hearing was sufficiently informed to constitute a knowing waiver, and that the court failed to articulate reasons for the sentence it imposed when it revoked his supervised release. We conclude that the totality of the circumstances, including the district court’s colloquy with Boultinghouse regarding his decision to proceed pro se, demonstrates that his waiver of representation by counsel was a knowing and intelligent decision as well as a voluntary one. As to the sentence, however, because the court gave no reasons for the term of imprisonment it imposed, we cannot be sure that it considered the statutory sentencing factors as it was required to do; we are therefore compelled to vacate the judgment and remand for resentencing.

Posted by Marcia Oddi on Tuesday, May 05, 2015
Posted to Ind. (7th Cir.) Decisions

Monday, May 04, 2015

Ind. Gov't. - "Pence ends Gary gun lawsuit"

Updating this ILB post from April 16th, Dan Carden of the NWI Times reports this evening:

Gov. Mike Pence rejected Gary Mayor Karen Freeman-Wilson's pleas for a veto and instead signed legislation Monday terminating the city's 1999 civil lawsuit against alleged participants in illegal gun sales.

Senate Enrolled Act 98 retroactively prohibits Gary from filing its court case seeking damages from various gun manufacturers and retailers.

In what must be one of the oddest effective dates in legislative history, the new law officially took effect Aug. 26, 1999, when Pence, the Republican who signed it, was a talk radio host and two-time failed congressional candidate still more than a decade away from becoming governor.

Freeman-Wilson, a Democrat who in 1999 was one year from becoming Indiana's attorney general, said such use of a retroactive law to interfere in a pending court case is unprecedented and violates the separation-of-powers between branches of government.

Supporters of the measure claim ending the lawsuit, which has idled in court for the past six years, will improve the state's perception as gun-friendly and perhaps lure gun manufacturers to locate in Indiana.

Posted by Marcia Oddi on Monday, May 04, 2015
Posted to Indiana Courts | Indiana Government

Law - What do the LaPorte County Convention & Vistors Bureau and candidate Carly Fiorina have in common?

The Court calendar indicates that the oral argument in Serenity Springs v. LaPorte County Convention & Vistors Bureau (ILB notice here), scheduled for this Thursday, has been cancelled. The docket does not so reflect, but this is the day the appellate docket is being duplicated on courts.com, so it may be behind. Regardless, we do not know right now any other details of the cancellation.

This is the case where the LaPorte County Convention and Visitors Bureau had held a press conference unveiling their new brand name, but when they went to register the domain name the next day, someone had beat them to it.

So the Bureau sued, and lost. It sued twice in appellate court. Then it appealed to the Supreme Court. (Some might have simply paid $10 for a new domain name.)

Serendipitously, the ILB just saw this story in Politico, headed "Carly Fiorina’s campaign mocked after not securing domain name." It begins:

A website attacking Carly Fiorina reinforced an important digital-age campaign lesson: Secure your domain names.

Carlyfiorina.org, a website that mocks the California Republican and former Hewlett-Packard CEO, begins with the line “Carly Fiorina failed to register this domain.”

Posted by Marcia Oddi on Monday, May 04, 2015
Posted to General Law Related

Ind. Law - Hands-free autos not illegal in most states

The NY Times had a long, front-page story Sunday by Aaron M. Kessler that reported:

The technology has sprinted ahead so fast that lawmakers and regulators are scrambling to catch up with features like hands-free driving that are now months away, rather than years. * * *

The vast majority of states do not have any rules at all. The few that do passed the laws primarily to allow research and testing. Only New York specifically requires that drivers keep one hand on the wheel, but that dates to a law from 1967.

As a result, automakers are pushing into a regulatory void.

“Where it’s not expressly prohibited, we would argue it’s allowed,” said Anna Schneider, vice president for governmental relations at Volkswagen, which owns Audi.

“We don’t need any change in legislation to put Super Cruise on the road,” said Dan Flores, a spokesman for General Motors. Tesla declined to comment on the issue. * * *

The National Highway Traffic Safety Administration says it lacks the authority to pre-empt automakers’ new autonomous features until something goes wrong.

“If someone wants to sell a totally automated vehicle today, you could probably get a court to decide there’s nothing N.H.T.S.A. can do about that until it presents an unreasonable risk to safety,” said an agency spokesman, Gordon Trowbridge.

Proving such an unreasonable risk to safety under the agency’s mandate, he said, means citing crashes or malfunctions that have already happened.

For now, that leaves a legal vacuum, which states only now are waking up to.

Posted by Marcia Oddi on Monday, May 04, 2015
Posted to Indiana Law

Courts - "Electronic record errors growing issue in med-mal lawsuits"

Arthur Allen of Politico has a long story today that begins:

Medical errors that can be traced to the automation of the U.S. health care system are increasingly an issue in medical malpractice lawsuits.

Some of the doctors, attorneys and health IT experts involved in the litigation fear that safety and data integrity problems could undercut the benefits of electronic health records unless HHS and Congress address them aggressively.

“This is kind of like the car industry in Detroit in 1965,” says physician Michael Victoroff, a liability expert and a critic of the federal program encouraging providers to adopt EHRs. “We’re making gigantic, horrendous, unsafe machines with no seat belts, and they are selling like hot cakes. But there’s no Ralph Nader saying, ‘Really?’” * * *

The lawsuits allege a broad range of mistakes and information gaps — typos that lead to medication errors; voice-recognition software that drops key words; doctors’ reliance on old or incorrect records; and nurses’ misinterpretation of drop-down menus, with errors inserted as a result in reports on patient status.

In addition, discrepancies between what doctors and nurses see on their computer screens and the printouts of electronic records that plaintiffs bring to court are leading some judges and juries to discredit provider testimony and hand out big awards. In one case, a patient in septic shock had suffered gangrene and a severe skin rash, but computer records read “skin normal.” They also showed repeated physician interviews with the patient — when she was comatose.

Posted by Marcia Oddi on Monday, May 04, 2015
Posted to Courts in general

Ind. Gov't. - "Rural Indiana Struggles With Drug-Fueled HIV Epidemic" and "Conservatives changed Pence's mind" [Updated]

First, here is the transcript of a story that aired on the the PBS NewsHour on May 1, 2015. Kaiser Health News correspondent Sarah Varney and PBS NewsHour producer Jason Kane travelled to Austin, Indiana, near the Kentucky border, to file the story. Here is how it ends:

SARAH VARNEY: Tammy Breeding homeschools her children. She says dealers sell drugs on her street and drug-addled prostitutes flag down cars. The sign on her lawn and the gun on her hip, she hopes, will warn them off.

TAMMY BREEDING: I’m taking back my community. I’m taking back my streets. If you don’t like it, take your drugs and take yourself and go elsewhere.

SARAH VARNEY: But that’s exactly what health officials fear — that infected addicts and even truckers traveling along Interstate 65 who hire local prostitutes will carry the virus far and wide. They’re worried it could spread quickly, because the same conditions here in Austin can be found in many towns across America.

In a story posted May 1, Maureen Hayden of CNHI reports on how "Conservatives changed Pence's mind." Some quotes [ILB emphasis]:
Gov. Mike Pence declared that the needle exchange measure passed in the waning hours of the legislative session “will save lives.” That’s a 180-degree turn from where he was weeks ago.

Even amid a sprawling outbreak of HIV in poor, rural Scott County that was fueled by intravenous drug use, Pence tried to shut down a needle exchange proposal by declaring his “long-standing” opposition to programs that provide clean needles to drug users.

Back then Pence insisted that a needle exchange aimed at curbing the spread of disease was a lousy drug policy.

By late Wednesday, when he pledged to sign the new bill, he’d reframed it as a wise health policy.

It took a chorus of voices, growing ever louder, to change his mind.

Back in early March, as HIV numbers spiked in Scott County, Pence stopped state health officials from distributing “harm reduction” kits stocked with needle-cleaning supplies such as bleach, cotton, and alcohol wipes.

By the end of the month, conservative Republicans from communities near the HIV epicenter had convinced him that the situation was dire enough to set aside ideology.

They pushed him to take a first step — declaring a 30-day emergency that cleared the way for a limited exchange in Scott County wherein health officials could get clean needles into the hands of HIV-infected drug users.

House Public Health Committee Chairman Ed Clere, R-New Albany, wanted more. He filed a measure to let local health officials expand needle exchanges to other communities where IV drug use is fueling a fast rise in Hepatitis C — a blood-borne disease that often accompanies HIV.

Key lawmakers joined him, including Senate Public Health Chairwoman Patricia Miller, R-Indianapolis, a staunch conservative trained as a nurse, and House Ways and Means Chairman Tim Brown, the Legislature’s only physician.

Still, there was resistance. Senate President David Long said Pence worried that if Indiana started giving out needles, it would be on a slippery slope to becoming like Denmark. That’s where the government allows local officials to open so-called consumption rooms where addicts can bring illegal drugs but use them, legally, under the watchful eye of a nurse.

Public health officials told the governor it didn’t have to be that way. They pointed to needle exchanges in the United States, endorsed by the Centers for Disease Control and Prevention, that successfully curbed the spread of HIV.

To counter Pence’s argument that needle exchanges enable drug users — an argument echoed by prosecutors — Republican Attorney General Greg Zoeller went public with his support.

“I’m not going to have anybody put to death with HIV just because they’ve broken the law,” said Zoeller. By the time he made that statement, he had been lobbying both lawmakers and the governor’s staff to support Clere’s needle exchange bill.

When the final vote came, supporters had assuaged many of their colleagues’ aversion to a policy that puts needles in the hands – and arms – of illegal drug users. The House voted 80-19 for it. The Senate approved it on a 38-11 vote.

Clere says the negotiated version of the bill isn't perfect: It makes local health departments convince their elected leaders to seek permission from the state public health commissioner to launch a needle exchange. He worries some of those officials may be as hard to convince as Pence was.

Still, Clere sees it as a major move forward in recognizing the perilous public health issues that the state faces.

Last week, more than 140 confirmed cases of HIV were tied to the Scott County outbreak. Without widespread HIV testing, health officials acknowledged they didn’t really know how far the epidemic has spread.

“I hate that it took a crisis to force this discussion,” Clere said. “But I’m glad we were finally able to have it.”

[Updated] Here is the long, NY Times story from which the heading to this post is taken. The reporter is Abby Goodnough.

Posted by Marcia Oddi on Monday, May 04, 2015
Posted to Indiana Government

Ind. Gov't. - Focus on the just-ended 2015 legislative session

Here are some wrap-ups of the 2015 General Assembly:

Here are some stories and editorials with special focus:

Posted by Marcia Oddi on Monday, May 04, 2015
Posted to Indiana Government

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

From Sunday, March 7, 2015:

From Saturday, March 7, 2015: From late Friday, March 6, 2015:

Posted by Marcia Oddi on Monday, May 04, 2015
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next [NOW CURRENT]

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

Thursday, May 7

Next week's oral arguments before the Supreme Court (week of 5/11/15):

Webcasts of Supreme Court oral arguments are available here.


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

Wednesday, May 6

Next week's oral arguments before the Court of Appeals (week of 5/11/15):

Thursday, May 14

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

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


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

Posted by Marcia Oddi on Monday, May 04, 2015
Posted to Upcoming Oral Arguments

Sunday, May 03, 2015

Ind. Decisions - "The case of Purvi Patel: Should a pregnant woman be charged with feticide?"

Jill Disis of the Indianapolis Star takes an excellent, in-depth look today at the facts and issues behind the St. Joseph trial court decision that is now being appealed. The subhead:"A woman’s conviction and 20-year sentence under Indiana’s feticide law is raising questions about how much control women should have during their pregnancies, and whether they can be charged with a crime when something goes wrong." A few quotes from the lengthy story:

On Feb. 3, Patel became the first Indiana woman to be convicted of feticide in connection with her own miscarriage. Legal experts say her 20-year sentence for feticide and neglect of a dependent add up to one of the most severe penalties an American woman has faced for aborting her own pregnancy.

Anti-abortion activists have shown little interest in the case. But Patel’s feticide conviction under a state statute adopted in 1979 to fight illegal abortion clinics is raising questions among legal scholars, medical examiners and women’s rights advocates about how much control women should have during their pregnancies, and whether they can be held criminally responsible when something goes wrong.

“It’s troubling for a few reasons,” said David Orentlicher, a professor at the Robert H. McKinney School of Law in Indianapolis who studies health care law. “What it says is that women have to worry that if they do something that might be viewed as something harmful to their fetus, they could have a prosecutor come in.”

Is a pregnant woman who smokes vulnerable to prosecution? Or one who drinks? Or one who falls in a skiing accident? What if she had previously expressed reservations about her pregnancy? * * *

A big question surrounding the law is whether it was ever intended to be applied to pregnant women.

Laws criminalizing self-abortion date back to the late 1800s, when such an offense was classified as a misdemeanor.

Kate Jack, an Indiana-based lawyer who provides local counsel for the National Advocates for Pregnant Women, said she was unable to find any instances of a woman being prosecuted under that law. And the law was repealed in 1977 in Indiana, five years after Roe v. Wade established that women had a right to have an abortion under the 14th Amendment’s due process clause.

Two years later, Indiana’s feticide statute was passed. The law made it a crime to “knowingly or intentionally” end a pregnancy with a goal other than to produce a live birth or to remove a dead fetus, with an exception for legal abortions.

The statute makes no specific reference to women who abort their pregnancies.

Jack and others say the law was originally intended to target illegal abortion providers.

And as late as 1988, law enforcement officials were concerned the law could not be used to prosecute a man who punched his pregnant wife in the stomach, causing the loss of her child.

“I thought there would be a statute applicable to the case,” Greenfield Police Detective Jack Heiden told The Indianapolis News in June 1988. “But when we began researching it, it became clear there wasn’t, except for feticide, which really doesn’t address an individual. It’s basically for doctors.”

In 1992, the Indiana Supreme Court ruled that a Montgomery County man could be charged with feticide for strangling his pregnant wife, despite the man’s argument that the law was intended to punish those who perform illegal abortions.

“A proper construction of the feticide statute, therefore, requires that it be viewed not as an illegal abortion statute, but as an extension of the laws of homicide to cover the situation in which the victim is not a ‘human being’ ” as already defined by state law, “but a fetus,” the court wrote.

In what later became perhaps the most famous application of the state’s feticide statute against a third-party attacker, an Indianapolis man was convicted of feticide and attempted murder for shooting a pregnant bank teller during a 2008 bank robbery.

The man’s feticide conviction was eventually tossed out by the Indiana Court of Appeals after the court ruled his conviction of both attempted murder and feticide conflicted with the state’s double jeopardy law. But the case still prompted a review of the feticide penalties by state lawmakers, who changed feticide from a Class C to a Class B felony — a move that increased the maximum penalty to 20 years in prison.

A first under the feticide law

The first Indiana woman charged under the feticide statute in the death of her own child was Bei Bei Shuai, a Shanghai native living in Indianapolis. She tried to kill herself by ingesting rat poison in 2010. Shuai survived, but the baby she was carrying died two days after being delivered via cesarean section.

Shuai’s attorneys asked the Indiana Court of Appeals to drop the charges, arguing that for the state’s murder and feticide statutes to apply to a pregnant woman, the language would have to explicitly reference them.

In a 2-1 decision, the appellate court rejected that argument and allowed the state to continue pursuing the case.

But that court never directly addressed whether using the feticide statute against a pregnant woman violated her constitutional rights. Had Shuai been convicted, that issue might have been clarified on appeal. But she pleaded guilty to a lesser charge, resolving her criminal case, but leaving the broader issues unresolved.

“They specifically side-stepped the constitutional issue,” said Linda Pence, an Indianapolis attorney who represented Shuai. “The courts are now going to have to address that constitutional issue. They’re faced with a woman who has now been sentenced to 20 years imprisonment for her conduct while pregnant.”

Posted by Marcia Oddi on Sunday, May 03, 2015
Posted to Ind. Trial Ct. Decisions

Law - "The never-aging (and ever-costly) story of ever-aging US prison populations"

Sentencing Law Blog today links to a long, powerful Washington Post story headed ThePainful Price of Aging in Prison: Even as harsh sentences are reconsidered, the financial — and human — tolls mount." The blog also links to a number of other related posts.

Posted by Marcia Oddi on Sunday, May 03, 2015
Posted to General Law Related

Ind. Decisions - 7th Circuit decides one Indiana-related case on May 1st [Updated several times]

In Bruce Carneil Webster v. Charles A. Daniels (SD Ind., Lawrence), a 62-page, 6-5 en banc decision, Chief Judge Wood writes:

Since 1948, federal prisoners who contend that they were convicted or sentenced in violation of the Constitution or laws of the United States have been required in most cases to present that claim through a motion under 28 U.S.C. § 2255. The motion must be filed in the district of conviction. As a rule, the remedy afforded by section 2255 functions as an effective substitute for the writ of habeas corpus that it largely replaced. See 28 U.S.C. § 2241; United States v. Hayman, 342 U.S. 205 (1952). But Congress recognized that there might be occasional cases in which “the remedy by motion is inadequate or ineffective to test the le-gality of [the applicant’s] detention.” 28 U.S.C. § 2255(e). The question before us is whether petitioner Bruce Webster has presented such a case. If so, then he may proceed to the merits of his petition; if not, then his case must be dismissed at the threshold. * * *

Webster is now seeking the opportunity to present newly discovered evidence that would demonstrate that he is categorically and constitutionally ineligible for the death penalty under the Supreme Court’s decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and Hall. A panel of this court concluded that new evidence can never satisfy the demanding standard of section 2255(e) and thus that Webster cannot be heard. Webster v. Caraway, 761 F.3d 764 (7th Cir. 2014) (Webster IV). In light of the importance of the question, the full court decided to rehear the case en banc. We conclude that there is no such absolute bar to the use of the safety valve found in section 2255(e) for new evidence that would demonstrate categorical ineligibility for the death penalty. We therefore reverse the district court’s judgment and remand for further proceedings.

ILB Question: The opinion lists the participating judges as WOOD, Chief Judge, and BAUER, POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges. That makes ELEVEN. Then how did the recent en banc voter ID ruling tie at 5-5? (Actually, it appears the 5-5 vote was on a motion to rehear, enbanc, but still ...).

[More] Sentencing Law Blog has a May 1st post that begins:

If you love to spend a spring weekend thinking through the statutes and policies that govern federal collateral review of federal death sentences — and really, who doesn't? — then the en banc Seventh Circuit has a great ruling for you.
[Updated at 1:42] A reader has answered the en banc question, responding:
Judge Bauer is a senior judge. He typically wouldn't sit on en banc. But he must have been on the original 3 judge panel.
The ILB has now checked the Aug. 1, 2014 opinion and indeed, Bauer was on the panel, along with Easterbrook and Sykes.

[Updated again at 1:49] Another reader adds:

In this case, Judge Bauer was on the original panel, see Webster v. Caraway, 761 F.3d 764 (7th Cir. 2014), vacated, and also sat with the court en banc. A few years ago, both Judge Manion and Judge Ripple had been on the panel and then sat en banc, so there was a 12-member court. See Killian v. Concert Health Plan, 742 F.3d 651 (7th Cir. 2013) (en banc). In fact, Judge Ripple wrote the majority opinion and Judge Manion authored a dissent in that case.
[Updated again, on Mon. mornng]
Q - A reader writes: Tinder took senior status in Feb. How was it that he was able to participate in the en banc decision?

Answer from a reader: Re Tinder, did the vote on the en banc take place before he took senior status? If so, that'd make him eligible.

Posted by Marcia Oddi on Sunday, May 03, 2015
Posted to Ind. (7th Cir.) Decisions

Saturday, May 02, 2015

Ind. Gov't. - "Indiana candidates for governor oppose same-sex marriage"

That attention-grabbing headline is from a still-avilable May 10, 2012 story by Eric Bradner in the Evansville Courier & Press. It begins:

INDIANAPOLIS - Both the Democratic and Republican candidates for Indiana governor say they support a same-sex marriage ban that state legislators could be poised to amend into Indiana's constitution.

Their stances would put Indiana on the same page as North Carolina, where voters approved such an amendment on Tuesday, but out of step with President Barack Obama, who said Wednesday that he supports same-sex marriage rights.

Democratic former Indiana House Speaker John Gregg and Republican U.S. Rep. Mike Pence took slightly different tacks on the issue, but said they do not oppose an amendment that state lawmakers have taken the first of three necessary steps toward giving final approval.

"Mike Pence believes that marriage should be defined as the union between one man and one woman and will continue to support efforts to defend traditional marriage in Indiana," said Pence campaign spokeswoman Christy Denault.

Gregg's campaign said he, too, opposes same-sex marriage, and personally supports the amendment, though he'd like to see lawmakers just drop the issue as a policy matter.

"John believes that everyone should be treated with respect and dignity. However, he also believes that marriage is between a man and a woman and does not support legalizing gay marriage," said Gregg campaign spokeswoman Megan Jacobs. * * *

"John's record is clear, he has always been opposed to gay marriage. As speaker of the House, John supported legislation to define marriage as between a man and a woman, and continues to support traditional marriage," Jacobs said.

Posted by Marcia Oddi on Saturday, May 02, 2015
Posted to Indiana Government

Friday, May 01, 2015

Ind. Law - "Indiana Tech Law School fails in first bid for accreditation"

The ILB has had many posts on the progress of the newish Indiana Tech Law School, located in Fort Wayne. Today Kevin Leininger of The Fort Wayne News-Sentinel reports:

An American Bar Association committee has recommended against accreditation for Indiana Tech's two-year-old law school, but officials [of Ind. Tech] say the decision was not unusual and should represent only a temporary setback. * * *

"There's no reason to believe (we can't be accredited) by commencement 2016." That's important, because some [most] states, including Indiana, do not allow students from non-accredited schools to take the bar examination necessary to practice law. But [Matt Bair, Indiana Tech director of marketing and communications] said the school isn't "anticipating a negative impact." * * *

Law schools cannot seek accreditation until their second year of operation, but Indiana Tech's school had faced challenges even before the committee's recommendation. The school has room for 350 students and expected about 100 in its first class, but enrolled only 28. Since then, however, enrollment has more than doubled to 59. And its first dean, Peter Alendander, resigned in May 2014 and was succeeded by Charles Cercone last December. When Cercone took the job, Indiana Tech President Arthur Snyder praised interim Dean dre cummings for "preparing an effective and exhaustive self-study for ABA accreditation" school officials hoped would result in accreditation this spring.

Some critics have also accused the school of adding to an already oversaturated legal market. First-year law-school enrollments have dropped almost 28 percent since 2010 to their lowest level since 1973, according to the ABA -- even though there are 53 more law schools now. Starting salaries for attorneys have also declined and 22 percent of 2013 law-school graduates had not found legal work within nine months compared to 15 percent in 2007.

Bair, however, said the school remains determined -- and optimistic.

Posted by Marcia Oddi on Friday, May 01, 2015
Posted to Indiana Law

Ind. Law - Switchblade knives have been legal in Indiana for nearly 2 years

From the NY Times story this morning headed "Prosecutors Charge 6 Baltimore Officers in Freddie Gray Death":

The prosecutor also said that the officers who initially arrested Mr. Gray had done so illegally, without probable cause. Officers charged him with possession of a switchblade, but Ms. Mosby said, “The knife was not a switchblade and is lawful under Maryland law.”
Switchblade knives are legal in Indiana, as of July 1, 2013. See this June 5, 2013 ILB post.

Posted by Marcia Oddi on Friday, May 01, 2015
Posted to Indiana Law

Ind. Law - Indiana's AGI is again to be tied to the current IRS definition of adjusted gross income

A glance at the History Line at the end of IC 6-3-1-11 [scroll to p. 17] shows that, since it was enacted in 1963, the section has been amended nearly every year the General Assembly has been in session. The reason why was explained in this April 11, 2007 ILB post:

This section defines what the Indiana Code means when it references the federal "Internal Revenue Code." The federal law changes nearly every year.

Does a reference in Indiana law to the "Internal Revenue Code" incorporate all the latest changes made by Congress? Yes, but only because the Indiana law is routinely changed each year to reflect the most recent version of the IRC.

Why is that? Because the General Assembly cannot delegate its lawmaking authority to the federal government.

But in the 2014 session, although language to update the references in IC 6-3-1-11 to "Jan. 1, 2014" originally was included as SECTION 8 in HB 1380, on second reading in the Senate, Senator Brandt Hershman, the bill's sponsor, successfully offered a motion to delete SECTION 8.

So for the 2014 calendar year, and continuing through today, Indiana's definition of "AGI" has been tied to the 2013 version of the Internal Revenue Code. This will change when HEA 1492-2015, also sponsored by Sen. Hershman, becomes law. Its SECTION 15, updating the dates in IC 6-3-1-11 to "2015", is retroactive to January 1, 2015.

The rationale for last year's failure to incorporate the 2014 definition of AGI was a claim that it would allow same-sex couples to file joint returns. The ILB criticized that analysis in several posts, including this one from March 5, 2014 (which also suggested an alternative).

Posted by Marcia Oddi on Friday, May 01, 2015
Posted to Indiana Law

Ind. Gov't - "Balanced Budget Amendment Passes First Round In General Assembly"

A must-read in full article from Payne Horning of WFYI.

Here is the as-passed text of the proposed constitutional amendment - SJR 19.

Posted by Marcia Oddi on Friday, May 01, 2015
Posted to Indiana Government

Ind. Gov't. - Legislators must clarify records law re private university police reports

Updating earlier posts (4/20 and 4/26) on ESPN's lawsuit over access to the reports of the Notre Dame police, the South Bend Tribune ran a long editorial on April 30th headed "Our Opinion: Legislators must clarify records law." Some quotes:

The Indiana General Assembly should make amending the state’s public records law a priority as it applies to private university police departments when it convenes next year.

The right to inspect reports of a private university’s police department — reports that otherwise would be released by police at public universities — became an issue this year when ESPN and one of its reporters filed a lawsuit in St. Joseph Superior Court after Notre Dame declined to provide campus police records related to student athletes.

The Tribune also has sought information from campus police reports, but has been turned away on several occasions in the past. Most recently The Tribune sought information from a Sept. 6, 2014, incident in which a man was critically injured while falling down a stairwell at the university’s Main Building.

Regarding the ESPN lawsuit, St. Joseph Superior Judge Steven Hostetler ruled Notre Dame does not need to make its police records public, but noted in his ruling that “Perhaps this case will cause the Indiana Legislature to consider this important matter.” * * *

We think now is the perfect opportunity for the General Assembly to take this confusing issue out of the hands of the court and write a law that once and for all decides the status of private university police departments when it comes to disclosing certain police reports.

By revisiting the APRA, the General Assembly will create a better public records law that applies equally to every university police department in the state, both private and public. There should be no confusion as to what the public has the right to know.

Posted by Marcia Oddi on Friday, May 01, 2015
Posted to Indiana Government

Law - What is the potential impact of Rolling Stone’s faulty, high profile reporting of campus sexual assault allegations?

That is the title of a good, just-posted article by Margaret Christensen and Brian W. Welch of Bingham Greenbaume Doll that begins:

It’s hard to overstate the damage done by Rolling Stone’s failure to pass almost every test of journalistic competence in publishing its article “A Rape on Campus” about the alleged rape of a female student at the University of Virginia.

As revealed by the subsequent review by the Columbia University Graduate School of Journalism, Rolling Stone failed to follow the most basic principles of investigative reporting—“the magazine set aside or rationalized as unnecessary essential practices of reporting . . . ,” and in so doing, further complicated an already complicated environment to the great detriment of victims, perpetrators and universities trying to deal with sexual violence on their campuses.

The article, which was rescinded by Rolling Stone earlier this month, also exacerbates existing challenges faced by universities with Title IX obligations to maintain safe and secure campuses for all students. In our experience advising universities as they investigate sexual assault allegations and defending them in litigation related to such investigations, we have seen significant delay on the part of alleged victims in coming forward.

Posted by Marcia Oddi on Friday, May 01, 2015
Posted to General Law Related

Ind. Gov't. - More on "Do local laws really protect rights of LGBT Hoosiers?"

Updating this ILB post from April 5th, which included quotes from the IndyStar's Stephanie Wang's story, here is a long follow-up story by Wang from April 28th, headed "Expanding LGBT rights one Indiana city at a time." Some quotes:

The patchwork of protections reflects some uncertainty over what cities can do when the state civil rights law doesn’t include sexual orientation or gender identity. But experts say it could serve as a testing ground for possible proposals for a state law shielding sexual orientation and gender identity, and help advance the issue in next year’s legislative session.

“Nobody’s really sure how these are supposed to work, with the tension between the right to be free from discrimination and the religious sensibilities of store owners,” said Indiana University law professor Robert Katz. “And so it creates sort of a laboratory of different cities and counties trying to calibrate that balance.”

It was likely an unintended consequence of Indiana’s Religious Freedom Restoration Act, or RFRA, to bring about a push for LGBT rights. The “religious freedom” law was, in many ways, a response from conservative Christians who were losing ground in their opposition to same-sex marriage. * * *

Expanding local ordinances to include sexual orientation and gender identity is “very dangerous,” said Ron Johnson, executive director of the Indiana Pastors Alliance.

“When you put somebody’s sexual behavior and sexual choices on the same level as someone’s skin color, I think you’re making a huge jump,” Johnson said.

He said it was “tyranny” to have city ordinances that would force him to violate his beliefs: “It is absolutely diametrically opposed to religious freedom.”

Another RFRA supporter, Curt Smith of the Indiana Family Institute, has said nondiscrimination laws that include sexual orientation and gender identity would be “bad public policy” but declined to elaborate.

But several legal experts who supported RFRA said Indiana also should have statewide LGBT protections.

“The fact of the matter is — I find this problematic — if you’re not in a city that has an anti-discrimination rule for sexual orientation, the business is not required to avoid that discrimination,” IU law professor Daniel Conkle said last month. “That’s why, in my judgment, it’s good to have a statewide anti-discrimination rule, which we currently do not have.”

With many lawmakers unwilling this year to consider expanding the state’s civil rights law — or to write such a broad provision into RFRA — some cities, such as Richmond, are uncertain and holding back on local changes.

“We don’t want anything that would just fill the courts with problems that would just be kicked back to us because it’s unenforceable,” said Richmond City Council President Ronald Oler.

He said he would be interested in revising the city’s rules — “I want us to be clear that we don’t discriminate for any reason” — but is waiting for the legal department’s advice.

But other cities are taking it upon themselves to pass local measures, with city officials saying they want to combat the perception left by RFRA that Indiana is unwelcoming, attract businesses and lure talented workers.

“Given the national climate and outcry against this law that the state passed, we wanted to make it perfectly clear that the city of Hammond, Indiana, has no intention of discriminating in any way,” said Hammond City Council member Janet Venecz, who last month authored the addition of sexual orientation and gender identity to the city’s human rights ordinance.

Related is this lengthy, April 22nd story from Vox, titled "Why it's legal to fire someone for being gay in 28 states." Reported by German Lopez, it begins:
In most states, a landlord can evict someone simply because he is gay — and it would be totally legal to do so.

The cause isn't a religious freedom law like the one that triggered a national firestorm in Indiana, which critics said would enable discrimination on religious grounds. Instead, 31 states, including Indiana, have long allowed discrimination against LGBT people because they don't include sexual orientation or gender identity in existing civil rights statutes. In these states, it's not religious freedom laws that allow discrimination; it's the lack of civil rights laws.

"If there's a 'license to discriminate,'" Robin Wilson, a law professor at the University of Illinois who helped write Utah's nondiscrimination law, said, "it's the fact that the state hasn't said this is an unacceptable basis for saying no to people."

Posted by Marcia Oddi on Friday, May 01, 2015
Posted to Indiana Government

Courts - More on: Courts - Wisconsin Chief Justice resists efforts to remove her from position as CJ

Updating this ILB post from April 10th, the Milwaukee Journal Sentinel reported April 29th, in a lengthy story written by Patrick Marley, that:

Madison — Conservatives on the Wisconsin Supreme Court picked Justice Patience Roggensack as their new leader Wednesday, dumping longtime Chief Justice Shirley Abrahamson after voters approved changing how the head of the court is selected.

Four justices on the seven-member court voted to put Roggensack in charge just hours after state election officials certified the April 7 referendum results, allowing court members to choose the chief justice. For the past 126 years, the state constitution had the most senior member of the court serve as chief justice.

The vote for Roggensack comes at a time when the court has been roiled by ideological and personal differences, and as Abrahamson has pursued litigation to remain chief justice until her elected term ends in 2019.

Her lawsuit, filed the day after voters approved the constitutional amendment, contends it would violate her rights to due process and equal protection under the law if her time as chief justice were cut short. * * *

U.S. District Judge James Peterson has twice declined to block the state Supreme Court from choosing a new chief justice while Abrahamson's case continues. He said last week that he hoped to resolve the case quickly but that it was up to the justices to decide what to do in the meantime.

With the certification of the vote Wednesday, the justices had their first shot at selecting a new chief justice. They acted swiftly, beginning their email vote almost immediately.

Posted by Marcia Oddi on Friday, May 01, 2015
Posted to Courts in general