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Tuesday, June 30, 2015

Ind. Courts - A Look at the Indiana Supreme Court’s June Opinions

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

Updating this post from June 16, the Indiana Supreme Court issued three of the eight oldest cases on its docket in the second half of the month: two life without parole cases (Lewis and Satterfield) and the no-oral-argument plea agreement case (Russell). The following five cases argued in February or earlier remain pending:

Criminal Cases (4)

Civil Cases (1) As explained in the June 16 post, the Indiana Supreme Court does not operate on a term like the U.S. Supreme Court. It is not required, or expected, to issue opinions in all argued cases by the end of June. The following table includes a wealth of information about the Court’s twelve opinions issued in June. (I plan to compile and share the same information for the entire year soon.)

Six opinions were in civil cases, and six were in criminal cases. Two of the criminal cases were direct appeals to the Supreme Court because the sentence was life without parole.

The Wait for an Opinion: By the Numbers

It took an average of about eight months (233 days) from the time a case arrived at the Court until an opinion was issued. Of that time period:

The Path to an Opinion

Most of the June cases followed the conventional path of being discussed at the Court’s weekly conference, followed quickly by an order granting transfer, and (usually days later) an order scheduling oral argument. In Stafford, though, the justices scheduled argument to decide whether to grant transfer and then issued an order the afternoon of the argument granting transfer. In Kramer and Smith, the justices heard argument on whether to grant transfer but took no action until entering an order granting transfer the same day the opinion was issued. That state of limbo—three months in Smith and nearly nine months in Kramer—can be difficult to explain to clients. Although one expects the Court to issue an opinion in a case if transfer is not denied shortly after oral argument, the justices occasionally deny transfer months after hearing oral argument, perhaps with one or two justices expressing their dissenting view. As in Thompson last month.

No oral argument was held in three cases. Miller and Celebration are understandable. Each addressed a narrow issue on which the justices were in unanimous agreement. Russell is somewhat surprising, as the justices took nearly a year to issue an opinion, in which Justice Massa dissented and Chief Justice Rush concurred only in the result. Although it appears the defense and State were on the same side (arguing for reversal of the Court of Appeals and upholding the enforceability of the plea agreement they negotiated in the trial court), the U.S. Supreme Court sometimes appoints counsel to argue “orphaned positions.” As a 2010 NYT article explains, former Supreme Court clerks are often assigned the task, which is seen as “an incredible honor and not something you say no to.”

Although an opinion was certainly expected in Russell because transfer was granted, it likely came as a bit of a surprise in Miller and Celebration, where the relatively short delay (69 and 104 days) would not signal to the lawyers that the justices were crafting and would soon issue an opinion—with none of the more common prefatory signs of an order granting transfer or order scheduling argument.

Transfer Seldom Granted to Affirm the Court of Appeals

The principal grounds for transfer in Appellate Rule 57(H) include such things as conflicts in Court of Appeals’ opinions. Thus, the justices will sometimes grant transfer to reach the same result the Court of Appeals, agreeing with the panel in the case before it and overruling the conflicting opinion(s). But in June, as in previous posts on this topic, most opinions reach the opposite result from the Court of Appeals. Of the ten transfer opinions, the Supreme Court reached the same result as the Court of Appeals in just two cases and agreed in part in one other—or 25% affirmance of the Court of Appeals on issues addressed on transfer.

Trial courts fare much better. The Supreme Court affirmed the trial court in seven and a half of the ten transfer cases. The justices affirmed the trial court in both LWOP cases, except for a limited remand in Lewis for a new sentencing order.

Unanimity Reigns

Ten of the twelve opinions (83%) were unanimous, which is consistent with a high percentage of unanimous opinions since Chief Justice Rush joined the Court in late 2012. The only dissents were in Kramer v. Catholic Charities (Justice Dickson) and Russell v. State (Justice Massa). Yes, Republican-appointed justices disagreed with opinions written by other Republican-appointed justices. The sole justice appointed by a Democratic governor was not the odd man out. As I’ve written before, the Indiana Supreme Court is not a partisan court, which was proven true again in June and hopefully continues in the future.

Posted by Marcia Oddi on Tuesday, June 30, 2015
Posted to Indiana Courts | Schumm - Commentary

Ind. Gov't. - "Court should stay out of legislative matter, GA motion says"

Niki Kelly of the Fort Wayne Journal Gazette has posted a story referencing the court filing the ILB posted earlier this afternoon. Some quotes from the story:

INDIANAPOLIS -- Indiana courts have no business deciding disputes involving the Indiana House, according to a motion filed in a lawsuit about the House's attempts to conceal legislator communications.

Indianapolis attorney Geoffrey Slaughter filed a motion to dismiss the case Friday.

"Under separation of powers principles, courts are not to meddle in the affairs of an equal, coordinate branch of state government," the court records said.

"The General Assembly chose to apply the public records act to certain legislative bodies, including itself. But this statutory enactment is legally insufficient to overcome the separation of powers limitation on the court's ability to grant plaintiffs relief."

The documents said "mere statutes cannot trump the judiciary's constitutional obligation" to refrain from getting involved in legislative affairs.

The motion is the latest in a case filed in April by the Citizens Action Coalition of Indiana, Energy and Policy Institute and Common Cause Indiana. They sued about a public records request for correspondence between Republican Rep. Eric Koch and various utilities regarding a bill about solar power. * * *

The motion to dismiss also cautioned that opening up legislator communications would interfere with their ability to enact laws.

"Nothing is more fundamental to a legislator's central role than his considering ideas for proposed legislation, weighting their merits and de-merits, hearing from those likely to be affected, and then undertaking to transform worthy concepts into specific legislative text," the motion said. "Each of these steps entails communications with others, sometimes many others, including but not limited to one's colleagues, constituents and staff."

Slaughter argued in his brief the long-standing practice of treating correspondence as confidential is a common-sense approach to fostering open communications.

Any change "would have the effect of stifling the very communications with and between legislators that are essential to the legislative process and that are fundamental to citizens exercising their First Amendment right to petition the government for redress of grievances."

Posted by Marcia Oddi on Tuesday, June 30, 2015
Posted to GA and APRA | Indiana Government

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

In David Lawson v. Sun Microsystems, Inc. (SD Ind., Young), a 21-page opinion, Judge Sykes writes:

David Lawson sold computer maintenance and support services for StorageTek, Inc., mostly to large corporations. He was paid a base salary and commissions on his sales under an annual incentive plan promulgated by the company. Sun Microsystems, Inc., acquired StorageTek in August 2005. At the time Lawson was working on a large sale to JPMorgan Chase & Co., but the deal did not close until March 2006. If StorageTek’s 2005 incentive plan applied, Lawson would earn a seven-figure commission, perhaps as high as $1.8 million. If instead the sale fell under Sun’s 2006 incentive plan, his commission would be far less—about $54,000. Sun determined that the 2006 plan applied and tendered the lower commission. Lawson refused it and sued for breach of contract and violation of Indiana’s Wage Claim Statute. He argued that the 2005 plan continued in effect through at least March 2006, when the JPMorgan Chase deal was finalized.

The district court rejected the statutory wage claim but submitted the contract claim to a jury, which found in favor of Lawson and awarded $1.5 million in damages. Sun appealed, and Lawson cross-appealed to challenge the district court’s ruling on the statutory claim.

We reverse and remand with instructions to enter judgment for Sun. The sale did not qualify for a commission under the terms of the 2005 plan. Although the original plan documents said the plan would remain in effect until superseded by a new one, a September 2005 amendment set a definite termination date for the plan year: December 25, 2005. To earn a commission under the 2005 plan, sales had to be final and invoiced by that date. Because Lawson’s sale wasn’t finalized and invoiced until March 2006, Sun is entitled to judgment as a matter of law. This conclusion necessarily defeats the cross-appeal. * * *

In sum, the JPMorgan Chase sale unambiguously did not qualify for a commission under the 2005 plan. And because Lawson was not entitled to a commission under the 2005 plan, his claim for unpaid wages under the Indiana Wage Claims Statute necessarily fails.

Accordingly, we REVERSE the district court’s judgment and REMAND with instructions to enter judgment for Sun.

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

Ind. Gov't. - The General Assembly and the APRA

The ILB recently has had a number of posts on the issue of public access to e-mails and other records of the Indiana General Assembly.

The most recent line involves reporter Niki Kelly's now much republished June 24th story from the Fort Wayne Journal Gazette, which was headed "House brings in lawyer for fight over records." This was followed the next day by a Dave Bangert Journal&Courier column headed "$440/hour to defend this guy’s secrets." See also this June 1 post, Masariu General Assembly lacks policy on accessible records," also quoting a story by Kelly.

This April 15th ILB post is titled "Lawsuit filed for certain House Republican caucus emails." It includes a link to the complaint in the lawsuit filed by "Citizens Action Coalition (CAC), Common Cause Indiana, and the Energy and Policy Institute (EPI) in Marion County Circuit/Superior Court against the Indiana House Republican Caucus and State Rep. Eric Koch (R, Bedford) for violating the Indiana Access to Public Records Act (APRA)," plus a number of background links, inclding to rulings of the Public Access Counselor. It was followed on April 28th by this post quoting stories detailing how "A last-minute push to protect state lawmakers from having to disclose public records, including their emails and other documents, has stalled, but is likely to resurface next year."

But instead, as reporter Kelly wrote on June 1st:

[J]ust after session ended in late April, the House came out with an updated work product definition that appears to cover any and all communications of any kind.

“Work product of the individual members, the staff and officers of the House of Representatives includes but is not limited to, documents, notes, or other writing or records, in any form, composed, edited, or modified by members, staff or officers of the House and any communications that are made or received by means of electronic mail, voice mail, text messaging, paper or video audio recording or in any other form.”

The Senate did not make changes to its rules or definition.

Bosma’s spokeswoman, Tory Flynn, declined to explain the definition or give examples of things that would not be covered by the definition.

So today the ILB has obtained copies of several documents:To more readily locate all the posts relating to the General Assembly and the Access to Public Records Act, the ILB is creating a new category, GA and APRA.

Posted by Marcia Oddi on Tuesday, June 30, 2015
Posted to GA and APRA | Indiana Government

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 29 NFP memorandum decisions)

For publication opinions today (6):

In Wilmington Savings Fund Society, FSB, Not In Its Individual Capacity But Solely as Trustee for the Primestar-H Fund I Trust v. Ty Bowling and Asset Acceptance, LLC, a 9-page opinion, Sr. Judge Garrard writes:

Ty Bowling executed a promissory note and secured the note by executing a mortgage on property located in Madison, Indiana. He later defaulted on the note. A complaint was filed naming Bowling and a judgment lien holder, Asset Acceptance, LLC, as defendants to the action. Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Trustee for the Prime Star-H Fund I Trust, brings this interlocutory appeal from the trial court’s order granting partial summary judgment in favor of Wilmington on the issue of enforcement of the note but finding genuine issues of material fact existed precluding entry of summary judgment on the mortgage foreclosure. We affirm. * * *

The trial court did not err by denying summary judgment on foreclosure of the mortgage and granting it on the note.

In Tikidanke Bah v. Mac's Convenience Stores, LLC d/b/a Circle K and David Ruffin , a 25-page, 2-1 opinion, Judge Crone writes:
Tikidanke Bah was a store manager for Mac’s Convenience Stores, LLC d/b/a Circle K (“Circle K”). Bah’s supervisor, David Ruffin, suspected that she had stolen money from the store, which she denied. Ruffin terminated Bah’s employment and contacted the police. The prosecutor charged Bah with theft. After a trial, the jury found her not guilty.

Bah filed a complaint against Circle K and Ruffin (collectively “Appellees”) asserting eight counts: false imprisonment, two counts of defamation, malicious prosecution, negligent supervision, vicarious liability, intentional infliction of emotional distress, and negligent infliction of emotional distress. Appellees filed a motion for summary judgment as to all eight counts as well as a motion to strike certain evidence designated by Bah. * * *

We affirm the trial court’s grant of summary judgment in Appellees’ favor on Bah’s claims for negligent supervision, negligent infliction of emotional distress, and malicious prosecution. As to the remaining claims, we reverse and remand for further proceedings.

Pyle, J., concurs.
Brown, J., dissents with opinion. [which begins, at p. 23] I concur with the majority as to its conclusions in Sections 1, 2.1, and 2.2, but respectfully dissent from its conclusion that the Appellees are not entitled to summary judgment on Bah’s remaining claims based on the qualified privilege defense.

In Lawrence J. Anderson v. State of Indiana , a 7-page opinion, Chief Judge Vaidik writes:
The Indiana Supreme Court has held that walking through an open door does not satisfy the “breaking” element of burglary—but opening an unlocked door does. In this case, the defendant “rushed” a victim to gain unauthorized entry into a dwelling when the door was voluntarily opened for another person whom the victim was expecting. We find that “rushing” someone to gain unauthorized entry is sufficient evidence of force used. Thus, we affirm the defendant’s conviction for Class A felony burglary.
In Scott Grundy v. State of Indiana , a 19-page opinion, Judge Najam writes:
Scott Grundy appeals his conviction for Aggravated Battery, a Class B felony, and his habitual offender adjudication. Grundy presents three issues for our review, which we revise and restate as:

1. Whether the State presented sufficient evidence to support his conviction.
2. Whether his sentence is inappropriate in light of the nature of the offense and his character.
3. Whether the trial court erred when it enhanced his sentence under the prior version of the habitual offender statute.

We affirm Grundy’s conviction and his sentence, and we hold that the July 1, 2014, revisions to the habitual offender statute, Indiana Code Section 35-50-2-8, do not apply retroactively to offenses committed prior to the effective date of our new criminal code.

In Saundra S. Wahl v. State of Indiana, a 30-page, 2-1 opinion involving a daycare facility, Judge Riley concludes:
Based on the foregoing, we conclude that (1) there was sufficient evidence to support Wahl’s conviction for involuntary manslaughter; (2) the trial court did not abuse its discretion in denying Wahl’s motion to correct error based on jury misconduct; (3) Wahl’s sentence is appropriate; and (4) the trial court did not abuse its discretion in ordering restitution. Affirmed.

Barnes, J. concurs
Bailey, J. dissents with separate opinion [which begins, at p. 26] I respectfully dissent, because cumulative error denied Wahl a fair trial. I am convinced that the alternate juror crossed a line in his persistent efforts to influence the duly-selected jurors. Even more egregious, Wahl’s Involuntary Manslaughter conviction was achieved by merging regulatory concepts into the definition of recklessness as set forth by our Legislature in the Criminal Code. Administrative code provisions, State’s Exhibit 65, were submitted as “evidence.” The practical effect, however, was that the provisions were used to supplement the trial court’s instruction on the law and the jury was, in essence, invited to impose a form of strict criminal liability for a child care provider’s non-compliance with provisions of an administrative code. In light of the very tragic events, the jury complied.

In Daniel P. Wahl v. State of Indiana , a 24-page, 2-1 opinion in a case involving a daycare facility, Judge Riley concludes:
Based on the foregoing, we conclude that (1) there was sufficient evidence to support Wahl’s conviction for involuntary manslaughter; (2) the trial court did not abuse its discretion in denying Wahl’s motion to correct error based on jury misconduct; (3) Wahl’s sentence is appropriate; and (4) the trial court did not abuse its discretion in ordering restitution. Affirmed.

Barnes, J. concurs
Bailey, J. dissents with separate opinion [which reads in full, on p. 24] For the reasons expressed in my dissent in Saundra Wahl v. State, No. 29A04-1409-CR-418, I respectfully dissent.

NFP civil decisions today (4):

Starla Gough v. Dale Gough (mem. dec.)

Theodore Miller v. LVNV Funding LLC (mem. dec.)

In the Matter of the Paternity of H.J., Melissa R. Jallow v. William R. Fat-Anthony (mem. dec.)

Brittany N. Veal v. Indiana Department of Workforce Development (mem. dec.)

NFP criminal decisions today (25):

T.D.G. v. State of Indiana (mem. dec.)

J.E. v. State of Indiana (mem. dec.)

Lamarr T. Crittenden v. State of Indiana (mem. dec.)

Richard Lebron v. State of Indiana (mem. dec.)

Cory C. Carter v. State of Indiana (mem. dec.)

Donald Probst v. State of Indiana (mem. dec.)

Duane R. Tackett v. State of Indiana (mem. dec.)

Michael A. Powers v. State of Indiana (mem. dec.)

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

Demetrius Howell v. State of Indiana (mem. dec.)

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

Charles Sweeney v. State of Indiana (mem. dec.)

Brian E. Connell v. State of Indiana (mem. dec.)

Jesse E. Kaufman v. State of Indiana (mem. dec.)

Tierra Greene v. State of Indiana (mem. dec.)

Marvin T Boothe, Jr. v. State of Indiana (mem. dec.)

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

Ronald Longer v. State of Indiana (mem. dec.)

Glenda Helton v. State of Indiana (mem. dec.)

Reginald Gant v. State of Indiana (mem. dec.)

Devynn Dixon-McNairy v. State of Indiana (mem. dec.)

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

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

Kevin M. Plummer v. State of Indiana (mem. dec.)

Michael L. Bowling v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, June 30, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Former Richmond attorney arrested on 26 counts of theft"

Updating this ILB post from August 9, 2013, Mike Emery reports today in the Richmond Pal-Item, in a long story headed "Ex-attorney asks court to dismiss 27 charges." Some quotes:

Charles R. Hyde Jr., through his attorney, Austin Shadle, filed the motion to dismiss Monday in Wayne County Superior Court I. Judge Marianne L. Vorhees of Delaware County Circuit Court, who was appointed as a special judge in the case, will decide the motion.

Hyde has been charged with 26 counts of Class D felony theft and one Class C felony count of corrupt business influence.

Charges originally were announced on the Wayne County Prosecutor’s Office’s Facebook page on June 21, 2013. According to that post, “Mr. Hyde is accused of taking money from 14 clients who were seeking to file bankruptcy and failing to render legal services.”

Hyde resigned on May 25, 2012, from the practice of law with the Indiana bar through a filing to the Indiana Supreme Court. He is not permitted to petition for reinstatement in Indiana until five years after his resignation. * * *

The motion to dismiss lists several reasons for the court to throw out the 27 counts, including that the alleged offenses do not constitute theft, that the allegations fail to show Hyde had fraudulent intent, that he referred clients to another attorney to complete their bankruptcies, that some charges would amount to double jeopardy and that the statute of limitations had expired before some charges were filed.

The motion claims the state cannot prove theft occurred because the legal fees paid to Hyde became his property. The motion also says the charges against Hyde do not allege what portion of the fees should have been refunded to the clients, and would therefore have been stolen, because investigators did not determine how much legal work Hyde and his staff performed for each client.

Charges also do not sufficiently demonstrate Hyde knew when accepting the payments that he would not complete the performance of legal services, which he failed to do when he resigned his law license and his practice became defunct, according to the motion.

Posted by Marcia Oddi on Tuesday, June 30, 2015
Posted to Indiana Courts

Monday, June 29, 2015

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

In Richard Bell v. Cameron Taylor (SD Ind., Pratt), an 8-page opinion, Judge Flaum writes:

Richard Bell sued various defendants for copyright infringement, accusing each of impermissibly displaying a photo that he owns on websites promoting their respective businesses. Bell’s complaint sought both damages and an injunction prohibit-ing future use of the photo. The defendants moved for summary judgment on the damages issue, arguing that Bell cannot demonstrate how they caused him financial harm and, thus, that he is not entitled to monetary recov-ery. The district court granted the motion, and Bell ap-pealed. In addition to the summary judgment ruling, Bell contests the district court’s denial of two motions to com-pel and a motion seeking leave to file a fourth amended complaint.

We have no jurisdiction to decide these issues. Alt-hough the court purported to issue a “final judgment” after ruling on the defendants’ summary judgment mo-tion, it did so in error; the issue of injunctive relief was never adjudicated. Because Bell’s copyright claim was not entirely disposed of by the district court’s summary judgment ruling, the judgment—by definition—was not final. Accordingly, an appeal in this case is premature until the district court resolves Bell’s outstanding claims for injunctive relief.

Richard Bell, a lawyer and photographer, alleges that three small Indianapolis business owners (and the small businesses of two of those three defendants), violated federal copyright laws (and an Indiana theft statute) by publishing on the internet a photo that he took of the Indianapolis skyline without his authorization. * * *

For the foregoing reasons, we DISMISS this appeal for lack of jurisdiction and REMAND to the district court for resolution of the outstanding issues identified in this opinion.

Here are some links to earlier stories about this issue.

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

Ind. Decisions - Supreme Court posts a 3rd opinion today

In Jeffrey M. Miller and Cynthia S. Miller v. Kristine C. Danz, a 6-page, 5-0 opinion, Justice Dickson writes:

This appeal challenges summary judgment in favor of a named defendant substituted in an amended complaint for a previously unknown "John Doe" defendant after expiration of the applicable statute of limitations. We affirm. * * *

Danz moved for summary judgment on grounds that Miller's attempt to add her as a named party was barred by the two-year statute of limitations and, further, that Miller's claims for defamation failed on the merits. After a hearing at which the parties primarily argued the statute of limitations issue, the trial court granted Danz's motion for summary judgment and di-rected that final judgment be entered. The trial court did not issue findings of fact or conclusions of law. The Court of Appeals affirmed. Miller v. Danz, 27 N.E.3d 774 (Ind. Ct. App. 2015). * * *

Finding that the existence and identity of Kristine C. Danz was not unknown to the plain-tiff before he commenced this action, yet he waited until after expiration of the applicable statute of limitations to substitute her name for John Doe #8, we affirm summary judgment in Danz's favor.

Posted by Marcia Oddi on Monday, June 29, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court posts 2nd opinion today

In Celebration Worship Center, Inc. v. Patrick Tucker and Carolyn P. Tucker, A/K/A Patty Tucker, a 10-page, 5-0 opinion, Justice Dickson writes:

This appeal challenges summary judgment for claimants establishing title to and use of real property by adverse possession and by prescriptive easement. Finding no genuine issue of material fact, we affirm the trial court.

Posted by Marcia Oddi on Monday, June 29, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Governor Pence Announces Tax Amnesty to Be Conducted in Fall 2015"

Gov. Pence has announced implementation of the tax amnesty program established by the 2015 General Assembly:

Governor Mike Pence today announced that the Indiana Department of Revenue will conduct Tax Amnesty 2015 from September 15 through November 16, 2015. Of the outstanding taxes collected, the first $84 million will fund the Indiana Regional Cities Development Fund.

“To continue to attract new investment and talent across our state, we must grow locally and think regionally,” said Governor Pence. “The 2015 Tax Amnesty program plays a critical role in helping to jumpstart the Regional Cities Initiative, encouraging collaboration among Hoosier communities to develop ways to bolster investment, attract talent, and continue Indiana on a pathway to economic growth and success.”

Tax amnesty is a limited-time opportunity for both individuals and businesses to pay past-due base tax liabilities free of penalty, interest, and collection fees. Existing tax liabilities, for all tax types managed by the department, for periods ending prior to Jan. 1, 2013, are eligible to participate in Tax Amnesty 2015. Approximately 40 different tax types are eligible for participation.

In return for the full payment of the base tax, the state will:

Waive penalties, interest, and collection fees for eligible liabilities;
Release tax liens that have been imposed on existing liabilities; and
Not seek civil or criminal prosecution against any individual or entity.
Indiana’s first tax amnesty program was conducted in 2005, during which the state collected $244 million in taxes. Taxpayers who participated in the 2005 amnesty program are not eligible to participate in Tax Amnesty 2015.
Here is the new IDOR homepage for the amnesty program.

For background, start with this ILB post from May 6th.

Posted by Marcia Oddi on Monday, June 29, 2015
Posted to Indiana Government

Ind. Courts - Expungement changes at the appellate court level [Updated]

In a COA opinion Friday (which the ILB and other users still can't pull quotes from ... UPDATE at 5:00 PM, this issue seems now to have been remedied) the plaintiff appealed the denial of her petition to expunge the records of a 2007 summons for a charge of class C misdemeanor illegal consumption of an alcoholic beverage. The trial court denied the petition because she had been summonsed rather than arrested. In a 4-page opinion the COA found that plaintiff was entitled to relief, and reversed and remanded with directions to expunge the relevant records.

Here is the irony. In the future, anyone searching for the plaintiff's name in this case will be likely to pull up the COA ruling. A reader has asked:

Why wouldn't the lawyer filing the case at least attempt to do it with initials? A COA opinion posted to the Internet defeats the whole purpose of expungement.
As of July 1, 2015, this may no longer be an issue. HEA 1302, at p. 3, appears to deal with the responsibility of the appellate courts when an arrest or charge did not result in a conviction. For instance, IC 35-38-9-1(f)(4) will read:
(4) with respect to the records of a person who is named as an
appellant or an appellee in an opinion or memorandum
decision by the supreme court or the court of appeals, the
court shall:
(A) redact the opinion or memorandum decision as it
appears on the computer gateway administered by the
office of technology so that it does not include the
petitioner's name (in the same manner that opinions
involving juveniles are redacted); and
(B) provide a redacted copy of the opinion to any publisher
or organization to whom the opinion or memorandum
decision is provided after the date of the order of
expungement.
The supreme court and the court of appeals are not required
to redact, destroy, or otherwise dispose of any existing copy of
an opinion or memorandum decision that includes the
petitioner's name.
Reader #2 writes:
Indiana Admin Rule 9 is the answer. Unless the lawyer sought permission first, we aren't allowed to redact/exclude from public access without authority to do so. Hence the need for the new law.
Rader #1 writes:
I think a lawyer could file a "motion for leave to caption case with initials," citing Appellate Rule 1 and the statue, when filing the case. I think almost any COA motions panel would allow it. Also, the Supreme Court could amend the appellate rules to require all expungement cases be captioned with initials.

Posted by Marcia Oddi on Monday, June 29, 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 In the Matter of the Supervised Estate of Ralph E. Herin, Beth M. Herin and Belinda Herin McIntyre v. Stephen E. Herin, an 11-page opinion, Sr. Judge Shepard writes:

The daughters of the late Ralph E. Herin contend that various certificates of deposit held by a bank as joint property of Mr. Herin and his son should belong in the Herin estate rather than pass to their brother. They argue that administrative deficiencies surrounding creation of the CDs should mean they were not really joint property at all.

We conclude that the legislative and judicial history surrounding Indiana’s probate code answers this question. Absent proof that Ralph Herin intended something other than joint ownership with right of survivorship, the Non-Probate Transfer Act leads to judgment for the son. * * *

In light of the foregoing, we affirm the trial court’s decision that the Estate of Ralph E. Herrin had no ownership interest in the four CDs. Affirmed.

NFP civil decisions today (4):

Kevin Chocklett v. Melanie Davison (mem. dec.)

Kari Poe v. Robert Poe (mem. dec.)

Kevin L. Martin v. Discover Bank (mem. dec.)

In the Matter of the Involuntary Term. of the Parent-Child Relationship of M.R., Minor Child and Her Father, J.R., J.R. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (2):

James G. Wilson v. State of Indiana (mem. dec.)

Jack Raymond Wirth v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, June 29, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today. So far?

In Larry D. Russell, Jr. v. State of Indiana, a 16-page, 4-1 opinion, Justice David writes [ILB emphasis]:

Larry D. Russell, Jr. pleaded guilty to five counts of class C felony neglect of a dependent and two counts of class C felony criminal confinement. The plea agreement left sentencing to the discretion of the trial court but capped Russell’s sentence at ten years “pursuant to Indiana Code 35-50-1-2(c).” (App. at 89.) This Section, however, did not actually apply to Russell. Nevertheless, the trial court accepted the plea agreement and sentenced Russell to ten years in accordance with the perceived statutory cap. When Russell appealed his aggregate sentence, the Court of Appeals sua sponte determined that the misapplication of Indiana Code § 35-50-1-2(c) rendered the plea agreement void as a matter of law.

Russell petitioned this Court for transfer, and both Russell and the State argue that our precedent compels us to uphold the plea agreement. Upon review, it is clear that the ten-year cap in Russell’s plea agreement and the trial court’s imposition of a ten-year sentence were based on an erroneous application of Indiana Code § 35-50-1-2(c). Despite this mistake of law, we hold that Russell’s plea agreement is enforceable, because where a defendant like Russell pleads guilty knowingly, intentionally, and voluntarily, and where a defendant like Russell gets the benefit of the bargain with the State when the State errs, “there is no compeling reason to set aside the conviction on grounds that the sentence is later determined to be invalid.” Lee v. State, 816 N.E.2d 35, 39 (Ind. 2004). * * *

Because Lee requires us to uphold a sentencing provision that misstates the law, provided the defendant pleaded guilty knowingly, intelligently, and voluntarily—as Russell indisputably did, and provided that the defendant benefit from the bargain when the State errs—as Russell unequivocally does, we affirm Russell’s plea agreement, notwithstanding the mistaken application of the statutory cap contained within it.

Conclusion. Accordingly, we affirm the trial court’s acceptance of Russell’s plea agreement, and its imposition of a ten-year sentence, despite the mistaken application of Indiana Code § 35-50-1-2(c). Simply put, Russell’s plea agreement is valid and enforceable, as explained above. Additionally, we summarily affirm the Court of Appeals’ determination that the trial court imposed an aggregate ten-year sentence. We remand this case for proceedings consistent with this opinion.

Dickson and Rucker, J.J., concur.
Rush, C.J., concurs in result only.
Massa, J., dissents with separate opinion. [which begins, at p. 11] It would be one thing to tell the prosecution it must live with its mistaken understanding of our sentencing laws that led to its inappropriately lenient plea bargain for these monstrous crimes, particularly when the State joins the appellant in asking us to enforce its terms. A deal’s a deal, after all. But our prior holding in Lee does not compel that result—one that severely diminishes judicial review of those terms—and so, for the reasons stated below, I dissent. * * *

All this is not to say the State couldn’t ultimately plead Russell to ten years, a grossly lenient yet perfectly legal sentence. But if such an agreement is reached and accepted by the trial court, it should be the product of an informed and honest bargaining process, and not a mistake of law. Because the outcome here was dependent upon such a mistaken understanding, apparently shared by all in the room, I respectfully dissent.

Posted by Marcia Oddi on Monday, June 29, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending June 26, 2015

Here is the Clerk's transfer list for the week ending Friday, June 26, 2015. It is one page (and 3 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, June 29, 2015
Posted to Indiana Transfer Lists

Not law but... - Okay, this is concerning!

The Guardian has a long story today headed "And the Pulitzer goes to… a computer: Computer-generated copy is already used in sports and business reporting – will machines soon master great storytelling?" As you read it, think of what it portents for legal writing, which is much more structured ... The story begins:

Nobody wants to confront the idea of their own obsolescence. Still, sitting across a desk from Kris Hammond, in his office overlooking the lake shore in Chicago, it is hard not to at least have a sense of the inevitable. Hammond is the co-founder and chief scientist of a company called Narrative Science, which, among other things, has worked out a way of teaching machines how to write journalism. At the moment, the computers’ output is limited to basic sports reports and business news. But Hammond is convinced this is only the beginning. It probably won’t be that long, he half-suggests, before they can bash out 2,500 word stories on innovations in machine learning for the Observer New Review. Worse, he is irrepressibly cheerful about the prospect.

“Look!” he says, “we are humanising the machine and giving it the ability not only to look at data but, based on general ideas of what is important and a close understanding of who the audience is, we are giving it the tools to know how to tell us stories.”

Terrific, I think.

Narrative Science is one of a number of companies that have married huge advances in pattern recognition software with the revolution in natural language generation to create algorithms that resemble a writer (minus the soul-searching and the procrastination and the deadline anxiety).

Posted by Marcia Oddi on Monday, June 29, 2015
Posted to General News

Courts - Waiting for SCOTUS: Final three opinions expected [Updates]

This is the final opinion day for the term. Three opinions expected:

[h/t SCOTUSblog]

Posted by Marcia Oddi on Monday, June 29, 2015
Posted to Courts in general

Law - "Next Fight for Gay Rights: Bias in Jobs and Housing"

That is the headline to this front-page story by Erik Eckholm in tthe June 27th NY Times. The long story, with charts, begins:

Exhilarated by the Supreme Court’s endorsement of same-sex marriage, gay rights leaders have turned their sights to what they see as the next big battle: obtaining federal, state and local legal protections in employment, housing, commerce and other arenas, just like those barring discrimination based on race, religion, sex and national origin.

The proposals pit advocates against many of the same religious conservatives who opposed legalizing same-sex marriage, and who now see the protection of what they call religious liberty as their most urgent task. These opponents argue that antidiscrimination laws will inevitably be used to force religious people and institutions to violate their beliefs, whether by providing services for same-sex weddings or by employing gay men and lesbians in church-related jobs.

Nationally, antidiscrimination laws for gay people are a patchwork with major geographic inequities, said Brad Sears, executive director of the Williams Institute at the School of Law of the University of California, Los Angeles. “Those who don’t live on the two coasts or in the Northeast have been left behind in terms of legal protection,” he said.

At least 22 states bar discrimination based on sexual orientation, and most of them also offer protections to transgender people.

Tennessee is one of the majority of states that do not bar such discrimination. * * *

In many states, some local governments have antidiscrimination laws, but they are often weak or poorly enforced, said Ruth Colker, an expert on discrimination law at Moritz College of Law at Ohio State University.

“Typically, the penalty for violating a city ordinance is more akin to a traffic violation,” she said. “State-level penalties can be much more significant.”

As they push for more state and local safeguards, rights advocates are also starting a long-term campaign for a broad federal shield that would give sexual orientation and gender identity protected status under the Civil Rights Act of 1964.

The goal is to achieve overlapping local, state and federal laws, an approach that has proved effective in curbing other kinds of discrimination, said Sarah Warbelow, legal director at the Human Rights Campaign, a gay rights advocacy group. Visible laws can not only permit lawsuits, she said, but also deter employers and others from biased behavior.

Although a majority of states lack such protections, federal orders and court decisions, especially in employment, are gradually offering more safeguards.

[More] See also this NYT story today, headed "With Same-Sex Decision, Evangelical Churches Address New Reality."

Posted by Marcia Oddi on Monday, June 29, 2015
Posted to General Law Related

Environment - "State's preservation legacy overrides dam proposal"

The ILB has had a number of recent posts on the "Mounds Lake Reservoir" proposal that would impact Mounds State Park.

Sunday the Fort Wayne Journal Gazette had a long op-ed by David Van Gilder, a Fort Wayne attorney who served on the ACRES Land Trust board for 22 years and is a current board member of the Hoosier Environmental Council. A sidebar to the op-ed quotes from the Indiana Nature Preserves Act, adopted in 1967 to protect areas of natural significance. The long editorial piece begins:

One of Indiana’s fascinating cultural and natural preserves is Mounds State Park near Anderson. You have seen the sign for it as you drive back and forth from Fort Wayne to Indianapolis, but you probably have not heard of the scheme to build a dam on the West Fork White River to create a massive reservoir that would permanently alter Mounds State Park and, within it, a natural area protected forever under the Indiana Nature Preserves Act.

All Hoosiers should care about this story and its outcome. The fate of Mounds State Park could foretell the result of many conflicts between short-term business interests and what we consider to be the permanent protections for the state’s nature preserves.

The General Assembly passed the Indiana Nature Preserves Act in 1967, creating a way to “permanently protect,” “in perpetuity” and forever, significant natural areas within the state. Since then, over 250 areas have been dedicated as nature preserves, totaling more than 46,000 acres.

While this may seem like many preserves and a lot of acreage, consider that Indiana contains over 2.3 million acres, that 99 percent of its original forests have been wiped out, 90 percent of its wetlands have been drained and filled, and that dozens of species of plants, animals, and insects have been forever lost. Permanent protection of much less than 1 percent of the state is very small.

Some people contend that birds and fish and animals must always give way to economic development and jobs. Yet, the Nature Preserves Act begins with the following public policy statement: “As part of the continuing growth of the population and the development of the economy of Indiana, it is necessary and desirable that areas of unusual natural significance be set aside and preserved for the benefit of present and future generations before the areas have been destroyed. Once the areas have been destroyed, the areas cannot be wholly restored.”

The act goes on to require that dedicated nature preserves be held “in trust for the benefit of the people … against modification or encroachment resulting from occupation, development, or other use that would destroy the natural or aesthetic conditions.” The law declares that nature preserves are “the highest, best, and most important use for the public benefit.” In competition between near-term business interests and permanent protection for natural areas, the public policy of Indiana is that nature preserves shall win.

More than any other reason, nature preserves are set aside to protect the plants, animals and natural communities found in them. Mounds State Park contains many unique and protected plant and animal communities.

The area that is a dedicated state nature preserve is a fen, which is a community of alkali-loving and tolerant plants, animals and insects created by water seeping through glacial gravel deposits. Fifty-five plant species occupy the protected fen. The starnose mole makes its home in the fen. And the gray petaltail dragonfly, which has been on the planet for 200 million years, is a “state rare species” found at the fen. This special ecosystem might be destroyed if the river is dammed and a static lake is formed.

The plan to build a dam and reservoir is outdated thinking from the early part of the last century and should be rejected out of hand. There are other reasons to reject it, including the cost estimated to be $400 million to $450 million, and the destruction of over 980 acres of forest, hundreds of acres of wetland, and close to seven miles of river habitat. Governmental authorities would need to condemn and take 474 residential and agricultural properties, as well as 154 business/industrial parcels. And the prehistoric mounds in the park would be threatened by the proximity of reservoir shoreline.

It concludes:
We should reject the thinking that current economic interests should override “forever” protections to nature preserves in Indiana. The dam idea should be scuttled. Our nature preserves must be protected now and forever.
ILB: The Nature Preserves Act is found at IC 14-31-1.

Posted by Marcia Oddi on Monday, June 29, 2015
Posted to Environment

Ind. Gov't. - Indiana State Park pavilion project continues to generate controversy

The ILB has had a number of posts over the past few months on the IDNR plans to build a banquet center on Dunes State Park prime beachfront. Here are the most recent stories that have come to the ILB's attention:

From Amy Lavalley of the Gary Post-Tribune, on June 19th, this long story headed "Dunes pavilion plan opponents continue fight," that begins:

The grassroots group fighting the proposed construction of a banquet and conference facility at Indiana Dunes State Park is claiming victory on two fronts, but officials involved with the project say neither issue is a stumbling block for the controversial structure.

A federal review of the project, being undertaken at the state park in Chesterton through a partnership between Pavilion Partners and the Indiana Department of Natural Resources, is dictated by the Land and Water Conservation Fund Act, and the local liquor commission recently tied on a liquor license for Pavilion Partners, which also is renovating the pavilion at the state park.

From June 23rd, a second story from the same reporter, this one headed "Dunes liquor license decision bumped to July."And from Bob Kasarda of the NWI Times, a June 27th story headed "State Park pavilion project will be focus of July 16 meeting."

Posted by Marcia Oddi on Monday, June 29, 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 6/29/15):

Thursday, July 2

Next week's oral arguments before the Supreme Court (week of 7/6/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/29/15):

Next week's oral arguments before the Court of Appeals (week of 7/6/15):

Tuesday, July 7

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, June 29, 2015
Posted to Upcoming Oral Arguments

Sunday, June 28, 2015

Ind. Gov't. - "Former judge Tim Crowley picked for Knox Co. council seat"

Jenny McNeece of the Vincennes Sun-Commercial reports today:

Retired Superior Court I Judge Tim Crowley on Saturday was chosen by local Democratic Party leaders to fill the at-large county council seat left open after the death of Steve Thais last month.

Thirty precinct committeemen gathered at City Hall for a party caucus, and it took just one ballot for Crowley to secure a majority of their votes. * * *

Crowley, who chose not to seek re-election as judge last year, said he considered Thais, who held the at-large seat for more than a decade, a “friend and good guy.”
It was only upon his untimely death, Crowley said, that he considered throwing his hat in the ring.

“Had he lived, I wouldn't have given running a second thought,” he said, his wife Sandra by his side. “This was a situation where we experienced a terrible tragedy.
"But I also saw an opportunity where I could help the county," Crowley said. I have a lot of experience at the courthouse, I'm on a first-name basis with the county council members, and I know the commissioners."

Crowley served three terms — 18 years — on the bench.

Posted by Marcia Oddi on Sunday, June 28, 2015
Posted to Indiana Government

Saturday, June 27, 2015

Ind. Gov't. - "Indiana governor candidates react to the ruling"; More

The NWI Times has compiled the four announced candidates responses yesterday to the SCOTUS same-sex marriage decision. They range from Gov. Pence's assertion that Indiana will obey the law, and Glenda Ritz's assertion that "we still have more work to do", to detailed plans set out by candidate John Gregg and Karen Tallian:

[More] See also this story from Brian Eason of the Indianapolis Star that begins:
Friday's Supreme Court ruling may have settled the legality of same-sex marriage in the United States, but in Indiana, the underlying fight is far from over.
And some quotes from this story by Joan Biskupic in Reuters that reports:
The U.S. Supreme Court's declaration on Friday of a right to same-sex marriage resolved a momentous question, yet the ruling left many others unanswered and is likely to spark future legal battles over gay rights.

In America, the right to marry represents only one piece in the evolving legal framework for gay civil rights.

Currently no constitutional principle or nationwide law broadly prohibits discrimination based on sexual orientation. So in the majority of states, for example, landlords can legally turn away renters because they are gay and employers can reject job applicants for their sexual orientation. * * *

Advocates on both sides said on Friday the ruling will likely spawn a new round of litigation in areas such as parental rights and spousal benefits, as well as religion.

Declaring a right to marry does not revolve all rights for gay couples and their families. State laws vary regarding adoption, for example, and in some states where gay marriage was already allowed, lesbian parents have sued to get both of their names, not only the birth mother’s, on the birth certificate.

Michigan, one of four states whose bans on gay marriage were challenged in Friday's case, earlier this month passed a law allowing private adoption agencies to refuse to place children with same-sex couples on religious grounds.

Separate lawsuits are already pending in lower courts over the timing of spousal benefits in the workplace and whether court rulings on marriage rights can be applied retroactively.

Posted by Marcia Oddi on Saturday, June 27, 2015
Posted to Indiana Government

Friday, June 26, 2015

Ind. Decisions - Supreme Court issues two this afternoon

In Antonio Smith v. State of Indiana, a 14-page, 5-0 opinion, Justice Dickson concludes:

Finding that the State did not use false testimony to convict the defendant in violation of his due process rights and that the incredible dubiosity rule is not applicable to this case, we affirm the defendant's conviction.
In Andrew S. Satterfield v. State of Indiana, a 13-page, 5-0 opinion, Chief Justice Rush writes:
[This text is locked and cannot be copied, as just are the COA opinions today! What gives?]

Posted by Marcia Oddi on Friday, June 26, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Technical Error Being Corrected On Appellate Docket"

The Indiana Courts has just posted this notice:

The Supreme Court is correcting a technical error which appears in certain cases on the appellate docket. The error involves some case numbers or dates listed incorrectly on the chronological case summary (CCS).

In May, the Court announced details about migrating from a 28 year-old case management system to the statewide Odyssey case management system. In such a migration there can be data conversion errors, especially when data is migrated from very old systems.

A problem with migration occurred when the numbers 1 and 6 were in consecutive order, for example 4/16/2014. In isolated instances the number 1 did not migrate with the number 6. The problem is being corrected, and in each case where a correction occurs, a notation will be placed on the CCS of each case affected.

Posted by Marcia Oddi on Friday, June 26, 2015
Posted to Indiana Courts

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

[Unfortunately, all of the COA opinions I've tried to access today have been "locked" so as to prevent copying text.]

For publication opinions today (3):

In Wells Fargo Bank, N.A. v. Rieth-Riley Construction Co., Inc.; Woodmar Hammond, LLC; The Bon-Ton Department Stores, Inc.; Build Tech, Inc.; Ziese & Sons Excavating, Inc.; et al , an 18-page opinion, Judge Baker writes: [locked]

Sabrina Y. Dada v. State of Indiana [locked]

James Lee Sparks v. State of Indiana

NFP civil decisions today (1):

White County Sheriff John Roberts, White County Commissioners, John Heimlick, Ronald Schmierer, and Steve Burton v. Chris and Connie Luthi (mem. dec.)

NFP criminal decisions today (2):

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

Terry L. Austin v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, June 26, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decided one Indiana case yesterday, and one today

(June 25, 2015) In USA v. Pascal Sylla (SD Ind., Barker), a 7-page opinion, Judge Bauer writes:

In December 2010, deoxyribonucleic acid (“DNA”) testing linked defendant-appellant, Pascal Sylla, to an attempted bank robbery that occurred on August 1, 2003. Sylla was indicted on July 16, 2013, in connection with that attempted robbery of nearly ten years prior. He moved to dismiss the indictment, claiming that the applicable five-year statute of limitations had run, see 18 U.S.C. § 3282(a). The district court denied his motion and Sylla proceeded to trial; the jury found him guilty. Sylla appeals, arguing that the federal DNA tolling statute, 18 U.S.C. § 3297, is unconstitutional as applied to his case. We reject Sylla’s constitutional challenge and affirm his conviction. * * *

Plainly stated, there is nothing vague about § 3297 as applied to this case. Although it is possible to envision a situation where § 3297’s tolling effect works to materially prejudice a defendant’s ability to put on a defense, Sylla has not identified any such prejudice that occurred in his case. Accordingly, we reject Sylla’s constitutional challenge to § 3297.

(June 26, 2015) In Renato Debartolo v. USA (ND Ind., Miller), a 10-page opinion, Judge Posner writes:
Renato DeBartolo, 48 years old, immigrated to the United States with his family at the age of one, but unlike most of his family never got around to applying for U.S. citizenship. He is married to an American citizen, however, and his seven or ten children (the correct number is uncertain) are of course American citizens as well. He has no family in Italy and has never learned Italian. Until recently deported to Italy, he lived in Indiana, where he owned a small construction company from 2008 to 2010. In 1996 he had been sentenced in an Indiana court to eight years in prison for dealing in cocaine, but the last four years had been suspended, so he had been released after four years; and no removal (i.e., deportation) proceedings had been instituted against him. In 2011 he was indicted in fed-eral court for possessing with intent to distribute more than 100 marijuana plants and with manufacturing (not the right word—marijuana plants are grown rather than manufac-tured—but the statutory term) more than 100 such plants (the same plants), both being violations of 21 U.S.C. § 841(a)(1). He had grown the plants in a barn. Marijuana plants need bright light to grow to their maximum size, and DeBartolo had powered the lighting fixtures in the barn with electricity that he stole from the electric company by running a clandestine power line from the company’s line to his barn.

The minimum statutory prison term for the offense to which he pleaded guilty was five years. But as a result of the help he gave the government after his arrest to apprehend other drug dealers in his area, and of his pleading guilty to the manufacturing offense (thus sparing the government the bother and uncertainty of a trial), the government moved for a below-minimum sentence after citing the substantial assis-tance to law enforcement that DeBartolo had rendered. On the basis of the plea deal, the district judge sentenced DeBar-tolo to only 25 months in prison. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. The distribution charge was dropped, and though DeBartolo pleaded guilty in state court to the electricity theft, the state court imposed a prison sentence to run concurrently with his federal sentence.

There was no mention of deportation in the federal case. But unbeknownst to DeBartolo, and also it seems to his law-yer, the prosecutors, and the judge, his conviction of the drug offense made him deportable (“removable” is the offi-cial term) and, were he ordered removed, would prevent him from applying for cancellation of removal. See 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii), (B)(i), 1229b(a)(3).

Removal proceedings were indeed instituted, and after he completed his prison sentence he was removed to Italy, where he remains. But while his removal case was pending he had filed a motion in the district court under 28 U.S.C. § 2255(a), claiming that he had been denied effective assis-tance of counsel in his criminal case in violation of the Sixth Amendment, because his lawyer had failed to warn him that if he were convicted he could well be deported; nor had he been told by anyone else. The relief he sought in his section 2255(a) petition for the failure to warn him of the risk of re-moval was withdrawal of his guilty plea, which would ena-ble him to request a trial or try to negotiate a plea of guilty to a non-removable offense. The judge denied the petition, precipitating this appeal.

The failure to inform a defendant that if convicted he will be deported was held by the Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 369 (2010), to be ineffective assistance of counsel, violative of the Sixth Amendment. As later noted in Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012), “plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process … that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.” But there are two kickers.* * *

DeBartolo unquestionably wants to roll the dice, which is strong evidence that he also would have chosen to roll the dice four years ago had he known about the deportation threat. He faces the same risk of conviction and a long sen-tence now that he did then. His personal choice to roll the dice is enough to satisfy the “reasonable probability” standard. * * *

But it would be sensible for both DeBar-tolo and the government to consider the current situation in assessing how to move forward. Conviction is not a forgone conclusion, and the government should consider whether having served the prison sentence the government originally recommended and having then languished in the custody of the Immigration and Naturalization Service for a year or more and then deported to a country in which he has never really lived, DeBartolo has been punished sufficiently and should now be allowed to go home to his wife and children without facing a new trial.

The denial of the petition for relief under 28 U.S.C. § 2255 is REVERSED.

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

Courts - SCOTUS rules, 5-4, nationwide right to same sex marriage

Holding: Fourteenth Amendment requires a state to license a marriage between two people of the same sex.

Here is the opinion in Obergefell.

The other case decided today: Johnson v. U.S.

SCOTUSblog: Court holds that imposing an increased sentence under the Armed Career Criminal Act's residual clause violates due process.

"When Justice Scalia floated the idea that ACCA was unconstitutionally vague several years ago, it looked like a kind of scream into the wind. Now, it has the support of SIX Justices." Eric Citron

Posted by Marcia Oddi on Friday, June 26, 2015
Posted to Courts in general

Courts - "Context for the Arizona Redistricting Case"

Also highly recommended, by Richard Pildes, via Rick Hasen.

Posted by Marcia Oddi on Friday, June 26, 2015
Posted to Courts in general

Courts - Recommended reads on yesterday's decision in King v. Burwell

First, Linda Greenhouse's op-ed in the NY Times, wherein she writes:

“Exchange established by the State.” Do “words no longer have meaning,” as Justice Scalia put it in his angry dissenting opinion? What, after all, could be clearer? The state, not the federal government. The two are not the same. They are different! So poor and middle-class people in the 34 (mostly red) states that refused to set up their own insurance exchanges, defaulting that task to the federal government, are just out of luck. They aren’t eligible for tax subsidies to help them buy insurance, subsidies that are critical to making the law work. End of story, end of case, end of the Affordable Care Act (or Scotuscare, as Justice Scalia said the law should be re-named).

The chief justice’s masterful opinion showed that line of argument for the simplistic and agenda-driven construct that it was. Parsing the 1,000-plus-page statute in a succinct 21-page opinion, he deftly wove in quotations from recent Supreme Court opinions.

Who said that we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”? Why, it was Justice Scalia (actually quoting an earlier opinion by Justice Sandra Day O’Connor) in a decision just a year ago.

And who said that “a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme” because “only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law”? Why, Justice Scalia again.

“In this instance,” Chief Justice Roberts wrote, “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” He concluded: “A fair reading of legislation demands a fair understanding of the legislative plan.” Among the chief justice’s silent partners in the six-justice majority opinion was Justice Kennedy, by most accounts the driving force behind the near miss three years ago.

Second, Georgetown Law Prof. Marty Lederman's article in Slate:
The chief justice’s opinion today, for six justices, comes down forcefully on the side of the sort of interpretive pragmatism I described above—an effort to make sense of the legislature’s handiwork, even where, as in this case, that handiwork left much to be desired because of structural and political pathologies in the Senate. (In the chief’s words, “the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”)

Chief Justice John Roberts does not expressly invoke purposivism, as such. Nor does he say that the plaintiffs’ reading would be absurd. What the chief does say, however, is that the plaintiffs’ reading would be untenable in light of the statute viewed as a whole. * * *

And the chief was undoubtedly correct—indeed, “untenable” is putting it mildly.

Posted by Marcia Oddi on Friday, June 26, 2015
Posted to Courts in general

Thursday, June 25, 2015

Ind. Gov't. - More on "House brings in lawyer for fight over records"

Supplementing Niki Kelly's must-read Fort Wayne Journal Gazette story from yesterday ("House brings in lawyer for fight over records"), Dave Bangert of the Lafayette Journal&Courier today has a long column titled "$440/hour to defend this guy’s secrets" that begins:

Here’s what you get for $440 an hour these days: An Indiana House determined to keep secrets, all on your dime.

The latest episode in just how far Indiana legislators will go to prove they are above the state’s open records laws twisted down a new hole with this week’s revelation that they’d hired outside counsel to help the cause.

As reported by Niki Kelly, Statehouse reporter for the Fort Wayne Journal Gazette, House Speaker Brian Bosma bypassed Attorney General Greg Zoeller’s office — essentially on retainer in defense of the state in most cases — to bring in Indianapolis attorney Geoffrey Slaughter. A part of the Taft Stettinius & Hollister law firm, Slaughter makes that aforementioned $440 an hour.

What will it buy?

Specifically, Bosma is looking to tamp down open records requests into the emails of state Rep. Eric Koch, R-Bedford, regarding House Bill 1320. The Citizens Action Coalition of Indiana, the Energy and Policy Institute and Common Cause of Indiana have made two requests to inspect Koch’s emails related to the bill dealing with solar energy. They wanted to know how Koch’s personal investments and ties to the energy industry — pointed out in an Indianapolis Star investigation earlier in the session — might have fueled his motivation.

After being denied twice by the Indiana House Republican Caucus, the nonprofit groups sued.

In a larger, more important sense, Bosma is looking to preserve what lawmakers defended as “House tradition,” as the Indiana House Republican Caucus put it in when denying access to Koch’s email. That is, the Indiana House believes the Indiana Access to Public Records Law is for every branch of government other than the General Assembly.

When it comes to protecting that tradition, money is no object.

Closed door tricks are no object, either. Here’s the short course.

Further on in the long column detailing how we got to now:
As reported in late May, again by the Journal Gazette’s Kelly [ Masariu General Assembly lacks policy on accessible records" - here in ILB], the House waited until after the 2015 session to update its handbooks with a revised definition, without bothering to commit it to an actual law.

The new House rules define the work product as “documents, notes or other writing or records, in any form, composed, edited or modified by members, staff or officers of the House and any communications that are made or received by means of electronic mail, voice mail, text messaging, paper or video audio recording or in any other form.”

In other words, everything — from deep-weed, game-changing records to text messages about specials at downtown Indianapolis food trucks. House members are immune, according to convenient House rules written by House leaders.

ILB: See also this ILB post from June 2nd.

Posted by Marcia Oddi on Thursday, June 25, 2015
Posted to GA and APRA | Indiana Government

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

For publication opinions today (2):

In Dennis Johnson, Raymond Johnson v. State of Indiana , a 35-page opinion with a separate concurring opinion, Judge Robb writes:

For their participation in a 1996 robbery gone awry, Dennis Johnson and Raymond Johnson were each convicted in 1997 of felony murder and carrying a handgun without a license and sentenced to serve an aggregate term of fifty-five years. In 2013, Dennis and Raymond filed petitions to modify their respective sentences. Following a hearing in August of 2014, the trial court denied both petitions because the prosecutor did not consent to modification. In this consolidated appeal, the Johnsons contend the trial court erred in requiring the prosecutor’s consent because prior to the hearing on their petitions, the statute allowing sentence modifications was amended to remove that requirement. Concluding the trial court did not err in applying the prior version of the statute which required prosecutorial consent and in denying the petitions to modify on that basis, we affirm. * * *

Conclusion. Because the 2014 amendment to Indiana Code section 35-38-1-17 was neither remedial nor procedural, and because the savings clause evinces the intent of the legislature to apply the new criminal code only prospectively, the 2014 version of the sentence modification statute does not apply to the Johnsons. Therefore, the trial court properly determined that, in the absence of prosecutorial consent, it had no authority to modify the Johnsons’ sentences. The trial court’s orders denying the petitions for sentence modification are affirmed.

Brown, J., concurs.
Bailey, J., concurs in result with opinion. [which begins, at p. 16 of 35] The majority concludes that, because the recent revisions to the sentencing modification statute are neither remedial nor procedural, a prior version of the sentencing modification statute applies to the Johnsons’ petitions. I agree that the prior version of the statute applies in this case, but do so because of the time the Johnsons filed their petitions. I disagree that their dates of conviction and sentencing are controlling and therefore respectfully concur only in the result. * * *

Conclusion. I would hold that the revised statute applies to all petitions filed on or after July 1, 2014, regardless of the petitioner’s conviction or sentencing date. Here, the Johnsons filed their petitions before the effective date of the statute, and thus the trial court did not err in applying the prior version of the statute and denying their petitions for lack of prosecutorial consent. Because I reach this conclusion on a different basis than the majority, I respectfully concur in the result.
____________
[5] [on p. 14 of main opinion] We note, as does the dissent ...

In Lakisha Jordan v. State of Indiana, a 20-page opinion, Judge Brown writes:
Lakisha Jordan appeals her convictions for resisting law enforcement as a class A misdemeanor and disorderly conduct as a class B misdemeanor. Jordan raises two issues which we consolidate and restate as whether the evidence is sufficient to sustain her convictions. We affirm in part, reverse in part, and remand. * * *

Jordan challenges whether the evidence is sufficient to sustain her conviction for disorderly conduct, with particular emphasis on whether her speech constituted free speech under the Indiana Constitution. * * *

As noted, if the claimant demonstrates under an objective standard that the impaired expression was political speech, the impairment is unconstitutional unless the State demonstrates that the “magnitude of the impairment” is slight or that the speech amounted to a public nuisance such that it “inflict[ed] ‘particularized harm’ analogous to tortious injury on readily identifiable private interests.” Barnes, 946 N.E.2d at 577 (quoting Whittington, 669 N.E.2d at 1369-1370 (quoting Price, 622 N.E.2d at 964)). We cannot say that the State demonstrated that the magnitude of the impairment was slight. Nor can we say that the harm suffered by the people in the liquor store lot and across the street rose above the level of a fleeting annoyance or that the State demonstrated that the speech amounted to a public nuisance such that it inflicted particularized harm analogous to tortious injury on readily identifiable private interests. Accordingly, we conclude that Jordan may not be punished, consistent with the Indiana Constitution, for her particular speech. See Price, 622 N.E.2d at 964-965.

NFP civil decisions today (2):

Gumwood HP Shopping Partners, L.P. v. Simon Property Group, Inc. (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: L.G. (Minor Child) and D.G. (Father) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Thursday, June 25, 2015
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS upholds Affordable Care Act

Here is the 6-3 opinion in King v. Burwell, authored by the CJ.

Here is the "disparate impact" Fair Housing opinion: Texas Dept. of Housing v. Inclusive Communities.

Five cases left, next and possibly last decision day is tomorrow (Friday) ... Monday remains an option.

Posted by Marcia Oddi on Thursday, June 25, 2015
Posted to Courts in general

Ind. Decisions - 7th Circuit posts one Indiana case, decided June 24th

In Robin Allman v. Kevin Smith and City of Anderson (SD Ind., Pratt), a 9-page opinion, Judge Easterbrook writes:

After being elected Mayor of Anderson, Indiana, a city of about 56,000 people, Kevin Smith replaced many members of the City’s staff with his political supporters or persons he deemed trustworthy. Eleven of the fired workers filed this suit under 42 U.S.C. §1983, contending that the discharges violated the First Amendment as understood in Elrod v. Burns, 427 U.S. 347 (1976). The district judge concluded that all plaintiffs have enough evidence to require a trial but that Mayor Smith is entitled to qualified immunity with respect to nine of the eleven plaintiffs’ claims. 6 F. Supp. 3d 889 (S.D. Ind. 2014).

The Mayor has appealed from the adverse portion of this interlocutory decision, relying on Mitchell v. Forsyth, 472 U.S. 511 (1985), and its successors. Surprisingly, the City also has appealed, even though as a municipal body it is not entitled to any form of immunity and is outside Mitchell’s ambit. The City invokes the doctrine of “pendent appellate jurisdic tion,” which barely survived its scathing treatment in Swint v. Chambers County Commission, 514 U.S. 35 (1995), and today allows a court of appeals to review an interlocutory order only when it is “inextricably intertwined” with an appeala-­‐‑ ble decision. Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997). * * *

The appeal is dismissed to the extent it concerns the City of Anderson or Robin Allman’s claim. The district court’s decision that Mayor Smith is not entitled to qualified im munity on Margaret Baugher’s claim is affirmed.

Posted by Marcia Oddi on Thursday, June 25, 2015
Posted to Ind. (7th Cir.) Decisions

Courts - "Chicago Tribune sues city to get email records"

Annie Sweeney of the Chicago Tribune reported yesterday:

The Chicago Tribune sued the city of Chicago on Wednesday in a dispute over the news organization's public records request for emails from the office of Mayor Rahm Emanuel.

The complaint, filed in Cook County Circuit Court, said the Tribune sought 25 email chains that may be related to a multimillion-dollar no-bid Chicago Public Schools contract now at the center of a federal criminal investigation.

The lawsuit alleged that the city's response violated the Illinois Freedom of Information Act by withholding six of the email chains entirely and redacting portions of the remaining 19 without detailing the reason for each redaction.

According to the suit, the city defended its action by saying some of the contents of the email chains fell within several exemptions allowed under FOIA. But the Tribune questioned whether the exemptions were proper and complained that the city had made its redactions in white, leaving unclear how much text it had decided not to disclose. [ILB emphasis]

The story includes links to the Tribune's complaint and exhibits. Here is the 9-page complaint.

Posted by Marcia Oddi on Thursday, June 25, 2015
Posted to Courts in general

Ind. Decisions - IDOR assesses personal injury attorney for the total amounts recovered on behalf of clients in settlements, but attorney prevails

The Indiana Register on June 24, 2015 published this Letter of Findings from the Indiana Department of Revenue. Some quotes:

HOLDING: Individual established that he had correctly reported his federal adjusted gross income. The Department's assessment of additional individual income tax was therefore incorrect. * * *

STATEMENT OF FACTS: Taxpayer is an Indiana resident who practices law in Indiana. On November 3, 2014, the Department issued a Proposed Assessment that made upward adjustments to both Taxpayer's reported 2011 federal adjusted gross income ("AGI") and Taxpayer's 2011 individual income tax liability. On November 14, 2014, Taxpayer protested that assessment. This Letter of Findings ensues. * * *

DISCUSSION. * * * A desk audit determined that Taxpayer had underreported his federal AGI, because Taxpayer's 1099-MISC forms showed substantially more Indiana income than Taxpayer had reported. Taxpayer disputed this determination. Specifically, Taxpayer asserted that (1) he is a plaintiffs' personal injury lawyer; (2) the 1099-MISC forms reflected the total amounts he had recovered on behalf of clients in settlements; (3) he had actually received only a percentage of these amounts in compensation for his services; and (4) his reported federal AGI was therefore correct. Prior to the scheduled hearing, Taxpayer provided the Department with information confirming that his reported federal AGI was correct. * * *

FINDING. Taxpayer's protest is sustained.

Posted by Marcia Oddi on Thursday, June 25, 2015
Posted to Ind. Adm. Bd. Decisions

Courts - SCOTUS: 6 decisions remain; 3 opinion days scheduled

The opinion days are today, tomorrow, and potentially Monday, June 29th.

The WSJ Law Blog has a nice listing of the remaining cases, with summaries.

Bloomberg Politics has a story summarizing each of the six cases, classifying them by topic: gay marriage; health care; housing discrimination; lethal injection; clean air; anbd redistricting.

Follow SCOTUSblog at 10 AM for up-to-the-moment coverage.

Check the ILB too.

[Updated at 9:14 AM] Make that six "crucial cases" remain. There is a 7th, Johnson/ACCA. [Armed Career Criminal Act] [h/t/ Michelle Olson]

Posted by Marcia Oddi on Thursday, June 25, 2015
Posted to Courts in general

Wednesday, June 24, 2015

Ind. Decisions - COA issues rulings in Evansville gun case and Indy smoking ban case today

The opinions and ILB summaries are here, Magenheimer and Whistle Stop Inn.

Mark Wilson reports in the Evansville Courier & Press:

The Indiana Court of Appeals has ruled unanimously that a local man’s lawsuit against the City of Evansville can continue.

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.

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.

The Court of Appeals sided with Magenheimer that the lawsuit did not fit under the Indiana Tort Claims Act.

David Barras reports for WISHTV 8:
INDIANAPOLIS (WISH) An off track betting facility in downtown Indianapolis will have to go smoke free, just like other Marion County restaurants and bars.

In a ruling released Wednesday by the Indiana Court of Appeals, the court found the exception to the no smoking law for the OTB site is unconstitutional.

The court said, ” because it treats satellite facilities differently than bars and restaurants and this disparate treatment is not reasonably related to the inherent differences between the two entities. Therefore, we sever the exception from the Indianapolis No Smoking Ordinance.”

Several bars and tavern owners have been fighting to overturn the Marion County law since it was passed in 2012. Ironically, the court ruled that the smoking ban for the bars and taverns is constitutional.

Posted by Marcia Oddi on Wednesday, June 24, 2015
Posted to Ind. App.Ct. Decisions

Environment - "Longtime head of Indiana Farm Bureau retiring"

A widely published AP story this week reports:

FORT WAYNE, Ind. (AP) — Indiana Farm Bureau President Don Villwock is retiring this year after 14 years of leading the group.

Sixty-five-year-old Don Villwock tells WOWO that with things going well, it’s a good time to let someone bring in new ideas.

Villwock says the issues facing the Farm Bureau have shifted over his tenure, with the advent of social media, the rise of the locally grown food movement and new urban-rural tensions. Villwock says a migration of city dwellers to the countryside has brought complaints about the smell of livestock feeding operations to the forefront.

Posted by Marcia Oddi on Wednesday, June 24, 2015
Posted to Environment

Ind. Decisions - Supreme Court issues a 2nd disbarrment today, this time a Merrillville attorney

In In the Matter of: Robert Stochel, a 7-page disciplinary opinion, where, as in the earlier opinion today, there was "no appearance for the respondent," the Court writes, per curiam:

We find that Respondent, Robert Stochel, committed attorney misconduct by stealing trust account funds belonging to a former law partner and that partner’s clients, embezzling funds from a receivership and actively concealing that theft for nearly a decade, and refusing to cooperate with the Commission’s investigations into his actions. For this misconduct, we conclude that Respondent should be disbarred. * * *

Respondent stole hundreds of thousands of dollars from the receivership and tens of thousands of dollars from his former law partner and that partner’s clients. In the receivership case, Respondent covered up his theft for nearly a decade, lied to all comers, deceived the court and later defied its orders, and actively obstructed the disciplinary process. Respondent throughout has expressed absolutely no remorse or intent to make restitution. In addition, he has neither challenged the hearing officer’s report nor argued any mitigating facts. Under these circumstances, the Court unhesitatingly concludes that disbarment is warranted.

Posted by Marcia Oddi on Wednesday, June 24, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In City of Evansville and The Evansville Department of Parks and Recreation v. Benjamin A. Magenheimer, a 14-page opinion, Judge Baker writes:

The City of Evansville (Evansville) appeals the trial court’s denial of its motion for judgment on the pleadings. Benjamin Magenheimer filed a complaint alleging that Evansville violated Indiana Code chapter 35-47-11.1, which generally bars political subdivisions from regulating firearms, when it enforced a provision of its municipal code that prohibited the carrying of firearms in public parks against Magenheimer. Magenheimer brought suit pursuant to Indiana Code section 35-47-11.1-5, which creates a private right of action for individuals to enforce the statute’s provisions. Evansville maintains that Magenheimer is effectively bringing a tort claim and that, therefore, his claim is barred for failure to comply with the Indiana Tort Claims Act1 (ITCA). Finding that the ITCA does not govern Magenheimer’s claim, we affirm the trial court’s denial of Evansville’s motion for judgment on the pleadings.
In Whistle Stop Inn, Inc., and Louise Liford d/b/a Thirsty Turtle v. City of Indianapolis, Mayor Greg Ballard, Indianapolis City-County Council and Hoosier Park, LLC, a 24-page opinion, Judge Baker writes:
In this case we consider whether an exception to the Indianapolis No-Smoking Ordinance is constitutional. The Indianapolis No-Smoking Ordinance generally prohibits smoking in public places, but it also contains several exceptions to this rule. For example, tobacco retail stores and fraternal clubs whose members vote to allow smoking are permitted to allow smoking on the premises. Here, we are determining whether an exception that allows smoking in satellite facilities—specifically, Hoosier Park Winner’s Circle—violates the Equal Privileges and Immunities Clause of the Indiana Constitution. We find that the exception is unconstitutional because it treats satellite facilities differently than bars and restaurants and this disparate treatment is not reasonably related to the inherent differences between the two entities. Therefore, we sever the exception from the Indianapolis No-Smoking Ordinance.

NFP civil decisions today (1):

Henry Swanigan v. Founders Insurance Company and Ronnie Watson (mem. dec.)

NFP criminal decisions today (3):

Joshua Brazzel v. State of Indiana (mem. dec.)

Steven B. Pollard v. State of Indiana (mem. dec.)

Kylie Lin Jenks v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, June 24, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court disbars Kokomo attorney who had abandoned his practice and fled to Australia

In In the Matter of: Bradley D. Hamilton, a 5-page disciplinary opinion where there was "no appearance for the respondent," the Court writes, per curiam:

We find that Respondent, Bradley D. Hamilton, committed attorney misconduct by abandoning his law practice and clients, stealing their money, and fleeing to Australia. For this misconduct, we conclude that Respondent should be disbarred. * * *

The eleven counts of misconduct in this case arise from Respondent’s abrupt abandonment of his Kokomo law practice and move to Australia in September 2013, two days after enlisting Brent Dechert as his attorney surrogate. See Admis. Disc. R. 23(27). Counts 1 through 7 each involve particular clients who retained Respondent to file bankruptcy petitions. In each case, Respondent was paid a retainer fee up front, did little or no work on the case thereafter, and eventually absconded to Australia without refunding or making arrangements to refund unearned legal fees. In most of the cases, Respondent was largely unresponsive to client inquiries regarding case progress, and in two of the cases Respondent knowingly misrepresented to the client that a bankruptcy petition had been filed when in fact no petition had been filed. Counts 8 through 10 are similar in nature and involve particular clients who retained Respondent in various non-bankruptcy matters. Finally, Count 11 charts twenty-two additional clients of Respondent identified by Dechert as having been abandoned by Respondent with legal matters still pending, and to whom unearned fees are still owed.

In sum, Respondent was paid a total of $58,366 by the clients identified in these eleven counts. None of these clients’ legal matters were completed by Respondent. The balance in Respondent’s attorney trust account at the time it was turned over to Dechert was $2,060, with no records left indicating to which client or clients that sum belonged. * * *

For a variety of reasons, an attorney may be faced with the need or desire to wind down his or her law practice. Whatever the reason, the attorney’s ethical obligation to protect clients’ interests is clear. Among many other things, key practice management records (such as client files and business and trust accounts) should be in order and reconciled, clients should be notified and kept fully and accurately informed of matters relating to their case, fee issues should be resolved, and appropriate contingency plans for transitioning clients’ cases to successor counsel should be implemented.

Respondent did virtually none of these before absconding to Australia. He did not reconcile his trust account; he looted all but a small portion of it and left behind no records indicating to which client(s) that remaining sum belonged. He did not notify clients of the status of their cases; when clients inquired, Respondent mostly avoided them and in some instances lied to them. Respondent did not refund unearned fees; he stole them. Most clients were not notified of his impending move out of the country, and Respondent continued to accept new clients (and their money) even as the abandonment of his law practice was imminent. Finally, while Respondent did enlist the aid of Dechert as an attorney surrogate, Respondent did so at the last minute and in a manner that precluded Dechert, despite his commendable efforts to triage the harm caused by Respondent, from being able to fully protect the interests of Respondent’s clients.

Posted by Marcia Oddi on Wednesday, June 24, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Successor to COA administrator Steve Lancaster named

And it is Larry L. Morris, currently the senior law clerk for retiring Court of Appeals Judge Ezra H. Friedlander. From the news release:

INDIANAPOLIS – The Court of Appeals has selected Attorney Larry L. Morris as its new court administrator, effective Oct. 1. Morris will succeed Steve Lancaster, who will retire in September after 20 years with the court.

Morris is the senior law clerk for Court of Appeals Judge Ezra H. Friedlander, for whom he has clerked for 22 years. He graduated from Lincoln Christian University, IL, with a B.A. in theology in 1979 and in 1983 earned an M.A. in human development counseling from the University of Illinois-Springfield. He obtained his law degree in 1991 from Indiana University School of Law-Indianapolis, where he served as articles editor on the Indiana University Law Review. * * *

The court administrator provides a full range of administrative services to the 15-member court. Specific duties include court legal services, budgeting, personnel management, facilities management, and implementation of the new digital case management and pending e-filing systems. The administrator works for the entire court, under the direction of the chief judge.

Posted by Marcia Oddi on Wednesday, June 24, 2015
Posted to Indiana Courts

Ind. Gov't. - Public access: "House brings in lawyer for fight over records"

Niki Kelly of the Fort Wayne Journal Gazette reports today:

The Indiana House has hired an outside attorney costing $440 an hour to defend its contention that the legislature doesn’t have to follow the state public records law.

There is no cap on the cost of the legal fees, and the money will come out of the Indiana House budget. The engagement letter also notes the House is paying for co-defendant Rep. Eric Koch’s legal fees and expenses as well.

Indiana Attorney General Greg Zoeller’s office would usually defend any lawsuits, but House Speaker Brian Bosma asked to hire outside counsel, which Zoeller approved.

The parties will be represented by Geoffrey Slaughter, whose rate is $440 an hour. A second lawyer is assisting at $345 an hour. Both are with the Taft Stettinius & Hollister law firm in Indianapolis.

Slaughter has been representing the Indiana House Republican Caucus and Koch, R-Bedford, since May 26 in the case. According to his firm’s website, he has constitutional litigation experience. He was a finalist for an open Indiana Supreme Court Justice position in 2012.

The Citizens Action Coalition of Indiana, Energy and Policy Institute and Common Cause Indiana sued in April over an open records request for correspondence between Koch and various utilities regarding a bill about solar power.

The suit came after the House denied the request, saying the Indiana General Assembly is exempt from Indiana’s Access to Public Records Act. The state’s Public Access Counselor disagreed and ruled the legislature must comply with the state law.

A second request was drafted to more directly specify what records were sought. But the Indiana House still balked, continuing to claim it isn’t required to by law but also now referencing a work product exception in denying the request.

The Indiana Access to Public Records Act provides one specific exemption for “the work product of individual members and the partisan staffs of the general assembly.” But there is no definition of what “work product” is. Instead, the Indiana House changed its employee handbook after session to essentially classify all communications as work product.

Bosma has said in the past that the issue is about protecting constituents’ ability to interact with legislators on private issues without fear that it will end up in the media.

The agreement points out that the proper defendant in the case is the Indiana House – not the Republican caucus specifically. It also says the attorneys are not currently aware of any conflict between the interests of the Indiana House and Koch.

“We believe that Taft is able to provide competent and diligent representation to both,” the engagement letter said.

The letter said if disagreements arise between Koch and Bosma on the case, they must be worked out between the two parties without the attorneys involved. If that is not possible, the joint representation will be terminated.

More coming ...

Posted by Marcia Oddi on Wednesday, June 24, 2015
Posted to GA and APRA | Indiana Government

Ind. Law - "Battle over guns in the workplace heads to court"

That is the headline to this Fox59 story reported by Nicole Pence late yesterday (with video). Some quotes:

A Shelbyville nurse was fired from her job after having a gun in her car. Now, she’s suing to get her job back.

Firearms attorney Guy Relford filed a lawsuit Monday on behalf of his client, Melinda Voris.

“We have statues in Indiana that protect employees and specifically their right to have a gun in the car to and from work. My client just wants her job back,” said Relford.

Voris was fired from her job at the Walker Place in January. It’s a senior living community in Shelbyville.

Relford says his client left work to take a smoke break off property. When Voris opened her glove compartment in her car, her co-worker noticed her gun. That co-worker told management, and a few days later Voris was fired from her nursing job.

Relford explained, “My client was asked ‘Do you have a gun in your car on company property?’ and she was truthful and said “Yes, I keep it in my glove compartment in my locked car.’ And on that basis she was terminated. And we feel that’s a direct violation of Indiana law. She had a valid carry permit.”

Walker Place management is owned by Chicago-based company Enlivant. The company says Voris was fired because the company handbook says weapons are not allowed.

According to an Indiana law passed in 2010, employees can put their weapons in their car, as long as they have a carry-permit and “if the gun is locked in the trunk, kept in the glove compartment of their locked car, or stored out of plain sight in the locked car.”

“I think in this situation the Illinois-based company does not understand Indiana law. We are hoping they realize they violated an Indiana statue and do the right thing,” said Relford.

Posted by Marcia Oddi on Wednesday, June 24, 2015
Posted to Indiana Law

Ind. Courts - "Hackers gain access to Clarksville Town Court records, according to judge" [Updated]

This brief story appeared yesterday via Louisville's WDRB:

LOUISVILLE, Ky. (WDRB) -- Hackers illegally gained access to classified records housed by the Clarksville Town Court earlier today, according to a judge.

In a news release, James F. Guilfoyle, a Clarksville Town Court Judge, said the hackers were able to gain access to sensitive information, possibly including names, dates of birth, addresses and Social Security Numbers.

The FBI and the Indiana Supreme Court are both investigating, according to Guilfoyle, and the court will be providing information on ways affected individuals can protect themselves. Anyone who thinks they may have been affected is asked to continuously monitor their credit scores and personal accounts for unauthorized activity.

ILB: The ILB recalls reading a similar story some time ago (like last year) from the same locality, but can't locate it...

[Updated] Elizabeth DePompei's June 23rd story in the News & Tribune begins:

CLARKSVILLE — Classified case files dated 2005 and earlier on Clarksville Town Court’s server were hacked and encrypted Tuesday.
ILB: That lede puts a different slant on the event: "hacked and encrypted."

Posted by Marcia Oddi on Wednesday, June 24, 2015
Posted to Indiana Courts

Ind. Courts - Former Marion County small claims judge charged in sexual misconduct case

Michael Anthony Adams had the story in the Indianapolis Star yesterday afternoon. The story begins:

A former small claims court judge was caught on camera attempting to solicit sex acts from an inmate he was representing, court documents say.

Clark G. Rehme, an attorney in Indianapolis, has been charged with three counts of sexual misconduct and one count of official misconduct on allegations he had two female inmates expose themselves and perform sexual acts on him in an interview room at the Shelby County Jail, a probable cause affidavit states.

Shelby County Sheriff's Department officials began investigating Rehme after an inmate told a jail officer that she did not want to be in a room with her court-appointed attorney. The inmate said the attorney, identified as Rehme, had her show him her breasts and perform sex acts on him while he exposed himself to her, court documents state.

The story notes:
Rehme was appointed a small claims court judge in Lawrence Township in November 2011 but was not elected in 2014 and vacated his seat in December [of 2014].
ILB: A search of the ILB archives reveals this July 9, 2014 post quoting from Indiana Court Times on the status of the Marion County small claim court system (ILB emphasis):
Judge Rosenberg cites the establishment of more uniformity among the small claims courts as another success. Rather than seeing each township as its own island, the judges are beginning to visualize these courts as divisions of a countywide system. Because so many cases (excluding landlord/tenant cases) are transferred between townships, it is important for each to have similar standards and procedures. The nine township judges are moving closer to a unified system, and in March 2014, elected Lawrence Township Judge Clark Rehme as their Chief Judge. Judge Rehme will take over the Circuit Court’s role of setting the agenda and presiding over the regular meetings of the township judges.

Posted by Marcia Oddi on Wednesday, June 24, 2015
Posted to Indiana Courts

About this Blog - Loyal readers

Last calendar year the ILB recorded 898,899 page views. We are shooting for a million this year.

Posted by Marcia Oddi on Wednesday, June 24, 2015
Posted to About the Indiana Law Blog

Tuesday, June 23, 2015

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

In Andrea Childress v. Experian Information Solutions (SD Ind., Pratt), a 5-page opinion, Judges Posner concludes:

There is more that is wrong with her case. Every bankruptcy case that is “withdrawn” at the request of the petitioner is dismissed. There was therefore no inaccuracy in the statement in the plaintiff’s credit report that her bankruptcy petition had been dismissed. Nor is the fact that such a petition is dismissed at the petitioner’s request a reliable sign that she decided not to stiff her creditors by seeking a dis-charge—she may have dismissed the petition because she thought she’d be denied a discharge. To make a consumer credit report fully precise would require an investigation that went far beyond merely noting whether the petition for bankruptcy had been dismissed at the petitioner’s request. The plaintiff does not want that; nor has she shown that it would be a feasible task to lay on the consumer credit-reporting agencies. AFFIRMED

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

Ind. Courts - "Angie's List sues Amazon Local" - story and the complaint

Jeff Swistek has a long story in the Indianapolis Star this afternoon. It begins:

Angie's List has sued Amazon Local, accusing it of stealing provider lists and other proprietary information from Angie's website.

The federal lawsuit, filed Friday in Indianapolis, alleges that Amazon Local executives and other employees got access to the information by signing up as members of Angie's and copying provider profiles, member reviews and other information.

The information is being used by Amazon Local, a subsidiary of Internet retailing giant Amazon.com, to establish a competing service to Angie's, according to the lawsuit.

Amazon Local entered the home services procurement market last year, becoming a major new competitor to Indianapolis-based Angie's.

The ILB has obtained a copy of the 42-page complaint, filed June 19, 2015. There were also a number of other $$ documents the ILB did not download: (Attachments: # 1 Exhibit A-Membership Agreement, # 2 Exhibit B-WSJ 11-24-14 Article, # 3 Exhibit C-KaW 12-3-14 Article, # 4 Exhibit D-Forbes 11-25-14 Article, # 5 Exhibit E-Forbes 6-10-14 Article, # 6 Civil Cover Sheet, # 7 Proposed Summons)(Gasper, George) (Entered: 06/19/2015)

Posted by Marcia Oddi on Tuesday, June 23, 2015
Posted to Indiana Courts

Ind. Decisions - Tax Court decides one today

In Aztec Partners, LLC v. Indiana Department of State Revenue, an 11-page opinion, Judge Wentworth writes:

This case examines whether the electricity that Aztec Partners, LLC used to power certain equipment between January 1, 2010, and March 31, 2011 (the period at issue) was subject to Indiana sales tax.1 The Court finds that it was not. * * *

Accordingly, the Court finds that during the period at issue the electricity that powered the electrical equipment that held and preserved the food items was essential and integral to Aztec’s integrated production process.

For all the reasons stated above, the Court REVERSES the Department’s final determination. Therefore, the Court REMANDS this matter to the Department so that it may take the actions necessary to give full effect to this opinion.

Posted by Marcia Oddi on Tuesday, June 23, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues an additional 4 opinion(s) today (and an additional 3 NFP memorandum decisions)

If you look at the COA opinion page right now, for cases dated 06/23/15, you will count 11 cases.

Earlier today, when the ILB posted its summaries, there were 4 cases posted.

But the new batch of 06/23/15 opinions has not been added to the top of the list on the COA opinion page. Rather, and inexplicably, they are intermixed with the earlier batch of 06/23/15 cases.

If you were to number them, #1 (One West Bank), #4, #5 and #6 were updated this morning. ## 2, 3, 7, 8, 9, 10, and 11 are new. (It took me some time to sort that out, BTW, it cannot be done by just glancing at the list.)

When this happens, it frequently catches most of us who rely on the COA opinion page unaware. The only way to avoid it is not to look at the list of opinions until late in the day.

Of course, as the ILB has said more than once over the years, it would be a simple thing for the COA to separate out any newer uploaded opinions from an earlier uploaded batch with the same date. This would be the preferred solution. Or, at a minimum, to send out a notice when an additional batch of cases has uploaded, as the Supreme Court has began doing in recent months when it issues opinions sporatically duing a day.

Here now are the ADDITIONAL 7 COA opinions and NFP decisions posted this afternoon:

For publication opinions today (4):

In Stanley Kahn v. Beverly (Kahn) Baker , a 27-page case, Chief Judge Vaidik writes:

Father, following divorce, was ordered to pay the remainder of his college-aged daughter’s post-secondary educational expenses—including tuition and room and board—and medical expenses. The father and daughter had a serious dispute the month before the court’s order, however, and thereafter the daughter engaged in limited contact with her father—she sent him text and e-mail messages but did not speak to him on the telephone or meet with him in person for over a year. The father stopped paying his daughter’s expenses. Mother filed a motion for rule to show cause in an effort to get the father to comply with the court order, and the father filed a petition to modify the court order, alleging change in circumstances—specifically, that he was relieved from paying his daughter’s expenses because she had repudiated him. Following a hearing, the trial court found that the daughter had not repudiated her father, found him in contempt for failing to pay the daughter’s educational and medical expenses, and awarded attorney fees to the mother. The trial court also found, however, that under the “doctrine of unclean hands” the mother was to be held liable for her daughter’s room and board.

On appeal, we consolidate the father’s issues into the following: (1) whether the trial court erred in finding that the daughter did not repudiate her father, and that he was not, therefore, relieved of his obligation to pay the expenses specified in the Agreed Entry; (2) whether the trial court erred by holding the father in contempt for failing to pay the daughter’s post-secondary educational and medical expenses; and (3) whether the trial court erred in awarding the mother attorney fees. Mother cross-appeals, presenting one issue for our review: whether the trial court erred in ordering her to pay the daughter’s room and board expenses. Ultimately, we affirm the trial court’s order on all of the issues challenged by the father, and reverse on the issue raised by the mother.

Heritage Operating, L.P. d/b/a Empire Gas v. Lois A. Mauck and Ralph Thomas, a 17-page, 2-1 opinion, Judge Riley concludes:
Based on the foregoing, we conclude that Empire Gas is not entitled to summary judgment on the Tenants’ claim of negligence because a gas company owes a common law duty of reasonable care in the distribution of its product. We further conclude that Empire Gas is entitled to summary judgment on the Tenants’ claim of strict liability because the undisputed material facts establish that Empire Gas is not a propane manufacturer. * * *

Vaidik, C. J. concurs in result without separate opinion
Baker, J. concurs in part and dissents in part with separate opinion [which begins, at p. 16] I respectfully dissent from the majority on the issue of negligence. To affirm the denial of summary judgment on this issue is, in my opinion, to elevate form over substance to an untenable degree. * * *

Here, Empire Gas did not know that the property was occupied after July 2011. Indeed, Empire Gas did not know that the plaintiffs existed. As a matter of law, I do not believe it is reasonably foreseeable that a new tenant would occupy the property without ever contacting Empire Gas to hook up the gas line. In my view, Empire Gas owed the plaintiffs no duty under these circumstances. * * *

I concur with the majority on the issue of strict liability.

In Ivan Vazquez v. State of Indiana , a 6-page opinion, Chief Judge Vaidik writes:
Ivan Vazquez began serving a forty-five-year sentence for felony drug convictions in 2005. Between 2010 and 2014, Vazquez filed three sentence-modification petitions as well as a motion to correct errors, all of which the trial court denied. Vazquez, proceeding pro se, now appeals. One of Vazquez’s claims is that the recently amended sentence-modification statute—Indiana Code section 35-38-1-17—applies to him. Although this Court previously held that Section 35-38-1-17 had no retroactive application, the legislature recently amended the statute to expressly provide for retroactivity; thus, the amended statute does apply to Vazquez. This fact aside, the amended statute does not entitle Vazquez to any relief. We find no error, and we therefore affirm.
In C.P. v. State of Indiana, an 18-page opinion, Chief Judge Vaidik writes:
Many state and federal courts have applied an exception to the Fourth Amendment’s exclusionary rule called the new-crime exception. This exception provides that notwithstanding a strong causal connection in fact between an illegal search or seizure by law enforcement and a defendant’s response, if the defendant’s response is itself a new and distinct crime, then evidence of the new crime is admissible notwithstanding the prior illegality. Because the purpose of the exclusionary rule—to deter police misconduct—is not advanced by suppressing evidence of a new crime committed by a defendant after an illegal search or seizure, we apply the new-crime exception to the Fourth Amendment’s exclusionary rule. And we also conclude that this exception applies equally to the Indiana Constitution. Accordingly, evidence that C.P. battered a police officer after being illegally seized is admissible. We therefore affirm C.P.’s adjudication as a juvenile delinquent for committing what would be Level 6 battery against a public-safety official if committed by an adult.
NFP civil decisions today (2):

Centier Bank as Trustee of Trust Number 1865 v. Wintering, LLC (mem. dec.)

Margaret Gerovac v. City of Valparaiso, Indiana, and Trinity Lutheran Church of Valparaiso (mem. dec.)

NFP criminal decisions today (1):

Shawn L. Elam v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, June 23, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Judge Posner remarks today on "a general issue of federal practice that this case illustrates"

Long-time ILB supporter, attorney Bill Groth, points to this quote from the end of Judge Posner's dissent today in a case out of Illinois, Reserve Hotels PTY Limited v. Theodore Mavrakis

I want in closing to remark a general issue of federal practice that this case illustrates. Recall that the district judge’s main reason (mysteriously ignored in the majority opinion) for dismissing Balagiannis’s suit was his fourmonth delay in filing the second letter. The second letter is crucial to his case. I find myself increasingly uncomfortable with basing dismissals with prejudice on harmless procedural bobbles. The only argument in favor of such summary justice that I can imagine is that by punishing parties for their lawyers’ mistake we improve the quality of the bar; the lawyers who disserve their clients attract fewer new clients and eventually perhaps are forced to leave the practice—an example of the positive effect of competition on the quality of goods and services that a market provides. But while this is plausible in theory, I have to say that in more than 33 years as a federal court of appeals judge I have not noted any improvement in the average quality of the lawyers who appear before us. I find it difficult to believe that punishing Balagiannis and his lawyer by in effect a “fine” of $925,000 will promote the quality of legal representation in the courts of this circuit.

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

Courts - NYT runs valuable biographical story on Justice Kennedy

Reported by Sheryl Gay Stolberg, this long June 21st NY Times story has much background information that was new to me, along with other facts I had forgotten. Highly recommended!

Posted by Marcia Oddi on Tuesday, June 23, 2015
Posted to Courts in general

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

For publication opinions today (1):

In LaQuantis Johnson v. State of Indiana , a 16-page, 2-1 opinion, Judge Brown writes:

LaQuantis Johnson appeals his conviction for unlawful possession of a firearm by a serious violent felon (“SVF”), a class B felony. Johnson raises one issue which we revise and restate as whether the trial court abused its discretion by admitting evidence obtained following a pat down of Johnson. We affirm. * * *

Johnson does not challenge the constitutionality of the initial encounter or investigatory stop. However, he does claim that the pat down was illegal under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. * * *

Johnson asserts that Officer Bridgeforth agreed on cross-examination that he had no particular reason to believe that Johnson had a gun and no particular reason to believe that he had any contraband, and that the facts do not support a reasonable belief that he was armed and dangerous. The State argues that the trial court properly found that Officer Bridgeforth had a reasonable belief that his safety was threatened. * * *

For the foregoing reasons, we affirm Johnson’s conviction.

Pyle, J., concurs.
Crone, J., dissents with opinion. [ that begins, on p. 13] Being mindful that we not only must articulate the proper standard for reviewing the constitutionality of a patdown under the Fourth Amendment but also adhere to that standard, I respectfully dissent from the majority’s decision to affirm Johnson’s conviction.[1] * * *

In short, I believe that the patdown of Johnson constituted an unlawful search under the Fourth Amendment. Because the firearm was the product of that search, it should have been excluded. See Hill, 956 N.E.2d at 179 (explaining that “fruit of the poisonous tree doctrine” bars evidence directly obtained or derivatively gained from unlawful search or seizure). On that basis, I would reverse his conviction for possession of a firearm by an SVF.
_____________
[1] Our supreme court has recently admonished this Court for correctly stating but incorrectly applying the proper standard of review. See, e.g., Civil Commitment of T.K., 27 N.E.3d 271, 274 (Ind. 2015) (disapproving line of cases reciting but not applying clear and convincing standard of proof in civil commitment cases); see also Brummett v. State, 24 N.E.3d 965, 966 (Ind. 2015) (clarifying that standard when reviewing for fundamental error has not changed despite Court of Appeals’ potentially confusing reference to standard “now” to be used when reviewing for fundamental error).

NFP civil decisions today (2):

One West Bank, FSB v. Jason Jarvis, Natalie Jarvis, Mortgage Electronic Registration Systems, INC. As Nominee for American Mortgage Network, INC., GE Money Bank, et al. (mem. dec.)

In re: the Estate of Robert F. Darter; Richard Darter v. Bernice T. Banks (mem. dec.)

NFP criminal decisions today (1):

Fritz Bernier v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, June 23, 2015
Posted to Ind. App.Ct. Decisions

Courts - More on yesterday's SCOTUS opinions; this leaves 7 to be decided [Updated]

SCOTUSblog has detailed posts on several other of yesterday's SCOTUS opinion.

Also decided yesterday were:[Updated] This new story by Ian Millhiser of ThinkProgress claims that the facial challenge language in Patel benefits abortion clinics: "Justice Sotomayor Hides Good News For Abortion Clinics In An Obscure Case About Hotels."

Posted by Marcia Oddi on Tuesday, June 23, 2015
Posted to Courts in general

Ind. Decisions - 7th Circuit posts one decided yesterday, re jury trial where defendant alone was present by videoconference

In Perotti v. Quinones (SD Ind., Magnus-Stinson), a 37-page opinion, Judge Rovner writes:

After a one-day trial, a jury rejected federal prisoner John Perotti’s claim that his promotion from education orderly to law clerk was delayed in retaliation for his history of filing administrative grievances. Perotti appeals, contending that the district court abused its discretion in denying his petition for a writ of habeas corpus ad testificandum and instead arranging for him to participate in the trial by video conferencing. At the least, Perotti suggests, the district court should have ordered all parties to appear by video conferencing rather than imposing that disadvantage solely on him. Finding no abuse of discretion in the court’s decision, we affirm the judgment. * * *

Perotti makes three principal arguments on appeal. He contends first that the district court did not objectively and properly balance the relevant Stone factors in denying his request for a writ of habeas corpus ad testificandum and deciding to have him appear remotely rather than in person at the trial. Among other things, he contends that the court did not sufficiently recognize the limits of participating in the trial by video and gave too much weight to the government’s allegations as to the security risks his live participation in the trial would present. Second, Perotti argues that once the court decided that he should participate in the trial by video, it should have compelled the defendants to do the same in order to level the playing field. We review the court’s decisionmaking in these respects for abuse of discretion. See Thornton v. Snyder, 428 F.3d 690, 697 (7th Cir. 2005); Jones v. Hamelman, 869 F.2d 1023, 1030 (7th Cir. 1989). Finally, Perotti claims that he was deprived of a fair trial by virtue of the court’s decision to have him appear remotely rather than in person, and that consequently the district court erred in denying his request for a new trial. We review that ruling as well for an abuse of discretion. E.g., Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir. 2014). * * *

The district judge did not abuse her discretion in denying Perotti’s petition for a writ of habeas corpus ad testificandum and having him instead testify and participate in the trial by video conferencing. The judge did everything she could do to ensure that Perotti could see as much of the trial proceeding and its participants as was possible, and we commend her for the job she did. We also wish to thank Perotti’s appointed counsel for their vigorous and effective advocacy on his behalf. AFFIRMED

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

Monday, June 22, 2015

Courts - "SCOTUS Sides With Raisin Farmers in Property Rights Case" [Updated]

Adam Liptak's story in the NY Times this afternoon about todays' decision in the raisin takings case, Horne v. Department of Agriculture, begins:

WASHINGTON — The Supreme Court ruled on Monday that a government program dating to the Great Depression meant to increase raisin prices by keeping some of them off the market amounted to an unconstitutional taking of private property by the government.

The case, Horne v. Department of Agriculture, No. 14-275, arose from the activities of Marvin D. and Laura Horne, raisin farmers in Fresno, Calif., who set up a business arrangement that they claimed allowed them to avoid the program.

The Agriculture Department imposed fines, and the Hornes defended themselves on the ground that aspects of the program violated the takings clause of the Fifth Amendment, which says private property may not be taken for public use without just compensation.

[More] Lyle Denniston of Scotusblog now has an opinion analysis, headed "Is the New Deal in new trouble?"

[Still more] Nina Totenberg of NPR this evening has a story for All Things Considered titled "This California Raisin Grower Just Got His Day In The Sun."

Posted by Marcia Oddi on Monday, June 22, 2015
Posted to Courts in general

Ind. Courts - Several stories on same-sex marriage in Indiana this weekend

Margaret Fosmoe reported in a long story in the South Bend Tribune headed "Hundreds of gay couples secure marriage licenses." The story includes:

On June 25, 2014, a U.S. District judge ruled that Indiana's ban on same-sex marriage violated the U.S. Constitution's equal-protection clause because it treated couples differently based on their sexual orientation.

Instantly, gay marriage was legal in Indiana. Couples rushed to county clerks offices to request licenses, with many couples marrying immediately, including Hall and O'Neil.

Just two days later, a federal appeals court in Chicago issued a stay on the judge's order striking down Indiana's gay marriage ban. Gay marriages came to a halt in the Hoosier state.

There was more legal action in the months that followed. On Oct. 6, the U.S. Supreme Court rejected appeals from five states seeking to preserve their bans, effectively making such marriages legal in 30 states. Gay marriage ceremonies resumed in Indiana.

A story Sunday in the Cincinnati Enquirer, by Kevin Grasha, headed "Small-town Indiana judge and gay marriage? No problem", reports:
LAWRENCEBURG – Judge Charles "Chuck" Evans, * * * a city judge who mostly handles traffic cases, is the go-to Dearborn County official for performing same-sex marriage ceremonies. He's been performing them since June 2014, when a federal judge struck down Indiana's ban on same-sex marriages. Four months later, the U.S. Supreme Court said it wouldn't consider challenges to that and similar rulings in other states, making same-sex marriage legal in Indiana.

Gay and lesbian couples from at least five states, he said, have made the drive to the small town in the southeastern corner of Indiana, near the Ohio and Kentucky borders. Couples have traveled from those neighboring states as well as from northern Georgia and Tennessee to have their unions legalized.

"It's the law. My court goes by the guidelines set down by the Indiana code," Evans said, in explaining why he's willing to perform the ceremonies. "If the law changes again – which I don't think it will – we'll continue to do what the law says."

He added: "I know I've made some people pretty happy." * * *

There was confusion on June 25, 2014, in the hours after U.S. District Judge Richard Young ruled that Indiana's same-sex marriage ban was unconstitutional.

For nearly three decades, Indiana law said: "Only a female may marry a male. Only a male may marry a female."

In Dearborn County, it took the county clerk's office a few hours to sort out the effect of Young's ruling. County Clerk Rick Probst said his office had to wait for the state to acknowledge that the federal ruling affected state law.

"We're still bound by state law," he said. Eventually, the state Attorney General's Office sent out an official notice. Probst's office issued the first same-sex marriage license the afternoon of Young's ruling.

ILB emphasis added above. Indiana statute law has not changed, but it has been impacted by federal court rulings.

Posted by Marcia Oddi on Monday, June 22, 2015
Posted to Indiana Courts

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

For publication opinions today (2):

In K.K. v. State of Indiana, a 15-page opinion, Judge Kirsch writes:

K.K., a juvenile, brings this appeal after he was adjudicated a delinquent child for having committed the offense of dangerous possession of a firearm, a Class A misdemeanor. He raises one issue that we restate as: whether the odor of burnt marijuana emanating from a vehicle in which K.K. was a passenger provided probable cause for officers to arrest the car’s three occupants, such that the loaded handgun found during the subsequent search of K.K. was properly admitted into evidence. * * *

Finding as we do that the arrest was supported by probable cause, the trial court did not abuse its discretion by allowing the firearm to be admitted into evidence because it was discovered pursuant to a lawful search incident to K.K.’s arrest. Affirmed.

In Eric D. Smith v. State of Indiana, a 9-page opinion, Judge Brown writes:
Eric D. Smith, pro se, appeals the trial court’s denial of his motion for relief from judgment and his petition for post-conviction relief. Smith raises two issues which we revise and restate as:
I. Whether the trial court abused its discretion in denying his motion for relief from judgment; and
II. Whether the trial court abused its discretion in denying his petition for post-conviction relief.
We affirm.
NFP civil decisions today (0):

NFP criminal decisions today (0):

Posted by Marcia Oddi on Monday, June 22, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - SCOTUS rules in 7th Circuit case today, out of Wisconsin

The SCOTUS decision in Kingsley v. Hendrickson today adopts Judge Hamilton’s dissent, 744 F.3d 443, 455, in this morning’s 5-4 ruling. From the SCOTUSblog case page:

Whether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.

Posted by Marcia Oddi on Monday, June 22, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending June 19, 2015

Here is the Clerk's transfer list for the week ending Friday, June 19, 2015. It is two pages (and 21 cases) long.

Two transfers were granted last week [details to follows]:

Posted by Marcia Oddi on Monday, June 22, 2015
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 6/22/15):

Next week's oral arguments before the Supreme Court (week of 6/29/15):

Thursday, July 2

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/22/15):

Monday, June 22

Next week's oral arguments before the Court of Appeals (week of 6/29/15):

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, June 22, 2015
Posted to Upcoming Oral Arguments

Sunday, June 21, 2015

Courts - "Scientists constantly test their hypotheses against an ever-expanding body of knowledge. . . . Is that what judging is too?"

As I read Emily Bazelon's 4-page article today, "Better Judgment," in the NY Times Magazine, I started marking the sections I wanted to quote in the ILB. But as it turned out, I marked up much of 3 of the 4 pages. Here is one sample:

Judges sometimes weigh other kinds of evidence, too: academic research (in Brown, the court cited a study about the harmful effects of segregation on black children); or the mounting impact of public opinion (a likely factor in the forthcoming same-sex-marriage rulings, whether or not the court says so). In a sense, an empirical approach turns judging itself into a form of social science. “Scientists constantly test their hypotheses against an ever-­expanding body of knowledge,” Martha Minow, the dean of Harvard Law School, told me. “Progress depends on trial and error. Is that what judging is too?”

The question is especially relevant now because of the kinds of disputes the courts are being asked to resolve. Advances in fields like computer science, electrical engineering and biochemistry are introducing new complexity into litigation. “The way we think about intellectual property may not stay the same,” Minow says, citing one example. “Or free speech in the context of social media.” One question raised by a Supreme Court case this term is whether threats on Facebook are as dangerous as in-person threats.

And here is another:
Last year, [7th Circuit Judge Richard Posner] heard two cases in which Indiana and Wisconsin defended their same-sex marriage bans by arguing primarily that the laws promote child welfare by inducing heterosexuals to marry, which leads to fewer “accidental” births and abandoned children. Same-sex marriage, the states claimed, could do nothing to alleviate this problem. Posner pointed out that the states were ignoring a key piece of evidence: Many abandoned children are adopted by gay couples. “Those children,” he wrote, “would be better off both emotionally and economically if their adoptive parents were married.” The bans failed the state’s own test of protecting children, and that is why Posner and his court struck them down.

Posner’s attention to consequences can lead him, like other empirically minded judges, to change his thinking. Eight years ago in Crawford v. Marion County Election Board, an early challenge to a state law requiring voters to show photo identification at the polls, Posner ruled in favor of Indiana’s voter-ID law, in part because none of the plaintiffs who challenged it said that the law would prevent them from voting. Dissenting from Posner’s ruling, one of his colleagues said that Indiana, too, lacked evidence of the existence of voter fraud, which the law was ostensibly intended to combat. It was clear enough, the colleague wrote, that thousands of poor and elderly voters would be disenfranchised.

Six years later, in “Reflections on Judging,” a recent book (he has written roughly 45), Posner criticized his original ruling. “I plead guilty to having written the majority opinion,” he wrote, upholding “a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.” * * *

But Posner said he had simply acknowledged that judges sometimes don’t understand a subject well enough to “gauge the consequences of their decisions.” With more evidence about the results of requiring voter ID, it made sense to him to shift his position. Last year, Posner’s court heard a challenge to another voter-ID law in Wisconsin. Researching online, Posner found charts showing that strict voter-ID requirements have been enacted only in states controlled by Republicans. After a panel of three judges on his court upheld Wisconsin’s law, Posner urged the court as a whole to rehear the case. This time he wrote that the “net effect of such requirements is to impede voting by people easily discouraged from voting, most of whom probably lean Democratic.” Posner lost the argument; the panel decision was upheld and Wisconsin’s law stood.

Even the architect of the Supreme Court’s voter-ID decision has had a change of heart. In 2008, Justice John Paul Stevens wrote the majority opinion affirming Posner’s Indiana ruling by a vote of 6 to 3. But he, too, has since decided that the dissenting judges got it right about the consequences of the decision. It’s “unfortunate,” Stevens told me by phone recently, that his opinion in Crawford has prompted other states to pass voter-ID requirements.

Posted by Marcia Oddi on Sunday, June 21, 2015
Posted to Courts in general

Friday, June 19, 2015

Courts - "A U.S. Supreme Court ruling could make it easier for synthetic drug dealers to dodge convictions"

Lindsey Wright of Indiana Public Media writes this afternoon:

A U.S. Supreme Court ruling could create some complications for Indiana’s plan to rid the state of the synthetic drugs commonly referred to as bath salts.

A recent ruling overturned a Virginia man’s conviction of selling bath salts saying that prosecutors must show he either knew the specific compound he was dealing or knew it was illegal.

Indianapolis Senator Jim Merritt says he thinks this doesn’t work well for the state of Indiana and calls it “reprehensible.”

The case referred to would be yesterday's SCOTUS decision in McFadden v. United States - see this ILB post from earlier today.

Recall the two Jan. 27, 2015 Court of Appeals decisions dealing with synthetic drugs, Tiplick and Ashfaque, which ruled that certain definitions of "synthetic drug" are void for vagueness. Per this May 18, 2015 ILB post, both have been granted transfer by the Supreme Court. An order scheduling consolidated oral argument was filed May 21st; the argument is set for July 2, 2015 at 9 AM.

During the just concluded session, Senator Merrit authored SB 93, which would have required:

... the publisher of the Indiana administrative code to publish a list of substances declared by the board of pharmacy to be synthetic drugs in a specific location in the Indiana administrative code, and requires the board of pharmacy to include a link to that provision of the Indiana administrative code on its Internet web site.
The bill died in House Judiciary, but its content is worth a look.

Please contact the ILB if you can add more information.

Posted by Marcia Oddi on Friday, June 19, 2015
Posted to Courts in general

Vacancy on COA 2015 - 3 names formally transmitted to Governor Pence

Via a letter dated June 18, 2015 and just posted late this afternoon, Chief Justice Loretta Rush, on behalf of the Judicial Nominating Commission has transmitted to Governor Pence the names of the:

... three candidates the Commission nominated as the three most highly: qualified applicants: Judge Robert R. Altice, Jr. , Marion Superior Court, Civil Division 5; Judge Christopher M. Goff, Wabash Superior Court; and Mrs. Patricia Caress McMath of Indianapolis.
As has been the tradition, the 7-page letter of transmittal includes brief observations about the qualifications of each nominee. The Governor now has 60 days in which to act.

Posted by Marcia Oddi on Friday, June 19, 2015
Posted to Vacancy on COA 2015

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

For publication opinions today (2):

In In the Matter of the Trust Created Under the Last Will and Testament of Marion A. Peeples, Deceased, Johnson County Community Foundation as Successor Trustee of the Marion A. Peeples Foundation Charity, a 21-page opinion, Judge Bradford writes:

After Marion Peeples and his wife Eve passed away, the trust provided for in their wills was established (“The Trust”). The Trust provided for the award of scholarships to Indiana high school graduates, preferably from Franklin High School, who wished to pursue post-secondary education in certain fields. Union Bank & Trust was initially the trustee of the Trust, and, through mergers and acquisitions, JPMorgan Chase Bank, N.A. (collectively, “the Bank”), took over.

In 2013, the Johnson County Community Foundation (“JCCF”), which had been managing the scholarship program for the Bank since 2000, petitioned the trial court to be appointed trustee for the Trust. The trial court granted JCCF’s petition in an order that limited JCCF’s fee to 1.5% of trust assets per year and required it to receive court approval before engaging the service of certain third-parties under certain circumstances. JCCF now appeals, contending that the trial court abused its discretion in imposing restrictions on its administration of the Trust. The Attorney General of Indiana appears on behalf of the Trust beneficiaries and argues that JCCF’s arguments are not ripe for appellate review. JCCF counters that the Attorney General’s arguments were not properly preserved. Because we conclude that (1) the Attorney General’s arguments were properly preserved, (2) JCCF’s arguments are ripe, and (3) the trial court did not abuse its discretion in imposing restrictions on JCCF’s administration of the Trust, we affirm.

In Alexander K. Jerden v. State of Indiana, a 17-page opinion, Judge Pyle writes:
Appellant/Defendant, Alexander K. Jerden (“Jerden”), appeals his convictions for two counts of Class B misdemeanor reckless driving. On appeal, he argues that several of the prosecutor’s statements during closing argument constituted misconduct because they inflamed the passions and prejudices of the jury and encouraged the jury to convict him for reasons other than his guilt. He also argues that the trial court erred in notifying the Indiana Bureau of Motor Vehicles (“BMV”) that he received guilty verdicts for all four of his charges, when two of the verdicts merged, and the trial court entered judgments of conviction for only two of his charges.

We conclude that, regardless of whether the prosecutor committed misconduct, Jerden did not object to the closing argument, and the prosecutor’s statements did not amount to fundamental error. However, we find that the trial court erred in notifying the BMV of all four of Jerden’s guilty verdicts because the trial court’s notification did not identify that two of the verdicts merged with the other two and did not result in convictions. We reverse in part and remand with instructions for the trial court to correct its notice to the BMV. * * *

To preserve a claim of prosecutorial misconduct, the defendant must—at the time the alleged misconduct occurs—request an admonishment to the jury, and if further relief is desired, move for a mistrial. Id. Failure to do so results in waiver. Stevens v. State, 691 N.E.2d 412, 420 (Ind. 1997). Our standard of review is different where a claim of prosecutorial misconduct has been waived for a failure to preserve the claim of error. Id. In such a case, the defendant must establish not only the grounds for prosecutorial misconduct but also that the prosecutorial misconduct constituted fundamental error. Id. at 667-68.

NFP civil decisions today (0):

NFP criminal decisions today (4):

David G. Taylor v. State of Indiana (mem. dec.)

Aaron Harlow v. State of Indiana (mem. dec.)

Frank Rhodes v. State of Indiana (mem. dec.)

Roger Hartman v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, June 19, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court suspends Indianapolis attorney convicted of securities fraud

In In re Charles B. Blackwelder, a published order of interim suspension dated 6/18/15, the Court writes that it:

finds that Respondent has been found guilty of the following offenses under Indiana law: four (4) counts of securities fraud, class B felonies.

IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective immediately.

A check of the Roll of Attorneys shows that Charles Boyce Blackwelder, Indianapolis, "retired" on 10-09-14.

Posted by Marcia Oddi on Friday, June 19, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Tax Court posts one, dated June 18

In Muir Woods, Inc. v. Joseph P. O'Connor, Assessor of Marion County, an 11-page opinion, Judge Wentworth writes:

This case concerns whether the Indiana Board of Tax Review erred when it dismissed Muir Woods Inc.’s Petitions For Correction Of An Error (Forms 133) because the forms alleged errors not correctable under that appeal procedure. The Court affirms.

Posted by Marcia Oddi on Friday, June 19, 2015
Posted to Ind. Tax Ct. Decisions

Courts - Prized courthouses in danger in southern counties with two county seats and two courthouses

This long NY Times story today by Alan Blinder is headed "Arkansas Town Frets About Losing a Courthouse, and an Identity." A few quotes:

The mounting maintenance troubles at the courthouses have vaulted this part of eastern Arkansas into a particular kind of nostalgia-fueled political predicament that could occur only in fewer than three dozen of the nation’s 3,069 counties — those with two county seats and two courthouses.

Local officials, wary of the rising costs of the existing courthouses, want to shut down both and consolidate their functions into a $15 million complex in Blytheville, a city of about 15,000 people, more than double the population of Osceola.

So while Blytheville would get a glimmering building and keep its prized status of county seat, Osceola and its neo-Classical style courthouse, which dates back to 1912, would be out of luck.

In Mississippi County, the debate is as much about tradition, and perhaps some folklore, as it is about the dollars and cents that often seem elusive as pinched county budgets grow even tighter. * * *

In Osceola, whose population has decreased more than 16 percent since 2000, people are already fretting about what new troubles could come from a courthouse closing.

“The only thing you’ve got in a small town is the charm of your small town; the only thing you have is your history that makes you different,” said Sandra Brand, a member of the City Council who is also the editor of the local newspaper, The Osceola Times. “If you lose that courthouse, you’re going to lose our downtown, and you’re going to lose that quality of life, which is our opportunity.”

Most of the counties with two seats — 20 — are in Arkansas and Mississippi, the National Association of Counties said. But there is scarce agreement about why those counties adopted such an approach.

Many residents, often supported by local historians, contend that multiple courthouses are vestiges of the pre-automobile era, constructed so that people could be within a day’s travel of public officials like judges and tax collectors.

Others suggest that the imposing structures — the one here features a copper dome — were merely pork-barrel projects to aid the electoral ambitions of calculating county politicians.

The courthouses, with their voter registration offices and taxing powers, are natural hubs of official life with measures of parochial convenience.

“When do you go get your tags?” said Merideth Elder, who works at a gift shop near the courthouse in this county of more than 900 square miles. “You go on your lunch break. You’re not going to go after work if you work until 5. Well, if you have to drive 30 minutes, how long’s your lunch break?”

That is just a taste of this southern county story on the community significance of old couthouses.

Posted by Marcia Oddi on Friday, June 19, 2015
Posted to Courts in general

Ind. Courts - How will yesterday's Texas speciality plates ruling impact the Indiana "OINK" lawsuit?

Maureen Groppe of the IndyStar explores that question today in this story. The lengthy story begins:

WASHINGTON — A U.S. Supreme Court decision confirming a state's right to decide which groups can be honored with specialty license plates means Indiana can continue to promote Purdue University, the National Rifle Association, the Indianapolis Colts and dozens of other organizations.

But it remains to be seen how Thursday's ruling might affect a pending challenging to Indiana's personalized plate program.

That program, which deals with the words and letters printed on a plate, instead of the plate itself, has been on hold after a Greenfield resident was blocked by the Indiana Bureau of Motor Vehicles from using the words "OINK," a lighthearted reference to his work as a police officer.

A class-action lawsuit was brought by the American Civil Liberties Union of Indiana against the BMV over the issue in 2013.

The Indiana Supreme Court will consider in August the state's appeal of a lower court's ruling that the BMV's standards for evaluating requests for personalized license plates violated the First Amendment.

The ILB has had many posts on speciality plates over the years. Here are some of them.

Posted by Marcia Oddi on Friday, June 19, 2015
Posted to Indiana Courts

Courts - More on: SCOTUS decides Texas license plates case; six opinions in total yesterday

Updating this ILB post from yesterday, that listed five SCOTUS decisions issued yesterday -- there was a sixth: McFadden v. United States.

As Mark Walsh writes in SCOTUSblog, in a post titled "A bonus day for opinions" that details all of yesterday's six opinions, McFadden is:

... a case about the evidentiary requirements of the federal Controlled Substance Analogue Enforcement Act of 1986, a measure designed to treat analogue substances designed for human consumption the same as controlled substances.

Here are some quotes from McFadden, via Sentencing Law blog, re: "The question presented in this case concerns the knowledge necessary for conviction under § 841(a)(1) when the controlled substance at issue is in fact an analogue." See also this post from the same blog: "Criminal law geek overload as SCOTUS clears most (but not most consequential) of its criminal docket."

The NYT reported yesterday:

Posted by Marcia Oddi on Friday, June 19, 2015
Posted to Courts in general

Thursday, June 18, 2015

Courts - "Illinois high court: Comcast must reveal anonymous commenter"; Indiana parallels

The AP is reporting that:

SPRINGFIELD, Ill. | The Illinois Supreme Court has affirmed a lower court opinion ordering Comcast Cable Communications to identify a subscriber who posted an anonymous message suggesting a political candidate molests children.

The court said Thursday that the internet service provider must identify the subscriber who commented on a 2011 article in the Freeport Journal Standard about Bill Hadley's candidacy for the Stephenson County board.

Here [h/t to Dan Carden] is today's 13-page Illinois Supreme Court decision in Hadley v. Subscriber Doe.

Readers may recall parallels to an Indiana case, Indiana Newspapers, Inc. v. Jeffrey M. Miller, et al. See this post from Sept. 27, 2013, and this later post from the same day, quoting an IndyStar story:

The Indiana Supreme Court has changed its mind and decided not to get involved in a long-running fight over whether The Indianapolis Star must reveal the identity of an anonymous commenter on the newspaper’s website.

The decision, handed down Friday, lets stand a Marion Superior Court judge’s ruling last year ordering The Star to provide the commenter’s identity.

The Supreme Court did not say why it changed its mind in taking up the case, just one day after hearing oral arguments in the matter.

The Indiana COA decision does not appear to be cited in today's Illinois Supreme Court opinion.

Posted by Marcia Oddi on Thursday, June 18, 2015
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Courts - Videos referenced in SCOTUS opinions

This happened for the first time in March of 2009. Adam Liptak of the NYT had a story headed "Supreme Court Enters the YouTube Era." A quote:

The first citation in a petition filed with the court last month, for instance, was not to an affidavit or legal precedent but rather to a video link. The video shows what is either appalling police brutality or a measured response to an arrested man’s intransigence — you be the judge.
See details in this March 2, 2009 ILB post. You can access the actual video from the SCOTUS "video resources" site. Notice that it is the first in time of only three videos.

The second, from 11/10/08, is from Kelly v. California. Kelly was denied cert, but, as SCOTUSblog notes, "The Supreme Court has made the video in Kelly, first displayed on SCOTUSblog here, available on its web site here."

The third video on the SCOTUS "Video Resources" site is from today, 6/18/15, in the case of Brumfield v. Cain. Justice Thomas, on p. 3 of his 51-page dissent (which follows the 19-page opinion) [p. 25 in the pdf], links to "the videotaped confession" via footnote 1. [h/t to Adam Liptak for his tweet this morning].

Likely this is just the advent of such SCOTUS video resources ...

Posted by Marcia Oddi on Thursday, June 18, 2015
Posted to Courts in general

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

For publication opinions today (2):

In I-465, LLC v. Metropolitan Board of Zoning Appeals Division II of Marion County, Indiana, Jeffrey R. Baumgarth and The Myers Y. Cooper Company , a 15-page opinion, Judge Friedlander writes:

I–465, LLC appeals a decision by the Marion County Metropolitan Board of Zoning Appeals (the BZA) approving a request for a property-use variance by Jeffrey R. Baumgarth and Myers Y. Cooper Co. (collectively referred to as Myers Cooper). I–465 challenges the adequacy of the BZA’s findings of fact and whether they support the BZA’s determination that Myers Cooper established the elements necessary to justify the variance it sought. We affirm. * * *

In summary, after reviewing the record before us, we conclude that the BZA’s decision to grant the variance was based upon its determination that Myers Cooper had established the five elements required to justify a variance, and its decision was supported by adequate findings, which in turn were supported by the evidence, and therefore not clearly erroneous. Accordingly, we affirm the BZA’s decision.

In John Feldhake v. Edwin Buss, Latoya Lane, and Nathan Walters , a 9-page opinion, Judge Pyle writes:
John Feldhake (“Feldhake”) appeals the trial court’s grant of summary judgment in favor of Edwin Buss (“Buss”), Latoya Lane (“Lane”), and Nathan Walters (“Walters”), (collectively, “the Defendants”) on his personal injury claim. On appeal, Feldhake claims that the trial court erred in granting summary judgment because the Defendants based their motion on defects in the complaint and failed to designate factual evidence in support of their motion. In addition, he claims that the trial court erred in considering the Defendants’ motion for summary judgment while discovery was ongoing. Defendants argue that they are entitled to summary judgment because Feldhake did not comply with various requirements of the Indiana Tort Claims Act (“ITCA”). We affirm the trial court’s grant of summary judgment because Feldhake’s complaint did not comply with the ITCA’s pleading requirements to sue a government employee individually or its notice requirements.
NFP civil decisions today (3):

NFP criminal decisions today (0):

Ryan M. Burton v. State of Indiana (mem. dec.)

Despina N. Manologlou v. State of Indiana (mem. dec.)

Adrienne Tyler v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, June 18, 2015
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS decides Texas license plates case

Per SCOTUSblog:

Texas specialty license plate design = gov't speech. TX can refuse to issue plates w proposed Confederate Veterans' design
This was one of the four cases listed in the post, "Hoosiers have a stake in pending Supreme Court rulings." Walker v. Sons of Confederate Veterans.

Also decided today (per SCOTUSblog):

Posted by Marcia Oddi on Thursday, June 18, 2015
Posted to Courts in general

Ind. Courts - Fewer Oral Arguments (But Not Opinions?) at the Indiana Supreme Court

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

Updating this March 18 post, the Indiana Supreme Court heard oral argument in three cases on Tuesday—the final arguments of its fiscal year that ends June 30.

Although the justices heard oral argument in 72 cases in 2012-13 and 80 cases in 2013-14, it heard just 61 arguments in 2014-15.

2012-2013 2013-2014 2014-2015
August 0 3 0
September 11 9 9
October 5 12 11
November 5 3 6
December 9 3 5
January 13 6 3
February 6 9 6
March 7 7 4
April 4 6 6
May 6 14 4
June 6 8 7
Total 72 80 61

Whether this year was an anomaly or the beginning of a new normal of fewer arguments remains to be seen. For the first time in several years, the justices have scheduled arguments in July, an early start to the argument count for 2015-16.

Fewer oral arguments have not been matched by a corresponding decrease in transfer grants or opinions issued. Excluding attorney and judicial discipline cases, the justices have issued 85 opinions so far this fiscal year. Some later posts, after the end of the fiscal year, will crunch the data and analyze those opinions, including their timing, the types of issues addressed, and the alignment of justices.

The argument data, however, signals that the Court is more likely than in the past to issue an opinion without first hearing oral argument. Although cases argued one year may not result in an opinion until the following year, at most 50 of the Court’s 61 arguments will ever result in an opinion because (1) transfer was vacated and denied in six of the cases after oral argument and (2) transfer was denied in five other cases after the justices heard argument on the issue of whether to grant transfer. That means 40% or even more (50/85) of the Court’s opinions may be issued without first hearing oral argument.

As a final point, I offer three takeaways from this data. First, lawyers should be sure to leave no stone unturned in their transfer petition because they may not have an opportunity to answer questions or amplify points at oral argument. Second, lawyers who prevail in the Court of Appeals should almost always file a response to transfer—this will be the last and only opportunity to argue about the case if transfer is granted and no argument scheduled. Finally, lawyers who prevailed in the Court of Appeals should not assume the worst when they receive an order scheduling oral argument. In nearly 20% of the cases this past year, the justices ultimately decided not to grant transfer.

Posted by Marcia Oddi on Thursday, June 18, 2015
Posted to Schumm - Commentary

Wednesday, June 17, 2015

Ind. Law - 2015 Legislative Session Digest

The Indiana Judicial Center has put out this useful digest of select bills or portions of bills of interest to the judiciary that were signed into law in the 2015 legislative session.

Posted by Marcia Oddi on Wednesday, June 17, 2015
Posted to Indiana Law

Ind. Decisions - Supreme Court issues one today

In Robert Lewis III v. State of Indiana, a 12-page, 5-0 opinion, Justice Massa writes:

Robert Lewis III brings this direct appeal after a jury convicted him of the murder of Jennifer Kocsis, murder in the perpetration of criminal deviate conduct, criminal deviate conduct, and resisting law enforcement. Lewis challenges various aspects of the proceedings below, including the admission of certain evidence, the adequacy of the jury instructions, and his sentence of life without the possibility of parole. We find no reversible error with respect to the convictions and affirm, but we reverse the sentencing determination and remand to the trial court for a sentencing order containing a personal statement from the judge that life without possibility of parole is the appropriate sentence for Lewis, consistent with Harrison v. State, 644 N.E.2d 1243 (Ind. 1995) and Pittman v. State, 885 N.E.2d 1246 (Ind. 2008).

Posted by Marcia Oddi on Wednesday, June 17, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (2):

In Gerald A. Kemper v. State of Indiana, a 14-page opinion, Judge Baker writes:

Gerald Kemper appeals his convictions and sentences for Robbery Resulting in Bodily Injury, a class B felony, Conspiracy to Commit Robbery While Armed with a Deadly Weapon, a class B felony, and Unlawful Possession of a Firearm by a Serious Violent Felon, a class B felony. Finding that the State presented insufficient evidence from which a reasonable jury could conclude that Kemper and Malik Abdullah conspired to commit robbery, we reverse Kemper’s conviction and sentence for conspiracy to commit robbery while armed with a deadly weapon. In all other respects, we affirm. * * *

Kemper challenges his convictions on several grounds. He argues that the trial court erred in denying his motion for a mistrial. He also maintains that the State presented insufficient evidence to sustain his convictions and that his convictions violate double jeopardy principles. Finally, Kemper argues that his sentence is inappropriate in light of the nature of the offenses and his character.

In Kevin A. Ammons v. State of Indiana, a 22-page, 2-1 opinion, Judge Riley writes:
Appellant-Defendant, Kevin A. Ammons (Ammons), appeals the denial of his petition to remove his designation as a sexually violent predator (SVP) and the accompanying requirement that he register as a sex offender for life. We affirm.

Ammons raises one issue on appeal which we restate as: Whether the trial court erred in denying his petition to remove his SVP designation. * * *

In light of the foregoing, we conclude that Ammons has not carried his burden of demonstrating that as applied to him the Act violates the Indiana constitutional prohibition against ex post facto laws. In this regard, we affirm the trial court.

Bailey, J. concurs
Barnes, J. dissents with separate opinion [which begins, at p. 19, and concludes] I respectfully dissent. I do not believe that requiring Ammons to register as a sex offender is consistent with the Indiana Constitution’s Ex Post Facto Clause as interpreted by our supreme court in Wallace v. State, 905 N.E.2d 371 (Ind. 2009). As such, I conclude that the trial court should have granted Ammons’s petition to be removed from Indiana’s sex offender registry. * * *

Applying Burton and Wallace, I believe requiring Ammons to register as a sex offender in Indiana violates the Indiana Constitution. I vote to reverse the denial of Ammons’s petition to be removed from the Indiana sex offender registry.

NFP civil decisions today (3):

Mariea L. Best v. Russell C. Best (mem. dec.)

In Re the Paternity of N.W., M.A. v. N.W. (mem. dec.)

Peter F. Bushee v. Sheriff of Johnson County, Indiana (mem. dec.)

NFP criminal decisions today (6):

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

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

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

Richard Dean Martin v. State of Indiana (mem. dec.)

Etelvina Abrego v. State of Indiana (mem. dec.)

Jesse J. Barger v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, June 17, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on "Supreme Court refuses to hear insured’s challenge to pro rata allocation ruling"

Supplementing this ILB post from June 12th, here is another article on the Indiana Supreme Court's denial of transfer in Thomson, Inc. v. Ins. Co. of N. America. This article, from John P. Fischer of Barnes & Thornburg, begins:

The Indiana Supreme Court recently declined to accept jurisdiction over a major insurance coverage dispute, leaving intact an Indiana Court of Appeals opinion that may now become a landmark decision on a number of insurance coverage issues in Indiana. The Supreme Court’s declination of jurisdiction over Thomson, Inc. v. Ins. Co. of N. America, 11 N.E.3d 982 (Ind. Ct. App. 2014), on May 15, could have far-reaching effects that are helpful to policyholders in some respects, and potentially contrary to policyholders’ interests in others.

Posted by Marcia Oddi on Wednesday, June 17, 2015
Posted to Ind. Sup.Ct. Decisions

Courts - Federal judge rules feds approval of proposed Illiana Tollway is invalid

Here is the AP story posted this morning on the NWI Times site. Some quotes:

CHICAGO | A U.S. District Court judge in Chicago ruled Tuesday that the federal government's approval of the proposed Illiana Tollway linking northern Illinois and Indiana is invalid.

Judge Jorge Alonso ruled the Federal Highway Administration's 2013 endorsement of the bistate project was "arbitrary and capricious" and in violation of U.S. environmental law. * * *

The ruling by Alonso is the result of a lawsuit filed by Illinois environmental groups which contended federal approval relied on faulty information and didn't adequately consider environmental impacts. It claimed the U.S. Department of Transportation, the Federal Highway Administration and Illinois and Indiana officials relied on inflated population, job and traffic forecasts to justify the $1.5 billion, 47-mile highway.

Environmentalists also claimed reviewers failed to adequately consider potential harm to the Midewin National Tallgrass Prairie. * * *

Supporters, including [Indiana Governor] Pence, say the expressway would relieve traffic congestion on Interstate 80 and create much-needed jobs.

"We're ready to build the Illiana whenever Illinois is," Pence spokesman Christy Denault said earlier this month.

Here are some earlier ILB posts on the Illiana project, which has been on hold since not long after Illinois' Republican Gov. Bruce Rauner took office this year.

The ILB will try to locate the Illinois federal district court opinion.

[More] Here it is, 23 pages, June 16, 2015: Openlands et al v. United States Department of Transportation et al, No. 1:2013cv04950

Posted by Marcia Oddi on Wednesday, June 17, 2015
Posted to Courts in general | Environment

Tuesday, June 16, 2015

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

For publication opinions today (1):

In Joan Strozewski v. James Strozewski, a 6-page opinion, Judge Kirsch writes:

In this interlocutory appeal, Joan Strozewski (“Joan”) challenges the trial court’s order denying her motion to transfer the case to St. Joseph County, Indiana. She raises several issues, of which we find the following dispositive: whether the trial court erred in finding that Hamilton County, Indiana, where James Strozewski (“James”) filed his petition for dissolution of marriage, was a preferred venue pursuant to Indiana Trial Rule 75 and in denying Wife’s motion to transfer venue. * * *

Joan’s contentions focus on special venue statutes, but the plain language of Trial Rule 75(A)(8) states that preferred venue lies in “the county where a claim in the plaintiff’s complaint may be commenced under any statute recognizing or creating a special or general remedy or proceeding[.]” As provided above, a dissolution action is a proceeding created and recognized by statute. We, therefore, conclude that, under Trial Rule 75(A)(8), Hamilton County is a preferred venue for this dissolution action, and although preferred venue may lie in more than one county, if an action is filed in a county of preferred venue, change of venue cannot be granted. Muneer, 951 N.E.2d at 243. The trial court did not err in denying Joan’s motion to transfer venue. Affirmed.

NFP civil decisions today (3):

In the Matter of the Termination of the Parent-Child Relationship of: M.Y. and M.Y. (Minor Children), J.P. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Guardianship of M.B., Mariea L. Best v. Russell C. Best (mem. dec.)

Nancy Jo L. Coles v. Robert Nelson Coles, Jr. (mem. dec.)

NFP criminal decisions today (5):

William Clayton Jackson v. State of Indiana (mem. dec.)

Antelmo Juarez v. State of Indiana (mem. dec.)

Justin McIntosh v. State of Indiana (mem. dec.)

Anthony M. Cleveland v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Tuesday, June 16, 2015
Posted to Ind. App.Ct. Decisions

Courts - "Hoosiers have a stake in pending Supreme Court rulings"

In an Indianapolis Star story today, Kristine Guerra of the Indianapolis Star highlights four cases awaiting SCOTUS decision this month of being particularly relevant to Hoosiers. They are:

Thanks to SCOTUSblog for the above detailed case data, taken from this list compiled by SCOTUSblog of the then-20 cases that remain (prior to the 3 decisions issued yesterday by the Court: Din, Mata, and Botts).

Posted by Marcia Oddi on Tuesday, June 16, 2015
Posted to Courts in general

Ind. Courts - "Warrick County judge announces retirement"

Mark Wilson reports today in the Evansville Courier & Press:

Boonville, Ind. - Warrick County Superior Court Judge Keith Meier has announced he will retire from the bench after Aug. 31 to focus more on his family and personal life.

In a letter to the Warrick County Bar Association and fellow judges, Meier said he isn't planning on giving up the law entirely.

"I do, however, hope to serve as senior judge and, perhaps, do some mediation or serve in some role as counsel to other lawyers," he wrote.

Meier said Monday that he would consider continuing to preside over Warrick County's Drunk Driving and Drug Court, which he created in 2005. The court program is specifically attached to Warrick Superior Court No. 1. Meier said he hoped whomever is appointed to replace him will continue it. * * *

Meier said he has called Gov. Mike Pence's office and the Indiana Supreme Court to notify them of his decision, as well as sending resignation letters.

It will be up to Pence to appoint someone to carry out the remaining three-and-a-half years of Meier's term.

Meier has presided over Warrick County Superior Court No. 1 for more than 14 years. He was first elected in 2000 after the retirement of former Judge Edward Campbell. He was re-elected 2006 and 2012.

Posted by Marcia Oddi on Tuesday, June 16, 2015
Posted to Indiana Courts

Environment - "No poultry at county fairs this year" Friday night poultry sales also banned

Near the end of May, the Lafayette J&C reported that:

The Indiana Board of Animal Health has banned all bird shows at county fairs this summer and through the fall in the hope of stopping the spread of a virulent influenza that has led to the deaths of more than 40 million birds in 16 states. * * *

State animal health officials said they made the decision in the light of two highly pathogenic avian influenza, or HPAI, strains now circulating.

The H5N2 strain, which has not been seen in Indiana, has spread through much of the Midwest in recent months. A few weeks ago, nearly 80 birds on a Whitley County farm were euthanized after a different strain, H5N8, previously seen in California, was discovered in the flock.

"We are very concerned about bird health," said Denise Derrer, a spokeswoman for the Indiana Board of Animal Health. "This decision wasn't done lightly, and it wasn't a knee-jerk reaction to a single backyard flock."

About 10 other states — including Iowa, Minnesota, Pennsylvania, and West Virginia — also have banned any events, such as fairs, where birds can commingle. The ban does not extend to private sales between individuals.

These avian influenzas, which are spread by wild waterfowl that appear to be impervious to the viruses, have no impact on human health, although they are often deadly for chickens, turkeys and other poultry. Nor is there any reason to be concerned about food safety, Derrer said.

Today in the J&C, Hannah Smith Kiefer reports that while "Poultry banned at fair, but show goes on." It will include:
... a competition on July 21 where the birds will be judged based on photographs placed in the birds’ empty cages and interviews with the birds’ handlers. About 85 kids are expected to participate.
Maureen Hayden of CNHI writes in the New Albany News & Tribune:
Levi Raber doubled the size of the space he allots for Friday night poultry sales at Dinky’s Auction House, near the Amish settlement of Montgomery, five years ago.

By this spring the area routinely “maxed out” with up to 6,000 live birds — mostly farm-raised chickens - sold to the highest bidder.

No more.

In late May, the state Board of Animal Health banned the movement of fowl to events where co-mingling occurs. Raber had to shut down much of what he calls the “furs and feathers” part of his operation.

“It’s hurt quite a bit,” said Raber, who estimates his revenues are down almost 30 percent.

Prompting the ban — mirrored in states across the nation — is avian flu. The fast-spreading virus found in 21 states so far has claimed 50 million chickens and turkeys, many killed in mass slaughters undertaken to prevent further spread of the disease.

The disease is taking an expensive toll on the commercial poultry industry. Egg prices in grocery stores have spiked 200 percent.

It’s also causing hardship at places like Dinky’s that cater to bird enthusiasts and backyard chicken farmers whose numbers are growing, state officials said.

To enforce the ban, workers from the Board of Animal Health are traveling to auction houses and swap meets to search for banned birds.

Inspectors visited the most recent swap meet held by amateur horse lovers with the Golden Horseshoe Saddle Club in Knox, Ind., to ensure illicit feathered creatures were kept out. * * *

“We know that’s a hardship for a lot of people,” said board spokeswoman Denise Derrer. “And we know people are worried about protecting their investments.”

But, in a worst-case scenario, the ban could last up to three years to prevent what Derrer says would be an agricultural nightmare brought on by avian flu.

There’s no vaccine yet to combat the virus carried by migratory fowl that travel along the Mississippi Flyway — an area that includes Indiana and other major egg-producing states.

Scientists aren’t even sure how it’s transmitted. Likely culprits — bird droppings, saliva, rodents, animal feed and even dust particles — are hard to control.

“We’ve not had anything like this,” Derrer said of the highly pathogenic strains that spread throughout Asia, Europe and the Middle East before landing here. “The potential for devastation is unmatched.”

The Board of Animal Health has been gathering comments online, through a virtual public hearing, in advance of a July meeting when it will decide whether to extend the ban.

A common suggestion is to let bird owners test their animals using a federally approved kit that detects avian flu in chickens, turkeys, ducks and geese.

But those tests aren’t 100 percent reliable. A second option, using a more expensive and sophisticated test sent to the state’s only animal diagnostic lab at Purdue University, “would just overwhelm the system,” Derrer said.

“We’re trying hard to get out ahead of this,” she said.

Posted by Marcia Oddi on Tuesday, June 16, 2015
Posted to Environment

Ind. Courts "Samuel Bradbury defense invokes recent SCOTUS ruling"

Updating earlier ILB posts, including one from July 23, 2014 headed "Man who threatened to bomb courthouse arraigned on federal charge"," Steven Porter reports today in the Lafayette Journal & Courier:

Bolstered by a recent ruling from the Supreme Court of the United States, federal defense attorneys representing a 23-year-old Pine Village man accused of making death threats on Facebook are asking a judge to again consider dismissing the charges brought against him.

Samuel Bradbury was arrested nearly one year ago after posting a violent anti-law enforcement rant online that allegedly threatened the lives of two specific police officers and two judges.

Ruling in an unrelated case, eight of nine Supreme Court justices agreed June 1 that the violent rap lyrics a Pennsylvania man posted on Facebook about his estranged wife could only be deemed criminal if they were intended as threats.

A lower court had entered a conviction after a jury determined that prosecutors met a lower burden, proving merely that a reasonable person would perceive the posts as threats.

Bradbury’s defense team responded Thursday with a brief arguing that the Supreme Court’s decision supports the argument they made in December, when they asked a judge to dismiss Bradbury’s charges.

Prosecutors responded immediately, arguing in a brief that the Supreme Court ruling has “no bearing” on this case because the statutes involved in each case are “materially different.”

The J&C links to this June 1st USAToday story by Richard Wolf.

Here is a list of ILB posts on the SCOTUS' June 1st decision in Elonis v. U.S.

Posted by Marcia Oddi on Tuesday, June 16, 2015
Posted to Indiana Courts

Ind. Decisions - Will the Indiana Supreme Court End June With a Bang? A Look at Cases Argued in February or Earlier

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

As noted in this June 3, 2013 post, in recent years the Indiana Supreme Court has issued about 25% of its opinions during the month of June—the last month of its fiscal year. Although the Court is not on an official term like the U.S. Supreme Court, which issues opinions in all argued cases before its summer recess, the justices have generally pushed fairly hard in June to issue opinions in cases that have been pending more than a few months.

The justices have issued six opinions so far this month. Two of those cases were argued last November, one was argued in January, one in February, and two were argued in March.

Opinions have not yet been issued in seven cases that were argued in February or earlier. At least some of these are likely to be decided this month, although there is no requirement or even practice of deciding the oldest cases first.

Criminal Cases (6)

Civil Cases (1) The Longest Pending Case Was Never Argued

Beyond the argued cases, an opinion seems likely in Russell v. State, a case in which transfer was granted on September 18 but no oral argument was held. Cases decided without argument are generally thought to be more straightforward than argued cases. But Russell—in which both the State and defendant agreed the Court of Appeals erred in concluding “the sentence imposed pursuant to the plea agreement was an erroneous sentence, and we cannot uphold Russell’s plea agreement with the sentencing cap intact”—may be more complicated than it appeared at first blush.
______________

State v. IBM was argued October 30 but still appears to be hold as the parties engage in mediation.

Posted by Marcia Oddi on Tuesday, June 16, 2015
Posted to Schumm - Commentary

Monday, June 15, 2015

Ind. Courts - Marion County judge orders BMV to meditate ...

Meditate? Yes, apparently that is the next step, if mediation has not succeeded ...

Here is the story, posted this afternoon by Tim Evans of the Indianapolis Star. It begins (emphasis added):

A Marion County judge today refused the Bureau of Motor Vehicles’ request to dismiss a lawsuit alleging the agency overcharged Hoosier motorists millions of dollars.

Instead, Marion Superior Judge John F. Hanley ordered the BMV to resume with meditation efforts with the attorney representing Indiana residents who allegedly paid too much for services.

The two sides previously attempted to resolve the case through mediation, but could not reach an agreement.

The state agency had asked for a summary judgment in the case, which would basically amount to a determination that the case is without merit, or issues to be decided by the court.

See also this story from Jim Shella of WISHTV that begins:
The Pence Administration was handed another setback Monday in its efforts to avoid a lawsuit for overcharging Indiana drivers at the BMV.

It came in a court ruling from Marion County Judge John Hanley.

Judge Hanley’s order is short and to the point. In it he rejected a state motion to dismiss the lawsuit that alleges overcharges going back more than a decade.

They are overcharges that total as much as $60 million.

The ruling is a potential victory for Indiana drivers and for the lawyers who first filed a lawsuit in 2012 following an I-team investigation.

“We’re very pleased by this ruling because the BMV has been throwing up obstacles and roadblocks to this case all along,” said attorney Richard Shevitz, “and today’s ruling clears away those obstacles and sets the way for us to go to trial in December.”

Shevitz is on a legal team led by Irwin Levin, who was in court fighting the BMV request to dismiss the case not quite a month ago.

Posted by Marcia Oddi on Monday, June 15, 2015
Posted to Indiana Courts

Law - "Same-Sex Parents’ Rights May Be Unresolved After Justices’ Ruling"

Tara Siegel Bernard's "Your Money" column in the Sunday NY Times began:

When Jessica and Melissa Tincher take the four-hour road trip from their home in Lexington, Ohio, to visit relatives in Indiana, it is a two-vehicle affair: They need car seats for each of their four children — a 4-year-old, a 3-year-old and 2-year-old twins — along with Pack ’n Plays, high chairs, diapers and enough toys to keep everyone entertained. And then there are the two dogs, who together weigh 165 pounds.

But as their caravan crosses state lines, the family’s relationship changes. In Ohio, their marriage is not fully recognized, which is why only one parent — Jessica — was permitted to adopt the four biological siblings who came to them through the foster care system. When they drive into Indiana, where they were both raised and married last June, the couple’s union is valid, but Melissa still does not have any parental rights.

More from the column:
If same-sex marriage is legalized nationwide as part of the monumental case before the Supreme Court — a decision is expected this month — married couples living in states that do not acknowledge their unions will gain significant financial and legal benefits.

But as sweeping as the changes will be, one aspect of marriage may not always be automatically guaranteed: parental rights.

“Marriage does not solve all,” said Emily Hecht-McGowan, director of public policy at the Family Equality Council. “It provides innumerable protections, rights and responsibilities to married couples and parents raising children in a marriage. But it doesn’t come close to solving all of the legal and recognition issues that same-sex couples and their children face.”

Family law varies in different states, which is why the advice to same-sex couples will remain the same: Nonbiological parents wishing to fully cement legal relationships with their children may need to take another step like adopting or securing another court-ordered judgment. If the court rules in their favor, gay couples would for the first time be able to widely adopt children regardless of which state they live in.

The right to adopt would provide a profound sense of relief to the Tinchers, along with same-sex households across the country, because it would largely end the inequality for many couples whose children have legal ties to only one parent.

Now, only individuals or couples whose marriages are legally recognized can generally adopt children in most states. That means same-sex couples can adopt in at least 35 states that issue marriage licenses to same-sex couples, along with the District of Columbia, according to an analysis by the Movement Advancement Project, though a minority of states have allowed unmarried couples to adopt. With a court ruling legalizing same-sex marriage, the report said, married couples would generally be permitted to adopt in all states but one, Mississippi, which expressly bars couples of the same gender from doing so.

There is much more in the lengthy article.

Posted by Marcia Oddi on Monday, June 15, 2015
Posted to General Law Related

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

In Marc Shell v. Kevin Smith (SD Ind., Magnus-Stinson), a 14-page opinion, Judge Theresa L. Springmann of the Northern District of Indiana, sitting by designation, writes:

Plaintiff-Appellant Marc Shell worked for the City of Anderson Transit System (CATS) as a Mechanic’s Helper on the day shift. According to the job description for the position, a Mechanic’s Helper may occasionally drive buses to field locations. A Commercial Driver’s License (CDL) is required to drive the CATS buses. Shell’s hearing and vision impairments prevent him from obtaining a CDL. Nevertheless, he worked for twelve years in the position without a CDL and without driving a bus. When general manager Stephon Blackwell was appointed at CATS as part of personnel changes made by the new mayor, he informed Shell that his employment would be terminated unless he obtained a CDL, as the job description required it. When Shell did not get his CDL, Blackwell terminated his employment.

After he was fired, Shell sued the City under the Americans with Disabilities Act (ADA) for failure to accommodate his disability, leading to the termination of his employment. He also alleged that his termination was politically motivated. The district court granted summary judgment in favor of the City.

On appeal, Shell challenges only the district court’s entry of judgment as a matter of law on his ADA claim. We agree that a jury should decide whether the City violated the ADA. * * *

Because there is evidence and reasonable inferences favorable to both parties, and the factual record does not establish as a matter of law that driving a bus was an essential function of the Mechanic’s Helper position, this case must be allowed to proceed to a jury. The judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Monday, June 15, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 6 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: L.D. and K.F. (Minor Children), B.W. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (5):

K.G. v. State of Indiana (mem. dec.)

Theron L. Bailey v. State of Indiana (mem. dec.)

Tianyve D. Stitts v. State of Indiana (mem. dec.)

Jimmy Huesgen v. State of Indiana (mem. dec.)

Camryn S. Matthews v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, June 15, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending June 12, 2015

Here is the Clerk's transfer list for the week ending Friday, March 6, 2015. It is two pages (and 25 cases) long.

One transfer was granted last week:

A notable denial of transfer last week was in the David Bisard appeal. The vote was 4-0 with J. Massa not participating. See details in this ILB post from Friday.

Posted by Marcia Oddi on Monday, June 15, 2015
Posted to Indiana Transfer Lists

Environment - "Toxic algae season looms over area lakes"

James Bruggers reports today in the Louisville Courier Journal on algae in Indiana and Kentucky lakes. Some quotes:

Some lakes in Indiana and Kentucky still carry warnings for toxic blue-green algae, but recent cooler, drier weather may have helped suppress the potentially dangerous cyanobacteria in many waters, officials said Friday.

All of those lakes are open as the summer recreation season arrives.

Kentucky has begun to use satellite imagery to screen for algal blooms, which get worse in the summer as temperatures rise and the public flocks to lakes for swimming, boating and fishing; and is switching to more accurate testing methods. So far it's looking pretty good, and the Kentucky Division of Water has no new advisories posted for the lakes it monitors, perhaps because of a mild spring, said division director Peter Goodmann. * * *

Indiana Department of Environmental Management began blue-green algae sampling the week of May 12 and will continue through Aug. 29. IDEM takes samples analyzes them for the type and quantity of blue-green algae present and for the toxins they may produce. On June 8, it cautioned lake-users of potentially high levels at Morse Reservoir near Indianapolis, and, on June 12, IDEM reported elevated numbers for the Cecil M. Harden Lake near Rockville, and Potato Creek State Park in northern Indiana.

There is more in the story, including links to the Corps, the Kentucky Division of Water and IDEM websites with advisories on toxic algae.

The ILB has had a number of past posts
on algae issues in both Lake Erie and other lakes in the State of Ohio.

Governor Pence over the weekend issued a news release headed "Pence Touts Environmental Progress in Waterways."

Posted by Marcia Oddi on Monday, June 15, 2015
Posted to Environment

Environment - "EPA review contains good news about Lemon Lane PCB site"

Megan Banta reported in the $$ Bloomington Herald-Times Sunday on:

... a recent five-year review of the levels of polychlorinated biphenyls, more commonly known as PCBs, at the former city dump.

The report is one required for "Superfund" sites, or places where hazardous waste is located and could possibly affect surrounding ecosystems.

Bloomington is home to three such sites — all of which made the Daily Beast’s 2010 list of most polluted places in America — contaminated by PCBs: Lemon Lane Landfill, Neal's Landfill and Bennett's Dump.

PCBs are present at the sites because thousands of capacitors containing the compound were dumped there from 1957 to 1971 by Westinghouse (now CBS), which operated a manufacturing facility in Bloomington. The sites are still being monitored, and the Environmental Protection Agency is required to review conditions at the sites every five years. Lemon Lane's most recent review was released last month; the next review on the other two sites is due in 2017.

"What the report basically is saying is that there's good news," [John Langley, the city's deputy utilities director] said.

The review, released recently by the EPA, states multiple times that the federal agency has determined the Lemon Lane site no longer poses a risk to human health and the environment because the remedies are functioning as intended by eliminating direct contact outside the controlled environment of the treatment plant, minimizing the movement of PCBs from the landfill.

Posted by Marcia Oddi on Monday, June 15, 2015
Posted to Environment

Ind. Gov't. - "Indianapolis Rallies Around Its Gay Citizens After a Law Sets Off a Flood of Support"

That was the headline of this story by Mitch Smith this weekend in the NY Times. The long story begins:

INDIANAPOLIS — In a state perhaps best known for its hallowed speedway and lean-to-the-right politics, the pageantry of the past week might have seemed unexpected.

On Wednesday, a standing-room-only crowd snacked on rainbow-colored fruit skewers at a forum on transgender issues. On Thursday, men donned blond wigs and high heels at a drag show to raise money for charity. And on Saturday, gay men and women were expected to turn out by the thousands for the annual pride parade and festival. The mayor, a Republican, will serve as grand marshal, and several same-sex couples plan to exchange marriage vows.

It was all part of a nine-day pride celebration of Indiana’s lesbian, gay, bisexual and transgender population. And it came against a backdrop of events that have suggested that Indiana is not of one mind in its views about sexual orientation as might have been thought.

Less than three months ago at the green-domed State Capitol here, the Republican-dominated state legislature passed, and Gov. Mike Pence, a Republican, signed, a religious exceptions law that many believed would allow business owners to refuse service to gay couples on religious grounds. The law, officially called the Religious Freedom Restoration Act, was viewed by critics as a license to discriminate. But it set off a furious backlash not only from the gay community but also from corporate interests that pressured lawmakers to clarify that the measure could not be used to justify discrimination.

For many of the gay and lesbian Indiana residents gathered here for pride week, the rapid revising of the law marked a turning point, suggesting perhaps a budding tolerance for their community — as well as their growing political clout in this politically conservative state.

Posted by Marcia Oddi on Monday, June 15, 2015
Posted to Indiana Government

Law - "Surge of new abortion restrictions limits access 'brick by brick'" [Updated]

The subhead to this long story this weekend by Maria L. LaGenga of the LA Times: "Some states have so many restrictions on abortion that the procedure is nearly impossible to obtain." Some quotes:

With state legislatures across the country passing dozens of abortion restrictions for the fifth year, access is becoming more limited than at any time since the Supreme Court's landmark decision legalizing the procedure in 1973.

The current legislative session is shaping up to be among the most active, and abortion rights advocates point to what they call an alarming result of the steady flow of new laws: In some states, so many limitations have piled up that the procedure, while technically legal, is nearly impossible to obtain.

"It is a culmination of the wave of restrictions of the past three years," said Nancy Northup, president of the Center for Reproductive Rights. "You see one type of restriction following another, following another. When you put them all together, the result is a closing-off of access." * * *

North Carolina and Oklahoma increased waiting periods to 72 hours. Kansas and Oklahoma banned dilation and evacuation, the most common surgical method of ending a pregnancy in the second trimester. Arkansas began requiring doctors to tell women that fetuses can feel pain and that anesthesia is available for the fetus during an abortion.

The backdrop for the latest burst of abortion restrictions is the Supreme Court, which is poised to announce as soon as Monday whether it will weigh in on the contentious issue in a major way for the first time since 1992. It is considering whether to hear two abortion-related cases, one from Mississippi, the other from North Carolina. * * *

In terms of access, "in some ways it looks like what we saw before" Roe vs. Wade, [Elizabeth Nash, a policy analyst at the Guttmacher Institute] said, referring to the 1973 decision that affirmed a woman's right to the procedure. "What you're seeing is access maintained for the most part along the West Coast and in the Northeast, but real incursions in access in the South and middle of the country."

The restrictions, said Cecile Richards, president of the Planned Parenthood Action Fund, are "another cynical attempt to ban safe, legal abortion.... A woman's right to make personal, medical decisions about abortion shouldn't depend on where she lives."

[More] See also this Friday post by Lyle Denniston of SCOTUSblog, headed "Abortion case on fast track to the Court?."

[Updated at 9:49 AM] This morning the SCOTUS denied cert in the North Carolina case referred to bove. Here is the just posted story from Greg Stohr of Bloomberg.

[Updated at 10:38]
Adam Liptak of the NY Times has just posted this story, headed "Supreme Court Rejects North Carolina’s Appeal on Pre-Abortion Ultrasounds." The story begins:

WASHINGTON — The Supreme Court on Monday refused to hear an appeal from North Carolina officials seeking to revive a state law that had required doctors to perform ultrasounds, display the resulting sonograms and describe the fetuses to women seeking abortions.

The Supreme Court’s one-sentence order, as is the custom, gave no reasons. Justice Antonin Scalia noted a dissent, also without saying why.

The order left in place an appeals court ruling that had held the law unconstitutional as a violation of the First Amendment.

“The state cannot commandeer the doctor-patient relationship to compel a physician to express its preference to the patient,” Judge J. Harvie Wilkinson III wrote in December for a unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va. “This compelled speech, even though it is a regulation of the medical profession, is ideological in intent and in kind.”

Other federal appeals courts upheld similar laws from Texas and South Dakota. Such disagreements among appeals courts often lead to Supreme Court review.

Posted by Marcia Oddi on Monday, June 15, 2015
Posted to General Law Related

Ind. Decisions - "Rule violation may prove costly for St. John homeowners association"

The June 11th Court of Appeals decision in Michael R. Bixeman and Doreen Bixeman v. Hunter's Run Homeowners Association of St. John, Inc. was the subject of this story Saturday in the NWI Times, reported by Dan Carden:

INDIANAPOLIS | A St. John homeowners association that failed to follow its own rules in seeking to punish a property-use violation may be forced to pay thousands of dollars in damages and attorney fees.

The Indiana Court of Appeals last week ruled 3-0 that the Hunter's Run Homeowners Association slandered the property title of Michael and Doreen Bixeman by placing an invalid lien on their home.

The dispute began in 2012 when the Bixemans moved to Iowa. That October, they rented their Hunter's Run home to another person, but did not abide by the rental procedures detailed in the homeowners association rules.

After the association's board of directors discovered the violation, they notified the Bixemans and scheduled a hearing on the matter for one week later — even though their rules required at least 10 days between the notice and hearing.

According to court records, the Bixemans were unable to travel from Iowa for the hearing, and the homeowners association refused to allow them to participate over the phone.

Following additional written communication, the association's directors imposed a $250 sanction on the Bixemans, which they did not pay.

Hunter's Run then recorded a $2,525 lien against the Bixeman home and asked a court to foreclose.

Lake Superior Judge Diane Kavadias Schneider instead determined the sanction and lien were invalid, because the association did not follow its own rules and procedures for assessing them.

As a result, the judge said, the Bixemans countersuit for slander of title was moot.

The appeals court disagreed.

It found the actions taken by the homeowners association met the standard for slander of title because they involved false statements (the invalid lien), made with malice (the association's refusal to release the lien), and caused a financial loss for the Bixemans (they could not sell their lien-encumbered home).

The three-judge appellate panel ordered Kavadias Schneider to calculate the Bixemans financial losses, including their attorney fees, and require Hunter's Run to pay damages for slandering the title to the Bixeman home.

Posted by Marcia Oddi on Monday, June 15, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Upcoming oral arguments this week and next

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

Tuesday, June 16

Next week's oral arguments before the Supreme Court (week of 6/22/15):

Webcasts of Supreme Court oral arguments are available here.


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

Monday, June 15

Wednesday, June 17

Next week's oral arguments before the Court of Appeals (week of 6/22/15):

Monday, June 22

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, June 15, 2015
Posted to Upcoming Oral Arguments

Friday, June 12, 2015

Ind. Decisions - Supreme Court grants transfer in adverse possession case

The Supreme Court in an order (downloadable PDF only) filed June 11, 2015, granted a petition to transfer in the case of McNamara et al. v. Zollman Farms, et al. This was an 11-page, Jan. 13, 2015 NFP (now vacated) Court of Appeals opinion:

Timothy McNamara and his sisters, Tamara Goodfellow and Teresa Melton (collectively “Appellants”), own a landlocked forty-acre tract in rural Jackson County that has been in their family for decades. Appellants filed a complaint against nearby landowners, including Zollman Farms, Inc. (“Zollman”), requesting that a path that runs from a county road to their property be declared a public road by virtue of its use for over twenty years before the relevant statute regarding public roads was amended in 1988. After hearing evidence and visiting the site, the trial court found that Appellants and others had used the path for over twenty years before 1988 but concluded that Appellants had failed to establish the existence of a public road by use.

On appeal, Appellants agree with the trial court’s factual findings but contend that the court reached the wrong conclusion based on those findings. We agree with Appellants and therefore reverse and remand for further proceedings consistent with this opinion. * * *

Based on the undisputed facts and the relevant caselaw, we conclude that Appellants established the existence of a public road by use and that the trial court erred in concluding otherwise. Therefore, we reverse and remand with instructions to enter judgment in favor of Appellants and for further proceedings consistent with this opinion, such as determining the width of the road and any additional relief to which Appellants may be entitled, such as the removal of Zollman’s gate and fence. See Pitser v. McCreery, 172 Ind. 663, 674, 88 N.E. 303, 308 (1909) (“[T]he width at the end of the 20 years’ user is the width the statute fixes as the width of the highway.”). Reversed and remanded.

Posted by Marcia Oddi on Friday, June 12, 2015
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court denies transfer to David Bisard

In an order (downloadable PDF only) filed June 11th, re a petition to transfer in Bisard v. State (docket here), the Supreme Court denied transfer, 4-0 with J. Massa not participating. The March 4, 2015 COA opinion will stand.

[More] IndyStar coverage here.

Posted by Marcia Oddi on Friday, June 12, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - "ACLU of Indiana Sues Official for Drug Testing People Seeking Assistance"

From a news release:

Indianapolis -- A disabled, indigent Posey County woman has sued a local official who denied her access to necessary financial assistance because she could not take a drug test required by the official to submit an application for assistance, claiming the drug testing requirement violates the United States Constitution.

The lawsuit against Black Township and Lindsay Suits, the Black Township Trustee, was filed yesterday by the American Civil Liberties Union of Indiana on behalf of Mary Neale, a resident of the township. Neale previously received aid from the trustee only after submitting a urine sample and passing a drug test. Last year, when Neale's physical disabilities made submitting the sample impossible, she was unable to apply for benefits.

The Black Township Trustee's policy of requiring applicants for assistance to take a urine drug screen violates the Fourth Amendment to the U.S. Constitution. Further, the trustee's failure to accommodate Neale's disability when she sought to apply for assistance violates the Americans with Disabilities Act.

"The Constitution prohibits this type of suspicionless search and seizure," said Ken Falk, ACLU of Indiana legal director. "It is wrong to condition the receipt of government benefits on the waiver of fundamental rights that protect all of us."

The class action lawsuit, Mary Neale, et al., v. Black Township, Posey County, Ind.; Lindsay Suits, 3:15-cv-82-RLY-WGH, was filed in the U.S. District Court for the Southern District of Indiana on June 11, 2015.

Here is the complaint, filed June 11th.

[More] Here is a story by Mark Wilson of the Evansville Courier & Press.

Posted by Marcia Oddi on Friday, June 12, 2015
Posted to Indiana Government

Ind. Decisions "Supreme Court refuses to hear insured’s challenge to pro rata allocation ruling"

Lexology yesterday highlighted this post from the Insurance Coverage Law Blog. It begins:

Indiana has traditionally been thought of as an “all sums” jurisdiction. Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049, 1060 (Ind. 2001) (“whether or not the damaging effects of an occurrence continue beyond the end of the policy period, if coverage is triggered by an occurrence, it is triggered for ‘all sums’ related to that occurrence.”) However, the Indiana Supreme Court – over the strident dissent of its Chief Justice and one other Justice of the five Justice court – recently refused to hear an appeal from an intermediate appellate court decision which applied pro rata allocation in an insurance coverage action involving long-tail toxic exposure claims asserted by former employees against the insured. Thomson Inc. v. Ins. Co. of N. Am., 2015 Ind. LEXIS 397 (Ind. May 15, 2015).
See this ILB post from May 18, 2015 for details.

Posted by Marcia Oddi on Friday, June 12, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In K.S. v. Review Board of the Indiana Department of Workforce Development, an 8-page opinion, Judge Mathias writes:

K.S. appeals the decision of the Review Board of the Indiana Department of Workforce Development (“the Board”) denying his claim for unemployment benefits. K.S. argues that he is eligible for unemployment benefits because he voluntarily left his employment for medical reasons and to deal with an issue of domestic violence. We affirm.
In State of Indiana v. William F. Stevens, a 10-page opinion, Judge Mathias writes:
The State of Indiana (“the State”) appeals the trial court’s order granting William Stevens’s (“Stevens”) motion to suppress evidence obtained pursuant to his warrantless arrest. The State presents a single issue for review, namely, whether the trial court abused its discretion in concluding that law enforcement lacked probable cause to arrest Stevens after Stevens attempted to purchase pseudoephedrine at a drug store. We reverse and remand. * * *

Therefore, under the unique facts and circumstances before us, we conclude that the trial court abused its discretion in granting Stevens’s motion to suppress. We accordingly reverse the trial court’s order suppressing the evidence recovered as a result of Stevens’s warrantless arrest and remand this matter for further proceedings consistent with this opinion.

NFP civil decisions today (1):

Rasha El Adawy v. Mary Sanders (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Friday, June 12, 2015
Posted to Ind. App.Ct. Decisions

Thursday, June 11, 2015

Ind. Decisions - Supreme Court decides one today, involving a grandparent adoption

In In the Matter of the Adoption of Minor Children: I.B. and W.B.: B.B. v. B.C. and J.L., and Indiana Department of Child Services, an 11-page, 5-0 opinion, Chief Justice Rush writes:

After I.B. and W.B. were removed from their parents, both grandmothers petitioned to adopt them. The trial court permitted the maternal grandmother and her fiancé to adopt the children—even though the maternal grandmother has a prior felony conviction that statutorily disqualifies her from adopting—and the paternal grandmother appealed. The Court of Appeals affirmed, holding the statutory disqualification unconstitutional as applied because it created an “irrebuttable presumption” that blocked consideration of the children’s best interests.

We disagree with that analysis. The United States Supreme Court has left its “irrebuttable presumption” cases lying dormant for several decades. And under its more recent “classification” analysis, the statute’s regrettable consequences under the facts of this case establish no as-applied constitutional violation. We therefore reverse the trial court and remand to reconsider both adoption petitions to the extent they are statutorily permissible, receiving supplemental evidence if it chooses. * * *

Under the circumstances of this case, Indiana Code section 31-19-11-1(c) regrettably bars an adoption that, to all appearances, would otherwise be in I.B. and W.B.’s best interests. But that does not make the statute unconstitutional as applied, because its prohibitions are rationally related to a legitimate legislative purpose and do not discriminate against a suspect class. We therefore reverse the trial court’s judgment on both adoption petitions and remand with instructions to vacate the adoption decree within thirty days of this Court’s opinion being certified and reconsider both adoptions to the extent they are not barred by the statute, including by considering whether a non-adoptive placement such as guardianship may be in the children’s best interests and by receiving additional evidence if the trial court so chooses.[6]

_________
[2] Though the Supreme Court has never expressly overruled Vlandis, it has not invalidated a statute under Vlandis since United States Dep’t of Agric. v. Muerry, 413 U.S. 508 (1973), over forty years ago. People v. Wildman, 858 N.Y.S.2d 504, 509 (N.Y. Crim. Ct. 2008). So while we would follow Vlandis or Stanley if they were directly controlling, we will not expand them when the high Court has conspicuously declined to do so.

[6] We also note that the findings and conclusions were signed by the magistrate, but not by the court. Magistrates may enter final orders in criminal cases, I.C. §§ 33-23-5-5(14), -9(b), but otherwise “may not enter a final appealable order unless sitting as a judge pro tempore or a special judge.” I.C. § 33-23-5-8(2). Instead, they may only “report findings,” while “[t]he court shall enter the final order.” I.C. § 33-23-5-9(a). Effective July 1, 2015, Indiana Code section 33-23-5-5 has been amended to expand magistrates’ authority to approve and accept plea agreements, civil settlement agreements, and agreements in domestic-relations and paternity actions, see P.L. 173-2015, § 4—but that newfound authority does not extend to issuing an adoption decree. We trust the court will observe this necessity on remand.

Nevertheless, “it has been the long-standing policy of this court to view the authority of the officer appointed to try a case not as affecting the jurisdiction of the court”—and so “the failure of a party to object at trial to the authority of a court officer to enter a final appealable order waives the issue for appeal.” Floyd v. State, 650 N.E.2d 28, 32 (Ind. 1994). The issue is thus waived here, since neither party has raised it.

Posted by Marcia Oddi on Thursday, June 11, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Renewed fights expected over Indiana abortion rules"

This story by Tom Davies of the AP was in the June 11 Fort Wayne Journal Gazette. The long story begins:

INDIANAPOLIS – The state's push for tougher regulations on an Indiana Planned Parenthood clinic that provides only drug-induced abortions could spark a new court fight as a revised law takes effect next month.

The Republican-dominated Legislature this spring approved changes to a blocked 2013 law that would have required the Lafayette clinic to meet the same standards as surgical abortion clinics by adding a recovery room and surgical equipment and making other upgrades even though it doesn't perform surgical abortions.

The American Civil Liberties Union of Indiana challenged the 2013 law on behalf of Planned Parenthood, saying it was unfair and would impose unnecessary costs on the clinic. U.S. District Judge Jane Magnus-Stinson blocked the law, ruling it violated equal protection rights since the law would have allowed doctors' offices to continue providing the same medications.

The revised law passed this year makes changes in response to the judge's ruling by deleting the doctors' offices exemptions and, instead, has the clinic regulations apply to any health care provider who provides abortion pills five or more times a year.

State Department of Health records, however, show that none of the 1,635 non-surgical abortions in Indiana during 2013 were reported outside clinics or hospitals.

Republican state Sen. Mark Messmer of Jasper, who sponsored the new bill, told legislative committees that by dropping references to doctors' offices from the law, the state would be able to seek an end to the judge's injunction against the new requirements.

Bryan Corbin, a spokesman for the state attorney general's office, said the office is reviewing whether to ask the judge to reconsider her injunction. * * *

"I don't think it's any more rational on July 1st of this year to impose surgical requirements on the Lafayette clinic than it was last year," said Ken Falk, the ACLU of Indiana's legal director. "We will continue to maintain our argument that if surgical requirements are imposed, then that is improper."

Posted by Marcia Oddi on Thursday, June 11, 2015
Posted to Indiana Law

Ind. Gov't. - More on Lake Michigan shorefront property rights

Okay, this is interesting. The ILB has tried to follow the issue of who owns what part of the Lake Michigan beach over the years. The most recent entry is from March 30, 2015, headed Ind. Decisions "Court of Appeals rules for Long Beach homeowners".

Now comes a long story
originally in the LaPorte Herald-Argus, reported by Richard Chambers, headed "Michigan City conference focuses on Lake Michigan's future," that begins:

MICHIGAN CITY - Speakers connected protection of Northwest Indiana's environment to the area's economic development at a conference on Lake Michigan and community sustainability at Blue Chip Casino on Friday.

U.S. Rep. Pete Visclosky, in his keynote address, spoke of his goal for a second phase of the Marquette Plan, which envisions revitalization of Lake Michigan's shoreline. He started looking at the second phase - along the coast from Portage to the Michigan state line - in 2008 after the first phase gained support.

The plan calls for 75 percent of all coastline, including land at a minimum of 200 feet from the shore, to be reserved for public use. He expressed hope that 200 feet is just a starting point.

Posted by Marcia Oddi on Thursday, June 11, 2015
Posted to Indiana Government

Ind. Gov't. - Kansas statehuse reporter "opens a closed meeting by declaring it so"

Interesting National Journal story by Ron Fournier. It begins:

June 9, 2015 In the middle of a budget stalemate in the middle of the country, Associated Press correspondent John Hanna passes a closed conference room en route to his basement office in the Kansas Statehouse. Glancing through a door window, Hanna sees Gov. Sam Brownback's budget director addressing 27 Republican lawmakers.

That's interesting, Hanna tells himself—the caucus was not publicly scheduled, as would be the custom in Kansas, and the state legislature is struggling to fix an $800 million deficit mostly caused by Brownback's 2012-2013 tax cuts. A long-awaited debate on the House floor was just canceled. Why are they meeting in secret? Hanna opens the door, walks in, and stands against a wall.

"This is a private meeting," one lawmaker barks. "You weren't invited."

Hanna crosses his arms. "I know that," he says, nodding at the Brownback aide, Shawn Sullivan, "but I'd like to hear what he has to say." After a few minutes of awkward silence, Budget Committee Chairman Marvin Kleeb shrugs. "It's OK," he says. "He can stay."

Just like that, a private meeting was made public. No lawyers. No protests. No big scene. No indignant editorials or begging from the journalist community. Just one reporter reminding the government who's in charge of his beat: "I'd like to hear what he has to say."

Posted by Marcia Oddi on Thursday, June 11, 2015
Posted to Indiana Government

Ind. Courts - Tippecanoe County Courthouse in need of repairs

Hannah Smith Kiefer's story in the Lafayette Journal & Courier reports:

Tippecanoe County Commissioner David Byers said the metal on the dome and some columns are beginning to rust and bits of concrete or metal are falling on the courthouse roof. He noticed the damage several weeks ago.

“If you look at some of those columns up there toward the top, you can see some rust on them,” he said.

Byers brought up the need for renovations at the Tippecanoe County Council meeting Tuesday morning. So far, he said, the damage does not pose any sort of safety risk and there are no actual holes in the dome or roof.

Posted by Marcia Oddi on Thursday, June 11, 2015
Posted to Indiana Courts

Ind. Courts - 7th Circuit denies bid to remove Wis. federal judge in strip-search suits

Bruce Vielmetti of the Milwaukee Journal-Sentinel had the story June 9th. It begins:

A federal appeals court on Tuesday rejected the City of Milwaukee's request that it remove a trial judge presiding over some of the civil rights cases brought against the city by people who say they were subjected to illegal strip and body cavity searches.

Citing some statements he made in the cases, the city asked U.S. District Judge J.P. Stadtmueller to recuse himself. When he declined, the city asked the 7th U.S. Circuit Court of Appeals to order Stadtmueller off the cases.

In a 10-page ruling Tuesday, a three-judge panel of the 7th Circuit found that just because a judge forms opinions, they don't rise to bias or impartiality "unless they display a deep seated favoritism or antagonism that would make fair judging impossible," and that in Stadtmueller's case, they did not.

Only one of Stadtmueller's challenged statements involve information from beyond the cases. In a footnote to an order that actually reduced a jury's punitive damages award against the city, the judge commented that Milwaukee police apparently opted to continue the kind of illegal stops that the plaintiff had experienced, citing a newspaper article that quoted Chief Edward Flynn.

Posted by Marcia Oddi on Thursday, June 11, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decisions)

For publication opinions today (2):

In Michael R. Bixeman and Doreen Bixeman v. Hunter's Run Homeowners Association of St. John, Inc., a 9-page opinion, Judge May writes:

Michael R. Bixeman and Doreen Bixeman (“Bixemans”) appeal the court’s declaration as moot their allegation of slander of title by Hunter’s Run Homeowners Association of St. John, Inc. (“Hunter’s Run”). Hunter’s Run cross-appeals the court’s determination the sanction Hunter’s Run imposed against Bixemans was invalid. We affirm in part, reverse in part, and remand. * * *

As Hunter’s Run did not follow the process agreed to in the Declaration, the sanctions were invalid. However, Bixemans demonstrated slander of title by Hunter’s Run invalid lien. Thus, we reverse and remand for the trial court to determine Bixemans’ damages, including attorney fees.

In Roger D. Levy v. Elizabeth Jackson, an 11page, 2-1 opinion, Judge May concludes:
When a court fails to comply with Trial Rule 59(J)’s requirements, we have no choice but to reinstate the jury’s verdict because “[e]xplanations crafted after appellate remand - six months or a year after the trial court heard the evidence (or in this instance, two years) - represent an inadequate exercise of [the court’s] obligation.” Id. at 1153. Accordingly, we reinstate the jury verdict. We reverse and remand for the court to reinstate jury verdict.

Mathias, J., concurs.
Robb, J., dissents with separate opinion. [which begins at p. 8, and concludes] Here, the trial court gave the reasons why it believed the ends of justice required a new trial, describing in some detail the evidence supporting such a judgment but failing to specifically weigh it against the opposing evidence. If the trial court considered the opposing evidence in reaching its conclusion, then an amended order on remand would be a simple matter. And if the trial court did not consider the opposing evidence, then it has the chance on remand to fix the problem on its own accord and vacate the order for a new trial. I do not mean to imply that a trial court should not endeavor in every instance to fully comply with the requirements placed upon it by our rules and statutes. As White noted, “if the court overrides the jury in its special domain and substitutes its verdict for theirs without a clear showing that the ends of justice required it, it is likely that they did not.” 474 N.E.2d at 1000. When a trial court does not even attempt to make that showing, perhaps it is because it would be unable to do so. But when it appears that a trial court has endeavored to do so but has simply fallen short in some particular, I would allow the trial court an opportunity to supplement its order.

NFP civil decisions today (2):

Indiana Office of Utility Consumer Counselor v. Southern Indiana Gas and Electric Company, d/b/a Vectren Energy Delivery of Indiana, Inc. (mem. dec.)

Michael Nance v. Ron Neal (mem. dec.)

NFP criminal decisions today (5):

Ian James Dutton v. State of Indiana (mem. dec.)

Eric L. Davis, Sr. v. State of Indiana (mem. dec.)

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

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

Jody Meredith v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, June 11, 2015
Posted to Ind. App.Ct. Decisions

Wednesday, June 10, 2015

Vacancy on COA 2015 - The three nominees are ...

The three names to be submitted to Governor Pence by the JNC to fill COA Judge Friedlander's upcoming vacancy are:

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Vacancy on COA 2015

Vacancy on COA 2015 - Waiting for the results

Indianapolis-based defense counsel and appellate practitioner Cara Wieneke, who has covered all 8 interviews today for the ILB, is now in the Supreme Court library with other reporters, awaiting the announcement that the JNC will publicly assembling back in the interview room vote to select the three most qualified candidates and submit those three names to Governor Mike Pence. Here is Cara:



Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Vacancy on COA 2015

Vacancy on COA 2015 - Interview #8: Gary L. Miller

This is Attorney Cara Wieneke's report on the 8th, and final (2:15 PM) interview

Following the interviews, the Judicial Nominating Commission will convene in executive session. After deliberations, the JNC will publicly vote to select the three most qualified candidates and submit those three names to Governor Mike Pence.

Gary L. Miller, Indianapolis

Current position: Marion County Superior Court Judge
Application and photo: Here
Some additional info on grades and recommendations: Here

When asked about an innovative approach he has taken in the law, Judge Gary Miller cited to a family law case in civil court with litigous parents. So as judge he told the parents he was calling DCS to take custody of the children. Within 5 minutes the parents had immediately resolved their custody differences. The message was that a child is not a toy to be played with in litigation. Judge Miller also pointed to his teaching of professional responsibility and his use of video clips as examples of ethical quandaries.

When asked if he is embracing technological changes, Judge Miller said he was involved in Marion County with their technology board. He stated he likes technology, he reads blogs, online newspapers, etc. He also praised the federal e-filing system, which he used in private practice.

When asked how he would work with other judges on a panel in deciding cases, Judge Miller responded that he would easily resolve the conflict by writing a dissent. Judge Miller cited to his relationships with the current COA judges and believes collegiality is important. He also believes consensus building is important as well. Judge Miller cited to his work on the executive committee in Marion County and currently his work on the possible building of a new Criminal Justice Center.

When asked how his trial judge experience would help him on the COA, Judge Miller stated that part of your job as a trial judge is to observe and to learn. Having that experience is helpful.

When asked whether he would review appeals from jury trials versus bench trials differently, Judge Miller said there is really no difference between the two. They are generally reviewed the same.

When asked if the COA is capable of determining what society wants, Judge Miller noted that he is more of a strict constructionist and does not read more into the law than what is there. Thus, he does not think determining what society wants is really a function of the COA.

When asked his feelings on oral arguments, Judge Miller likes them. He noted with surprise the attention his oral argument received when he used a blown-up exhibit. He also praised the Appeals on Wheels program.

When asked about the most significant challenge to the COA, Judge Miller said technology is definitely a challenge. He also noted his concerns about unpublished decisions and the number of them being handed down. He believes decisions provide guidance particularly to trial judges, and more should be published. He specifically cited the family law cases as one example.

When asked if there was ever a time he did not show proper judicial temperament, Judge Miller said he could not think of such a time. He said he has a dry sense of humor and a sharp tongue. But he respects the gravity of the situation and takes matters seriously.

When asked about the role of law clerks in the judiciary, Judge Miller said that clerks are essential. He noted that they should not write opinions but merely assist in doing so. Judge Miller likes the use of permanent clerks.

When asked what legacy he would like to leave as a COA judge, Judge Miller said his father was on the COA. He saw his dad bring briefs home and work on cases when Judge Miller was growing up. So he was able to see his father's legacy. Judge Miller would like to see the COA's honorable reputation continue.

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Vacancy on COA 2015

Vacancy on COA 2015 - Interview #7: David L. Pippen

This is Attorney Cara Wieneke's report on the 7th (1:45 PM) interview

Following the interviews, the Judicial Nominating Commission will convene in executive session. After deliberations, the JNC will publicly vote to select the three most qualified candidates and submit those three names to Governor Mike Pence.

David L. Pippen, Indianapolis

Current position: Bose McKinney & Evans, Indianapolis
Application and photo: Here
Some additional info on grades and recommendations: Here

When asked about an innovative approach he took in the area of law, David Pippen first took the opportunity to thank everyone for their time. Pippen cited to the State Fair stage collapse and the difficulty the Tort Claims Act had with handling that disaster. Pippen said getting money quickly into the hands of the victims was more important than going straight to litigation. So they created a schedule for the victims to expedite the process while still working within the law.

When asked whether there is a particular committee or area in which he would like to serve, he cited to JTAC because of his prior work with that committee. He also cited to handling pro se cases in a better way in the state.

When asked what role COA judges should have with legislators, Pippen said the separation of the two branches does not mean there should not be communication and interaction. So establishing relationships is important.

When asked about his experience in the executive and legislative branches, Pippen said there would no conflict bringing that experience into the judiciary. He again cited to the importance of relationships among people in all branches.

Whan asked about the governor's power to pardon, Pippen explained the approach that he took. He said former Governor Daniels looked to remove obstacles that kept determined people from becoming more productive members of society.

When asked why he is seeking this position, Pippen said the system is built on good people participating in the system. He believes this is extremely important. He wants to be a part of an appellate bench that has a wonderful reputation throughout the country.

When asked if he would have handled a case differently, he mentioned that in the property tax cases he argued, he would have argued an "as applied" standard more often, rather than just trying to challenge the entire system.

When asked how he would do with maintaining balance on the COA, Pippen noted that Judge Friedlander came from a private practice background. Pippen believes it is vitally important that we maintain diverse perspectives on the Court.

When asked about not-for-pub decisions, Pippen responded that he would continue to have such decisions, particularly because there is some value in the Court deciding that a case should not be published.

When asked how he would enhance the credibility of the COA, Pippen replied that the Court is supposed to maintain consistency in the law. The courts provide certainty to citizens so they know what an ordered society looks like. Pippen would like to see more engagement with the Bar and really appreciates the Appeals on Wheels program.

Pippen describes himself as a textualist. He said that words have meaning.

When asked how he would handle his clerks, Pippen said he heard from many that the use of permanent clerks can cause some problems with affording the experience of the appellate process to young lawyers. Thus, he would like to see more use of temporary clerks.

When asked what type of legacy he would like to leave, Pippen recognized the positive reputation of the COA and would like to continue that. But he also would like to be seen as a judge who was engaged with the community and members of the Bar.

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Vacancy on COA 2015

Vacancy on COA 2015 - Interview #6: Christopher M. Goff

This is Attorney Cara Wieneke's report on the 6th (1:15 PM) interview

Following the interviews, the Judicial Nominating Commission will convene in executive session. After deliberations, the JNC will publicly vote to select the three most qualified candidates and submit those three names to Governor Mike Pence.

Christopher M. Goff, Wabash

Current position: Wabash Superior Court Judge, Wabash
Application and photo: Here
Some additional info on grades and recommendations: Here

When asked what innovative approach he has taken in the law, Judge Christopher Goff cited the work he has done in implementing problem-solving courts in his county. He described a specific case of a couple with substance abuse and domestic violence issues. Because of the approach of probelm-solving courts, he saw great progress with the couple and was able to reunify them with their child, who had been removed from their home.

He used this as an example of different roles in the system working together.

When asked how he handled tension between the law and his own beliefs, Judge Goff said it is imperative to become educated on the issues in order to articulate a well-reasoned decision.

When asked about collegiality among the members of the judiciary, since he is able to make decisions alone, Judge Goff noted his work with the problem-solving courts and working with people in different roles.

When asked asked about his experience coming from a small community, Judge Goff stated that he has been in a small town for nearly his entire career. He sees his duty to do the best he can every day to see that justice is done. He praised his team in Wabash County. He also embraces diversity and sees it often even in his small community. And his perspective will be particularly unique when implementing more localized programs in the criminal justice system.

When asked whether he would view cases differently depending on whether it was an appeal from a jury trial or a bench trial, he said he would view them the same and apply the appropriate law.

When asked about cameras in the courtroom, he indicated that open access to courts is important. But he also cited to our tradition of keeping cameras out, and that it is important to respect that tradition. Ultimately, he would be in favor of cameras in the courtroom.

When asked about his upbringing, Judge Goff said he never thought he would have the chance to become a lawyer due to his humble beginnings. This has affected his view of his cases because he has always approached a case and asked himself how he can make the situation better.

When asked whether it was important that he be physically present in Indy, Judge Goff said he did. He said he and his wife discussed it, and he would likely commute. It is about 1 1/2 hours to his home from here. He would use the travel time to think about his cases. He believes it is important to be here in order to collaborate with his colleagues, to serve on committees, and to boost staff morale by being present.

When asked about a person's prior experience and maintaining balance on the COA, Judge Goff responded that he has 15 years of experience as a trial judge, including handling diverse cases, that would be valuable to the Court.

When asked if he takes into account the reaction people will have to his decisions, he said he does not when actually reaching the decision. But he does when handing the decision down.

When asked about how he would use his law clerks, Judge Goff said he would rely on them to help him acclimate to the position. But over time, he would enjoy having new clerks come in to experience the process.

When asked what role personal experience should have in deciding cases, Judge Goff said that "the law is the law." Judge Goff indicated he would actually appreciate having input from the other judges on the panel when they are struggling with an issue.

When asked how he felt about his abilities as a writer, Judge Goff responded that he cannot compare himself to other candidates. He believes he is a strong writer, but he does not get the opportunity to demonstrate that as much as a trial judge. He would love the opportunity to do more research and writing.

When asked what legacy he would like to leave as a COA judge, Judge Goff stated that he hopes he leaves wherever he has worked in a better place than when he found it. He cited examples in his experience where he believes he has done that, and he wishes that to continue.

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Vacancy on COA 2015

Indiana Law - David Lat, author of Supreme Ambitions to be in Indy June 23rd; And Judge Tinder too

The ILB rarely notes these events (so please don't ask), but I read David Lat's book and think this sounds like fun:

The Federalist Society For Law and Public Policy Studies, Indianapolis Lawyers Division Chapter, presents:

Supreme Ambitions: Judging, Clerking, Ethics, and Ambition

Featuring:

  • Judge John D. Tinder, U.S. Court of Appeals for the Seventh Circuit

  • David Lat, Author of Supreme Ambitions and Managing Editor of Above The Law.com
Tuesday, June 23, 2015, 12:00 p.m. – 1:30 p.m.

Conrad Indianapolis, 50 West Washington

Non-members Welcome

Lunch and CLE Option

  • $25 for members, students, and government employees
  • $30 for non-members

CLE-Only Option

  • $10 for members, students, and government employees
  • $15 for non-members

Payment accepted at the door;Cash or check only, please

1 Hour of CLE Pending Approval

RSVP to Brian J. Paul at Faegre Baker Daniels LLP by contacting Judy Pearson at (317) 237-1137 or judy.pearson@faegrebd.com

Please note that the Federalist Society incurs a food/beverage charge if you RSVP and then do not attend. We therefore kindly ask that you let us know at least one business day before the event should your plans change. Thank you for your consideration.

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Indiana Law

Vacancy on COA 2015 - Interview #5: Steven R. Creason

This is Attorney Cara Wieneke's report on the 5th (11:15 AM) interview

Following the interviews, the Judicial Nominating Commission will convene in executive session. After deliberations, the JNC will publicly vote to select the three most qualified candidates and submit those three names to Governor Mike Pence.

Steven R. Creason, Indianapolis

Current position: Deputy Attorney General, State of Indiana
Application and photo: Here
Some additional info on grades and recommendations: Here

When asked about an innovative approach he has taken in the law, Stephen Creason mentioned taking the appellate practice of about 2000 appeals per year and making it electronic. He has run the practice from an iPad and iPhone for some time now. He also mentioned his work with the courts in helping to speed up the appellate process by trying different technologies. Creason has already been through the process in his own practice and believes he can help his colleagues.

When asked, Creason indicated he believes oral arguments can be very helpful. But they come at a cost because attorneys must be paid for their preparation. Thus, they should be used only where the help to the court outweighs the cost. But he would like to see more held.

Creason also stated he really enjoys the Appeals on Wheels program.

When asked about his membership in the Federalist Society, Creason stated he likes to hear the diverse speakers who come to Indy to speak on various topics. He also enjoys the exhange of differing views as well. He noted he is a member of the ABA as well, which aren't necessarily congruent.

When asked whether courts are capable of knowing what society wants, Creason said it depends upon what is being discussed. He indicated an approach that looks to the original intent of the Framers is important. Judges must limit themselves just to the facts of the specific case and not to issuing broad decisions, even though the temptation exists. He favors the incremental approach to deciding cases, which leaves the Legislature to figure out what society wants.

When asked about the difference between how an appellate judge reviews a jury trial versus a bench trial, Creason indicated that all judges must honor the role of juries. He has spent his career defending jury verdicts. Some practices in courts he did not necessarily agree with, but he believed they should be honored because it was a jury decision.

When asked about how his continuing assistance in educating young people about the law will affect his position as a judge, Creason stated that he likes the unique approaches that young people will bring to cases. He said he often learns more from students than they do from him. He said it is easy to lose sight of how the law affects people, and his work with young people remind him of that.

When asked what was his most complex legal matter, Creason indicated that habeas corpus law is incredibly complex. But besides that area, Creason cited to the election recount case with the Secretary of State race; the law is complex and the stakes were high.

When asked how he would handle dissension among his colleagues on a case, Creason said he approaches problems with the principles of collegiality and collaboration in mind. He said establishing relationships are also inportant to achieving consensus. He mentioned he has a great working relationship with the current judges and has great admiration for them.

When asked how he would like to be remembered if appointed, Creason said he would like to be remembered on the Court as a quiet leader. He would also like to be remembered as someone who continued to limit the role of the judiciary.

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Vacancy on COA 2015

Vacancy on COA 2015 - Interview #4: Robert R. Altice, Jr.

This is Attorney Cara Wieneke's report on the 4th (10:45 AM) interview

Following the interviews, the Judicial Nominating Commission will convene in executive session. After deliberations, the JNC will publicly vote to select the three most qualified candidates and submit those three names to Governor Mike Pence.

Robert R. Altice, Jr., Indianapolis

Current position: Marion Superior Court Judge
Application and photo: Here
Some additional info on grades and recommendations: Here

When asked the question about what innovative approach he has taken in the law, Judge Robert Altice indicated that some time ago Marion County was having difficulties with juvenile justice issues. The Judge continued the JDAI program, which dealt with alternatives to detaining juveniles. Judge Cale Bradford began the program, and Judge Altice has seen it through. The JDAI program has now been extended to other areas of the state, thanks to its success in Marion County.

When asked whether oral arguments are helpful, Judge Altice said he believed they were. He entertains arguments in his own court and finds them to be instructional. He cited to several different types of civil cases he has decided in his courtroom recently.

When faced with differing views on a COA panel deciding a case, Judge Altice said you have to be willing to write a dissent, but you have to be willing to reach a consensus where possible. He would start with consensus-building.

When asked if he had ever had to support a position that was contrary to his beliefs, he gave the shortest answer of the day so far: no.

When asked how his prior experience as a prosecutor would affect his decisionmaking, Judge Altice noted that being a judge for so long has helped him see things more objectively. He cited to a case he presided as judge over early on, where he was reversed. He said it was because he was thinking too much like a prosecutor in that case.

Judge Altice also noted that there is no such thing as a perfect trial. Being a trial judge is crucial to him understanding as an appellate judge what fundamental error looks like, for example.

When asked how he would enhance the integrity and credibility of the Court, Judge Altice said he would like to see a judicial performance evaluation program implemented here in Indiana. With such a program, citizens can see objective evaluations of judges based on certain criteria, as opposed to just reading about a decision the judge makes in a particular case.

When asked about the Kerry Price case, Judge Altice indicated that his knowledge of what a lawyer goes through in preparing a case like that is extremely helpful to deciding cases and is an important experience to have.

When asked about a legacy he would like to leave, Judge Altice indicated that he has had 35 -40 interns in his court over the years. He hopes to be remembered as a great mentor for students and young lawyers. He loves teaching trial advocacy and would like to continue mentoring young lawyers and students.

When asked whether balancing prior experiences in the law would make a good COA judge, Judge Altice agreed that it would and noted his criminal and civil experience in the trial area, but also his experience handling administrative duties, his work with the Bar Association, etc.

When asked how explicit a statute needs to be to supersede common law, Judge Altice said it depends on the wording of the statute and what common law is being superseded.

When asked about his experience in death penalty cases, Judge Altice said they required that you be certain that justice was done, that everything was done properly. This would carry over to the COA position well.

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Vacancy on COA 2015

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (6):

Indiana Department of Transportation, and Ricardo Bustos v. Paula Sadler, as the Personal Representative of the Estate of Roger D. Sadler

Northlake Nursing and Rehabilitation Center, L.L.C. d/b/a Northlake Nursing and Rehabilitation Center v. State of Indiana Department of Health

Jovon R. Richardson v. Joshua M. Richardson

State of Indiana v. Brian J. Taylor

Jamar Minor v. State of Indiana

Gerald R. Mauch v. State of Indiana

NFP civil decisions today (2):

Sharla C. Williams v. TradeWinds Services, Inc., Board of Directors of TradeWinds Services, Inc., Jon Gold in his individual capacity and official capacity (mem. dec.)

Wayne Bell and Linda Bell v. Ice River Springs Kentland, LLC (mem. dec.)

NFP criminal decisions today (6):

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

Jesse Jesus Peneda, Sr. v. State of Indiana (mem. dec.)

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

Gary Wright v. State of Indiana (mem. dec.)

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

John Lane-El v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Supreme Court creates assessment team to review its entities that now focus on issues involving unrepresented litigation

Here is the news release:

An ad hoc assessment team has been created to review the three Supreme Court entities that predominantly focus on issues involving unrepresented litigation in Indiana. The three entities are:
  1. Indiana Pro Bono Commission
  2. Committee on Unrepresented Litigants
  3. Indiana Commission to Expand Access to Civil Legal Services
The purpose of the ad hoc assessment team is to generate recommendations to reduce cases where individuals go to court without a lawyer and to lessen the burden it imposes on trial courts.

The ten member assessment team will be facilitated by Carol Adinamis, incoming President of the Indiana State Bar Association, and Justice Dickson will serve as the Court’s liaison. Additional members are listed in the June 9, 2015 Supreme Court order.

The Indiana Pro Bono Commission was created by Professional Conduct Rule 6.6 to increase the number of hours lawyers volunteer services to Hoosiers who cannot afford a lawyer.

The Committee on Unrepresented Litigants was created by Administrative Rule 4(D) to assist people without lawyers to effectively function in court and to dissuade others from going to court without a lawyer.

The Indiana Commission to Increase Access to Civil Legal Services was created by Supreme Court order to encourage and foster cooperation, interaction, and coordination between all Indiana providers of legal services.

The assessment team will provide a written report, with findings and recommendations, to the Indiana Supreme Court by September 1, 2015.

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to 21st Century Law | Indiana Courts

Vacancy on COA 2015 - Interview #3: Bryan L. Ciyou

This is Attorney Cara Wieneke's report on the 3rd (10:00 AM) interview

Following the interviews, the Judicial Nominating Commission will convene in executive session. After deliberations, the JNC will publicly vote to select the three most qualified candidates and submit those three names to Governor Mike Pence.

Bryan L. Ciyou, Indianapolis

Current position: Ciyou & Dixon, P.C.
Application and photo: Here
Some additional info on grades and recommendations: Here

When asked about an innovative approach he took in the area of law, Bryan Ciyou indicated that he noticed over the years that many people had very little knowledge of the law in certain areas. So Ciyou decided to choose a couple of very specific areas of law (firearm law, for example) and educate Hoosiers about their rights. He has made a commitment to educate them as well as he can in that area. He also indicated that he has done an enormous amount of educating people in family law matters. Ciyou went into great detail in his work in these two areas.

When asked how he would keep up with the pace of the COA, Ciyou noted that he believes electronic filing will make the process even faster. He also noted several things the COA could do to make the Court more efficient, including adopting Anders briefs in criminal cases, and allowing "super" panels of 5 judges so larger cases can move quicker through the process. Finally, he mentioned he has a great work ethic, and he plans to review the process to see where other inefficiencies can be remedied.

When asked what in his background can fill the business law void left from Judge Friedlander's retirement from the Court, Ciyou indicated that his experience in complex family law matters would make him suited for larger and more complex cases.

When asked how he would handle the need to be objective when deciding a case, since he appears so passionate on certain issues, Ciyou responded that in his cases now he tries to settle cases before litigation is necessary. He said those negotiation skills will transfer nicely to the COA.

When asked to describe a case where he was certain he would win but did not, Ciyou said he always tells clients he cannot promise any outcome. He stated he had a couple of cases recently where he was confident on the outcome, which he included in his writing samples. One such case included Judge Vaidik on the panel and was the interpretation of a trial rule in family law cases.

When asked what skills he has learned from his specialized knowledge in firearms law, Ciyou stated that he understands the organizational structure of law, starting with the Constitution. That depth of knowledge about the hierarchy of law is exactly what he could bring to the COA.

When asked what happens when the law produces an absurd result, Ciyou acknowledged that this is something that will continue to occur. Ciyou said there has not been a situation where he has not been able to resolve that problem with application of a rule of statutory construction. Ciyou also mentioned during his answer that he is a textualist.

When asked how he would resolve a case where the judges hold differing views, Ciyou noted that the need for harmony is paramount. He indicated that if consensus could not be reached, he would write a dissenting opinion.

When asked what legacy he would like to leave as a COA judge, Ciyou stated it would be educating others about the law. He cited to several examples where other firms approached him for assistance in framing legal arguments. He would like every Hoosier to understand the role of each level of the judiciary.

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Vacancy on COA 2015

Vacancy on COA 2015 - Interview #2: Patricia C. McMath

This is Attorney Cara Wieneke's report on the 2nd (9:30 AM) interview

Following the interviews, the Judicial Nominating Commission will convene in executive session. After deliberations, the JNC will publicly vote to select the three most qualified candidates and submit those three names to Governor Mike Pence.

Patricia C. McMath, Indianapolis

Current position: Marion County Public Defender Agency, Attorney, Appellate Division
Application and photo: Here
Some additional info on grades and recommendations: Here

When asked about an innovative approach she employed in the legal profession, Patricia McMath responded that she had organized a speakers' bureau with the Bar Association in order to make it possible that every CLE offered include professionalism/civility training.

When asked for an example of a time when a case was in tension with her personal feelings, McMath noted that it happens a lot in her line of work, she said that she remembers her oath and that her job is not to judge this person but to ensure that justice was in fact done. Also, cases are not important just for the individuals involved but also ther impact on the entire system.

When asked how she would resolve a conflict over a decision with her colleagues on the panel, McMath said she hoped she and her colleagues would get together and discuss their differences. Conversations can go much deeper than simply reading something, which is why she enjoys oral arguments. Her overall goal would be to build consensus instead of just writing a dissenting opinion.

When asked about deciding whether a statute supersedes common law, McMath said a judge must remove her personal feelings from the decision. If it still isn't clear, she believed a message should be sent for the Legislature to clarify.

When asked about clerks, McMath said she liked having a career clerk along with the 1-2 year clerkships available. A clerkship offers a great springboard to students in their careers.

McMath was read a quote about "overwhelming" power from prosecutors and judges, and whether it was appropriate that judges were included. McMath said it isn't necessarily a bad thing, but judges do have overwhelming power, particularly from the perspective of an indigent client.

One Commission member cited with approval her writing samples and the varied facts involved. When asked whether her personal experiences should color how she views the law, McMath noted that those experiences cannot be separated because it colors her view of the law. She said over the years she has had to change her own personal beliefs based on the cases she has worked on.

When asked how her extensive experience in appellate advocacy will help her in this new position, McMath noted that she believes she would have immediate credibility with the COA judges, having practiced before them for so long. And that they would know that she works hard. She also noted that it would probably be easier to write opinions as a judge than an advocate, since she would be able to view the case objectively rather than having a side already chosen for her.

When asked about technological changes in the court system, McMath indicated that she has educated herself on the advances through her office, which has been involved heavily in the advances being introduced. She mentioned that they have ben using Odyssey for a while now, and her office is involved in the e-filing project being implemented. She also noted she is excited with all the changes and welcomes them because it will make the practice of law so much easier.

When asked for an example of working toward a common goal with people of differing opinions, McMath cited her work with the Bar Association and her work on various committees, both legal and religious. She stated that open communication is key to reaching consensus.

When asked if she was concerned about the inpact of rulings, McMath said that the COA is an error-correcting court. But it is critical to think through what impact a decision will have. McMath believes it is not the COA's job to define policy. So while she would talk about the impact, it would not be a decisive factor.

Whan asked about the various types of cases she will be called upon to decide, McMath noted that the judicial skills needed do not come from the substantive law. So her mainly criminal defense background would not be a hindrance. She also noted that she has quite a bit of business experience in her background and is not unfamiliar with other areas of law.

When asked what legacy she would like to leave, McMath quoted the Court's mission statement: that everyone has equal access to justice. She cited a need for lawyers for low-income litigants. She stated that she hoped that would be her legacy: to help those people receive legal assistance.

(The CJ noted, when asking this question, that it was one of the questions sent to candidates before the interview).

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Vacancy on COA 2015

Vacancy on COA 2015 - Interview #1: Joel M. Schumm

This is Attorney Cara Wieneke's report on the first (9:00 AM) interview

Following the interviews, the Judicial Nominating Commission will convene in executive session. After deliberations, the JNC will publicly vote to select the three most qualified candidates and submit those three names to Governor Mike Pence.

Joel M. Schumm, Indianapolis

Current position: A clinical professor at Indiana University's Robert H. McKinney School of Law
Application and photo: Here
Some additional info on grades and recommendations: Here

Joel Schumm was the first candidate this morning to be interviewed.

As in prior interviews, candidates have given several questions beforehand to prepare a response.

The first question asked was what innovative approach Schumm has taken in some area of law. Schumm described the appellate oral argument mooting program that the State Bar Association provides to lawyers.

When asked about his feelings on oral arguments in general, Schumm generally favors them because he has found that the opinions in those cases reflect that the argument was helpful to deciding the issues.

When asked why it is important that he publish information on the statistics of the appellate courts, he noted that it is important that the public be kept informed of how the judiciary is working.

When asked for an example of a case in the COA where Schumm thought he would win but did not, Schumm joked that he rarely has good facts in his cases, and that he is appointed on his appellate cases. Thus, he understands that his success rate is not going to be high. But he sees his role to his clients as presenting the best case he can for them and setting reasonable expectations.

Schumm mentioned that the most important thing the COA can do is make the law predictable for both lawyers and for citizens. The role of the COA is not to make new law; it is to decide cases that are predictable and understandable.

The Indiana Law Blog came up twice, specifically Schumm's prosecutorial misconduct commentary. When asked if he would change the law in that area, he said no. The big problem in those cases was that the defense attorney failed to object. Thus, he believed the Ryan case, for example, was rightly decided.

When asked if he had strong views on a particular case that differed from the other two judges on the panel how would he handle the disagreement, Schumm noted that his personal opinion on a case is not relevant. He also said he would talk to his colleagues first and if no resolution, he believed it would be his duty to dissent if he felt it was contrary to Supreme Court precedent, statutory authority, etc.

Schumm also indicated that law school faculty can be pretty independent-minded people. His role on a committee with other faculty members has given him the experience to handle differing opinions with respect.

When asked what types of committees he would be interested in serving on, Schumm said he would be happy to serve anywhere that would be of assistance to the Supreme Court. He specifically cited his interested in court rules and in judicial education.

When asked his opinion on NFP decisions, Schumm indicated that there should be two groups of cases so that lawyers need not read and be aware of every single case handed down.

Schumm said the originalist/textualist school of judicial philosophy best describes his approach. He cited how our courts interpret the Indiana Constitution as a good example.

When asked, Schumm stated that in teaching students he has tried to instill in law students how to practice ethically and how to deal with others professionally. He mentioned that he has an extern program to help students get real-world experience where these issues are addressed.

When asked why he wants this position, Schumm stated that he had the pleasure of working at all three levels of the judiciary. Of all the courts, he is most passionate about the workload of rhe COA. The idea of working on 130 opinions per year sounds "exhilarating." One aspect of a judge's legacy is the opinions he writes. He would love the opportunity.

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Vacancy on COA 2015

Ind. Law - More on "Indiana Tech Law School fails in first bid for accreditation"

This May 1, 2015 ILB post reported on a "temporary setback" in the new Indiana Tech Law School's bid for accreditation.

Yesterday, June 9th, Indiana Tech issued this "Statement on ABA Accreditation."

Indiana Tech Law School has received notification from the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association that the Council has not granted provisional accreditation approval to Indiana Tech Law School. Representatives of Indiana Tech Law School appeared at the Council during its meeting on June 5, 2015.

Indiana Tech will reapply for accreditation later this summer, with the hope of receiving a vote by the Council in 2016.

Indiana Tech Law School Dean Charles Cercone noted, “While we are disappointed not to receive accreditation at this time, we were encouraged that the Council narrowed the issues we need to focus on, and we believe that the Council has provided us with good feedback as we begin the reapplication process. Historically, several new law schools have not received accreditation on their first attempt, but I am confident that with the input provided to us by the ABA we will move successfully towards accreditation. In the meantime, we continue to work as always with our students to provide them with a top-notch, career-focused legal education.”

Opened in August 2013, Indiana Tech Law School has enrolled students in its first two classes, with its third class entering this fall. Members of the charter class will graduate in 2016.

The ABA’s public notification of the Council’s decision may be found here.

Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Indiana Law

Vacancy on COA 2015 - Interviews start at 9:00 AM

And the ILB will be reporting. Here, thanks to Indiana Courts, is a photo of the Judicial Nominating Commission, ready to begin:



Posted by Marcia Oddi on Wednesday, June 10, 2015
Posted to Vacancy on COA 2015

Tuesday, June 09, 2015

Vacancy on COA - So who is on the Judicial Nominating Commission?

Monday the ILB gave an advance look at some details of the interviews the Judicial Nominating Commission (JNC) will be conducting tomorrow to select three names to recommend to the Governor to fill the upcoming vacancy in Court of Appeals Judge Ezra H. Friedlander's seat.

The interviews will begin at 9 AM, and attorney Cara Wieneke will be covering them for the ILB. See her first post here, from June 4th, where she looked at the 8 applicants' grades and letters of recommendations.

There has not been an appellate judge or justice selected yet during Governor Pence's term. The last time the JNC met to nominate candidates to fill vacancies was in 2012.

The Judicial Nominating Commission is made up of the current Chief Justice, who serves as chair, plus three lawyer members, elected by lawyers from each of the three Court of Appeals geographic districts, and three non-lawyer citizen members, appointed by the Governor, all serving three-year staggered terms.

None of the current commissioners was on the JNC in 2012. There is a new Chief Justice since the last vacancy, Chief Justice Rush.

The current citizen (non-lawyer) members are:

The current attorney members are:

Posted by Marcia Oddi on Tuesday, June 09, 2015
Posted to Vacancy on COA 2015

Ind. Gov't. - Questions of revealing exit interviews involving state board of accounts audit results

Last year the ILB had a number of entries about Stephanie Brinkerhoff-Riley, an Evansville Councilwoman who secretly recorded a state audit exit interview about the about the city audit, then made it public. See particularly this July 31, 2014 post.

That came to mind Sunday when the Indianapolis Star's "Behind Closed Doors" had a long item that began:

Eight days before the Republican primary on May 5, Carmel City Council President was briefed on an unflattering audit of city finances he believed could have boosted his ultimately unsuccessful bid for mayor. Sharp, though, was given a 10-day gag order that prevented him from speaking about the report before it was released. The gag order was standard for the annual report from the State Board of Accounts, but the timing meant Sharp was sworn to silence until after the primary.
ILB: Was the gag order "standard," or something instituted after the earlier event? Was there an effort by the SBA to pass legislation after the Evansville event?

Posted by Marcia Oddi on Tuesday, June 09, 2015
Posted to Indiana Government

Ind. Decisions - Supreme Court reprimands Gary council candidate

In re Ragen H. Hatcher, a Supreme Court disciplinary opinion, was filed yesterday, June 8th. Today Dan Carden of the NWI Times has this story:

INDIANAPOLIS | A Gary attorney running as a Democratic candidate for the city's common council has been disciplined by the Indiana Supreme Court.

In a 5-0 ruling announced Tuesday, the high court issued a public reprimand to Ragen Hatcher for representing a client in conflict with another of her clients and improperly communicating with a person represented by another lawyer.

According to the court's discipline order, Hatcher was attorney for the former employer of a deceased person whose estate sued the employer for unpaid wages.

After growing frustrated with how the case was proceeding, the estate sought to replace its attorney and Hatcher agreed to represent the estate, even though she simultaneously was representing the employer being sued by the estate.

The justices agreed Hatcher's behavior violated the professional conduct rules for Indiana attorneys, which are enforced by the Supreme Court.

But they concluded Hatcher deserved only the most minimal public sanction for her actions, because she had no prior disciplinary history, cooperated with the investigation, accepted responsibility for her misconduct and no harm was suffered by any party.

Posted by Marcia Oddi on Tuesday, June 09, 2015
Posted to Ind. Sup.Ct. Decisions

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

In Miller v. St. Joesph County (ND Ind., Lozano), a 6-page opinion, Judge Posner writes:

The plaintiff, Michael Miller, a ser-geant in the Detective Bureau of the St. Joseph County (Indi-ana) Police Department, where he had worked for more than thirty years, filed this suit against the County (which happens to be the county in which South Bend is located), the County Sheriff (Michael Grzegorek), who is in charge of the department and also the county jail, and other entities and individuals unnecessary to mention let alone discuss. Mil-ler’s suit charges that the defendants had, in violation of several federal statutes, discriminated against him because he’s black. The district court granted summary judgment in favor of the defendants, precipitating this appeal. * * *

The judgment of the district court dismissing the plain-tiff’s suit is AFFIRMED

Posted by Marcia Oddi on Tuesday, June 09, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues second opinion today

In State of Indiana v. Brishen R. Vanderkolk, an 8-page, 5-0 opinion, Justice Dickson writes:

A probationer or community corrections participant may, by a valid advance consent or search term in the conditions of release, authorize a warrantless search of his or her premises without reasonable suspicion. Because the search term in this case informed the participant that he was consenting only to searches made upon probable cause, we reverse the partial denial of the defendant's motion to suppress. * * *

A probationer or community corrections participant may, pursuant to a valid search condition or advance consent, authorize a warrantless premises search without reasonable suspicion. Here, community corrections officers conducted a warrantless and suspicionless search of the residence of a home detention participant who had agreed to written conditions of his participa-tion that consented only to searches upon probable cause, which was admittedly wholly lacking in this case. We find that all of the evidence seized from the compliance search, including evi-dence attributable to the defendant, was thus the result of an improper entry and search in viola-tion of the Fourth Amendment. We reverse the trial court order denying in part the defendant's motion to suppress and remand with instructions to grant the motion to suppress in its entirety.

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

Posted by Marcia Oddi on Tuesday, June 09, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Supreme Court selects Tyler Technologies, again

A press release today from Tyler Technologies, Inc. of Plano, Texas announces:

PLANO, Texas--(BUSINESS WIRE)--The Indiana Supreme Court has selected Tyler Technologies, Inc. (NYSE: TYL) to provide a statewide e-filing system and replace the longstanding practice of accepting paper filings under a four-year, fixed-price agreement. The Odyssey File & ServeTM platform will be used for E-file Indiana and will accept all case types and work with multiple e-filing service providers.

The Indiana Supreme Court selected Tyler as its new e-filing manager after a thorough and highly competitive review, with a selection committee that included the Division of State Court Administration, a Circuit Court clerk, a member of the Indiana State Bar Association, and a national expert on e-filing. Hamilton County will serve as the pilot court and e-filing is scheduled to begin in the county within six to eight weeks.

The court previously chose Tyler’s Odyssey® court case management solution to manage cases for Indiana trial and appellate courts. This new agreement to implement Odyssey File & Serve, as the platform for E-file Indiana, allows the court to move from paper-based processes to more efficient and cost-effective e-filing. The court also selected Odyssey SessionWorks® Judge Edition to present case information on the bench via touch-screen technology.

More than 1.5 million new cases are filed annually with nearly 400 Indiana courts, and millions of additional document pages are filed in older cases through outdated processes that use large amounts of court staff time and space. E-filing will deliver convenience and cost savings to Indiana citizens and attorneys as they will be able to file court documents electronically at any time through an online Web-based process.

Posted by Marcia Oddi on Tuesday, June 09, 2015
Posted to E-filing | Ind. Sup.Ct. Decisions | Indiana Courts

Ind. Decisions - "Pig has its day in court — and wins"

Tim Evans reports today in the Indianapolis Star about the June 5th Court of Appeals decision in Jake Gruber, Jill Sherman, & Jake Gruber b/n/f Jill Sherman v. YMCA of Greater Indianapolis, Ruth Lilly YMCA Outdoor Center, & Flat Rock River YMCA Resident Camp." From the story:

This little piggy went to court — and squealed “we won, we won, we won” all the way home.

The Indiana Court of Appeals has ruled in favor of the unnamed pig in a lawsuit filed over a bite sustained by an 11-year-old boy during a visit to the Flat Rock River YMCA Camp.

And the ruling — which let the YMCA of Greater Indianapolis off the hook for the boy’s injuries — is nothing to snort at.

The decision reiterates the state Supreme Court’s long-held determination that pigs are domestic animals — just like dogs and cats — and that their owners may be held liable for harm “only if the owner knows or has a reason to know that the animal has dangerous propensities.”

The ruling said the pig, which had been a popular attraction at the camp for about six years, “had never injured anyone or exhibited any dangerous propensities.”

The story continues:
It is an important protection for Hoosiers who own domestic animals. Under Indiana law, "domestic animal" means an animal that is not wild and includes cattle, horses, mules, swine, sheep, goats, dogs, cats, poultry, ostriches, rhea, emus, or other birds and aquatic animals that are the subject of aquaculture.

The lawsuit was filed by the victim and his mother nearly two years after the 2011 incident involving the pig that belonged to a camp naturalist and made its home at the facility near St. Paul for about nine months of every year.

“The pig was regularly allowed to roam freely on YMCA’s premises,” the court order said, “and there had never been an incident.”

But that all changed on April 19, 2011, when the naturalist took a group of 12 children — including the victim — into a pen to feed the pig. After the pig ate, the children left the pen but the boy and a few other children continued to watch the pig from outside its pen.

Suddenly, the court document says, “the pig lunged at (the victim), stuck its head between the bars, and grabbed” the boy’s hand.

The boy was taken to the emergency room at Major Hospital in Shelbyville, where he had X-rays on his hand, was prescribed antibiotics and advised to follow up with his family physician. Court documents do not provide any more details on the extent of the boy’s injuries, but the lawsuit sought compensation for “medical expenses, pain and suffering, and other damages, all of which may continue into the future.”

Posted by Marcia Oddi on Tuesday, June 09, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Why Has a Key Federal Judgeship in Wisconsin Been Vacant for 2,000 Days?"

That is the heading to this story today in the Huffington Post, reported by Nan Aron. The long story begins:

Central to the latest wrangling over a federal appeals court vacancy is one crucial fact: Wisconsin's vacancy on the Seventh Circuit is the oldest circuit court vacancy in the entire country. It's been empty since Judge Terence Evans stepped down in January 2010. That was 2,000 days ago. In that time, President Obama has successfully filled about 300 other judicial vacancies around the country, and the Seventh Circuit, working shorthanded and grappling with profoundly important issues like voting rights, the death penalty, marriage equality, and the Second Amendment, has had to decide more than 7,000 cases.

With such vital issues at stake, a new judge is needed now more than ever. The people of Wisconsin--and of Illinois and Indiana, which also fall within the Seventh Circuit--deserve a court that's working at full capacity.

The remainder of the long story explains the reasons for the long vacancy.

Posted by Marcia Oddi on Tuesday, June 09, 2015
Posted to Indiana Courts

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

For publication opinions today (2):

In Merrillville 2548, Inc. successor to Merrillville GC 2548, Inc.v. BMO Harris Bank N.A. f/k/a Harris N.A., as the assignee of the Federal Deposit Insurance Corporation as the receiver for Amcore Bank, a 25-page, 2-1 opinion, Judge Bradford writes:

On appeal, GC 2548 contends that (1) the trial court erred in concluding that Article 9.1 applied; (2) GC 2548 is an equitable assignee of Borrower’s Lease; and (3) the equitable assignment of the Lease terminated BMO Harris’s security interest; and (4) that, even if BMO Harris is entitled to foreclose the Mortgage, it is not entitled to immediate possession of the Parcel. BMO Harris counters that (1) GC 2548 waived certain arguments, (2) GC 2548 was bound by the default judgment against defendants, (3) Article 9.1 of the UCC applies, (4) GC 2548 is not entitled to equitable relief, and (5) the trial court correctly entered its order of possession in favor of BMO Harris. We conclude that although GC 2548 preserved its argument that it was equitably assigned the lease, it has failed to establish equitable assignment, the provisions of Article 9.1 of the UCC do not apply to leasehold mortgages, and BMO Harris is not entitled to an order of possession of the Parcel. We therefore affirm in part, reverse in part, and remand for further proceedings. * * *

We conclude that GC 2548 preserved its equitable assignment claim for appellate review, although it has failed to establish that the trial court erred in finding that equitable assignment of the Lease did not occur. We further conclude that the trial court erred in concluding that the provisions of Article 9.1 of the UCC applied to the leasehold mortgage in this case. Finally, because we have concluded that real estate mortgage procedures must be used, we further conclude that BMO Harris has no right to immediate possession of the Parcel. Consequently, we remand for a sheriff’s sale pursuant to the Indiana Code chapter 32-30-10. The judgment of the trial court is affirmed in part and reversed in part, and we remand with instructions.

Kirsch, J., concurs.
Vaidik, C.J., concurs in part and dissents in part with opinion [which begins on p. 24] I concur in full with the majority’s treatment of the waiver, equitable assignment, and UCC issues in this case. I respectfully dissent with respect to the final issue—whether BMO Harris is entitled to possession of the Parcel.

In Gregory A. Rose v. State of Indiana, an 18-page opinion, Judge Mathias concludes:
Rose was not denied fundamental due process when an attorney who was running for the office of judge of the court in which he was tried was seated as a juror. The testimony of the victim, which was not incredibly dubious, is sufficient to support Rose’s convictions for child molesting. Rose’s aggregate sentence of fifty-five years is not inappropriate in light of the nature of the offense and the character of the offender. However, we remand with instructions that the trial court attach the repeat sexual offender enhancement to the sentence imposed on the Class A felony conviction. Affirmed and remanded with instructions.
NFP civil decisions today (3):

Andrew M. Shaw v. Tera A. Shaw (mem. dec.)

Susan D. Troyer v. Mervin D. Troyer (mem. dec.)

Sheila R. (Naum) Porter v. Brett T. Naum (mem. dec.)

NFP criminal decisions today (5):

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

James K. Chenoweth v. State of Indiana (mem. dec.)

Courtney L. Sharp v. State of Indiana (mem. dec.)

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

Shelben Curtis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, June 09, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today - re insurance coverage limit admission

In State Farm Mutual Automobile Insurance Company v. Kimberly S. Earl and the Estate of Jerry Earl, a 10-page, 5-0 opinion, Justice Massa writes:

After Jerry Earl sustained severe injuries in a motorcycle accident, he and his wife sued State Farm to recover under the uninsured motorist provision included in their policy. We are asked to decide whether the trial court abused its discretion in admitting evidence of their $250,000 coverage limit. Finding it did not, we affirm. * * *

Although the probative value of the Earls’ $250,000 coverage limit with State Farm is admittedly low, we cannot say the trial court abused its discretion in finding that probative value was not outweighed by substantial prejudice. On these facts, we find no error in its admission. We affirm.

Posted by Marcia Oddi on Tuesday, June 09, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Surprise charter school loan program raises new questions"

Nearly every year the ILB has post-session entries on "budget surprises". See, eg, this post from Dec. 2, 2009.

Many were surprised by the tax amnesty plan passed in this year's budget, even though it did not arise, full cloth, at the end of the session.

Tony Cook and Kris Turner of the Indianapolis Star reported Sunday on a " new program slipped into the budget during the waning hours of the legislative session in late April." More from the lengthy story:

In the final days of this year's legislative session, Republican lawmakers dropped into the massive state budget bill a provision giving charter schools access to $50 million in low-interest state loans.

The measure was a last-minute effort to appease Gov. Mike Pence, who had sought more funding for charter schools, and it received virtually no public scrutiny.

Now some critics — including the Senate's chief budget writer — are sounding an alarm about the new program, given the significant debt of many charter schools.

The main concern: Who will be on the hook if charter schools don't repay the loans?

"Some of these charter schools have some pretty enormous debt pictures right now," said Senate Appropriations Chairman Luke Kenley, R-Noblesville. "I don't think they have the ability to retire that debt. It's really a problem." * * *

But if history is any guide, Kenley has reason to worry.

In 2013, the state forgave and paid off more than $90 million in charter school loans. The move drew protests from traditional public schools whose loans were not forgiven and consequently charter schools were no longer given access to the loan money.

Kenley said Pence and House Speaker Brian Bosma plan to do the same thing again with the new loan program — an assertion that neither denied outright.

"It's always a possibility in the future," Bosma said. * * *

The new program slipped into the budget during the waning hours of the legislative session in late April.

Posted by Marcia Oddi on Tuesday, June 09, 2015
Posted to Indiana Government

Ind. Courts - More on: Supreme Court creates commercial courts working group

Updating this ILB post from June 2nd, Stan Jastrzebski of NPR Purdue WBAA FM reports today - some quotes:

A group of nearly 20 lawyers and judges will convene this summer to establish parameters for a new type of court in Indiana. The state already has specialty courts that try drug cases or those involving veterans – but most of those are criminal cases. [ILB: Here is the order establishing the group and naming the members.]

The newest courts will hear complex civil cases brought between businesses. Commercial courts exist in almost two dozen other states and help to clear cases which would otherwise bog down a docket. They’re designed to be “business friendly” – but what that means for a state is a bit of a gray area. * * *

For the court system, Indiana Chief Justice Loretta Rush says business friendliness is about expediency…

“What we want to do, and our responsibility, is to make sure we have an attractive environment for business litigation," Rush says. "And if you want to get your case moved, you can get your case moved.”

But others say that doesn’t mean an unequal application of the law.

“Well, when you say ‘business friendly,’ keep in mind both parties are businesses,” says Ohio Chief Justice Maureen O’Connor. Her state has had business courts for almost a decade.

“So you’re not favoring a business over an individual or tipping the scales and [saying] ‘I want to be business friendly, so I’m going to rule in favor of the business party as opposed to the individual private person,’” she says. * * *

“What businesses like, as I’ve always understood about one, the American legal system – and I think the Indiana legal system holds true to this notion – is consistency, knowing the lay of the land, knowing what you can expect, knowing what you can plan on,” [State Sen. John] Broden says.

Right now, it’s hard to know even when a case will be heard. Chief Justice Rush says some cases languish for years before they go before a judge. Indiana Supreme Court Justice Steven David, who will also sit on the piloting committee, says the state wants to ensure that dockets move more smoothly and predictably. If the commercial courts don’t do that, he says, they may be scrapped. [ILB: Some may say this bogging down of cases is what has happened with the Tax Court.]

“This would be an option, so obviously if it doesn’t prove to be more efficient, more effective for those that would utilize it, we won’t continue the pilot project. We feel very strongly it has worked in other states and the model will work here in Indiana. And it will be good for all litigants and it will be good for business here in Indiana and I think that’s good for everybody.”

But there’s that phrase again – “good for business”. Ohio Supreme Court Chief Justice Maureen O’Connor says some of the county business courts there have folded because judges objected to the whole notion businesses – or any group – would be treated differently under the law.

“There are judges who have the philosophy that there should be no such thing as a specialized docket," O'Connor says. "That if you’re elected to be a judge, that you are competent to handle any case that comes before you and no party should be given preferential treatment. They view specialized dockets as preferential treatment.”

Indiana, it’s worth noting, already does this for drug cases and for veterans. Most legal scholars agree it’s not an infringement of the Constitution’s Fourteenth Amendment guarantee to equal protections. And O’Connor says in Ohio, business courts have worked the same way specialty courts in Indiana do – with judges becoming an integral part of resolving potential litigation – often, before it starts in earnest.

“The judge literally rolls up his or her sleeves and gets involved in this case early on, sets the discovery schedule and the vast majority of these cases settle,” she says. * * *

Chief Justice Rush says she doesn’t think it’s likely each Indiana county will have its own commercial court. Instead, she envisions a regional system where several neighboring counties share jurisdiction over the business cases in their area.

Posted by Marcia Oddi on Tuesday, June 09, 2015
Posted to Ind. Commercial Courts | Indiana Courts

Monday, June 08, 2015

Court of Appeals issued 1 additional opinion(s) last Friday (and 2 additional NFP memorandum decisions)

The following opinions are in addition to those posted here by the ILB on Friday.

Additional for publication opinions Friday, June 5 (1):

In Jake Gruber, Jill Sherman, & Jake Gruber b/n/f Jill Sherman v. YMCA of Greater Indianapolis, Ruth Lilly YMCA Outdoor Center, & Flat Rock River YMCA Resident Camp, a 9-page opinion, Chief Judge Vaidik writes:

An eleven-year-old boy was at Flat Rock River YMCA camp when a pig—which had never injured anyone or exhibited any dangerous propensities—stuck its head between the bars of its pen and grabbed the boy’s hand, causing injuries. The boy and his mother sued the camp, and the camp filed a motion for summary judgment. The trial court granted summary judgment in favor of the camp.

On appeal, the boy and his mother acknowledge the general rule that owners of domestic animals are liable only if the owner knows or has reason to know that the animal has dangerous propensities. Nevertheless, they ask us to change the standard for liability of owners of domestic animals to that of strict liability when the animal is not a cat or dog. Because Indiana Supreme Court precedent is clear that this general rule applies to all domestic animals—and not just cats and dogs—we decline their invitation to alter the standard. We therefore affirm the trial court’s entry of summary judgment in favor of the camp.

Additional NFP civil decisions Friday, June 5 (1):

In the Matter of the Civil Commitment of R.J. v. Richard L. Roudebush Veterans Affairs Medical Center (mem. dec.)

Additional NFP criminal decisions Friday, June 5 (0):

Greggory Cataldo v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, June 08, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 1 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: J.W. (Minor Child), R.W. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Monday, June 08, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Logansport attorney who pleaded guilty to domestic battery receives public reprimand

See In Re James T. Knight, a one-page, 5-0 order filed June 5th.

The Indianapolis Star had an item Sunday in "Behind Closed Doors" on another disciplinary action, filed May 29th: In re DeJuan L. Bouvean:

Indianapolis has one less practicing attorney.

The Indiana Supreme Court on May 29 suspended Indianapolis attorney

from the practice of law. He was suspended for not cooperating with the court’s Disciplinary Commission in its investigation of a grievance against him.

Bouvean, 43, is a defense attorney with an interesting legal history.

In 2009, the Indianapolis Housing Agency filed a probable cause affidavit against Bouvean with the Marion County prosecutor’s office alleging that Bouvean illegally lived in and practiced law out of a Section 8 federally subsidized home on Indianapolis’ Eastside. Only Bouvean’s grandmother was allowed to live in the twobedroom house, according to the affidavit.

The prosecutor never took up that case against Bouvean, whose law license dates to 2000.

Law clients might know Bouvean by any of the seven other names that federal housing investigators found he used.

The Indianapolis Star also was unable to track Bouvean down for comment.

Posted by Marcia Oddi on Monday, June 08, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending June 5, 2015

Here is the Clerk's transfer list for the week ending Friday, June 5, 2015. It is two pages (and 28 cases) long.

Three transfers were granted last week:

One notable transfer denial was in Indiana Department of Natural Resources, and Cameron F. Clark as Director of the Indiana Department of Natural Resources v. Whitetail Bluff, LLC, Rodney Bruce, Backwoods Preserve, Inc., Midwest Woodlots, LLC, and Shawn Taylor d/b/a T.C. Outdoors, where the Court voted as follows:
Transfer Denied - Rucker and David, JJ., vote to deny transfer.
Rush, C.J., and Dickson, J., vote to grant transfer,
Massa, J., did not participate.
For more, see this June 5th ILB post, "Supreme Court declines transfer in high-fenced hunting case."

Posted by Marcia Oddi on Monday, June 08, 2015
Posted to Indiana Transfer Lists

Law - "Law is the least diverse profession in the nation. And lawyers aren’t doing enough to change that"

That was the headline to this article May 27th in the Washington Post, by Deborah L. Rhode. The subhead: "Lawyers are leading the push for equality. But they need to focus on their own profession." Rhode is the Ernest W. McFarland Professor of Law, the director of the Center on the Legal Profession, and the director of the Program in Law and Social Entrepreneurship at Stanford University. Her new book, The Trouble with Lawyers, will be released in June 2015 from Oxford University Press.

Posted by Marcia Oddi on Monday, June 08, 2015
Posted to General Law Related

Ind. Gov't. - "Speak up to stop secrecy in the Indiana House"

The Fort Wayne Journal Gazette had this strong editorial Sunday about the House quietly exempting itself (or trying to) from the Public Records Law, by changing a key definition in its employee handbook.

Niki Kelly of the FWJG broke the story on June 1st - here are two ILB posts about it: June 1 ( Masariu General Assembly lacks policy on accessible records") and June 2 (The Supreme Court decision upon which the General Assembly's claim to a right of secrecy is based).

From the editorial, "Speak up to stop secrecy in the House":

The Indiana House has declared itself above a law the House itself enacted. And it would appear there’s not a darned thing that can be done about it.

Well, maybe one thing, if you’re willing to help. But first, some particulars.

The law is Indiana’s Access to Public Records Act, enacted in 1983, which declares that “... all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.”

The law also states: “Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees.”

But for years, legislators have acted as though the act also contains the phrase, “except for us lawmakers.”

So even though any communications between House Utilities and Energy Committee Chairman Eric Koch and utility companies on the subject of solar power might seem of public interest, it wasn’t really a surprise when the House Republican Caucus denied a request from a consumer group for such emails or other messages. The law doesn’t apply to us, the caucus’ attorney said. End of story.

Except this time, Indiana Public Access Counselor Luke Britt offered advisory opinions that the open-records law does indeed apply to legislators. The act allows lawmakers to designate and shield some types of documents or emails as “work products,” Britt noted, but he urged them to err on the side of transparency.

Though the House Republican Caucus still wouldn’t budge, the Citizens Action Coalition of Indiana and the Washington-based Energy and Policy Institute filed a lawsuit.

And suddenly, without acknowledging the fiction of their contention that the open-records act doesn’t even apply to them, legislators made an attempt during the final hours of this year’s session to sneak expanded exceptions for legislators into an unrelated bill. House Speaker Brian Bosma squelched it, saying it’s “inadvisable to put legislation together at the last second despite the appropriateness of it.”

On May 31, The Journal Gazette’s Niki Kelly revealed that just after the session ended in April, the House changed its employee handbook to effectively declare itself exempt from the open-records law without going through that whole messy business of actually voting on it and asking the governor to sign off on it. Bosma presumably thinks this furtive move a bit more advisable; he declined to discuss it with Kelly because of pending litigation.

The handbook defines “work product” as all types of communications to and from representatives and House staff members, including documents, emails, videos and voice mails.

In other words, anything that House members say to or write to or read or hear from constituents or lobbyists or campaign contributors is now beyond the reach of the open-records law.

The lawsuit seeking Koch’s emails, or any similar court challenge, is unlikely to get very far. The Indiana Supreme Court in 1993 declined to get involved in a dispute over legislative records, citing the doctrine of separation of powers between the legislature and the judiciary, so it’s doubtful that a trial judge would challenge the House’s right to declare itself above its own law.

So, there’s probably only one way to challenge the House’s high-handed move.

“You still have the court of public opinion,” said Steve Key, lobbyist and executive director of the Hoosier State Press Association.

So, it’s up to the rest of us. Unless we make some noise, it looks as though the Indiana House is going to get away with this.

Posted by Marcia Oddi on Monday, June 08, 2015
Posted to GA and APRA | Indiana Government

Ind. Courts - "Richmond Hill trial: 175 witnesses, 3,000 pieces of evidence, 1 defendant"

That is the headline to this lengthy Sunday Indianapolis Star story by Krintine Guerra, with the subhead:"Mark Leonard is on trial this month in what could very well be one of the longest, most complicated and most expensive criminal proceedings in Marion County's history." And it is taking place in South Bend.

Here are some earlier ILB posts.

Posted by Marcia Oddi on Monday, June 08, 2015
Posted to Indiana Courts

Ind. Courts - "Daviess County lands $50,000 Historic Preservation Grant for courthouse skylight"

The story by Mike Grant of the Washington Times Herald (here in the Indiana Economic Digest) begins:

A planned project to update the Daviess County Courthouse has received a helping hand from the Indiana Department of Natural Resources. The Daviess County Commissioners will receive a $50,000 grant from the DNR Division of Historic Preservation & Archeology. The money will be used to stabilize and rehabilitate the stained glass skylight in the local courthouse.

"Anytime you get funding like that is great," said Daviess County Commissioner Tony Wichman. "We have a lot of work to do at the courthouse. This will help pay for work on the dome and skylight."

Officials last year found the skylight and the dome above it had problems. The state grant will help cover that cost, but the county is looking at a much bigger project. Officials are looking to make some energy efficiency updates and tackle some of the issues the courthouse faces in complying with standards from the Americans With Disabilities Act. "We're looking at redoing windows and ADA updates," said Wichman. "The whole thing is quite a project."

The Courthouse was built in 1928 in a neoclassical revival style. The historic building was constructed long before ADA and that means the county has issues to deal with. Some of those issues can be large and expensive. Others can be as small as changing the type of handles on the doors in the building. One was taken on last month when the county hired a firm to bring the elevator into state compliance. Other projects include restroom updates and a new ramp entrance to the building.

"We have also applied for grants to try and help cover the costs of that work," said Wichman. "I think Daviess County is really pro-active when it comes to securing grants to help pay for our projects. Any time you can secure grants from the state or federal government that's less money we have to spend out of the local tax dollars."

Posted by Marcia Oddi on Monday, June 08, 2015
Posted to Indiana Courts

Vacancy on COA - Interviews of the 8 applicants for the COA will be Wed., the JNC will narrow the names down to 3 to recommend to the Governor

Earlier this year Court of Appeals Judge Ezra H. Friedlander announced he would be stepping down effective August 31, 2015.

On March 2nd the Supreme Court announced that application forms were available for Court of Appeals vacancy (Judge Friedlander represents the 2nd Judicial District), and that they should be submitted by April 27th.

The names of the eight applicants were released to the public when the deadline for submission ended on April 27th.

On May 18th the Court publicly announced:

The interviews will take place on Wednesday, June 10 in Room 319 of the State House. The interviews are open to the public and press.

9:00 a.m. – 9:30 a.m. – Mr. Joel M. Schumm
9:30 a.m. – 10:00 a.m. – Ms. Patricia C. McMath
10:00 a.m. – 10:30 a.m. – Mr. Bryan L. Ciyou
10:45 a.m. – 11:15 a.m. – Hon. Robert R. Altice, Jr.
11:15 a.m. – 11:45 a.m. – Mr. Steven R. Creason
1:15 p.m. – 1:45 p.m. – Hon. Christopher M. Goff
1:45 p.m. – 2:15 p.m. – Mr. David L. Pippen
2:15 p.m. – 2:45 p.m. – Hon. Gary L. Miller

According to the Indiana Constitution and state statute, the seven-member Judicial Nominating Commission (JNC) must recruit and select candidates to fill vacancies on Indiana appellate courts. The Commission is chaired by Chief Justice Loretta H. Rush and includes three attorneys elected by attorneys and three citizens appointed by the Governor.

After the Commission interviews applicants, it will deliberate in executive session. The Commission will consider the applicants' legal education, legal writings, reputation in the practice of law, physical condition, financial interests, activities in public service and any other pertinent information.

After deliberations, the Commission will publicly vote to select the three most qualified candidates and submit those three names to Governor Mike Pence. Governor Pence has 60 days from receiving the list to select Indiana's next Court of Appeals judge.

Applications, along with writing samples, transcripts and letters of recommendation are a matter of public record now that the Commission has announced the interviews. All eight applications are available for review in the Indiana Supreme Court Law Library (Room 316) of the State House. Redacted versions of the applications are available online [along with photos of the applicants].

The ILB reported on the writing samples, transcripts and letters of recommendation in this post from June 4th ("A first look at the applications").

In response to an inquiry from the ILB, the Governor's office responded:

Yes, this will be the Governor’s first judicial appointment for an appellate court. It is being coordinated by the General Counsel’s Office. The Governor respects the judicial nominating process and looks forward to reviewing the recommendations of the Judicial Nominating Commission after the interviews have concluded.

Posted by Marcia Oddi on Monday, June 08, 2015
Posted to Vacancy on COA 2015

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

From Sunday, June 7, 2015:

From Saturday, June 6, 2015: From late Friday, June 5, 2015:

Posted by Marcia Oddi on Monday, June 08, 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 6/8/15):

Thursday, June 11

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

Tuesday, June 16

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/8/15):

Monday, June 8

Tuesday, June 9

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

Monday, June 15

Wednesday, June 17

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

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


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

Posted by Marcia Oddi on Monday, June 08, 2015
Posted to Upcoming Oral Arguments

Saturday, June 06, 2015

Ind. Gov't. - More data on the total payout in legal fees the State of Indiana has made in the SSM contests

Thanks to a posting by Equality Case Files, we finally have detailed information on three of the cases. First, here are links to some earlier ILB posts:

Equality Case Files reports this morning in a Facebook post:
Indiana Marriage Cases - Attorney Fees Settlements

We've received responses to our public record request for copies of the settlement documents for attorney fees in three of the Indiana marriage cases totalling $1,182,870.88. We're still waiting for the information from a fourth case.

Baskin v. Bogan, $650,000 total, paid to:
- Kirkland & Ellis ($325,000) (linked below)
- Lambda Legal ($325,000): http://bit.ly/1BPJ4wU

Fujii v. Gov. of Indiana, $196,529.63 total, paid to:
- ACLU of Indiana ($149,933.24): http://bit.ly/1Fz6SGQ
- ACLU LGBT & AIDS Project ($34,971.39): http://bit.ly/1GdilQ5
- Sean Lemieux ($11,625): http://bit.ly/1BPJkMv

Lee v. Abbott
, $336,341.25 total, paid to:
- Karen Celestino-Horseman ($111,153.75): http://bit.ly/1cDy9Q6
- Fillenwarth Dennerline Groth & Towe ($95,345): http://bit.ly/1Fza2ui
- Robert Katz ($39,000): http://bit.ly/1MvmBLP
- Mark W. Sniderman ($38,821.50): http://bit.ly/1dTN4HA
- Kelly R. Eskew ($27,592.50): http://bit.ly/1Jx9zgZ
- Sweeney Hayes LLC ($24,428.50): http://bit.ly/1Jygir1

ILB: The links provided are to the settlement documents.

Posted by Marcia Oddi on Saturday, June 06, 2015
Posted to Indiana Government

Friday, June 05, 2015

Ind. Decisions - Panel of Vanderburgh judges rule against City Council in disputed residency ordinance

The story by Mark Wilson and John Martin is in the Evansville Courier & Press this evening. Here are some quotes:

A panel of local judges has unanimously ruled against the Evansville City Council over a disputed ordinance stating that all city appointees to local boards and commissions must be city residents.

The ordinance was passed 6-3 in December by City Council, which in January voted by the same margin to override Mayor Lloyd Winnecke’s veto.

The judges’ ruling invalidates the whole ordinance, but it opens the door for the council to pass a different version so the city residency requirement applies to boards and commissions created under city code. The dispute between council and Winnecke involved residency requirements on panels created under state statute, and whether the council had authority to make those rules more restrictive.

Ultimately, the ruling applies to 14 boards and commissions with residency requirements set out in their state statutes, but not to the Public Safety and Public Works boards because they fall under the Indiana Constitution, or to the Levee Authority District Board because its creating statute already says members must be city residents.

However, the judges said that because they cannot rewrite the ordinance to address those changes, it was entirely void.

All seven Vanderburgh Superior Court judges listened to oral arguments over the disputed residency requirements for city board and commission appointees during a televised April 23 hearing. * * *

The attorneys’ arguments centered on the power of local government versus that of state statute. The judges addressed this in their ruling by saying that when there is an inability to sever a distinct portion of a law, that trial courts have been admonished that they may not rewrite municipal ordinances.

Doing so would violate separation of powers provisions of the state and federal constitutions, they said.

Danks said the council will have two courses of action in light of the judges’ decision.

First, he said the residency ordinance will be refiled, and it will establish a city residency requirement only on 42 boards and commissions created by city code. Winnecke said Friday he would not object to that ordinance.

And second, Danks said he will seek City Council authorization to appeal the ruling on grounds that a city residency requirement also may be established for the 14 state-created boards and commissions.

Danks said he’s not sure if the appeal would go to the Indiana Court of Appeals or if he would use a mechanism where a case can be appealed directly to the Indiana Supreme Court.

The case needs to appealed, Danks said, partly because municipalities need guidance in interpretation of state “home rule” laws.

Danks argued to the local judges that home rule should allow the City Council to establish its own rules on board and commission.

The C&P has also posted the 14-page opinion.

Posted by Marcia Oddi on Friday, June 05, 2015
Posted to Ind. Trial Ct. Decisions | Indiana Government

Ind. Courts - Supreme Court declines transfer in high-fenced hunting case [Updated]

The General Assembly this year failed to enact legislation either banning or permitting high-fence hunting ranches. The result - the next move was up to the Supreme Court, as reported in this ILB post on April 22nd:

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

Recently, two lower courts have sided with the preserves.

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

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

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

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

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

Politics will come into play in that scenario, too.

No one considered that the Supreme Court would decline to hear the case, leaving the COA decision as the law in Indiana. But that is what happened; here, thanks to Dan Carden of the NWI Times, is the June 5, 2015 order of the Supreme Court, on the petition to transfer the COA decision., Whitetail Bluff.

Chief Justice Rush and Justice Dickson voted for transfer, Justices Rucker and David voted to deny, and Justice Massa did not participate. So it was a 2-2 split and when the Court is evenly divided, transfer is deemed denied by virtue of App. Rule 58(C).

For more background, start with this post from April 15th, including this quote from the FWJG:

“This provides a rigid framework for four existing preserves,” said Sen. Sue Glick, R-LaGrange. “Without this bill, there is no regulation in place.”

That makes a decision by the Indiana Supreme Court on pending litigation huge. The legal battle has been ongoing for 10 years.

If the court agrees to accept an appeal and sides with the DNR, the preserves would be shut down and no new ones could open. If the court agrees with the appellate ruling, the preserves can exist with no rules until the legislature can act next year.

[Updated] See also this Niki Kelly story in the June 6th Fort Wayne Journal Gazette, headlined "High court ruling paves way for captive hunting."

Posted by Marcia Oddi on Friday, June 05, 2015
Posted to Indiana Courts

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

For publication opinions today (0):

In Bertram A. Graves, M.D. v. Indiana University Health, f/k/a Clarian Health Partners, Inc., Richard Kovacs, M.D., and Edward Ross, M.D., a 31-page opinion, Judge Bradford writes:

On appeal, Dr. Graves contends that the trial court abused its discretion in denying his motion to compel the IU Health to comply with certain discovery requests and in granting IU Health’s motion to strike portions of Dr. Graves’s amended affidavit. Dr. Graves also contends that the trial court erred in granting summary judgment in favor of the Appellees. Finding no abuse of discretion or error by the trial court, we affirm. * * *

In sum, we conclude that the trial court acted within its discretion in denying Dr. Graves’s motion to compel and in striking certain paragraphs from Dr. Graves’s affidavit. We also conclude that the trial court did not err in granting summary judgment in favor of the Appellees. Accordingly, we affirm the judgment of the trial court.

NFP civil decisions today (0):

NFP criminal decisions today (0):

Harold W. Reynolds v. State of Indiana (mem. dec.)

Tommy Rans v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, June 05, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Whether SCOTUS will grant cert in Manzano v. Indiana now announced

Updating earlier ILB posts, the SCOTUS has now denied cert in the Indiana case of Manzano v. State. (SCOTUSblog case page here)

This post today
on SCOTUSblog notes:

The order denying cert. in Manzano v. Indiana, 14-631 — which asked whether, when a criminal defendant seeks to vacate a guilty plea on the ground of ineffective assistance of counsel, the defendant must establish prejudice by showing that he would have been acquitted — was tersely annotated, “Justice Sotomayor dissents.”

Posted by Marcia Oddi on Friday, June 05, 2015
Posted to Indiana Courts

Ind. Courts - "Tippecanoe County offers warrant recall program"

Hannah Smith Kiefer reports in the Lafayette Journal & Courier:

People with outstanding warrants for failure to appear in court will have a chance this month to turn themselves in on their own terms, officials announced Wednesday.

On June 30, Tippecanoe County will offer a warrant recall program at the Tippecanoe County Courthouse.

People who turn themselves in will see a judge that day to schedule a new court hearing and have their warrant recalled. They will not have to pay bond nor will they be arrested if their warrant falls under eligibility. Actual charges will not be dropped.

Eligible warrants include those issued by Superior Courts 4, 5 and 6, which are misdemeanor and low-level felony criminal cases, small claims and traffic cases. Other civil writs, including those issued by Superior Court 3, are included.

Magistrate Judge Dan Moore said there are more than 6,500 active warrants. Of those, 5,200 are failures to appear.

“We want to give them an opportunity to do the right thing,” said Sean Persin, Superior Court 5 judge.

Officials said they hope the day will help move stalled court cases through the system.

“It’s a problem-solving solution,” said Tippecanoe County Commissioner Tracy Brown. “It’s kind of a spring cleaning of our files.” * * *

Officials warned, however, that if someone comes to the courthouse with a warrant that does not qualify for the recall, that person will be arrested. If people are unclear on whether their warrant qualifies, they can call the Tippecanoe County Clerk’s Office to find out, Persin said. * * *

After June 30, Tippecanoe County Sheriff Barry Richard said officers will conduct a “warrant roundup.”

“We will actively search for and arrest people with active warrants who failed to show up on June 30,” he said in a press release.

Posted by Marcia Oddi on Friday, June 05, 2015
Posted to Indiana Courts

Ind. Courts - "Hit man revelation upends Richmond Hill trial jury selection"

Yesterday the ILB noted the IndyStar story about the start of the Richmond Hill trial: "A look at the chief prosecutor and defense counsel in the Richmond Hill explosion trial."

But, as Robert King reports in the Star this morning, when jury selection actually began:

The entire first-day pool of prospective jurors were excused from the trial of Richmond Hill explosion suspect Mark Leonard after most said they believe he is guilty.

Many of the 54 prospective jurors from St. Joseph County said they were influenced by media coverage of the fatal November 2012 explosion and Leonard's subsequent arrest in an arson-for-insurance money scheme.

But the tipping point for many others came when Leonard's lead defense attorney, Diane Black, mentioned that Leonard had been accused of hiring a hit man to kill a witness. From that point on, juror after juror said they would presume Leonard guilty from the outset.

Jury selection will resume again Friday with another 70 prospects, but the issue is likely to delay the start of the trial, which was scheduled to begin Monday. * * *

Until Thursday, Black and her defense team had attempted to ensure jurors never heard about the hit man. They said it would prejudice jurors to the point that they couldn't give a fair hearing to the rest of the case. But the judge has repeatedly said the evidence couldn't be excluded just because it is damaging.

Indeed, lead prosecutor Denise Robinson said the attempt to hire a hit man should be part of Leonard's trial because state law allows such after-the-fact of the crime issues to be used to prove the identity of the guilty party, their motive and their awareness of their guilt.

So, in what one juror described as a "shrewd move" and others suggested was meant to taint the jury pool, Black brought up the matter of the hit man for hire during the jury selection, describing it as the "elephant in the room." It was out of her mouth before Robinson had time to object. And once it was out — and all 54 first-day prospective jurors heard it — it was impossible to take back.

Posted by Marcia Oddi on Friday, June 05, 2015
Posted to Indiana Courts

Ind. Courts - Supreme Court hears Lake County election precinct law challenge

Thursday's oral argument in State of Indiana v. John Buncich (watch here) was the subject of a story by Dan Carden of the NWI Times, which includes links to the briefs and the history of the lawsuit. Some quotes from the story:

The Indiana Supreme Court provided few clues during oral arguments Thursday as to how it might rule in a constitutional challenge to a 2014 state law requiring Lake County consolidate "small" election precincts with fewer than 500 active voters.

The five justices and the attorneys for both the state, which defended the statute, and Sheriff John Buncich, who questioned it in his role as Lake County Democratic Party chairman, all seemed to agree it is special legislation, because it pertains only to Lake County.

But Deputy Attorney General Stephen Creason insisted the general constitutional prohibition on special legislation does not apply when a locality's unique characteristics warrant a special law and when a general law may cause undue harm to other communities.

"In this case, the General Assembly properly enacted a special law, because Lake County has a uniquely large problem with small precincts," Creason said.

Data presented to the high court shows Lake County has 174 small precincts out of 525 total — the most small precincts of any county in the state and more small precincts than the similarly populous Marion, Allen and Hamilton counties combined.

However, Justice Steven David noted that nearly all counties have at least a few small precincts and 28 of Indiana's 92 counties have the same or greater proportion of small precincts as Lake County.

"You would agree that Lake County is not unique, as opposed to other counties, as it relates to these precincts with less than 500; they're perhaps more unique," David asked Creason.

Creason replied that the threshold for permissible special legislation does not mandate the locality in question be a complete outlier, only that it be sufficiently different from most others to justify particular attention.

He noted, for example, most of the state gaming statutes are special legislation aimed at boosting Lake County's economic development prospects.

More from the story:
"The legislative goal here was cost savings. How is that not applicable to the other 91 counties?" Patton asked. "Every county would benefit by consolidating precincts and saving on election costs."

To which Chief Justice Loretta Rush again pointed out Lake County has the most small precincts. But Patton pushed back saying Lake County has the second largest population in the state, so it almost inevitably will have more of anything than smaller counties.

Justice Mark Massa seemed entirely unpersuaded by Patton's argument.

He said it doesn't make sense for every county to go through the time and expense of a small precinct consolidation study, as would be required by a general law, since most counties don't have a small precinct problem.

Patton said the study then could be done quickly and easily in those counties, such as Porter, which has three small precincts that are not adjacent and therefore cannot be consolidated.

Meanwhile, Justice Brent Dickson, a Hobart native, appeared unwilling to uphold Lake Circuit Judge George Paras' decision striking down the law because courts generally are expected to defer to the Legislature, unless there are no circumstances under which a law can be construed as constitutional.

A decision by the Supreme Court is expected in the next few months. However, if the justices fail to issue an opinion by Dec. 31, their ruling may be irrelevant because the small precinct section of the statute in question expires at the end of the year.

Teresa Auch Schultz reported on argument for the Gary Post-Tribune. Some quotes:
Several of the justices questioned the reason behind the lawsuit if the study could help Lake County save money.

"What is the ill here that you think needs to be protected?" Chief Justice Loretta Rush asked Patton.

"The ill is that once again Lake County is being specifically targeted...," Patton said.

Patton also argued that the deadlines placed by the state law on Lake County gave the Board of Elections essentially 60 days to go through the entire process during summer, a time when most members of the board go on vacation, making it hard for Lake County to meet the deadline.

Patton also disputed a claim by Creason that the state only enacted the legislation because Lake County had not taken steps on its own to do so. Patton said that the county has cut 30 to 40 precincts in the past few years.

In the 2014 General Election, Lake County reported 526 precincts while the 2011 General Election reported 543 precincts, according to the Board of Elections website. In the 2008 General Election, 561 precincts were counted.

The two sides also disputed whether the Board of Elections had to do more than just study small precincts. Creason argued the law stopped there, saying that the Board could choose to actually combine any precincts. Patton, however, noted that the law says the board "shall" make any changes recommended by the study.

Posted by Marcia Oddi on Friday, June 05, 2015
Posted to Indiana Courts

Thursday, June 04, 2015

Ind. Courts - 7th Circuit Judge David Hamilton makes his home in Bloomington

From the Indiana Daily Student, this story - some quotes:

The oversized heads of U.S. Supreme Court justices bob up and down on a shelf in Judge David Hamilton’s office. The tchotchkes made to look like Sandra Day O’Connor, Stephen G. Breyer and Clarence Thomas smile out at the room where Hamilton sits poring over cases for the United States District Court of Appeals for the Seventh Circuit.

The decorations were gifts from his wife, Inge Van der Cruysse. Hamilton’s favorite is the one of his personal hero, former Supreme Court Justice John Paul Stevens.

“He’s a brilliant man, fair-minded, intelligent and very, very thoughtful,” he explained.

The light-filled office, located on the second floor of the Maurer School of Law building, also holds some more impressive decorations, such as photos of Hamilton talking to former President Bill Clinton and with President Barack Obama.

Clinton nominated Hamilton to be a judge on the United States District Court for the Southern District of Indiana in 1994, a time Hamilton remembers fondly.

“I got to spend those 14 years in a dream job,” he said. “For somebody like me who loves the give and take in the law, it’s a combination of responsibility and power and opportunity with the resources to do the job well that gave me a lot of satisfaction. We have the luxury in the legal profession of waking up every morning and going to work and knowing your job is to do the right thing today.”

Hamilton’s second federal appointment was much more high profile due to the fact that he was Obama’s very first judicial nominee in 2009.

“The process of nomination and confirmation can be a pretty wild ride in a sense because the nominee has so little influence on the process,” he said. “Because I was nominated first, I became the focus of a lot of political attention, and my nomination became very controversial.” * * *

Though most federal court judges work in federal courthouses, Hamilton made an unconventional move when he decided to move his court’s chambers to Bloomington. The court was relocated in 2010. Only a few other judges in the country have made similar decisions.

“The work that I do is fairly isolating,” he said explaining the move. “We can’t talk outside the office about the cases that have to be decided. So the opportunity to spend a lot of time with students and faculty here is a big plus for me. We love the Bloomington community.”

Posted by Marcia Oddi on Thursday, June 04, 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 Tom Bonnell v. Ruby A. Cotner, Douglas Wayne Cotner, Arthur J. Johnson, Jimmy J. Johnson, and Jerry L. Johnson, a 17-page opinion, Judge Najam writes:

Tom Bonnell appeals the trial court’s entry of judgment, following a bench trial, in favor of Ruby A. Cotner, Douglas Wayne Cotner, Arthur J. Johnson, Jimmy J. Johnson, and Jerry L. Johnson (collectively, “the Cotners”). Bonnell raises one issue on appeal, and the Cotners raise one issue on cross-appeal. The Cotners’ issue on cross-appeal is both dispositive and an issue of first impression: whether adverse holders of real property can be divested of their title by a subsequent tax sale of the property when the adverse holders’ title is premised on a reasonable and good faith—albeit mistaken—belief that they are paying the proper taxes on the property. On these facts, we hold that the subsequent tax sales did not divest the adverse holders of their title to the real property. As such, we reverse the trial court’s judgment for Bonnell and remand with instructions for the court to enter judgment for the Cotners. * * *

Under the trial court’s interpretation of Indiana law, vested adverse holders may become divested of their property for failing to pay taxes despite reasonably believing in good faith that they are paying the appropriate taxes due. This conclusion is contrary to the adverse possession tax statute’s specific and explicit exception that adverse possession may occur in these circumstances. Accordingly, the trial court erred as a matter of law when it concluded that the Cotners’ vested title was “severed” by the 1993 and 2011 tax sales. See Appellant’s App. at 19. As the Cotners’ title, which, again, had vested in 1978, was never severed, neither the Board nor Bonnell took title to the disputed area from those tax sales. Hence, we reverse the trial court’s judgment and remand with instructions for the court to enter judgment for the Cotners on their claim for adverse possession over the disputed area.

In Ashonta Kenya Jackson v. State of Indiana, a 24-page, 2-1 opinion, Judge Najam writes:
Ashonta Kenya Jackson appeals his convictions for three counts of robbery, as Class B felonies; his conviction for corrupt business influence, a Class C felony; and his adjudication as a habitual offender following a jury trial. Jackson presents the following issues for our review:

1. Whether the trial court erred when it denied his motion for change of judge.
2. Whether the State presented sufficient evidence to support his corrupt business influence conviction and his adjudication as a habitual offender.
3. Whether the trial court abused its discretion when it sentenced him.

We affirm in part, reverse in part, and remand with instructions. * * *

[p. 8] Jackson contends that the State was also required to prove that his criminal acts posed a threat of continued criminal activity, but that the State presented no such evidence. While Indiana’s statute for corrupt business influence does not expressly include an element of continuing the criminal conduct into the future, the statute is patterned after the federal RICO statute, and we look to relevant federal case law for guidance in interpreting the Indiana version of the statute. * * *

[p. 15] [W]hile the plain text of the Indiana statute differs from that of the federal statute, both require proof of a relationship between the predicate offenses regarding the intent, methods, participants, and like circumstances. And it would appear that our legislature patterned the statutory definition of pattern of racketeering activity after both 18 U.S.C. Section 1961(5) and the federal Organized Crime Control Act of 1970. * * *

Friedlander, J., concurs.
Baker, J., concurs in part and dissents in part with separate opinion [that begins, at p. 22] I respectfully dissent from the majority regarding the sufficiency of the evidence supporting Jackson’s conviction for corrupt business influence. * * *

It is axiomatic that when engaging in statutory interpretation, “Courts may not ‘engraft new words’ onto a statute or add restrictions where none exist.” Kitchell v. Franklin, 997 N.E.2d 1020, 1026 (Ind. 2013) (quoting State ex rel. Monchecourt v. Vigo Cir. Ct., 240 Ind. 168, 162 N.E.2d 614, 615 (1959)). I believe that to reverse a conviction for failure to prove an element that is nowhere to be found in the statute defining the crime requires us to engraft new words onto a statute. I do not believe it is our place to do so. As a result, I would affirm Jackson’s conviction for corrupt business influence. In all other respects, I concur with the majority.

In Justin Brewer v. State of Indiana, a 6-page opinion, Judge Najam writes:
Justin Brewer appeals his convictions for auto theft, as a Class D felony, and resisting law enforcement, as a Class D felony, following a jury trial. Brewer raises a single issue for our review, namely, whether his convictions violate Indiana’s statutory prohibition against double jeopardy when Brewer had been convicted in the Commonwealth of Kentucky for the same or similar conduct. We affirm in part, reverse in part, and remand with instructions.
NFP civil decisions today (5):

In the Matter of the Term. of the Parent-Child Relationship of, M.W., (Minor Child) and, J.W., (Mother) v. The Ind. Dept. of Child Services

Jeffrey T. Gorham v. Dana E. Downing f/k/a Dana E. Gorham (mem. dec.)

Brandon George, Dustin George and 2911 Investments, LLC v. Pekin Life Insurance Company (mem. dec.)

Control Building Services, Inc. v. Simon Services, Inc., d/b/a Simon business Network (mem. dec.)

In Re: The Adoption of: M.W.M and K.R.M. (Minor Children) M.M. v. W.S. (mem. dec.)

NFP criminal decisions today (3):

Kraig Martin v. State of Indiana (mem. dec.)

Renald Williams, Sr. v. State of Indiana (mem. dec.)

Ricardo B. Fuller v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, June 04, 2015
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from yesterday, Prof. Robert Katz, IU McKinney Law School, sends this note about the significance of the Internal Revenue Service granting the entity nonprofit status:

In analyzing the case of the First Church of Cannabis, it's key to see the relationship and distinction between Section 501(c)(3) of the Internal Revenue Code, which deals with tax exemption for nonprofit churches, and Section 8 of Indiana's Religious Freedom Restoration, which creates a claim for individuals and entities seeking an exemption from generally applicable laws that substantially burden their religious exercise.

In deciding whether to recognize the First Church as a "church" for 501(c)(3) purposes, the IRS considered several factors, including whether the First Church has a distinct legal existence (hence the relevance of being organized as a nonprofit corporation by the State of Indiana) and a recognized creed and form of worship.

To raise a valid claim under RFRA, those who violate drug laws don't have to belong to a church, much less a church recognized by the IRS as tax exempt under 501(c)(3). They simply have to persuade a court that prosecuting them substantially burdens their religious exercise. It's up to the courts to determine the relevance and import of the fact that the law breakers belong to a 501(c)(3) tax-exempt church.

Posted by Marcia Oddi on Thursday, June 04, 2015
Posted to Indiana Courts

Ind. Courts - A look at the chief prosecutor and defense counsel in the Richmond Hill explosion trial

Updating these two ILB posts from Feb. 2014, the trial of Mark Leonard has since been moved to a South Bend courtroom. Today Robert King has a long story in the Indianapolis Star, headed "For Richmond Hill explosion attorneys, summer must wait as trial takes center stage," featuring Marion County Deputy Prosecutor Denise Robinson, and Diane Black, Chief Trial Deputy in the Marion County Public Defender Agency. From the story:

Robinson, the lead prosecutor, will be attempting to prove to a St. Joseph County jury that 46-year-old Mark Leonard was responsible for the 2012 scheme to blow up his girlfriend's house for insurance money — a calamity that killed two people and injured others, damaged scores of homes and forever changed the Richmond Hill neighborhood on Indianapolis' Southeastside.

Black, the lead public defender, will attempt to show jurors a different narrative of the case, one that could spare her client — one of five people charged in connection to the explosion and the first to go to trial — from a potential life sentence in prison.

Because of two years plus of media coverage in Indianapolis, a judge moved the case to St. Joseph County — South Bend — in hopes of finding 12 jurors who can bring an open mind to the case. As a result, both attorneys and their respective teams have moved their workplaces to South Bend for the duration of the case. Black's defense team moved last week; Robinson's prosecution team over the weekend. Both teams are now living and working out of hotels.

Their efforts moved into the courtroom Wednesday for some final pre-trial housekeeping and resumes Thursday for jury selection.

Posted by Marcia Oddi on Thursday, June 04, 2015
Posted to Indiana Courts

Vacancy on COA - A first look at the applications

The ILB is pleased to announce that Indianapolis-based defense counsel and appellate practitioner Cara Wieneke has volunteered her time to cover the 2015 interview process to fill the upcoming vacancy on the Court of Appeals. Earlier this year Court of Appeals Judge Ezra H. Friedlander announced he would be stepping down effective August 31, 2015. Here now is Cara's first report.

I traveled downtown on Monday to review the applications of the eight candidates vying for the Court of Appeals vacancy. The applications were organized with separate binders for each candidate, although the recommendation letters for all the candidates were separately compiled in a single red folder.

Most of the binders were the same size, with the exception of one: Bryan Ciyou’s. His application binder was at least twice the size of the other binders, as seen below, because of the writing samples he elected to include:

While the main application for each candidate may be reviewed online, certain portions of these public applications can only be reviewed in person at the Supreme Court Library in Indianapolis. One such portion is the candidate’s law school transcript. I reviewed each candidate’s transcript and created the following chart with each candidate’s law school GPA listed from highest to lowest:

Candidates' Law School GPAs
Schumm 3.55
Ciyou 3.24
Goff 3.07
Creason 2.96
McMath 2.92
Pippen 2.91
Altice 2.73
Miller 2.16

Another portion of the applications viewable only in person are each candidate’s letters of recommendation. I reviewed all the letters contained in the red folder, noting the number of letters written on behalf of each candidate as well as the names of the authors. It was not until I left the library that I learned perhaps not all of the letters provided to members of the Commission were included in the red folder.

Nevertheless, below are my thoughts after reviewing the recommendation letters for each candidate that were publicly available.

Posted by Marcia Oddi on Thursday, June 04, 2015
Posted to Vacancy on COA 2015

Wednesday, June 03, 2015

Ind. Decisions - Tax Court issues an opinion today

In Pinnacle Entertainment, Inc. v. Indiana Department of State Revenue, an 11-page opinion, Sr. Judge Fisher writes:

Pinnacle Entertainment, Inc. has appealed the Indiana Department of State Revenue's assessments of Indiana adjusted gross income tax for the 2006 and 2007 tax years. The matter, currently before the Court on the parties' cross-motions for partial summary judgment, presents two issues for the Court to decide:

I. Whether an apportioned sum of the gain generated by Pinnacle's sale of a racetrack and card club is attributable to this state under Indiana Code § 6-3-2-2.2; and if so,

II. Whether the Department correctly classified Pinnacle's gain as business income. * * *

For the above-stated reasons, the Court, with respect to Issue I, GRANTS summary judgment in favor of the Department and against Pinnacle. With respect to Issue II , the Court DENIES summary judgment to either party. Accordingly, the Court ORDERS the parties to file a joint case management plan with proposed order within thirty (30) days.

Posted by Marcia Oddi on Wednesday, June 03, 2015
Posted to Ind. Tax Ct. Decisions

Environment - "John Oliver vs. chicken" - the contract poultry business

Set aside some time to watch/read this, you won't be sorry. I'd suggest you first watch the Last Week Tonight with John Oliver segment itself - it is on YouTube. As you watch it, remember that hog farming works the same way ...

The reads the long story in Politico, by Nathaniel Haas. A few quotes:

Feathers flew when John Oliver took on the poultry industry — and the squawking may even end up echoing in the Capitol.

The comedic anchorman recently used his HBO show, “Last Week Tonight,” to attack the way giant poultry processors — like Tyson Foods, Perdue, Pilgrim’s and Sanderson Farms — allegedly have treated their chicken growers, punishing them for speaking out against their conditions, and pressured Congress into defanging the Agriculture Department’s protections.

“When the chicken companies describe it — again, over jangly f—-ing guitars — they make the system sound great for farmers,” Oliver said in a recent report, referring to the industry’s sunny promotional videos. But he added, “It turns out, many farmers have a very different experience.”

By Saturday — less than two weeks after the 18-minute segment aired — it drew more than 2.1 million views on YouTube.

The National Chicken Council isn’t laughing, saying in a statement that Oliver offered a “completely one-sided view of U.S. poultry production and … not an accurate reflection of the overwhelming majority of the 25,000 farm families who partner with chicken companies.” But some Democratic lawmakers hope that the publicity that Oliver’s jabs generated will have an impact beyond the farm — for instance, by jarring loose a political stalemate over USDA grower protections that Congress continues to defund. The battle is over a provision contained in appropriations bills that prevents USDA from taking steps to make sure chicken growers are treated fairly by processors.

At the very least, the industry’s next attacks on the department might meet a chillier reception in Congress, Rep. Chellie Pingree (D-Maine) said. “Last time we had a vote on it, we only lost by about six votes,” she said. “If it comes up for a vote in the committee, we’ll be more likely to prevail.”

From later in the story:
The show’s poultry segment zeroed in on the Packers and Stockyards Act, a 94-year-old law that seeks to ensure that suppliers of livestock, poultry, meat, cereals, oilseeds and related products are treated fairly by processors and other buyers. The 2008 farm bill amended the law to give poultry and swine growers new rights, including the power to cancel contracts and additional protections in the contract negotiating process.

In particular, some chicken growers have had problems with the way big poultry processing and other meatpacking companies force them to compete in a tournament system, in which farmers who produce the most pounds of chicken receive bigger payments, while those who produce less are punished with reduced fees. Chris Leonard, a former Associated Press reporter, wrote about this controversial practice in his book “The Meat Racket.”

“The farmers go deeply into debt in order to get into the contract relationship with these companies, but they don’t own the chickens they are raising,” said Steve Etka, policy director for the Campaign for Contract Agriculture Reform, a coalition of groups that represent contract farmers. “They have this debt usually in excess of a million dollars that they go into, usually to mortgage the chicken farm and build the houses.”

ILB: I remember some years ago reading an Indiana opinion that detailed some of the chicken raising practices, but can't recall the name.

Posted by Marcia Oddi on Wednesday, June 03, 2015
Posted to Environment

Ind. Decisions - Supreme Court issues one today

In Jason and Justina Kramer v. Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc., a 15-page, 4-1 opinion, Justice Massa writes:

E. is a baby girl lucky enough to be wanted by two sets of parents: her biological father, R.M., and her prospective adoptive parents, Jason and Justina Kramer. Unfortunately for the Kramers, our legal system gives priority to the rights of biological parents over adoptive parents, and the Kramers were forced to give up E. shortly after Christmas, having had custody for the first eight months of E.’s life. The Kramers then turned their understandable anguish upon Catholic Charities, the agency they had hired to facilitate the adoption, alleging Catholic Charities should have checked the putative father registry prior to placing E. with them, or alternatively, that Catholic Charities had a duty to disclose to the Kramers its failure to conduct a pre-placement check of the registry. Because the applicable Indiana statute does not impose the requirement of a pre-placement registry check, and because the Kramers failed to demonstrate that Catholic Charities had any duties in excess of its statutory obligations, we affirm the trial court’s grant of summary judgment. * * *

Rush, C.J., and Rucker, David, JJ., concur
Dickson, J., dissents with separate opinion [which is found on p. 15, and concludes] I believe that, as the party moving for summary judgment, Catholic Charities did not affirmatively demonstrate that its exercise of reasonable care for the Kramers under the circumstances is established by undisputed facts. For this reason, the motion for summary judgment filed by Catholic Charities should be denied, and the Kramers’ negligence claim should be permitted to proceed to trial.

Posted by Marcia Oddi on Wednesday, June 03, 2015
Posted to Ind. Sup.Ct. Decisions

Environment - "Last week was the first stage in a series of local government votes on the Mounds Lake Commission"

The ILB has had several posts on the proposed Mounds Lake Reservoir project. A news release from the Hoosier Environmental Council reports:

Last week was the first stage in a series of local government votes on the Mounds Lake Commission, a new governmental entity proposed to study and plan a dam and reservoir on the West Fork White River.

In great news, the Delaware County Council and the Delaware County Commissioners voted not to take part in the Commission, and in bad news, the Anderson City Council preliminarily approved participation in the Commission. Other local units will soon consider their role going forward.

Here are two stories, reprinted in the Indiana Economic Digest:

Posted by Marcia Oddi on Wednesday, June 03, 2015
Posted to Environment

Ind. Courts - More on "First Church of Cannabis could test RFRA" [Updated]

Updating this May 22nd ILB post, about a newly formed church's plans to test RFRA by using marijuana in its religious ceremony, the ILB pointed out that such an effort should not be a surprise, as the federal RFRA law was enacted as a response to a SCOTUS opinion upholding the firing of "two American Indians who worked as private drug rehab counselors [who] ingested peyote as part of religious ceremonies conducted by the Native American Church."

Yesterday John Tuohy of the Indianapolis Star reported that:

Emotions appeared sky high at the newly formed First Church of Cannabis, after the Internal Revenue Service granted it nonprofit status. * * *

[The church's founder Bill] Levin plans his first official church service July 1 — the day RFRA becomes law — where his members will follow blessings by smoking marijuana in what he describes as a religous practice. But some legal experts doubt such an illegal act would be exempted from prosecution by the religious protections offered by RFRA. * * *

Robert Katz, a law professor at the Indiana University Robert H. McKinney School of Law, said if Levin did go through with the ceremony and was prosecuted, he would need to prove to a judge that his church was a legitimate religion to get protection under RFRA.

That could be difficult, Katz said.

"One thing the court would look at is the history of the church," he said. "Churches with a long established history would be looked at more favorably."

ILB: The ILB was surprised at the suggestion that the courts would place themselves in the role of judges of the authenticity of a religion ... One [tax] expert the ILB heard from yesterday said:
Scientology won its fight with the IRS. Age, beliefs, etc., don't matter. The most relevant cases are on draft avoidance and conscientious objectors. . . Seeger, in particular.
[Updated at 4:45 PM] On the other hand, there is this case, which may be right on point: US v. Meyers, 95 F. 3d 1475 - Court of Appeals, 10th Circuit 1996. It is mentioned in this May 29th article in the Daily Beast by Jay Michaelson:
One federal RFRA case, U.S. v. Myers, looked at five factors to determine whether a “Church of Marijuana” (founded in 1973) was authentically religious: ultimate ideas, metaphysical beliefs, a moral system, comprehensiveness of beliefs, and the ‘accoutrements of religion,’ such as important writings, a priesthood, etc.

Posted by Marcia Oddi on Wednesday, June 03, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 12 NFP memorandum decisions)

For publication opinions today (1):

In Francis M. Laux v. Pauletta Leann (Laux) Ferry , an 11-page opinion, Judge Baker writes:

Francis Laux (Father) appeals the trial court’s order on Pauletta (Laux) Ferry’s (Mother’s) petition to modify Father’s child support obligation. Father raises the following arguments on appeal: (1) the trial court erroneously determined Father’s child support obligation; (2) the trial court erroneously calculated Father’s accrued child support underpayment. We find that the trial court erroneously credited Mother for Child’s health insurance payments given that her husband (Stepfather) makes those payments and the trial court elected to treat Mother and Stepfather as separate financial entities. We find no other error. We affirm in part, reverse in part, and remand with instructions.
NFP civil decisions today (3):

In Re The Paternity of K.R.K.; K.O. v. R.H.K. (mem. dec.)

Gregory J. Mills v. Dean Kimbley (mem. dec.)

In Re The Marriage of: Norman S. Carlson v. Jean E. Carlson (mem. dec.)

NFP criminal decisions today (9):

Brent Simcox v. State of Indiana (mem. dec.)

Ronald C. Weyland v. State of Indiana (mem. dec.)

Jabari R. Eldridge v. State of Indiana (mem. dec.)

Kevin Lavell Curry v. State of Indiana (mem. dec.)

Meghan Hambright v. State of Indiana (mem. dec.)

Fred R. Morris, Jr. v. State of Indiana (mem. dec.)

Darrin Purnell v. State of Indiana (mem. dec.)

David Cruz, Jr. v. State of Indiana (mem. dec.)

Robert L. Walp v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, June 03, 2015
Posted to Ind. App.Ct. Decisions

Courts - "Marriage equality cases languish before elected judges"

From an op-ed in the LA Times June 1st:

The U.S. Supreme Court will rule this month in Obergefell vs. Hodges, the case that could give same-sex couples across America the freedom to marry. The majority of states already have marriage equality, and the issue has lost salience for some. But the Obergefell decision still matters. In several conservative states, challenges to discriminatory bans have not had as much success.

State high courts in Massachusetts, Connecticut, Iowa and New Jersey ruled in favor of marriage equality. State judges in Hawaii and California also did so, but ballot measures later overruled the decisions. The judges in these states have something in common: They were all appointed. Like federal judges with life tenure, they felt at liberty to side with equal marriage rights for same-sex couples, even if in so doing they were siding against the majority.

The elected judges in states such as Texas and Arkansas, however, have lagged behind for years, perhaps because they feel pressure to rule based on popular sentiment. Perhaps they remember the 2010 retention election in Iowa, when anti-gay groups ran a successful campaign to oust three Iowa Supreme Court justices who had joined a unanimous opinion in favor of the freedom to marry.

Even when a federal court in Alabama ruled this year that same-sex couples had the right to marry, the elected state Supreme Court — led by marriage equality opponent Chief Justice Roy Moore — told judges in the state to defy the federal order.

Instead of outright defiance, justices in Arkansas and Texas seem to be avoiding a political controversy by delaying their rulings.

Posted by Marcia Oddi on Wednesday, June 03, 2015
Posted to Courts in general

Ind. Gov't. - "South Bend's public records response called too slow"

Erin Blasko reported June 2nd in the South Bend Tribune in a story that begins:

The city's unblemished record when it comes to disclosing public records took a hit this past week.

In an advisory opinion, state Public Access Counselor Luke Britt took the city to task for taking three years to respond to a request for emails related to the South Bend Housing Authority.

Attorney Andrew Straw submitted the request in March 2012, asking for all emails related to the appointment of members to the SBA board by Mayor Pete Buttigieg.

A former Green Party candidate for Congress in the 2nd District, Straw previously negotiated on behalf of multiple clients in a sexual harassment case involving the Housing Authority.

Contrary to the Access to Public Records Act, which requires that public agencies respond to records requests in a “reasonable” timeframe, the city did not produce the emails until last month.

In the interim, Straw filed a complaint with the Public Access Counselor alleging the city failed to provide the records in violation of the Access to Public Records Act.

In a strongly worded opinion dated Friday, Britt, whose job it is to provide advice, assistance and education concerning the state’s public access laws, agreed with Straw.

“Simply put, this request has languished for years,” Britt wrote. “Three years to respond to a public records request without producing any of the records is well outside the scope of a ‘reasonable’ timeframe.”

Because Straw filed the complaint outside the 30-day statute of limitations, Britt wrote that he could not issue a “conclusive determination.”

“However, if I were to do so, I would have stated the city has not acted in compliance with the APRA,” he wrote.

Under state law, a formal complaint must be filed within 30 days from the denial of access.

Here is the PAC opinion.

Posted by Marcia Oddi on Wednesday, June 03, 2015
Posted to Indiana Government

Ind. Decisions - Evansville police raid case argued Monday before the 7th Circuit

The ILB does not know too much about this case, because it is often difficult to follow the news in Evansville. However, after I read about the oral argument yesterday before the 7th Circuit, I did some brief research and found this C&P story by Mark Wilson, from Jan. 7, 2015, headed "Judge: Lawsuit against Evansville Police Department can go to jury trial." Some quotes from the long story:

A federal judge has ruled a woman’s lawsuit can go to jury trial on her claim that the Evansville Police Department used excessive force in a June 2012 SWAT raid on her home.

The strongly worded ruling by United States District Court Judge William Lawrence was especially critical of the SWAT team’s use of “flash-bang” grenades during the raid on Louise Milan’s home, as well as the investigation that led to the raid.

Attorneys for the police department and the city had sought a favorable ruling on Milan’s claims of unreasonable search and seizure, false arrest or unreasonable detainment, and excessive use of force.

Lawrence did say the search warrant and Milan’s detainment were reasonable. However, he said there were factual questions about police use of force and whether the city could be held responsible for police department actions. The ruling clears the way for a three-day jury trial on Milan’s claim starting April 6.

“That excessive use of force really was the main claim from the outset. We are just happy that it is going to be allowed to go to trial,” said Kyle Biesecker, attorney for Milan. “This is one that kind of cuts across all political ideologies. Nobody wants the front door of their home knocked down and guns pointed at them.”

The raid was documented on video by a police helmet camera.

This Sept. 14, 2014 story, which includes the search warrant, etc., is also worth reading.

The Washington Post had video footage of the police raid in its Aug. 15, 2014 feature, "Police raids of the day."

Judge Lawrence's ruling was appealed and on Monday it was argued before the 7th Circuit. The headline from the June 2nd Evansville City-County Observer: "Breaking News : The Seventh Circuit Court of Appeals Oral Argument Between Louise Milan v. Evansville Police Chief Billy Bolin." The story links, without comment, to the oral argument before the 7th Circuit on June 1st: 15-1207 Louise Milan v. Billy Bolin. (I recognize Chief Judge Wood's and Judge Posner's voices as two members of the panel; I don't recognize the 3rd voice.)

Posted by Marcia Oddi on Wednesday, June 03, 2015
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions

Tuesday, June 02, 2015

Ind. Courts - Supreme Court creates commercial courts working group: specialized trial courts to handle complex business litigation

From a news release:

The Indiana Supreme Court is formalizing plans to develop specialized trial courts to handle complex business litigation. The courts, known as commercial courts, will have specially trained judges and will play a role in modernizing the way courts handle cases.

The possibility of commercial courts was first announced in January 2015 during the State of the Judiciary. Today, the Court unanimously approved a plan naming a working group to recommend policies and procedures for the courts. Chief Justice Loretta Rush explained, “I’m grateful that we have a wide range of talents on this committee. They will help us establish procedures so the courts are hearing commercial cases in 2016.” The working group membership is listed in the Supreme Court order.

Commercial courts are designed to promote efficient resolution of business disputes by reducing litigation costs and promoting earlier and more frequent settlement of cases. "Maintaining a strong legal environment is one of the goals of our Indiana Vision 2025 plan," said Indiana Chamber President and CEO Kevin Brinegar. "Businesses locate in states where disputes are resolved with consistency and reliability. Establishing commercial courts promotes confidence and predictability—which helps ensure the competitiveness of Indiana's business environment."

“It’s not just about businesses,” explained the working group chair, Allen Superior Court Judge Craig Bobay. “We want to free-up court resources by removing time consuming business cases from the regular docket. Other cases, like child custody matters, could be heard more promptly when a complex business case is handled efficiently.”

In addition to businesses and legal experts, lawmakers will collaborate on developing the framework for the courts. “This is a critical step in creating a more efficient court system in Indiana, and I applaud Chief Justice Rush on her leadership,” said Representative Tom Washburne who will serve on the working group. “This initiative will free up Indiana’s judicial system to better handle the complexity of modern business litigation.”

Senator John Broden will also serve on the group. “Anything we can do to further enhance the positive role Indiana’s legal system plays in fostering a strong and vibrant economy is well worth the effort,” said Senator Broden. “Further, we know that by streamlining these complex commercial law cases, we free up our courts so they can concentrate on critical cases facing Hoosier children and families.”

Commercial courts will include cases where the parties have agreed to have their dispute resolved through the specialized docket. Commercial courts in the United States began in 1993 and now exist in 22 States.

Posted by Marcia Oddi on Tuesday, June 02, 2015
Posted to Ind. Commercial Courts | Indiana Courts

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

In Tommy R. Pruitt v. Roy Neal, Sup. (ND Ind., Miller), a 55-page opinion, Judge Tinder writes:

Tommy R. Pruitt appeals the dis-trict court’s denial of his petition for a writ of habeas corpus. A jury in Indiana state court convicted Pruitt of murdering a deputy sheriff and he was sentenced to death. His petition under 28 U.S.C. § 2254 raises four claims: (1) he is intellectu-ally disabled and therefore categorically and constitutionally ineligible for the death penalty; (2) his trial counsel rendered ineffective assistance in violation of his Sixth Amendment rights by failing to present evidence to support his claim of intellectual disability; (3) his trial counsel rendered ineffec-tive assistance by failing to investigate and present at the penalty phase mitigating evidence regarding his schizo-phrenia and its effects; and (4) the prosecutor violated Pruitt’s right to due process by reciting a poem about the death of a police officer and comparing Pruitt to notorious murderers in the closing argument of the penalty phase of trial, and appellate counsel was ineffective in failing to raise this as an error on appeal. With regard to the second ineffec-tive-assistance-of-counsel claim ((3) above), Pruitt challenges only counsel’s presentation of evidence at the penalty phase of trial; he is not asserting ineffectiveness in failing to seek a determination of guilty but mentally ill or in otherwise pre-senting mental health evidence at the guilt phase of trial.

We conclude that Pruitt has established that he is intellectually disabled and categorically ineligible for the death penalty and that trial counsel were ineffective in their investigation and presentation of evidence that Pruitt suffered from schizophrenia. We therefore reverse the district court’s judgment and remand for further proceedings not inconsistent with this opinion. * * *

For the foregoing reasons, we REVERSE the district court’s judgment and REMAND with instructions to grant a conditional writ vacating Pruitt’s death sentence and remanding to the State for a new penalty-phase proceeding.

____________
[3] The conclusion that Pruitt established ineffective assistance of counsel under one of his theories makes it unnecessary for us to fully address his other theories. Nonetheless, we do not think that trial counsel rendered constitutionally ineffective assistance in their investigation and presentation of evidence of Pruitt’s intellectual disability or in failing to object to alleged improper prosecutorial argument at trial. Nor do we think that appellate counsel was constitutionally ineffective in not raising an inef-fective-assistance claim based on trial counsel’s failure to object to the alleged prosecutorial misconduct.

Posted by Marcia Oddi on Tuesday, June 02, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Supreme Court to decide limits of police searches"

Updating this post from yesterday, Dan Carden of the NWI Times reports that:

A Court of Appeals victory for Hoosiers who believe police power to search individuals is limited has been vacated by the Indiana Supreme Court, which will independently re-examine the issue.

The high court announced Monday it granted transfer in Garcia v. State [now vacated], a case that hinges on whether a police officer legally can open a pill container found in the pocket of a person who is under arrest.

In February, the Court of Appeals ruled 3-0 that Indianapolis police violated the state constitutional rights of Antonio Garcia when an officer opened the container and found half of a narcotic pain relief pill that ultimately was used as evidence to convict Garcia for possession of a controlled substance. * * *

The appeals court said that under the Fourth Amendment to the U.S. Constitution police are empowered to open and search items, such as pill containers, following an arrest.

However, the court noted the Indiana Constitution provides Hoosiers protections from police searches that are more extensive than the Fourth Amendment, and requires the state show any police intrusion into private property is reasonable.

In this case, there was no evidence the small container found in Garcia's pocket threatened police officer safety or held illegal substances, making its opening and search by police unconstitutional, the Court of Appeals ruled in overturning Garcia's conviction.

Posted by Marcia Oddi on Tuesday, June 02, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - AG Zoeller for Congress?

Jeff Neumeyer of 21ALIVE Fort Wayne reported yesterday:

Indiana's Republican attorney general may take a shot at getting elected to a different political office next year. * * *

On Zoeller's radar right now, the fact southern Indiana Congressman Todd Young is seriously considering a run for Dan Coats senate seat in 2016.

Coats is retiring at the end of his current term.

Young serves the 9th Congressional District near Louisville, which is the area Zoeller hails from.

Zoeller wouldn't rule out a run for congress, if the right dominoes fall.

"They may have an open seat, if Todd Young runs for senate, but it's all speculation, and I usually don't spend a lot of time speculating on politics. I can't tell my family and friends that I wouldn't even think about it. So, I guess that puts me down as a yes," said Zoeller. * * *

Zoeller has some experience in Washington.

He spent ten years working for Dan Quayle, when Quayle was a senator, then vice-president.

Zoeller does not have to go looking for a new job.

The attorney general is not term limited in Indiana, but we wait to see if the right circumstances result in a congressional campaign for Zoeller in 2016.

Posted by Marcia Oddi on Tuesday, June 02, 2015
Posted to Indiana Government

Ind. Decisions - Supreme Court decides a second case today

In Peter Griffith v. State of Indiana, a 14-page, 5-0 opinion, Justice David concludes:

We hold that under Indiana Evidence Rule 613(b), extrinsic evidence of a prior inconsistent statement may be admitted before or after a witness is given the opportunity to explain or deny the alleged statement. While the preferred method remains that the witness be confronted with the statement prior to the admission of extrinsic evidence, the trial court has wide discretion in making this evidentiary ruling. Several factors may properly sway the trial court to admit or deny extrinsic evidence given the circumstances of the case. To the extent that our prior holding in Hilton could be read to require trial courts to admit extrinsic evidence under Rule 613(b) in a specific sequence, we clarify that Hilton upheld the discretion of the trial court under Rule 613(b) without setting out a requirement for the sequence in which extrinsic evidence must be admitted. In accordance with that interpretation, the trial court did not err in excluding the proposed extrinsic evidence of a prior inconsistent statement offered by Griffith. Griffith’s conviction and sentence are affirmed.

Posted by Marcia Oddi on Tuesday, June 02, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In Town of Zionsville, Indiana v. Town of Whitestown, Indiana and Angel Badillo, a 34-page opinion, Judge Bailey writes:

The Town of Zionsville (“Zionsville”) appeals the entry of summary judgment against it and in favor of the Town of Whitestown and Angel Badillo (collectively, “Whitestown”) with respect to the parties’ claims and counterclaims concerning
1) Zionsville’s proposed reorganization with Perry Township, in Boone County, and
2) Whitestown’s proposed annexation of portions of Perry Township.

Zionsville’s appeal presents novel questions concerning the construction of numerous provisions of the Indiana Government Modernization Act of 2006 (“the Act”), see Ind. Code § 36-1.5-1-1 et seq., and how provisions of the Act operate in conjunction with other statutes that regulate the operation of local governments in Indiana. The trial court concluded at summary judgment that, even with the Act’s significant liberalization of the rules concerning reorganization and territorial boundary-drawing at the level of local government, Zionsville cannot “leap-frog” Whitestown in an effort to reorganize with portions of Perry Township which are not contiguous with Zionsville.

Zionsville appeals. We reverse and remand. * * *

Zionsville’s appeal is not moot. The trial court erred when it entered summary judgment for Whitestown and against Zionsville on the question of whether Zionsville was denied authority under the Act to reorganize with Perry Township. The trial court also erred as to the question of the voting districts associated with the 2014 Zionsville Plan. Zionsville was improperly denied summary judgment as to its claims concerning the viability of Whitestown’s annexation efforts. We therefore vacate the order, but decline to consider the effect of the 2014 Plan on Whitestown’s effort to annex territory for their Waste Water Treatment Plant, because that matter is the subject of another pending appeal.

We accordingly reverse the entry of summary judgment and remand this case to the trial court with instructions to enter judgments consistent with our opinion today.

In Lincoln National Life Insurance Company v. Peter S. Bezich, individually and on behalf of a class of others similarly situated, a 26-page opinion, Judge Robb writes:
Peter Bezich filed a complaint against Lincoln National Life Insurance Company (“Lincoln”), alleging three separate counts of breach of contract regarding his variable life insurance policy. Bezich then moved to certify a class of policyholders on all three breach of contract claims. The trial court issued an order denying class certification as to Count 1 and Count 2 of Bezich’s complaint. However, the trial court concluded that a single-issue class may be certified as to Count 3 for the purpose of determining liability. Lincoln appeals, arguing that the trial court erred by certifying a single-issue class for Count 3. Bezich cross-appeals, arguing that the trial court erred by declining to certify a class for Count 1 and Count 2. We conclude the trial court acted within its discretion by certifying a single-issue class for Count 3. However, we conclude that Count 1 and Count 2 should have similarly been certified for class treatment. Therefore, we affirm in part, reverse in part, and remand. * * *

Concluding that class certification for the purpose of determining liability is proper for each of Bezich’s three breach of contract claims, we affirm the trial court’s judgment as to Count 3, reverse as to Count 1 and Count 2, and remand for further proceedings consistent with this opinion.

In Charles R. Whitlock v. Steel Dynamics, Inc., a 22-page, 2-1 opinion, Chief Judge Vaidik writes:
Indiana Code section 34-11-6-1 provides that a “person who is under legal disabilities when the cause of action accrues may bring the action within two (2) years after the disability is removed.” Legal disability includes mental incompetence.

In this case, Charles R. Whitlock—who was injured when a crane failed to stop and struck him in the face, causing lacerations to his forehead and eyelid—filed his complaint eight days after the two-year statute of limitations expired. He claims, however, that he was mentally incompetent when the cause of action accrued. The trial court granted summary judgment in favor of Steel Dynamics, Inc., on grounds that Whitlock filed his complaint after the statute of limitations expired.

We find that the designated evidence in this case is not sufficient to establish a material dispute of fact because Whitlock’s affidavits address the central issue of the case—whether Whitlock was mentally incompetent—without giving details sufficient to support the conclusory statements. We therefore affirm the trial court. * * *

Friedlander, J., concurs.
May, J., dissents with opinion [that begins, at p. 18] “The issue of unsoundness of mind is ordinarily a question for the trier of fact.” Collins v. Dunifon, 163 Ind. App. 201, 208, 323 N.E.2d 264, 269 (1975). I believe the affidavits from Kristina and Gaultney were sufficient to create such a question of fact for the jury. As that makes summary judgment inappropriate, I must respectfully dissent.

NFP civil decisions today (5):

Delmar P. Kuchaes v. Public Storage, Inc. (mem. dec.)

M.D. v. Indiana University Health Bloomington Hospital (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of J.L., T.L. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

The Lewallen Revocable Trust, et al. v. Fifth Third Mortgage Company (mem. dec.)

Amanda and Joseph Emanuele and Alicia Emanuele v. Winford E. Moore, III (mem. dec.)

NFP criminal decisions today (4):

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

Antione Nelson v. State of Indiana (mem. dec.)

Ricci Dale Davis, Jr. v. State of Indiana (mem. dec.)

Ashley J. Todd v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, June 02, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Rebecca Stafford, Individually and as Surviving Parent of Drayden Powell, Deceased, and Drayden Powell, Deceased v. James E. Szymanowski, M.D. and Gyn, Ltd., Inc., an 8-page, 5-0 opinion, Justice Dickson writes:

This appeal challenges entries of summary judgment in a medical malpractice action al-leging negligence in the care and treatment of a patient during her pregnancy, resulting in the death in utero of her unborn child. We reverse the grant of summary judgment for the plaintiff's physician but affirm the grant of summary judgment for the clinic that provided her care. * * *

Finding a genuine issue of material fact as to whether Dr. Szymanowski breached the standard of care in his treatment of patient but no properly designated evidence establishing vicar-ious liability as to GYN, we reverse the grant of summary judgment for Dr. Szymanowski but affirm the grant of summary judgment for GYN. As to the claim for damages under the CWDS, we summarily affirm the Court of Appeals. Ind. Appellate Rule 58(A).

Posted by Marcia Oddi on Tuesday, June 02, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Court posts 27-page annual list of attorneys who have failed to comply with certain requirements

It looks like somehow the ILB missed posting this list in 2014 (here are some earlier posts)

The heading to the 29-page order is ORDER OF SUSPENSION OF CERTAIN ATTORNEYS FOR FAILURE TO PAY ATTORNEY REGISTRATION FEES, FAILURE TO COMPLY WITH CONTINUING LEGAL EDUCATION REQUIREMENTS, and/or FAILURE TO SUBMIT IOLTA CERTIFICATION. From the introduction:

The Clerk of the Court has notified this Court that certain attorneys have failed either to pay the annual registration fee required for them to be licensed to practice law in Indiana or to file an exemption affidavit as contemplated by Indiana Admission and Discipline Rule 2, and/or have failed to make the IOLTA certification required by Indiana Admission and Discipline Rule 2(f). In addition, the Indiana Commission for Continuing Legal Education has notified the Court that certain attorneys have failed to comply with the continuing legal education requirements of Admission and Discipline Rule 29, sections 3 or 10. * * *

Although the suspension is effective as of the date of this order for purposes of the reinstatement procedures that must be followed and/or any reinstatement fees that must be paid for reinstatement, the Court directs that the proscription against the actual practice of law will go into effect at 12:01 a.m. Eastern Daylight Savings Time on Monday, July 6, 2015. The delay from the date of this order to the suspension date is for the sole purpose of allowing time for copies of this order to be sent, received, and acted upon by the suspended attorneys.

The list is arranged by county, and it is searchable.

Posted by Marcia Oddi on Tuesday, June 02, 2015
Posted to Indiana Courts

Ind. Decisions - The Supreme Court decision upon which the General Assembly's claim to a right of secrecy is based

As was quoted yesterday in an ILB post re Niki Kelly's Fort Wayne Journal Gazette story about public access to emails and other records of the General Assembly:

... a 1993 Indiana Supreme Court ruling complicates the entire debate. In that case, the court declined to get involved in a voting record dispute, citing the separation of powers.
The Supreme Court opinion in that case, Masariu (State ex Rel. Masariu v. MARION SUPER. CT. NO. 1, 621 NE 2d 1097 - Ind: Supreme Court 1993), was less than 2-pages long. The facts were not clearly set out in the opinion, but they were in the petitioner Indianapolis Newspapers' brief, from Sept. 8, 1993:
The underlying action in the trial court seeks to redress the Clerk of the Indiana House of Representatives' failure to make a permanent record of roll call votes on proposed amendments to House Bill 1001, the state budget hill, in violation of Article 4, Section 12 of the Indiana Constitution and the Open Door Law's memorandum requirements, Ind. Code § 5-14-1.54(b)(4). The Amended Complaint alleges that on February 19, 1993, the House of Representatives, constituted as the Committee of the Whole for the purpose of considering House Bill 1001, the biennial slate budget, conducted a meeting attended by the public and news media. During the course of that public meeting, amendments to House Bill lOOl were proposed and debated. At the conclusion of debate on each such amendment, representative Chester Dobis of Merrillville, presiding officer of the Committee of the Whole, called the question on each amendment. Members of the House cast their roll call votes on the· House of Representatives' electronic voting system. The votes were displayed momentarily on the tally board in the front of the House chamber.

In violation of the Indiana Open Door Law, Ind. Code §§ 5-14-1.5-3(b) and -4(b)(4) -- as well as Article 4, Section 12 of tbe Indiana Constitution and Rule 76 of the Rules for the Government of the House of Representatives of the 108th General Assembly of Indiana -- no permanent record of these roll call votes on proposed amendments was made.

Pursuant to the Indiana Access to Public Records Act, Ind. Code § 5-14-3-2, the voting records of the House of Representatives arc public records of a public agency which must be available for inspection and copying. Theobald and Winkley, in their capacities as news reporters for The Indianapolis Star, appeared in person on February 19, 1993 and made a request to the Indiana House of Representatives by and through Relator, as its Principal Clerk, and to Dobis, presiding officer of the Committee of the Whole, pursuant to Ind. Code § 5-14-3-9, to inspect and copy the record of tbe roll call votes on proposed amendments to House Bill 1001. They were denied access to such records, constituting a violation of Ind. Code § 5·14-3-3.

The Amended Complaint seeks a declaration that the failure to record roll call votes and the denial of access to records of roll call votes violated the Indiana Constitution, the Indiana Open Door Law and the Indiana Access to Public Records Act, plus an award of attorney fees.

Those who were around in 1993 and before may remember standing outside the chamber, watching the votes on the proposed amendments to the budget going up on the electronic voting board when the House was convened as a Committee of the Whole. But 1993 may have been the last session the House used the "Committee of the Whole" procedure to vote on proposed amendments to the state budget. The rule authorizing the process is no longer in the House Rules and the regular second reading process is used in the House for budget bills, just as was always the case in the Senate. (The applicable Rules of the House can be found in the front of the House Journals - I've been told "There is always a motion to adopt the rules at the start of a session and the full text is an attachment to the motion and is printed in full.")

With this background, a look at the Supreme Court opinion in Masariu shows, first, that the opinion was written in response to a writ of prohibition; there was no trial court litigation of the issues, and no decision. Second, the vote was 3-2. The opinion was written by Justice Givan, joined by Justices DeBruler and Dickson. Chief Justice Shepard dissented, and was joined by Justice Krahulik.

The majority opinion:

The Relator seeks a writ of prohibition barring Respondent court and judge from proceeding further with an action brought against her, styled Indianapolis Newspapers, Inc., William Theobald, and Nancy Winkley v. Betty Masariu in her official capacity as Principal Clerk of the Indiana House of Representatives, under Cause No. 49D01-9304-CP-416.

The Clerk of the Indiana House of Representatives is a patronage appointment chosen by the majority party in closed caucus and ratified by the full House in public session. Her duties are controlled totally by the leadership of the House, and she is answerable only to them for her actions in the performance of her duties. How those duties are performed, or any lack of performance of those duties, is an internal matter totally controlled by the House leadership.

Article 3, § 1 of the Indiana Constitution reads as follows:

"The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided."
Although it is the duty of the Courts to determine the constitutionality of statutory law, this Court has held repeatedly that courts should not intermeddle with the internal functions of either the Executive or Legislative branches of Government.

The plaintiff's amended complaint seeks declaratory relief and attorney fees, remedies ostensibly available under Ind. Code § 5-14-3-9 (Indiana Access to Public Records Law) and Ind. Code § 5-14-1.5-7 (Indiana Open Door Law). The complaint asserts that the voting records of the House of Representatives are public records available for inspection and copying pursuant to Ind. Code § 5-14-3-2. We find, however, that to the extent such enactments empower the judicial branch to inquire into and interfere with the internal operations of the Indiana House of Representatives, said application transgresses the above separation of powers clause of our state constitution. Courts cannot be authorized to undermine the exclusive constitutional authority of the presiding officers of each house to authenticate all legislation. See Roeschlein v. Thomas (1972), 258 Ind. 16, 280 N.E.2d 581. If the legislature wishes to authorize sanctions against itself upon a claim by press or public alleging improper legislative secrecy, such sanctions would have to be determined and imposed solely by the legislative branch itself, without recourse to the courts.

Because further litigation of this case in the trial court would amount to constitutionally impermissible judicial interference with the internal operations of the legislative branch, a permanent writ of prohibition prayed for by the Relator is hereby granted.

Here is CJ Shepard's dissent, in which he was joined by J. Krahulik:
This case presents several issues of considerable importance about the operation of Indiana government, such as whether legislators' votes should be recorded on amendments to the state's multi-billion-dollar budget, how citizens can learn whether their own legislators voted yes or no on those amendments, and whether the distribution of powers article in the Indiana Constitution prevents the judiciary from taking notice of such matters. I cannot agree that all these issues are so simple that they should be resolved in a few paragraphs through the supervisory procedure of a writ of prohibition. I would permit the trial court to complete the litigation so that we could hear the matter through the regular appellate process.
In Sum. Rather than following the wise counsel of the dissent, Masariu abruptly closed the door on the Court's looking at the question of whether the vote totals should be available to the public, asserting, without citation:
Although it is the duty of the Courts to determine the constitutionality of statutory law, this Court has held repeatedly that courts should not intermeddle with the internal functions of either the Executive or Legislative branches of Government.
This ruling now is being set forth by the General Assembly as a touchstone that forecloses examination of the limits of legislative authority and the applicability of a system of checks and balances. And unfortunately, instead of being analyzed in depth when an opportunity arise, Masariu was cited as authority four times by the Supreme Court in 2013, in the 3-2 opinion in Berry v. Crawford.

____________
The only case cited in the Court's Masariu opinion was Roeschlein v. Thomas, involving a lawsuit which sought to have the then-new Judicial Article 7, "which was ratified in the general election of November 3, 1970, declared illegal and void." One of the bases for the challenge was that there were procedural deficiencies in the adoption of the joint resolution proposing the new Judicial Article 7, that the specific directives for the adoption of an amendment to the constitution, as set out in Article 16, § 1, had not been totally met. But the Supreme Court in Roeschlein held:

We now reaffirm the repeated stand taken by our Supreme Court that courts should not look beyond the authentication of the presiding officers of the legislature to determine from their journals whether there has been a defect in following the constitutional directives of Article 16, § 1.
This decision in Roeschlein reflects our Supreme Court's historical reluctance to delve into the details of the legislative process (the sausage-making) in determining the validity of a public law or a constitutional amendment. But should this reluctance be expanded to encompass everything "legislative"?

Posted by Marcia Oddi on Tuesday, June 02, 2015
Posted to GA and APRA | Ind. Sup.Ct. Decisions | Indiana Decisions | Indiana Government

Monday, June 01, 2015

Ind. Decisions - Transfer list for week ending May 29, 2015

The Court announced today that there had been no transfer list for the week ending May 21st.

Here is the Clerk's transfer list for the week ending Friday, May 29, 2015. It is two pages (and 22 cases) long.

One transfer granted last week:

Posted by Marcia Oddi on Monday, June 01, 2015
Posted to Indiana Transfer Lists

Courts - More on: SCOTUS decides Elonis Facebook threats case today

Updating this post from earlier today, Josh Gerstein now has coverage at Politico. And Tony Mauro reports in a story headed "Justices Sidestep First Amendment Ruling in Facebook Threats Case" that:

The U.S. Supreme Court on Monday sided with a Pennsylvania man whose angry Facebook postings directed at his estranged wife landed him in jail for violating a federal law against communicating threats.

Chief Justice John Roberts Jr, writing for a 7-2 majority in Elonis v. United States, said the government needed to prove more than the defendant was negligent or that a reasonable person would regard the statements as a threat.

The "reasonable person" standard, Roberts wrote, is "inconsistent with the conventional requirement for criminal conduct—awareness of some wrongdoing." As a result, he concluded, "[Anthony] Elonis's conviction cannot stand."

But the court announced no new First Amendment rule in the case, explicitly sidestepping what some were hoping would be decision that would give guidance in disputes over the wide range of language uses in social media.

Justice Samuel Alito Jr. concurred in part and dissented in part, while Justice Clarence Thomas wrote a separate dissent. Thomas asserted that the court majority failed to articulate a clear standard in place of negligence, which he said "throws everyone from appellate judges to everyday Facebook users into a state of uncertainty."

Posted by Marcia Oddi on Monday, June 01, 2015
Posted to Courts in general

Ind. Gov't. - "A boom in foreign undergrads is shoring up the finances of America’s flagship universities, but at a price"

Updating this ILB post from May 25th - "'The In-State Tuition Break, Slowly Disappearing' - Purdue named as example," the ILB has now read in this May 30th article in The Atlantic ('American Universities Are Addicted to Chinese Students') that:

Chinese students have become a big market in the United States—and nobody understands this better than the universities themselves. Over 60 percent of Chinese students cover the full cost of an American university education themselves, effectively subsidizing the education of their lower-income American peers. Some schools—such as Purdue University in Indiana—profit further by charging additional fees for international students.
That sentence (empahasis added by ILB) links to this Sept/Oct 2013 story in The Washington Monthly, titled "A boom in foreign undergrads is shoring up the finances of America’s flagship universities, but at a price," that included:
As government support for state schools declines, the tuition paid by foreign students is ever more important. In Indiana, international students bring $688 million in economic benefits, equivalent to 40 percent of what the state spends on higher education every year. At Purdue, the tuition paid by international undergraduates since 2007 accounts for almost half of all the new revenue it has raised through tuition. This is partly because of the expanding enrollment of international students, and partly because of the tuition hikes Purdue has specifically levied on students from abroad. Two years ago, Purdue decided that on top of the $27,646 it already charged all out-of-state students in tuition each year, it would charge incoming international students another $1,000. Last spring, they doubled that fee to $2,000, which will soon add up to an additional $10 million per year for the university.
That should be read in conjunction with this item from the NYT's The Upshot, quoted earlier by the ILB here:
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.

Posted by Marcia Oddi on Monday, June 01, 2015
Posted to Indiana Government

Courts - SCOTUS decides Elonis Facebook threats case today

Here is a long list of earlier ILB posts on the case.

Today the SCOTUS issued its opinion in Elonis v. U.S.

Little commentary so far except this from SCOTUSblog: "In Elonis v. US the Court limits convictions for online threats 7-2: negligence isn’t enough. The court doesn’t decide more, including free speech issues."

Posted by Marcia Oddi on Monday, June 01, 2015
Posted to Courts in general

Courts - SCOTUS decides Mellouli drug deportation appeal today

The case, Mellouli v. Lynch, was decided today by the SCOTUS. Jon Laramore, Indianapolis, argued successfully for the petitioner. Earlier ILB coverage here.

Here is the opinion.

Posted by Marcia Oddi on Monday, June 01, 2015
Posted to Courts in general

Ind. Gov't. - "Angola CAFO tabled before zoning vote: Farmer seeks delay for plan, input"

Adding to this long list of ILB posts on CAFOs, Jeff Wiehe reported May 29th in the Fort Wayne Journal Gazette:

Pete Hippensteel believes it’ll bring nothing but air and water pollution.

That’s why for nearly two years, the Lake James resident has been outspoken against a proposed 4,800-hog confined animal feeding operation – or CAFO – that would be near Angola in the heart of the Steuben County lakes region.

Last week, with a county Board of Zoning Appeals vote looming to approve or reject a special exception that would allow the CAFO to be built, the man behind the facility asked that his application be tabled.

For now.

Which means Hippensteel and other residents who have opposed the CAFO – at least one public meeting before the county Plan Commission was standing room only – will wait even longer to find out whether they’ll soon be near a facility they believe does not belong anywhere near the lakes they inhabit.

“It’s a situation where we just have to wait until the process works its way through,” said Hippensteel, the technical vice president of the Steuben County Lakes Council, a group that has mounted opposition to the CAFO. * * *

The CAFO, which would be near Pine Canyon and Crooked lakes, has already received approval from the Indiana Department of Environmental Management and the Steuben County Plan Commission.

It is now the second such facility in the past few months to have plans tabled in the wake of outcry from nearby residents.

In DeKalb County, a proposed 5,000-head dairy confined-feeding operation near Butler was shelved this year after several residents decried the plan.

The man behind that CAFO, Paddy Dunne, withdrew his application in mid-February. He could not be reached for comment, but he told the Farmer’s Exchange website this month that he’d done so because he did not yet have IDEM approval.

He also told the website that he intends to resubmit plans for the CAFO when he has a permit from IDEM.

Similarly, the CAFO proposed in Steuben County is also still in the works, according to an attorney representing Werner.

Werner asked the Board of Zoning Appeals to delay its vote because he is in the process of coming up with an odor-management plan – which is not required by the Indiana Department of Environmental Management – and wants to talk to residents who oppose the facility, possibly at a public meeting, where he can share plans and answer questions, according to his attorney. * * *

Hippensteel believes he’s done his homework and that such an operation would only muddy the area’s waters, literally.

He claims that Werner’s proposed facility might have problems with the spread of manure, and he believes issues that other states, such as Iowa, have had – foul air among them – will begin to pop up in the area, which continues to grow with a combination of small rural homes, condominiums and lake houses.

“People in this area are going to be spending a lot of time outside,” he said. “Air pollution is going to be a problem.”

Posted by Marcia Oddi on Monday, June 01, 2015
Posted to Indiana Government

Ind. Gov't. - Masariu General Assembly lacks policy on accessible records"

Niki Kelly of the Fort Wayne Journal Gazette had a major, must-read story Sunday. It begins:

Indiana legislators are fighting to hide internal communications of all kinds on the heels of a recent lawsuit filed seeking access.

While that case goes through the courts, the Indiana House quietly changed a key definition in its employee handbook that could be used to shield virtually everything from public view.

And House Speaker Brian Bosma doesn’t want to talk about it. His spokeswoman declined several interview and information requests because of pending litigation.

More from the story:
The Indiana General Assembly currently has no policy delineating what records are accessible to the public. Other states have very specific rules and regulations.

For instance, in Florida there is an exemption from access for “A legislatively produced draft, and a legislative request for a draft, of a bill, resolution, memorial, or legislative rule, and an amendment thereto, which is not provided to any person other than the member or members who requested the draft, an employee of the Legislature, a member of the Legislature who is a supervisor of the legislative employee, a contract employee or consultant retained by the Legislature, or an officer of the Legislature.”

And the New York State Assembly has a detailed guide on how to seek records and a list of all available records.

The Indiana Access to Public Records Act provides one specific exemption for “the work product of individual members and the partisan staffs of the general assembly.”

But there is no definition of what “work product” is.

When the Citizens Action Coalition of Indiana and the Energy and Policy Institute filed an open records request in January they sought correspondence between Rep. Eric Koch and various utilities regarding a bill about solar power.

The Indiana House immediately denied the request saying the Indiana General Assembly is exempt from Indiana’s Access to Public Records Act.

The state’s Public Access Counselor disagreed and ruled the legislature must comply with the state law.

Kerwin Olson, executive director of Citizens Action Coalition, pointed out that if the General Assembly was wholly exempt why would there be a specific exemption for work product of legislators and staffs?

And Steve Key, lobbyist for the Hoosier State Press Association, said lawmakers in 2001 passed a law that carved themselves out but it was vetoed by Gov. Frank O’Bannon.

“Legislative history shows they are still a part of the statute,” he said.

Olson said over the years his group has been turned down numerous times for various legislative records.

“It was accepted that this was the way it was but it bothered us,” Olson said.

But he said this year’s attack on solar energy was too much to ignore.

“I felt this issue was important enough to pursue. The energy and utility industry drives policy. These aren’t legislators coming up with great public policy ideas. It comes from the industry, and I thought we could expose that.”

Reporter Kelly's news continues:
Leadership considered putting a new work product definition into law on the last few days of session, but Bosma pulled back.

Instead, just after session ended in late April, the House came out with an updated work product definition that appears to cover any and all communications of any kind.

“Work product of the individual members, the staff and officers of the House of Representatives includes but is not limited to, documents, notes, or other writing or records, in any form, composed, edited, or modified by members, staff or officers of the House and any communications that are made or received by means of electronic mail, voice mail, text messaging, paper or video audio recording or in any other form.”

The Senate did not make changes to its rules or definition.

Bosma’s spokeswoman, Tory Flynn, declined to explain the definition or give examples of things that would not be covered by the definition.

Key said the definition is extremely broad and goes against the construction of the statute that focuses on content of a record, not the form.

“An email about lunch would be work product,” he said. “They are trying to define everything they do as work product which is very unfortunate.”

In the past Bosma and Senate President Pro Tem David Long, who also declined to comment, have stressed that constituent communication needs to be respected.

They note that average Hoosiers regularly share personal information with lawmakers when they are having a problem with state government.

That’s why in Colorado any “communication from a constituent to the member that clearly implies by its nature or content that the constituent expects that it is confidential or a communication from the member in response to such a communication from a constituent” is protected.

But Olson said their request isn’t about that, and constituent privacy is being used to block discussion on the real issue.

He said he and the Energy and Policy Institute want to know what utilities, lobbyists and special interest groups are working with legislators and how intimate and cozy the relationships are.

“An email from me to Rep. Koch is not work product. And I know they are shared with the energy association because we frequently see handouts that are in response to our correspondence,” Olson said. “If they can give my stuff to the energy association then that should go both ways.”

Key said a 1993 Indiana Supreme Court ruling complicates the entire debate. In that case, the court declined to get involved in a voting record dispute citing the separation of powers.

ILB: For some background, see this April 28, 2015 post titled "Effort to withhold state legislative records stalls," and this April 15 post collecting some earlier entries on the question: "Is the General Assembly subject to the public records law?"

The ILB will have more on this.

Posted by Marcia Oddi on Monday, June 01, 2015
Posted to GA and APRA | Indiana Government

Ind. Courts - "Lake election law set for Indiana Supreme Court review"

That is the headline to this long Sunday story in the NWI Times, reported by Dan Carden. The story includes links to the briefs and other documents. Some quotes:

INDIANAPOLIS | Did the Republican-controlled General Assembly illegally target Lake County last year by passing a law requiring officials study whether to consolidate "small" election precincts with fewer than 500 active voters?

The Indiana Supreme Court will hear oral arguments on that question Thursday as Republican Attorney General Greg Zoeller seeks to restore the statute declared unconstitutional in August by Lake Circuit Judge George Paras.

Paras found the Lake County small-precinct study required by Senate Enrolled Act 385 (2014) violates the Indiana Constitution's prohibition on "special legislation" that applies only to one locality.

He said nearly every county in the state has small precincts and, as such, a law mandating only Lake County study how to reduce them, when a general law could be enacted instead, is unconstitutional.

"There are no unique circumstances that rationally justify the application of the statute to Lake County alone out of all the counties in Indiana," Paras said.

The story continues:
However, Zoeller points out in his written arguments to the high court that Lake County is unique, because it has 174 small precincts out of 525 total — the most small precincts of any county in the state.

In fact, he notes Lake County has more small precincts than the combined number of small precincts in the similarly populous Marion County (Indianapolis), Allen County (Fort Wayne) and Hamilton County (Carmel).

"This uniquely high number of small precincts likely leads to administrative inefficiencies and the Lake County election board preliminarily estimated that it carried substantial unnecessary financial burdens," Zoeller said.

"The General Assembly was justified in enacting special legislation to address this problem that is unique to Lake County."

Sheriff John Buncich, who also is chairman of the Lake County Democratic Party, sued to halt the law requiring the small precinct consolidation study, because he believes reducing the number of precincts will make it harder for voters to get to their polling places.

His attorney, Clay Patton, of Valparaiso, claims 28 of Indiana's 92 counties tie or exceed Lake County for the percentage of their precincts with fewer than 500 active voters.

Patton argues if a study of small precinct consolidation is needed it is needed in every county, not just Lake County, and to specifically target Lake County is unfair and unconstitutional.

Posted by Marcia Oddi on Monday, June 01, 2015
Posted to Indiana Courts

Ind. Gov't. - "Editorial: Anti-consumer energy laws need second look"

From a May 27th editorial, here in the Richmond Palladium-Item, that first appeared in the Fort Wayne Journal Gazette:

On May 8, the Indiana Utility Regulatory Commission turned down $2.6 billion in rate requests made by two Indiana utilities under a law passed by the legislature in 2013. Duke Energy wanted $1.87 billion; Indiana Michigan Power had asked for $787 million. The commission ruled that both requests went beyond the scope of the new law.

David Stippler, the Indiana Office of Utility Consumer counselor, which represents the state's consumers in actions before the IURC, had opposed those increases. He called the commission's orders "a significant victory for consumers."

Two other utilities had already sought increases under the measure, which allows companies to ask for seven years of funding for certain types of infrastructure needs in advance.

A request from NIPSCO was approved by the commission, but the Indiana Court of Appeals then partially overturned and partially upheld approval of the request and sent it back to the IURC for another look.

A decision on a request by the natural gas provider Vectren is still being disputed, according to utility counselor spokesman Anthony Swinger.

The 2013 law, Senate Bill 560, was passed to allow utilities to assure themselves of reimbursement for infrastructure projects seven years in advance.

Consumer advocates argue that the electric and gas companies should ask investors, not consumers, to pay for new lines, meters, storage facilities and such.

"This law was a bad law," Kerwin Olson, executive director of the Citizens Action Coalition, said. The measure directs the IURC to allow utilities to recover every cost "from the power plant to your light switch."

SB 560 was just one example, he says, of legislators attempting to micromanage matters meant to be decided by the IURC when it rules on general rate-increase requests from utilities.

But even under the proposition that all such costs need to be routed straight to the consumer, the new law so far seems to have encouraged utilities to overreach. For instance, I&M wanted to be reimbursed through the law for "vegetation maintenance" — something that stretches the concept of infrastructure.

"There's a lot of uncharted water, that's for sure," Swinger said, "a lot of legal issues that are being tested for the first time."

The real question is why legislators felt constrained to set up the whole dubious process instead of letting utilities make their case for infrastructure costs as part of their base-rates requests to the IURC.

"There's a reason that the regulatory commission was created," Olson said.

Legislators followed 2013's utility-friendly SB 560 with a 2014 bill that killed the IURC's highly effective energy conservation program, Energize Indiana. Then a 2015 bill put energy conservation in the hands of the utilities themselves.

That measure also allows utilities to ask the IURC for permission to repay themselves for lost sales from whatever energy they help consumers to save — and effectively sets no limits on how long the utilities can enjoy those reimbursements.

Maybe next year, instead of an "education session," the legislature should have a "make up for 2013-2015 session" — and at least clarify or delete portions of these three anti-consumer measures.

Posted by Marcia Oddi on Monday, June 01, 2015
Posted to Indiana Government

Ind. Gov't. - "LaPorte Co. aims to undo damage of religious freedom law"

Supplementing this ILB post from Friday ("Lawmakers won't study Indiana's anti-discrimination laws") is a story from the same day in the NWI Times, reported by Stan Maddux, that reports:

The LaPorte County Commissioners on Wednesday made its non-discrimination policy into an ordinance.

The newly adopted ordinance also asks the governor and Legislature to include sexual orientation and gender identity as protected classes in state law.

Posted by Marcia Oddi on Monday, June 01, 2015
Posted to Indiana Government

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

From Sunday, May 31, 2015:

From Saturday, May 30, 2015: From Friday, May 29, 2015:

Posted by Marcia Oddi on Monday, June 01, 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 6/1/15):

Thursday, June 4

Next week's oral arguments before the Supreme Court (week of 6/8/15):

Thursday, June 11

Webcasts of Supreme Court oral arguments are available here.


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

Next week's oral arguments before the Court of Appeals (week of 6/8/15):

Monday, June 8

Tuesday, June 9

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, June 01, 2015
Posted to Upcoming Oral Arguments