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Friday, July 31, 2015

Ind. Courts - E-filing already is underway in some Indiana trial courts

The ILB last posted on e-filing in this July 24th entry on amendments to Rule 86. The day before, on July 23rd, the Court had posted an "E-Filing Implementation Schedule" which provided that voluntary e-filing for specified categories of civil cases was to go into effect in Hamilton County's Circuit and Superior Courts as of July 29th.

Although e-filing is technically available to everyone starting July 29th, Hamilton County firms are being ushered into the process gradually over the next few weeks, with training available now for everyone who wants to begin e-filing. After that initial roll-out, the plan after August 12th is for things to move faster. After 30 days experience on the civil side, e-filing on the Hamilton County criminal side will be added. But it is all still voluntary.

Wells County will be next, then other Odyssey counties will be added, one or two at a time.

Looking at the big picture, trial court e-filing is planned to be completely implemented by 2018, with all documents listed in the online docket and available with a mouse-click. During the pilot projects, however, such documents will be available only to the parties. [The ILB hopes that at least trial court opinions will be universally available via the online docket long before 2018.]

In order to e-file, an attorney will need to be registered. Training will be available and encouraged (sign up here), but the ILB has been told that the system is fairly intuitive for those who have done other e-filing. The e-filing process involves an intermediary or interface between the attorney and the court. Tyler Technology has been selected to fill that role, but other e-filing service providers offering additional bells and whistles for a fee are expected to sign up.

Currently, the Court has adopted a "bare bones" version of Rule 86, the e-filing rule, which will be fleshed out with experience.

The Court’s e-filing webpage
has the latest developments, so check it regularly.

What about appellate e-filng? Good news here. October or November of this year is the current anticipated date for the beginning of an appellate e-filing project. More details will be released as that date approaches. Ultimately the goal is to have an appellate docket with links to e-filed appellate documents available to the public just as court orders are currently, but it is unknown whether that will happen immediately with the pilot project or whether it will have to wait until the trial courts do the same.

Funding for e-Filing.
The 2015 budget bill, HEA 1001, provides at p. 11:

INDIANA COURT TECHNOLOGY
Judicial Technology and Automation Project Fund (IC 33-24-6-12)
Total Operating Expense-----14,500,000-----14,500,000
The above appropriation includes funding to develop and implement a statewide electronic filing system for court documents, a case management system, and a public defender case management system.
In addition, SECTION 258, on p. 250, raises the automated record keeping fee (ARK) in most actions from $5 to $19. This change is described in detail in the final fiscal note to HEA 1001, at p. 22.

Posted by Marcia Oddi on Friday, July 31, 2015
Posted to Indiana Courts

Ind. Decisions - More on: 7th Circuit decides one Indiana case today, declines to follow 9th Circuit approach

The ILB has remarked in the past on the commendable way the 7th Circuit announces and publishes corrections to its opinions. An order has now been issued correcting the July 29th opinion in USA v. Lee, accompanied by an "Amended" opinion (duly identified).

What was the error? The argued date is incorrectly listed in the first version.

Posted by Marcia Oddi on Friday, July 31, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Odd thing about the Court's Appellate Decisions page

Something the ILB has noticed recently on the Court's Appellate Decisions page.

I have my Firefox browser set so that I can see the URL of the page I am loading. When loading the "Recent Opinions" link of, for instance, the COA column, first the info box shows "http://www.in.gov/judiciary/opinions/appeals.html," which is the link to the COA recent opinions page. And the complete list of cases appears on the screen.

BUT the loading activity continues on for some time in the background, with the info box now showing "Transferring data from www.mengage.com." Does anyone know what exactly is going on? Exactly what data is being transferred?

Posted by Marcia Oddi on Friday, July 31, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 12 NFP memorandum decisions)

For publication opinions today (2):

In Harold Bishop v. State of Indiana, a 33-page opinion, Judge Brown writes:

Harold Bishop appeals his conviction for murder. Bishop raises four issues, which we consolidate and restate as whether the trial court abused its discretion in admitting certain evidence. We affirm. * * *

Bishop challenges the court’s decision to admit three separate pieces of evidence: (A) Shabazz’s identification of Bishop as the person who shot him; (B) evidence of the similarity between the fired cartridge casings recovered from the Shabazz shooting crime scene and the Cullens shooting crime scene; and (C) the circumstances of the Cullens shooting pursuant to Ind. Evidence Rule 404(b). * * *

Today, we formally recognize that dying declarations as provided by Ind. Evidence Rule 804(b)(2) are excepted from the right of confrontation provided by the Sixth Amendment. * * *

We conclude that the court did not abuse its discretion by allowing the State to present expert testimony regarding the casings. * * *

We conclude that based upon the closeness in time, place, and circumstances, of the two shootings, including the forensic evidence showing that the same firearm was used at each shooting within hours of each other, the evidence presented of the Cullens shooting was relevant, and its probative value outweighed any prejudice to Bishop. The court did not abuse its discretion in admitting this evidence.

In Kent Akins v. State of Indiana , a 7-page opinion, Sr. Judge Darden writes:
Kent Akins appeals the trial court’s order requiring him to pay restitution to the City of Indianapolis. We reverse and remand for an evidentiary hearing. * * *

Akins and the State entered into a plea agreement. Akins agreed to plead guilty as charged. * * * Akins also agreed as a condition of probation to pay restitution to the “City of Indianapolis” in an amount to be set by the court. * * *

The State requested $27,966.71 in restitution arising from Officer Keyes’ injury. Akins argued that the State’s request for restitution was inappropriate because there was no evidence to support the allegations that he caused Officer Keyes’ injury and the increasing medical expenses and bills. Without more, the court ordered Akins to pay restitution in the amount of $27,966.71 and entered a civil judgment against Akins. This appeal followed. * * *

In this case, the State correctly concedes that there is no evidence in the record that Akins caused Officer Keyes’ leg injury. Indeed, there is no evidence that Officer Keyes’ injury occurred in connection with Akins’ arrest. * * *

Under these circumstances, the trial court’s restitution award was against the logic and effects of the facts and circumstances, and we must reverse.

NFP civil decisions today (1):

In the Matter of the Term. of the Parent-Child Relationship of: O.Q., a Minor Child, L.Q. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (11):

Todd Crane v. State of Indiana (mem. dec.)

Jonathan Diaz v. State of Indiana (mem. dec.)

Zachary D. Reinders v. State of Indiana (mem. dec.)

Jason L. Caldwell v. State of Indiana (mem. dec.)

Kenneth George Wolfe v. State of Indiana (mem. dec.)

Eric L. Davis, Sr. v. State of Indiana (mem. dec.)

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

Kenyon Sanders v. State of Indiana (mem. dec.)

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

Christopher M. Knight v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Friday, July 31, 2015
Posted to Ind. App.Ct. Decisions

Thursday, July 30, 2015

Ind. Decisions - Tax Court issues one today

In Aztec Partners, LLC v. Indiana Department of State Revenue, a 4-page opinion on a petition for rehearing, Judge Wentworth concludes:

The Court, therefore, stands by its decision in Aztec Partners in its entirety.

Posted by Marcia Oddi on Thursday, July 30, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - Update on "Deregulation of engineers draws fire" [Updated again]

Updating this ILB post from July 27th, which quoted Niki Kelly's earlier Fort Wayne Journal Gazette story, Kelly reports this afternoon in a story headed "Pence against deregulation for engineers." Some quotes:

INDIANAPOLIS - An effort to eliminate licensing for engineers could be dead before it even got started.

That's because Gov. Mike Pence has come out against the preliminary recommendation made by a committee tasked to review dozens of Indiana's licensed professions.

"The governor believes it is a mistake not to license engineers and will make sure the recommendation to do so does not stand," said Kara Brooks, spokesman for Pence.

The Jobs Creation Committee has issued preliminary findings on 11 occupations but a more in-depth public hearing will be held Aug. 20. And the Indiana General Assembly would have to eliminate the licensing in the next session.

The engineering recommendation is getting the most attention so far, but hearing aid dealers, auctioneers and home inspectors could also be affected.

The American Council of Engineering Companies sent an email to Indiana firms this week that are part of the trade association saying it will refute the conclusions of the group's annual report at the upcoming meeting.

The group also urged Pence's administration to go on the record about the licensing issue, which the governor now has.

The Jobs Creation Committee is working to review the occupations licensed by the Indiana Professional Licensing Agency. * * *

By a 5-0 vote, the [JCC] recommended Indiana no longer oversee or administer engineering licenses. The minutes note only one license has been revoked since 2008.

"It is the JCC's opinion that there is adequate regulatory oversight from other governmental agencies when it comes to the work performed by the engineer in their construction/design," the draft minutes said.

[Updated 8/2/15] The Fort Wayne Journal Gazette has an editorial today headed "Licensing rollbacks being driven by dogma."

Posted by Marcia Oddi on Thursday, July 30, 2015
Posted to Indiana Government

Ind. Decisions - A third Supreme Court opinion today; this one on grandparent visitation

In In Re the Visitation of L-A.D.W., R.W. v. M.D. and W.D., a 17-page opinion in which 2 justices concur only in the result, Justice David writes:

After a hearing, in which two mental health experts opined on what would be in the best interest of L-A, the trial court determined that it was in L-A’s best interest to have a meaningful and ongoing relationship with Grandparents. The trial court ordered a visitation schedule, which followed the visitation schedule that was initially recommended by one of the mental health experts. This schedule was crafted to allow L-A to transition into the primary care of her Father.

Father appealed, arguing that the trial court failed to give special weight to his decisions regarding L-A’s upbringing, or to properly apply the presumption that a fit parent acts in the child’s best interest. Father also disputed the amount of visitation that was awarded. On appeal, the Court of Appeals affirmed the trial court’s order for grandparent visitation but reversed and remanded on the amount of visitation, determining that the amount of visitation exceeded the “occasional, temporary visitation” that is permitted under the Grandparent Visitation Act. In Re Visitation of L-A.D.W., 24 N.E.3d 500, 516 (Ind. Ct. App. 2015) (citation omitted). [Jan. 13, 2015]

Although the Court of Appeals found that the amount of visitation was improper under the Grandparent Visitation Act, the court first noted that “Indiana courts have not established a set standard for ‘occasional, temporary visitation.’” Id. at 515 (citation omitted). Thus, the court looked to past decisions for guidance. Id. We likewise recognize that this Court has not provided a standard for determining what amount of visitation is appropriate under the Grandparent Visitation Act. However, we are not convinced that precedent compels finding an abuse of discretion in the current case. Although we do not seek to set out steadfast rules regarding the permissible amount of visitation that can be ordered, transfer is granted to reaffirm the discretion of the trial court in assessing what amount of visitation would be in the child’s best interests. After reviewing the circumstances of this particular case, we hold that the trial court did not abuse its discretion in setting the amount of grandparent visitation. We affirm the entirety of the trial court’s order granting grandparent visitation. * * *

Conclusion. We summarily affirm the Court of Appeals in upholding the award of grandparent visitation. We also hold that the trial court did not abuse its discretion in the amount of visitation that it granted to Grandparents under the Grandparent Visitation Act. Accordingly, the trial court’s order on grandparent visitation is affirmed. Dickson and Massa, J.J., concur.

Rush, C.J., concurs in result only with separate opinion in which Rucker, J., joins.

Rush, J., concurring in result. [which begins at p. 15] I concur fully with the majority, except as to its analysis of the quantity of visitation awarded—and even on that issue, I concur in result. In K.I., and again in M.L.B., we cautioned that the amount of grandparent visitation must be carefully limited so as not to impede parents’ fundamental constitutional right to direct their children’s upbringing. In my view, the majority’s reliance on our usual “deference to trial judges in family law matters” insufficiently protects the parent’s constitutional rights and risks allowing excessive awards to escape meaningful appellate review. But even under the closer scrutiny I would apply, the trial court’s award of 24 overnights per year, plus short visits weekly and for a few special occasions, does not unduly infringe on Father’s parental rights under these circumstances.

The majority rightly recognizes our prior admonitions that “[t]he Grandparent Visitation Act contemplates ‘only occasional, temporary visitation’” and that grandparents’ statutory right to seek visitation must remain secondary to natural parents’ “fundamental constitutional right to direct their children’s upbringing without undue governmental interference.” * * *

My disagreement is only with the majority’s reluctance to craft “strict standards on the amount of permissible visitation.” Slip op. at 13. In my view, K.I. and M.L.B. have already imposed a very strict standard indeed—though not one that can be quantified as a bright-line number of days or hours—in order to protect the natural parents’ constitutional rights as Troxel v. Granville, 530 U.S. 57 (2000), demands. Under that standard, similarity to the Parenting Time Guidelines becomes problematic not when a grandparent’s visitation coincides with too many school vacations or family birthdays as the majority suggests, see slip op. at 8 n.6, but when the overall quantity becomes excessive—too closely mirroring the amount of time that would ordinarily be reserved for a natural non-custodial parent. The quantity awarded in any particular case is, of course, a dis-cretionary judgment—but the constitutional protections in K.I. and M.L.B. limit that discretion considerably. Accordingly, I find it unhelpful to frame this issue as involving our usual “substantial deference to the trial court’s determination of family law matters.” Slip op. at 8.

ILB: The ILB would be pleased to post a thoughtful analysis of this and related Indiana grandparent visitation opinions.

Posted by Marcia Oddi on Thursday, July 30, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Still more on "Lake Michigan lakefront homeowners do not own the beach"

Updating this ILB entry from Tuesday, which quoted from the 22-page opinion, Stan Maddux of the South Bend Tribune has written a comprehensive story on the dispute.

Here is the same story in the NWI Times.

Posted by Marcia Oddi on Thursday, July 30, 2015
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Trial Court vacancies awaiting action by Gov. Pence

If you check the Indiana Governor Mike Pence Judicial Appointments page today, you will see nothing. No information listing past circuit or superior court appointments, nothing on: current vacancies, availability of application forms, list of applications received, etc.

Yet Mark Wilson reports today in the Evansville Courier & Press in a long story headed "Five seeking Warrick court appointment":

Boonville, Ind. - Five applicants are being considered to take the place of Warrick Superior Court No. 1 Judge Keith Meier, who is retiring Aug. 31.

Gov. Mike Pence will appoint someone to carry out the remaining three-and-a-half years of Meier’s term.

Kara Brooks, press secretary to Pence, identified the applicants as: Todd Corne, Amy Steinkamp Miskimen, Gary Schutte, Jacob Winsett and Jonathan Young.

Meier announced his retirement in June and the governor’s office received applications and nominations for his replacement until July 15. There is no deadline for Pence to make the appointment.

If the process lingers past Meier’s last day, the Indiana Supreme Court can appoint someone to temporarily preside over the court until Pence makes a decision.

Scrolling back through the entries on the Governor's news release page for June and Julu, there is no mention of any trial court openings.

There is this item from July 17 headed "Governor Pence Names Robert Altice as New Court of Appeals Judge." But it makes no mention of the coming Marion Superior Court vacancy which is created by Judge Altice's selection for the Court of Appeals position - that position will become vacant August 31, 2015, with the retirement of Judge Ezra Friedlander.

There is some information at Ballotpedia
, but it appears sketchy and incomplete.

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

Ind. Law - Indiana Tax Amnesty Emergency Rules now in effect

The Tax Amnesty Emergency Rules, provisions to explain and implement the Tax Amnesty Program as contained in HEA 1001-2015, have been published in the Indiana Register and became effective July 27, 2015.

For more, see this June 29th ILB post.

Posted by Marcia Oddi on Thursday, July 30, 2015
Posted to Indiana Law

Courts - "D.C. Circuit to Combat 'Link Rot' in Court Rulings"

Zoe Tillman reports in The National Law Journal in a story that begins [and BTW, it mentions the ILB]:

Hundreds of opinions published by the U.S. Court of Appeals for the D.C. Circuit over the past decade include links to websites for news articles, government reports and an array of other web-based content. The court doesn’t know how many of those links no longer work—known as “link rot”—but administrators will take steps this fall to fight the effects of the decay.

Starting in September, the court will archive the contents of websites that judges link to in opinions and make those documents available on the public docket online. The program, which mirrors what some other circuits are already doing, was spearheaded by Circuit Librarian Pat Michalowskij. * * *

The federal judiciary has been aware of “link rot” for years. In 2009, the Judicial Conference of the United States, the judiciary’s policymaking arm, adopted suggested guidelines for the use of internet citations in opinions. According to a Judicial Conference memo posted online by The Indiana Law Blog, the conference recommended a course of action similar to the one the D.C. Circuit is adopting this fall: making a copy of the contents of a website cited and including that copy in the public docket.

The Judicial Conference noted that courts might have to limit public access to any copyrighted materials online that were cited in opinions. If courts archived web pages with copyrighted content, the conference said they should capture copyright notices that appear with those materials. Courts would also have to consider asking for permission to republish certain content or delay making it publicly accessible, according to the memo.

Posted by Marcia Oddi on Thursday, July 30, 2015
Posted to Courts in general

Ind. Decisions - Supreme Court decides two today

In Craig Sampson v. State of Indiana, a 10-page, 5-0 opinion, Justice Rucker writes:

Craig Sampson appeals his conviction for child molesting contending it must be vacated and this cause remanded for a new trial because, among other things, improper vouching testimony was allowed into evidence. We affirm the judgment of the trial court. * * *

At stake in this case was the credibility of the alleged victim, S.B., who was thoroughly questioned on cross-examination and whose testimony did not waver from that given during direct examination.

In Gary Sistrunk v. State of Indiana, a 5-page, 5-0 opinion, Justice Rucker writes:
Gary Sistrunk challenges his convictions for robbery and criminal confinement as class B felonies contending, among other things, they violate Indiana’s constitutional ban on double jeopardy. We affirm the judgment of the trial court. * * *

In sum, our jurisprudence teaches that committing two or more separate offenses each while armed with a deadly weapon—even the same weapon—is not within the category of rules precluding the enhancement of each offense based on “the very same behavior.” Stated somewhat differently, our recognition in Richardson of the common law rule establishing that enhancements cannot be imposed for the very same behavior could not have included use of a single deadly weapon during the commission of separate offenses. And this is so because no such common law rule existed. Instead the opposite was true.

Posted by Marcia Oddi on Thursday, July 30, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Gabriel Kowalskey v. State of Indiana , an 18-page opinion, Judge Brown writes:

Gabriel Kowalskey brings this interlocutory appeal from the decision of the trial court that he, by his conduct, waived his right to counsel. Kowalskey raises two issues which we revise and restate as whether the court erred in finding that, by his conduct, he waived or forfeited his right to counsel. We reverse and remand. * * *

The issue is whether the trial court erred in finding that Kowalskey, by his conduct, waived or forfeited his right to counsel. He contends that he was not advised of any of the pitfalls of self-representation or advantages of being represented by an attorney, that there was no voluntary, knowing, and intelligent waiver of his right to counsel, that the record does not establish obstreperous conduct on his part, and that there was insufficient evidence of antagonistic conduct to conclude that he forfeited his right to counsel. Kowalskey argues that the court advised him, at the time it appointed Oliver, that if he did not get along with his new attorney the court would at that time advise him of the dangers and risks of self-representation, and that the court never gave him the required Gilmore warnings. He argues that the court took no affirmative step to ensure he appreciated the dangers and disadvantages of self-representation, that there was no analysis of whether he had made a knowing and intelligent waiver of his right to counsel, and that there was no on-the-record evidentiary hearing where specific findings were made as required by Gilmore. Kowalskey maintains that many of the waiver-by-conduct cases involve defendants whose conduct appeared to constitute determined efforts to manipulate and obstruct the trial process, that the record here shows his earnest struggle to push the process forward and not thwart the State’s efforts to prosecute him, and that his actions were aimed at obtaining the evidence needed to challenge the State’s case.

The State asserts that, while there is no dispute that Kowalskey did not affirmatively waive his right to counsel, the trial court properly found that he forfeited or waived his right to counsel through his conduct. It argues that the court held a hearing as required by Gilmore and sufficiently warned Kowalskey of the consequences of his conduct to allow the court to subsequently determine that he had forfeited his right to counsel. * * *

Based upon the record, Gilmore, and Poynter, and mindful that the law indulges every reasonable presumption against a waiver of the fundamental right to counsel, we conclude that the trial court erred in finding that Kowalskey, by his conduct, waived his right to pauper counsel. See Poynter, 749 N.E.2d at 1124-1128; Gilmore, 953 N.E.2d at 589-593. Accordingly, we reverse the order of the trial court and remand for further proceedings.

NFP civil decisions today (0):

NFP criminal decisions today (5):

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

Ashley L. Stapert v. State of Indiana (mem. dec.)

Walker Whatley v. State of Indiana (mem. dec.)

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

Tammie D. Wasson v. State of Indiana (mem. dec.)

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

Ind. Courts - "7th Circuit roundly rejects 3rd Circuit ‘ascertainability’ framework"

Alison Frankel of Reuters' "On the Case" wrote yesterday on Tuesday's 7th Circuit opinion in Mullins v. Direct Digital. The long story begins:

Class action lawyers may want to get up a petition to declare July 28 “Judge David Hamilton Day” because they could not have asked for a stronger defense of class actions – and the existing federal rules governing class certification – than they received Tuesday in Hamilton’s opinion for a three-judge panel of the 7th U.S. Circuit Court of Appeals in Mullins v. Direct Digital. The 7th Circuit scrutinized the 3rd Circuit’s controversial requirement of a “reliable and administratively feasible” way to ascertain class membership – and wholly rejected it. According to Judge Hamilton and his panel colleagues, Judges William Bauer and Michael Kanne, the 3rd Circuit’s 2013 ruling in Carrera v. Bayer upset the federal rules’ carefully wrought framework for class certification.

“The heightened ascertainability requirement,” the opinion said, “gives one factor in the balance absolute priority, with the effect of barring class actions where class treatment is often most needed: in cases involving relatively low-cost goods or services, where consumers are unlikely to have documentary proof of purchase.”

The 7th Circuit’s precedent, Judge Hamilton wrote, already requires trial courts to deny certification to proposed classes that are too vaguely defined, rely on subjective criteria such as someone’s state of mind, or contain “fail safe” provisions that depend on the defendant’s liability. And according to the 7th Circuit, that’s enough.

The court considered four policy justifications for a heightened ascertainability requirement: administrative convenience, unfairness to absent class members, unfairness to bona fide class members, and due process for defendants. According to the 7th Circuit, the procedural rules for class actions – which don’t specifically address ascertainability – already take care of those concerns.

Moreover, the 7th Circuit said (quite sensibly), it doesn’t make any sense to refuse to certify classes to protect absent and bona fide class members under the theory that they may not get the recovery they’re entitled to unless plaintiffs can show a way to weed out unqualified class members. Without certification, Judge Hamilton wrote, those class members will receive nothing.

“In general, we think imposing this stringent version of ascertainability does not further any interest that is not already adequately protected by the (federal) rule’s explicit requirements,” the opinion said. “On the other side of the balance, the costs of imposing the requirement are substantial.”

Importantly, the 7th Circuit explicitly said affidavits from class members are an acceptable way to ascertain who is in a class – a methodology the 3rd Circuit specifically ruled out in its Carrera decision. Judge Hamilton said that as long as defendants have an opportunity to challenge “self-serving affidavits from plaintiffs,” ascertaining class membership through plaintiffs’ testimony doesn’t impinge on defendants’ rights. After all, he said, “we are aware of only one type of case in American law where the testimony of one witness is legally insufficient to prove a fact” – and that’s prosecution for treason. “There is no good reason to extend that rule to consumer class actions,” Hamilton wrote.

The 7th Circuit said it agreed to consider Digital Direct’s interlocutory appeal because it wanted to address what it called “the recent expansion of ‘ascertainability.’”

The ILB recommends for reading both the remainder of the article, plus the opinion itself.

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

Wednesday, July 29, 2015

Ind. Decisions - Supreme Court issues one opinion today, re a petition on rehearing

In Wellpoint, Inc. (F/K/A Anthem, Inc.) and Anthem Insurance Companies, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA, AIG Europe (U.K.) Limited, et al, a 6-page opinion on a petition for rehearing, Justice Dickson writes:

Appellees Continental Casualty Company and Twin City Fire Insurance Co. (collectively "CNA"), have petitioned for rehearing with respect to our opinion in this matter, Wellpoint, Inc. v. Nat'l Union Fire Ins. Co., 29 N.E.3d 716 (Ind. 2015). The petition asserts a single claim—that a portion of our opinion exceeds the power granted by Trial Rule 56(B), which states that "[w]hen any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party." T.R. 56(B) (emphasis added). CNA does not challenge our reversal of the trial court's grant of its motion for summary judgment, but argues that our opinion should not have also granted summary judgment for Anthem as to issues not raised by CNA's summary judgment motion. CNA seeks modification of the fifth paragraph of our opinion to clarify that its summary judgment motion "raised only certain issues of law prior to the close of discovery," Pet. for Reh'g at 13, and revision of our concluding language that could be read to foreclose de-fenses not raised in the summary judgment proceedings. Appellants Wellpoint, Inc. and Anthem Insurance Companies, Inc. (collectively "Anthem") respond that summary judgment in Anthem's favor is proper and further that CNA has waived any additional affirmative defenses.

We agree Trial Rule 56(B) limits our authority to grant summary judgment for Anthem to the issues raised in CNA's motion. Before the trial court, CNA requested summary judgment in its favor on certain enumerated counts/claims for the reasons set forth in its supporting memorandum. * * *

[The opinion then specifies several modification to the opinion, in para 5 and the conclusion.]

Our opinion in this case is modified accordingly but in all other respects remains in full force.

Rush, C.J., and Rucker, David, and Massa, JJ., concur.

Posted by Marcia Oddi on Wednesday, July 29, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Still more on fenced hunting

Supplementing this ILB post from July 27th, Niki Kelly of the Fort Wayne Journal Gazette also reported on the proposed trade group voluntary program to attempt to police captive hunting.

And today WFYI Indianapolis has an AP story, dateline Corydon, headed "Indiana Supreme Court Decision Renews Fenced Hunting Debate."

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

Ind. Decisions - 7th Circuit decides one Indiana case today, declines to follow 9th Circuit approach

In USA v. Robert Lee (ND Ind., Miller), an 11-page opinion, Chief Judge Wood writes:

While Robert L. Lee was on super-vised release, his probation officer learned that he had as-saulted his girlfriend Shelish Pulliam with a small souvenir baseball bat. The district court issued a warrant for Lee’s ar-rest and initiated proceedings to revoke his supervised re-lease. At the revocation hearing, the government offered the testimony of several law enforcement and medical personnel who interviewed or treated Pulliam. Pulliam had told each of them that Lee was the perpetrator. When Pulliam took the stand, however, she recanted and said that she had made up the assault story because she was mad at Lee. She explained her injuries, which were well documented, as the result of her tripping and falling down the stairs. After reviewing several Indiana criminal provisions, the court concluded that Lee had committed the offense of assault with a deadly weapon. On that basis, it revoked Lee’s supervised release and imposed a four-year term of imprisonment.

Although he did not raise this point in the district court, Lee now argues that he was denied due process under both the Fifth Amendment and Federal Rule of Criminal Proce-dure 32.1 because he did not receive adequate written notice of the precise crime that ultimately led to the revocation. Lee asks us to adopt a per se rule that only the citation to a specific statute will suffice to provide written notice of the alleged violation. Only the Ninth Circuit has gone this far. We are not persuaded that either the criminal rules or the Constitution requires this approach, and so we decline the invitation to abandon our own more flexible practice and join the Ninth Circuit. * * *

The petition to revoke Lee’s supervised release provided adequate written notice of the asserted grounds for revocation, as required by Rule 32.1 and the Constitution. Accordingly, we AFFIRM the district court’s revocation of Lee’s su-pervised release.

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

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 5 NFP memorandum decisions) [Updated]

For publication opinions today (3):

In In Re the Marriage of: Amy Steele-Giri v. Brian K. Steele, a 30-page, 2-1 opinion, Judge Riley writes:

Appellant-Respondent, Amy Steele-Giri (Mother), appeals the trial court’s order denying her petition for modification of custody of the minor child, J.S., and rule to show cause in favor of Appellee-Petitioner, Brian K. Steele (Father). * * *

We reverse the trial court’s Order, grant physical custody of J.S. to Mother, and remand to the trial court for determination whether joint legal custody would be in J.S.’s best interest and to establish Father’s parenting schedule in line with the parenting time guidelines where distance is a factor. Additionally, we reverse the trial court’s denial of Mother’s petition for rule to show cause, find Father in contempt, and remand to the trial court for determination of Mother’s monetary damages, if any.

Bailey, J. concurs
Barnes, J. dissents with separate opinion [which begins on p. 29 and concludes] In my opinion, this is not a case in which the evidence compels the modification of custody to Mother. Despite evidence of both parents’ shortcomings, the guardian ad litem testified that Mother and Father “are good involved parents” and agreed that J.S. has “a wonderful relationship with each of her parents[.]” Tr. pp. 70, 67. The guardian ad litem declined to make a firm recommendation in this case because it was “such a close call.” Id. at 66. Based on this evidence, I believe this is the very circumstance in which long-standing precedent requires us to defer to the trial court’s assessment of witnesses and to affirm the trial court’s decision. For these reasons, I dissent.

In Town of Whitestown, Indiana v. Rural Perry Township Landowners , a 26-page opinion, Judge Barnes writes:
In 2013, the Town of Whitestown (“Whitestown”) adopted an ordinance annexing unincorporated portions of Perry Township adjacent to the town. Rural Perry Township landowners (“the Remonstrators”) filed a petition to defeat the annexation. The trial court found that the Remonstrators had satisfied statutory conditions required to defeat the annexation and ordered that the annexation not occur. Whitestown now appeals.

We reverse and remand for entry of judgment in favor of Whitestown.* * *

The trial court erred in its interpretation of Indiana Code subsections 36-4-3-13(c) and (e), and in its application of the statutory provisions to its findings of fact. We accordingly reverse the trial court’s judgment, and remand the case with instructions to enter judgment in favor of Whitestown with respect to the Remonstrators’ challenge to the Annexation Ordinance.

[Updated at 2:56 PM] See new Indianapolis Star story here, "Whitestown wins appeal over Perry Township land owners."

In In re the Custody of: M.B. b/n/f Stephanie Choate and Dustin Choate v. Shalena Barnes and Stephen West, a 9-page opinion, Judge Robb writes:

Stephanie Choate and Dustin Choate appeal the dismissal of their independent action seeking emergency custody of Stephanie’s niece, M.B., who had been adjudicated a child in need of services (“CHINS”) in a separate proceeding.1 They raise two issues, one of which we find dispositive: whether the trial court erred in dismissing their action. Concluding the trial court did not err because it had no jurisdiction over a separate custody petition when a CHINS proceeding was pending in the juvenile court, we affirm.
NFP civil decisions today (1):

Billy L. Haymaker v. Victoria L. Haymaker (mem. dec.)

NFP criminal decisions today (4):

William Goodwin v. State of Indiana (mem. dec.)

Yorel M. Wallace v. State of Indiana (mem. dec.)

Connie Kidd v. State of Indiana (mem. dec.)

Cornelius T. Banks v. State of Indiana (mem. dec.)

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

Tuesday, July 28, 2015

Ind. Decisions - More on "Lake Michigan lakefront homeowners do not own the beach"

Updating yesterday's post, the ILB has now obtained a copy of the 22-page ruling of Judge Richard R. Stalbrink, Jr., LaPorte Superior Court 2, in Gunderson v. State. Here are some quotes from the opinion:

The Gundersons claim that their deed conveyed complete and exclusive ownership in their lot to the water's edge of Lake Michigan and that the members of the public have no rights to the land not covered by water. The Defendants and Intervemor-Defendants argue that the State owns the land up to the ordinary high water mark ("OHWM") regardless of whether it is covered by water. The Defendants and. Intervemor-Defendants further argue that the State holds this land in trust for the benefit of the public. The parties' arguments draw from and rely on the doctrines of Equal Footing and Public Trust, two very old doctrines with an entwined history. This is a case of first impression in Indiana and as such, this Court looks to Indiana Law, our sister Great Lake States, and other States for guidance. * * *

The Gundersons contend that deeds are prima facia proof of ownership. The Gundersons further contend that, because their deed cites to the Plat, and the Plat states no northerly dimension, their lots run to the water's edge of Lake Michigan. * * *

According to the equal footing doctrine discussed above, Indiana received the lands beneath the OHWM upon becoming a state. See Shively, 152 U.S. at 26 ("The new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands below the high-water mark, within their respective jurisdicuons (sic)." (emphasis added)).

Thus, this Court finds that when Indiana became a State, it received, and held in trust for the public, all lands below the OHWM regardless of whether the land is temporarily not covered by water. This Court also notes that this finding is not a completely new conclusion for Indiana. See United States v. Carstens, 982 F. Supp. 2d 874,878 (N.D. Ind. 2013) ("The land between the edge of the water of Lake Michigan and the ordinary high water mark is held in public trust by the State of Indiana.") * * *

In their Motion for Declaratory Summary Judgment, the Gundersons argue that they own their property to the water's edge and that there is no public trust right for the public to occupy or use the land not covered by water. The Gundersons also argue that Indiana has excluded Lake Michigan from its public trust doctrine. * * *

This Court finds it beneficial to repeat that the Gundersons' deed conveyed the legal title, thejus privatum, to their lot within section 15 and that the State holds jus publicum title, in public trust, to the land below the OHWM. These titles convey different rights to their holders and these rights may, at times, overlap geographically. The public trust only protects some public rights, the scope of Indiana's Public Trust Doctrine is considered in the next section, but it is important to note that a private landowner cannot impair the protected rights of the public. See e.g., Ill. Cent. R.R., 146 U.S. at 452-53; Lake Sand, 120 N.E. at 716.

This Court notes that the OHWM has been the subject of both statutory and common law interpretation. Indiana has adopted an Administrative definition of OHWM for the shore of Lake Michigan, currently set at an elevation of five hundred eighty-one and five-tenths (581.5) feet. See 312 Ind. Admin. Code 1-1- 26(2). This regulation also provides a codification ofthe common law interpretation of the OHWM and defines the OHWM elsewhere as "[t]he line on the shore of a waterway established by the fluctuations of water and indicated by physical characteristics." 312 Ind. Admin. Code 1-1-26(1). The regulation continues by providing a few examples of the physical characteristics, such as a clear and natural line impressed on the bank; shelving; changes in the character of the soil; the destruction of terrestrial vegetation; or the presence of litter or debris. Id. This Court finds that defining the OHWM as a set elevation will, as Defendants argue, provide clearer notice to both the land owners and the pub1ic. Therefore, as to ownership, this Court finds that the Gundersons own legal title, jus privatum, in their lots to the northern boundary of Section 15. Further, this Court finds that the State holds jus publicum, in public trust, the land below the OHWM, as defined by 312 Ind. Admin. Code 1-1-26(2). Moreover, this Court finds that the Gundersons cannot unduly impair the protected rights and uses of the public when the titles to the land overlap.

Finally, this Court must determine the scope oflndiana's public trust doctrine. [ILB: With respect to Lske Michigan] * * *

This Court finds that Indiana did not surrender the public trust encumbering Lake Michigan's shores by partially codifying the public trust doctrine as it applied to the smaller freshwater lakes in Indiana. That the land below the OHWM has not been excluded from Indiana's common law public trust doctrine. Furthermore, this Court notes that Indiana has the least amount of shoreline on a Great Lake out the eight Great Lake States; a mere forty-five miles of shoreline along Lake Michigan. Moreover, this Court finds the idea that Indiana, with such a limited amount of shoreline, would restrict and in effect deny its citizens' access to such an amazing natural resource. Granting near exclusive rights to a vast portion of the shoreline to a select few homeowners, to be a far stretch of reason and common sense.

The Gundersons have provided no evidence and no persuasive argument for finding that the recreational activities, such as swimming and walking on the beach, should not also be permissible public uses protected by the public trust doctrine. This Court notes that several other states, include some of our sister Great-Lake States, have recognized the public trust's protection for recreational enjoyment of the beach. * * *

Conclusion. For the reasons more thoroughly explained above, this Court has found that upon its admission to statehood, Indiana received the bed of Lake Michigan, up to the OHWM regardless of whether it is momentarily not covered by water and holds this land in trust for its citizens to use for certain protected purposes. Indiana's public trust protects the public'S right to use the beach below the ordinary high water mark for commerce, navigation, fishing, recreation, and all other activities related thereto, including but not limited to boating, swimming, sunbathing, and other beach sport activities. Private landowners cannot impair the public's right to use the beach below the OHWM for these protected purposes. To hold otherwise would invite the creation of a beach landscape dotted with small, private, fenced and fortified compounds designed to deny the public from enjoying Indiana's limited access to one of the greatest natural resources in this State.

THEREFORE, IT IS ORDERED, ADJUDGED and DECREED that the Gundersons' Motion for Declaratory Summary Judgment is hereby, DENIED; and Defendants' Cross Motion for Summary Judgment, Alliance-Dunes' Combined Cross Motion for Summary Judgment, and LBCA's Cross-Motion for Summary Judgment are each GRANTED.

IT IS ADJUDGED and DECREED that the Gundersons' deed conveyed to them the legal title,jus privatum, to Lots 240, 242, and 244. The northern boundary of Lots 240, 242, and 244 is the same as the northern boundary of Section 15, from which the Lots were carved.

IT IS ADJUDGED and DECREED that the State holds the shores of Lake Michigan below the ordinary high water mark, as defined by 312 Indiana Administrative Code 1-1-26(2), in trust for the public, regardless of whether the land is currently covered by water.

IT IS ADJUDGED and DECREED that the scope ofIndiana's public trust doctrine includes and protects recreational activities, such as swimming, picnicking, sunbathing, or walking, and all other activities incident thereto, along the shores of Lake Michigan.

Posted by Marcia Oddi on Tuesday, July 28, 2015
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Former attorney general Carter considers comeback"

Updating this ILB post from July 22nd, Niki Kelly of the Fort Wayne Journal Gazette posted a similar item yesterday in the FWJG's "Political Notebook." Some quotes:

Current Attorney General Greg Zoeller has decided to run for Congress in the 9th District. Logistically, if he would lose in the May primary he could possibly still meet the deadline to sign up to run for attorney general in the 2016 Republican nominating convention.

Carter recently sent an email to potential GOP supporters to gauge support, but said he doesn't have a timeline for making a decision.

Since he left office, he has been working privately. Much of that work has been for the Indiana Attorney General's Office -- via contracts to help with a case affecting payments Indiana gets from the tobacco master settlement.

According to the Indiana Auditor's Office, Carter was paid $146,600 in 2014, $107,078 in 2013 and $150,900 in 2012. Altogether in the last five years, he has earned more than $500,000 from the state. He has had no payments this year.

In comparison, Zoeller's current annual salary is $92,503.

The end of this long Oct. 31, 2013 ILB post discusses former AG Carter's role in the tobacco settlements.

From a search of ILB posts from 2008, this item from Oct. 8, 2008: "After two terms, current Attorney General Steve Carter is not running again. Carter's chief deputy attorney general, Greg Zoeller, is the Republican running to succeed him in the Nov. 4 election." A Star story from Oct. 20, 2008 describes Zoeller as "The man who served as chief deputy in the Indiana attorney general's office during Steve Carter's two terms...".

A Feb. 11, 2010 ILB post is headed "AG Zoeller hires former AG Carter to arbitrate tobacco deal for State."

Posted by Marcia Oddi on Tuesday, July 28, 2015
Posted to Indiana Government

Ind. Law - "Indiana Police Pulled the Plug on Chief Keef’s Hologram. Can They Do That?"

From the NWI Times late on July 26th, a story by Sarah Reese - some quotes:

HAMMOND | A promoter for the hip-hop music festival in Hammond that was shut down after rapper Chief Keef appeared as a hologram late Saturday said he's sorry for how the event ended.

Malcolm Jones, co-CEO of Capital Connect * * * said he believed Hammond officials might have reacted differently if news of Chief Keef's appearance hadn't been leaked and Chicago officials hadn't "planted a seed in their mind" about the controversial gangster rapper who is wanted on a warrant in Cook County. Jones declined to comment on Chief Keef's legal problems.

Hammond Mayor Thomas McDermott said he never talked to Chicago officials about Chief Keef and Hammond's decision to shut down the event when the rapper appeared at The Pavilion at Wolf Lake was about public safety. * * *

The promoters were warned the event would be shut down if Chief Keef appeared, McDermott said. The promoters told city officials Chance the Rapper would be the surprise guest, he said.

Jones said about five minutes before the hologram appeared he was told that aspect of the show was out of his control.

"They dragged me over into a production room off the stage," he said. "Once they told me, that's when I wanted to go out onstage and at least tell someone what was going on."

Hammond police shut the show down within one minute.

Chief Keef, in his brief appearance from Beverly Hills, Calif., told concertgoers to stop the violence and let the children grow up. Chief Keef chose not to appear in person because of an outstanding warrant in Cook County for failure to pay child support, NBC Chicago reported.

From the Chicago Tribune on July 27th:
Craze Fest promoters can be upset with the city of Hammond all they want, but Mayor Thomas McDermott Jr. said they had the right to pull the plug on rapper Chief Keef's hologram performance Saturday night.

McDermott said Sunday the contract promoters signed with the city allows it to approve all acts who perform on Wolf Lake Pavilion stage. McDermott said the promoters told him and at least a dozen other city employees that Chance the Rapper would be the main event at the event Saturday.

An officer, however, found Chief Keef performing on a hip-hop website and realized it was going to be beamed to the pavilion, Hammond Police Cmdr. Pat Vicari said Saturday night. Officers again warned promoters it would be shut down.

"If it was Chance the Rapper like they told us, there would've been no problem at all, but I've heard (Chief Keef) promotes violence, and I don't want that for our city and our officers," McDermott said. "We warned (Craze Fest Promoter Devon Bonaparte) we would shut it down if they put Chief Keef on, and we did." * * *

Police rushed toward the stage, turning the music off. Shining flashlights, they ordered concertgoers to leave. Fans who gathered Saturday left the grounds in an orderly fashion.

Hologram USA CEO Alki David expressed anger that the concert was shut down so abruptly.

"Shame on the mayor and police chief of Hammond for shutting down a voice that can create positive change in a community in desperate need. And for taking away money that could have gone to help the victims' families," David said in a statement. "This was a legal event and there was no justification to shut it down besides your glaring disregard for the first amendment right to free speech.

"Mark my words if you censor us you only make us stronger," he said, threatening to sue.

But there is much more. The headline to this ILB post comes from the headline to this story by Whet Moser yesterday in Chicago Magazine. The subhead: "The city of Hammond shut down a music festival after he made a virtual appearance. It might be a First Amendment problem—unless a case can be made that Keef’s identity by itself causes violence."

It turns out this story already has been widely reported, the Chicago Magazine quotes stories from the NY Times and Eugene Volokh in the Washington Post. Plus several SCOTUS decisions.

Posted by Marcia Oddi on Tuesday, July 28, 2015
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (1):

In First Federal Bank of the Midwest v. Karen S. Greenwalt and Farm Credit Services of Mid-America, a 14-page opinion, Judge Brown writes:

First Federal Bank of the Midwest (“First Federal”) appeals the trial court’s order entering partial summary judgment in favor of Karen Greenwalt (“Greenwalt”) and dismissing its complaint. First Federal raises two issues which we consolidate and restate as whether the trial court erred in granting summary judgment in favor of Greenwalt. We affirm. * * *

First Federal maintains that its security interest in Tract One under the Mortgage has not been discharged and specifically asserts that there was no material alteration of the underlying loan obligation. First Federal argues that the trial court erred when it determined that the extensions of additional credit to Great Lakes after the execution of the Note and Mortgage in 2000 constituted a material alteration of the underlying obligation resulting in the discharge of the Mortgage. First Federal further argues that, even if material alterations were made to the underlying obligation, the Mortgage was not discharged but capped at the level of the amount owed under the Note at the time of the material alteration. * * *

Based upon the record, we conclude that the alteration of the loan terms between Great Lakes and First Federal constituted material alterations of the underlying obligation and the loan agreement guaranteed by Greenwalt and that, as a result, Greenwalt as a surety and Tract One were discharged.

NFP civil decisions today (4):

In re the Marriage of: Thomas E. Thompson v. Donna B. Thompson (mem. dec.)

In re the Marriage of: Deborah D. Skelton v. Rodney D. Skelton (mem. dec.)

Performance Contracting, Inc. v. Randy Lowe (mem. dec.)

In Re the Adoption of D.B. and S.R., M.R. v. J.W. (mem. dec.)

NFP criminal decisions today (5):

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

Adam Horton v. State of Indiana (mem. dec.)

Jevon Deandre Ollins v. State of Indiana (mem. dec.)

Aqueeli Hakeem Walton v. State of Indiana (mem. dec.)

Michael C. Pulley v. State of Indiana (mem. dec.)

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

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

Here is the Clerk's transfer list for the week ending Friday, July 24, 2015. It is two pages (and 23 cases) long.

No transfers were granted last week.

Notable transfer denials included Old National Bank v. Steven Kelly, Jon A. Cook, and Rebecca F. Cook, individually and on behalf of others similarly situated. The vote was 4-1 with CJ Rush voting to transfer. Mark Wilson of the Evansville Courier & Press reported on the denial late yesterday afternoon:

EVANSVILLE — The Indiana Supreme Court will not consider Old National Bank’s petition to hear arguments on whether a lawsuit against the Evansville-based bank can proceed as a class action.

The lawsuit accuses the Evansville-headquartered bank with purposefully posting debit card and ATM transactions so as to increase depositors’ overdraft fees. * * *

Last year, Circuit Court Judge David Kiely ruled that the lawsuit can move forward as a class action.

The Indiana Court of Appeals in April affirmed the ruling, a decision left standing by the Supreme Court’s denial of the bank’s petition to transfer the case - meaning that the court won’t consider it.

That means that the Oct. 27 trial date is back on again, said Scott Danks, one of the attorneys representing the customers. Both sides have agreed it would be a bench trial, with only a judge listening to the evidence and issuing a verdict.

“We are going to do our best to hold their feet to the fire. Old National has done everything they can to intentionally delay this. It’s been four and a half years since it was filed,” Danks said. “It doesn’t take a lawyer or judge to figure out that arranging transactions from high to low to maximize fees and penalties on customers without the customers knowledge is wrong.”

Posted by Marcia Oddi on Tuesday, July 28, 2015
Posted to Indiana Transfer Lists

Monday, July 27, 2015

Ind. Decisions - 7th Circuit decides a second Indiana case today, re FDCPA

In Grant Bentrud v. Bowman, Heintz, Boscia & Vicia (SD Ind., Lawrence), a 13-page opinion, Judge Kanne writes:

Grant E. Bentrud owes Capital One Bank, N.A. (“Capital One”), money—$10,955.20 to be exact. He amassed that debt on his credit card, and he does not dispute it here. Bentrud’s dispute instead concerns the man-ner in which Capital One’s lawyers attempted to collect the debt. The way he sees it, Bowman, Heintz, Boscia & Vician, P.C. (“Bowman Heintz”), an Indiana law firm specializing in debt collection, committed multiple violations of the Fair Debt Collection Practices Act (“FDCPA”) during their collec-tion efforts.

To remedy those alleged violations, Bentrud commenced this action in the Southern District of Indiana. After a volley of motions between the parties, the district court granted summary judgment in favor of Bowman Heintz on each of Bentrud’s FDCPA claims. For the reasons expressed below, we affirm the judgment of the district court.

Posted by Marcia Oddi on Monday, July 27, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court enjoins a second non-lawyer from practicing law

In addition to this July 17th order against Brian K. Hill, the Court has now post a July 24th order, State ex rel. Indiana Supreme Court Disciplinary Commission v. Alberto Mejias:

... to Enjoin the Unauthorized Practice of Law against Respondent, Alberto Mejias. The Commission’s Verified Petition alleged, among other things, that Mejias, who, while employed as a legal assistant for an Indiana attorney but without his employer’s knowledge, handled client matters independently from his employer’s office and told his employer’s prospective clients that he was a lawyer. It further alleged that after leaving that employment, Mejias opened an office, began offering legal services under the name “Mejias & Mejias Legal Services,” and collected fees to perform legal services. Article 7, section 4 of the Indiana Constitution, Indiana Code section 33-24-1-2(b)(2), and Indiana Admission and Discipline Rule 24 give this Court original jurisdiction over this matter.

Posted by Marcia Oddi on Monday, July 27, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Deer Preserve Owners Hope Herd Mentality Leads To Voluntary Permitting"

From Purdue's NPR station, WBAA, this new story. Some quotes:

With Indiana's Supreme Court bringing an end to a 10-year legal battle over high-fence hunting preserves, the deer farming industry is stepping in to try to set standards for itself.

Deer and elk farmers have formed the Indiana Deer Advisory Council, to recommend standards for deer treatment and how they are hunted.

Advisory council chairman Gary Jacobson says he believes getting the group’s seal of approval will be valuable enough to preserve owners that they’ll follow whatever rules IDAC sets. * * *

The council has no enforcement authority, but will issue its own seal of approval to preserves which adhere to good practices, in hopes of steering consumers there. Jacobson says there need to be standards to ensure the state's 400 or so deer farms still have an end market for their herds.

The ILB's most recent prior post was the must-read July 1st: "This is a disaster! Supreme Court fenced hunting decision leads to DNR deregulating possession of many wild animals."

The ILB has also obtained a news release titled "Indiana Deer Advisory Council to Validate Hunting Preserves," that begins:

INDIANAPOLIS (July 24, 2015) – The Indiana Deer and Elk Farmers Association (IDEFA) has announced the launch of the Indiana Deer Advisory Council (IDAC). One of the main purposes of IDAC is to create and oversee a validation program for hunting preserves and deer farms in Indiana. Similar to the Pork Quality Assurance Plus program, IDAC is an industry-driven program to ensure deer health is maintained to the highest standards and to validate legal hunting preserves in Indiana that follow IDAC ethical guidelines. IDAC will issue annual hunting validations to owners that apply and prove IDAC program requirements have been fulfilled.

“An IDAC validated hunting preserve will maintain certain requirements for safety, ethics, fair chase, and record keeping,” said Gary Jacobson, Chair of the IDAC. “Hunting preserves have been unfairly vilified and this is our opportunity to display that we are more than willing to operate in a safe, legal and ethical manner.”

IDAC will include members from the Indiana Board of Animal Health along with deer farmers, hunting preserve owners, and business leaders.

A recent ruling by the Indiana Supreme Court established a major step in protecting small business owners across the state involved in the deer industry. On Friday, June 8, 2015, a deadlocked Indiana Supreme Court declined to hear the state’s appeal of a ruling allowing hunting preserves to operate in the state. The result reaffirmed the Indiana Court of Appeals ruling this past February which held that the Department of Natural Resources (DNR) overreached its constitutional authority and state law does not prohibit high-fence hunting nor does it allow DNR to regulate the practice.

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

Ind. Gov't. -New filing in the General Assembly denial of public records lawsuit

The most recent ILB post in this lawsuit was June 30th, quoting a FWJG story. An earlier post that day gives a comprehensive background to the suit, Citizens Action Coalition of Indiana et al. v. Eric Koch and Indiana House Republican Caucus.

Today the plaintiffs have filed their 22-page response to the defendants' motion to dismiss.

Posted by Marcia Oddi on Monday, July 27, 2015
Posted to GA and APRA

Ind. Decisions - "Lake Michigan lakefront homeowners do not own the beach" [Updated]

Jessica O'Brien reports today in a long story in the Michigan City News Dispatch:

MICHIGAN CITY — Judge Richard Stalbrink issued an order Friday ruling against lakefront homeowners in Long Beach, saying these property owners do not own exclusive rights to the beach lying north of their deeded land.

This lawsuit was filed by plaintiffs Long Beach Lakefront Homeowners Association, Don Gunderson and Margaret West, who argue the northern boundary of private lakefront properties is the water's edge of Lake Michigan.

Their argument was based partially on the fact that their deed gives no northerly dimension to their plat — contending that their property must run to the water's edge.

However, defendants in the case — including the State of Indiana, Department of Natural Resources, Long Beach Community Alliance, Save the Dunes, Alliance for the Great Lakes and several individuals — argue that the state owns the lakebed up to the ordinary high water mark (OHWM) as determined by the Army Corps of Engineers, which is currently 581.5 feet above sea level.

The OHWM is intended to distinguish between public and private lands.

This issue was brought before Stalbrink in La Porte County Superior Court No. 2 earlier this year on an appeal after La Porte County Circuit Court Judge Tom Alevizos first ruled against the lakefront homeowners.

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

Also citing this case among many others, Stalbrink ruled similar to Alevizos. Stalbrink's ruling says that the state of Indiana owns the land below the OHWM, regardless if that land is covered by water at any given moment.

This ruling also determines the northern property line of the Gundersons' deed. Court documents released Monday determine the northern boundary of the Gundersons' lots 240, 242 and 244 to be the same as section 15, from which the lots were carved.

According to the story, the opinion also discusses Indiana's limited shoreline, and "the equal footing doctrine and public trust doctrine."

For background, start with this ILB post from March 30, 2015.

[Updated 7/28/15]
Here is the 22-page opinion.

Posted by Marcia Oddi on Monday, July 27, 2015
Posted to Ind. Trial Ct. Decisions

Law - "Limit on Damages Is Squeezing Victims of Amtrak Wreck"

This July 24, 2015 story by Ron Nixon of the NY Times on the liability caps Congress put on Amtrak accidents is interesting. A few quotes:

But even though Amtrak has announced that it will not contest lawsuits filed against the company for the accident, Ms. Varnum and Mr. MacFarland fear they will have to come up with tens of thousands of dollars for medical bills out of their own pockets.

The couple hope their lawsuit will highlight the fact that the congressionally mandated cap on liability for Amtrak accidents can leave victims with enormous bills. In addition, they will try to find out why the railroad did not have technology, called positive train control, that federal regulators said could have prevented the accident.

“We need to hold Amtrak accountable,” Mr. MacFarland said. “This accident could have easily been prevented.”

In the reauthorization of Amtrak in 1997, Congress capped the liability against the company at $200 million for any single train accident. The provision, which does not account for inflation, was aimed at keeping railroad companies in operation when hit with major lawsuits.

“When Congress enacted the cap, it made the judgment that victims of large-scale railroad crashes will be among those who have to bear the cost of keeping Amtrak up and running,” said John C. P. Goldberg, a law professor at Harvard and expert on tort law. “It is very difficult to see why, in effect, some of the subsidy should come from the victims of train crashes rather than the public.”

In rulings in previous rail accidents, judges have struggled with how to properly compensate victims. In a 2008 commuter train accident in California that left 24 people dead and 109 injured, Judge Peter D. Lichtman, now retired, said an additional $64 million beyond the liability cap was needed to properly compensate victims.

But he was unable to get more because of the federal limit on damages. The judge awarded the payouts based on the severity of the injury, from $12,000 for those with no visible wounds to $9 million for a Zambian exchange student who suffered brain damage. In a scathing 33-page decision in 2011, a frustrated Judge Lichtman wrote: “Impossible decisions had to be made. What was given to one victim had to be taken from another.”

A provision in a bill to finance the Highway Trust Fund now being considered by Congress would raise the cap to $295 million and index it every five years for inflation. The bill would also apply the revised limit to the May 12 accident. Still, experts said the bill fell short of what was needed to fully compensate victims of large-scale rail accidents.

“That’s not nearly enough for medical and other expenses given the scope of the potential damages in the May 12 Amtrak crash,” said Ben Somberg, a spokesman for the American Association for Justice, a trade group of trial lawyers.

Amtrak declined to comment on the proposal to raise its liability limit.

Posted by Marcia Oddi on Monday, July 27, 2015
Posted to General Law Related

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

In James Tsareff v. Manweb Services (SD Ind., Barker), a 16-page opinion, Judge Bauer writes:

Plaintiff-appellant, Indiana Electrical Pension Benefit Plan (“Plan”), through its trustee, James Tsareff, brings this action to collect withdrawal liability from defendant-appellee, ManWeb Services, Inc. (“ManWeb”), under the Employee Retirement Income Security Act (“ERISA”), as amended by the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”), 29 U.S.C. §§ 1001–1461. The Plan argues that ManWeb is responsible for the withdrawal liability incurred by Tiernan & Hoover, certain assets of which ManWeb acquired through an asset sale, under a theory of successor liability. The Plan appeals the district court’s grant of judgment as a matter of law to ManWeb and denial of the Plan’s motion for summary judgment. For the reasons that follow, we reverse. * * *

For the aforementioned reasons, the district court’s grant of judgment as a matter of law to ManWeb and denial of summary judgment to the Plan is reversed. Since the district court did not address the successor liability continuity requirement, this case is remanded to the district court for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Monday, July 27, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of B.G. & F.G. (Children), and, F.G., Sr. v. The Indiana Department of Child Services (mem. dec.)

Leo Kahn v. Fletcher Horn d/b/a Hartwood Architectural Antiques and Perry Glancy (mem. dec.)

NFP criminal decisions today (7):

Anthony W. Taylor-El v. State of Indiana (mem. dec.)

Kenneth Powers v. State of Indiana (mem. dec.)

Ahkeem Shakur Scott-Manna v. State of Indiana (mem. dec.)

Ricky B. Akins v. State of Indiana (mem. dec.)

Jimmy Scott Huntington v. State of Indiana (mem. dec.)

Larry D. Blanton, Jr. v. State of Indiana (mem. dec.)

Bonnie Motsch v. State of Indiana (mem. dec.)

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

Ind. Gov't. - "9 years after Bloomington Council OK'd urban chickens, inspections routine"

The ILB has followed the "urban chicken" movement in Indiana for years - here is a list of some of the posts.

Last week, Megan Banta of the $$ Bloomington Herald-Times took stock of how chickens within the Bloomington city limits are working out. Some quotes from a long story with many photos:

"Girls!" Trisha Gooch cries out as she rounds the corner of the house with animal control officer Jim Pritchard.

Not to her daughters, or dogs or cats, but to her three chickens.

Gooch has one of the city's 49 active urban chicken permits, and Pritchard is there conducting an inspection to renew the Smith Road resident's permit.

It's a process that's become fairly standard since the Bloomington City Council first passed an ordinance allowing chickens within city limits in 2006, following much discussion and the appearance of a city councilman in a chicken suit. Since then, there have only been a few changes to the ordinance: the removal of both a $25 fee and a previous requirement that people get approval from neighbors, and the addition of permission to slaughter one's urban chickens.

City code allows people to get a permit to have up to five hens, but no roosters, in residential estate, residential single family and residential core zoning districts, as long as they're in an enclosed structure for protection. In another vein of protection for the birds, the city Animal Control Commission has to review any applications from people who have been convicted of cruelty to animals.

People applying for permits or who need to renew their permits get a letter detailing what they need to do. Those requirements also are summed up in a checklist that Pritchard takes to every inspection.

You can find more about the Bloomington chicken story here, with a map and video.

The NWI Times reported on June 29th that the Griffith Town Council had passed an urban chicken ordinance; it appears to be somewhat more stringent than the current Bloomington requirements.

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

Ind. Gov't. - "Pence’s environmental petulance hurts Indiana" and "Pence noncommittal on gay anti-discrimination law"

Matthew Tully's July 24th IndyStar column is subheaded: "Gov. Mike Pence might be scoring political points with his opposition to new federal environmental proposals. But he is not helping Indiana, and he is ignoring some longterm realities." A few quotes:

It would be a lot easier to take Gov. Mike Pence’s opposition to just about every new environmental policy seriously if he didn’t so gleefully and diligently use it to try to score political points.

“We’re not going to do it,” he wrote in a recent email to “conservative” campaign supporters, one in a long series of publicity-seeking steps he’s taken to show just how much he opposes the Obama administration’s attempts to reduce air and water pollution.

We’re not going to do it? That sounds less like a grand gubernatorial statement and more like teenage petulance. Particularly when it’s not backed up by any counter-proposals or any serious concern about the state’s deeply entrenched environmental problems.

The tone was the same at a press conference Pence recently participated in — with an energy industry group, of course — in which he said, according to my colleague Maureen Groppe, “We do have a choice. You can refuse to submit a state plan.”

What a choice. Just do nothing. Sure, in a state that ranks near the bottom on all sorts of health and environmental measures, let’s just do nothing. Don’t even offer a plan that attempts to reduce emissions. Don’t get into a battle of ideas. Just say no. Hey, maybe all of that pollution will just blow over to Illinois. * * *

I understand that Pence isn’t going to be an environmental champion. But his words and actions suggest that on these issues he is living in a policy bubble free of diverse voices. That’s hurt him in other areas, and it’s not serving Indiana well on this one.

Yesterday in the NWI Times Dan Carden had a news story with a similar theme on a different topic. It begins:
Gov. Mike Pence is hinting that he believes Indiana's recent economic growth may eliminate the need for a new state law banning discrimination based on sexual orientation and gender identity.

Speaking to reporters last week following a bill-signing ceremony, the Republican seemed to suggest Indiana has suffered no long-term ill effects from the March-April "religious freedom" debacle that temporarily made Indiana synonymous with gay hate and prompted boycotts of state businesses and tourism sites.

As a result, further attempts to placate critics of Indiana's policies might not be necessary, he implied.

"I think our economy speaks for itself. Our economy is strong and growing stronger, and that's a testament to the resilience of the people of Indiana and to the great reputation our state enjoys," Pence said.

"We're going to move forward on the policies that are making that a reality, and we'll leave debates about the future for the future." * * *

When asked whether he views the need for an anti-discrimination law solely through an economic lens, the governor boasted that since he took office in 2013 more than 110,000 new jobs have been created, and Hoosier businesses this year already have promised to invest $3 billion in the state.

"I really do believe that we found a way through that difficult period last spring to calm the waters, and the facts speak for themselves: Indiana's economy is strong and growing stronger," Pence said.

"Hoosiers may be assured that I'm going to continue to advance the policies and the practices that are building on Indiana's story and telling Indiana's story."

Posted by Marcia Oddi on Monday, July 27, 2015
Posted to Environment | Indiana Government

Ind. Gov't. - New state law funding local jails requires counties to apply

Mike Grant of the Washington Times Herald reported this weekend (here via Indiana Economic Digest):

The state of Indiana is working out the details on a new law that will provide funding for jails and community corrections operations throughout the state and Daviess County Sheriff Jerry Harbstreit will be among those helping establish the guidelines for grants that will come from the new law.

During its last session the General Assembly passed House Bill 1006 that was also called the Criminal Justice Funding Law. The measure will offer millions of dollars to throughout the state for jails and community corrections programs to provide drug addiction and mental health programs for offenders.

"One thing the state did differently this time is they are requiring the counties to make applications for the money," said Harbstreit. "They are not sending money to each county and telling them to spend it wisely. They are requiring the counties to tell specifically what they are going to do."

The bill was supported by the Indiana Sheriffs' Association. Now, as President of the ISA, Harbstreit will be part of a key advisory committee that will work with the Indiana Department of Correction and the Indiana Division of Mental Health and addiction in establishing guidelines for grants and helping to determine what programs get funded.

"We are going to try and set it up right," said Harbstreit. "It should set things up so that the money gets used in the most productive way."

Many counties like Daviess are already operating drug addiction programs within their jail and community corrections operations. In Daviess County, it is called the RARE Program. That program was originally established under a grant, but when the funding ended the county continued to operate it with some local funding and a lot of volunteers.

"About one quarter of our general jail population is involved in the RARE Program," said Harbstreit. "We also have a lot of people taking part who are on home detention and in the work release program. This is all about getting these people to make good decisions and not wind up back in jail when they get out."

In Knox County, there is an interdiction program in the jail called Life After Meth, Harbstreit says Grant County in northern Indiana has a similar program.

"A lot of agencies like us are excited about this," said Harbstreit. "This could be the answer to our prayers. We may be able to get the money to the programs where it needs to be. We could hire more professionals to give these people what they really need."

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

Ind. Gov't. - "Deregulation of engineers draws fire"

That is the heading of Niki Kelly's comprehensive story this weekend in the Fort Wayne Journal Gazette on Indiana's moves to deregulate many professions. Some quotes from the long story:

Engineers, home inspectors, hearing aid dealers and auctioneers should no longer be licensed or regulated by the state, according to a committee reviewing the dozens of occupations the state oversees.

The Jobs Creation Committee has issued preliminary findings on 11 occupations but more public hearings are expected. And the Indiana General Assembly would have to vote to eliminate the licensing in the next session.

The engineering recommendation is getting the most attention so far.

“A century ago, anyone could work as an engineer without proof of competency. Now every state regulates the practice of engineering to ensure public safety by granting only (professional engineers) the authority to sign and seal engineering plans and offer their services to the public,” said Scott S. Haraburda, president of the Indiana Society of Professional Engineers.

“If the recommendations are implemented, Indiana will be the only state that fails to license and regulate its engineers, a dangerous risk that Hoosiers cannot afford to take.”

The legislature in recent years has sought to examine the possible deregulation of several occupations overseen by the Indiana Professional Licensing Agency.

Next comes some valuable history:
This is the third iteration of the committee, though the title and the members have changed several times.

First it was the Indiana Regulated Occupations Evaluation Committee in 2011, which recommended the elimination of several licenses. But in 2012 a swarm of cosmetologists and barbers blocked the move.

Then the legislature changed the committee to ERASER, which meant Eliminate, Reduce, and Streamline Employee Regulation Committee.

In 2014, the name of the committee was changed again to the Jobs Creation Committee but its task was the same – a five-year review of dozens of occupations and their licensing requirements.

Nicholas Goodwin, spokesman for the Indiana Professional Licensing Agency, said the newest committee released its first annual report this month.

The agency is an umbrella for 38 boards, commissions and committees, and regulates more than 70 professional licenses. In all, the agency regulates about 470,000 actively licensed professionals, meaning almost one in seven working Hoosiers are licensed by the agency. In looking at all of the agencies that regulate professions, 1 in 4 Hoosiers must be licensed to go to work every day.

Rep. Dave Wolkins, R-Warsaw, served on the original committee and remembers how hard it was to deregulate an occupation.

“It is an important discussion to have,” he said. “There are studies that show licensing is an impediment to jobs. They keep people out. But due to the pressure from the groups it’s very difficult to get anything done.”

He took heat from the cosmetologists and barbers for being involved in that effort. Wolkins said in general people in a profession feel it should remain licensed to protect their turf as well as the money and time they spent getting the license.

He doesn’t know specifically about the engineer recommendation but questioned why engineers would be deregulated but not architects.

“If you have an engineering degree why should the state be deciding if you are a competent engineer? I could understand and maybe even buy in but that will be hard to get through,” he said.

The story looks closely at the engineering deregulation issue, and then concludes:
The committee also voted to eliminate licensing for home inspectors, hearing aid dealers and auctioneers.

Here is what the minutes said on each of those items:

Home inspectors – “a consumer rarely chooses who their home inspector is or the company they work for as their real estate broker working on behalf of the consumer typically chooses the individual. Private sector and marketplace economic principles will weed out bad actors, and the government’s involvement in licensing these individuals is unnecessary.”

Hearing aid dealers - “Consumers seeking hearing aids are already under the care of a physician and licensing this practice was redundant. Only two hearing aid dealer licenses have been revoked since 2008 in Indiana so the JCC feels that the threat of consumer harm is minimal.”

Auctioneers – “The JCC felt this profession would be a good candidate for the self-certification registry.”

The ILB has a number of historical entries on the deregulation efforts. Here is a post from the first go-around, in 2012, headed "Ind. Law - "Hairdressers may have killed bill that would eliminate licensing," and a follow-up from the next day.

Then in 2013 the ILB had a number of posts on the new "ERASER" committee (Eliminate, Reduce, and Streamline Employee Regulation Committee), which replaced the "Regulated Occupations Evaluation Committee" (ROEC).

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

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

From Sunday, July 26, 2015:

From Saturday, July 25, 2015: From late Friday, July 24, 2015:

Posted by Marcia Oddi on Monday, July 27, 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 7/27/15):

Next week's oral arguments before the Supreme Court (week of 8/3/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/27/15):

Monday, July 27

Next week's oral arguments before the Court of Appeals (week of 8/3/15):

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, July 27, 2015
Posted to Upcoming Oral Arguments

Sunday, July 26, 2015

Ind. Gov't. - Reporter's "Reflections after 20 years under the Statehouse dome"

As reported in Indiana Legislative Insight July 13th:

Lesley Weidenbener, who as the executive editor of The StatehouseFile.com for Franklin College built what is effectively a statewide print news network, will join the Indianapolis Business Journal as managing editor.
Today Lesley had a long, "summing-up" column in the Louisville Courier-Journal. Here are some quotes:
Twenty years ago when I arrived at the Indiana Statehouse to begin covering the General Assembly, the beat was among the most respected in the newsroom.

Covering the legislature meant you were doing something that mattered – writing stories about taxes, highways, education and social issues, stories that helped people make decisions about their lives and at the polls. Editors and the public saw it that way too.

But over the decades – as I moved from covering state government for The Journal Gazette in Fort Wayne to The Courier-Journal in Louisville to TheStatehouseFile.com where I’ve been the editor – the position has diminished in stature inside and outside the media industry.

The public’s increasing distaste and skepticism for government and politics, a changing news business that focuses on the sensational, and elected officials who’ve been slow to eliminate perks their constituents loathe have contributed to the overall decline in the respect for even the reporters who cover the beat. * * *

Twenty years ago when I arrived at the Indiana Statehouse to begin covering the General Assembly, the beat was among the most respected in the newsroom.

Covering the legislature meant you were doing something that mattered – writing stories about taxes, highways, education and social issues, stories that helped people make decisions about their lives and at the polls. Editors and the public saw it that way too.

But over the decades – as I moved from covering state government for The Journal Gazette in Fort Wayne to The Courier-Journal in Louisville to TheStatehouseFile.com where I’ve been the editor – the position has diminished in stature inside and outside the media industry.

The public’s increasing distaste and skepticism for government and politics, a changing news business that focuses on the sensational, and elected officials who’ve been slow to eliminate perks their constituents loathe have contributed to the overall decline in the respect for even the reporters who cover the beat.

Lesley then goes on to talk about legislators, money, voter, and how most legislation is created by consensus, so that "few pieces of legislation make any one person truly happy." This really is a column you should read in full.

Re the importance of voter input, Lesley writes:

Few things are as influential with a lawmaker as contact from a constituent. Letters, emails, calls and visits mean more to most legislators than money. They represent votes and votes mean reelection.

The problem is that we voters just don’t pay attention to the vast majority of issues.

Lawmakers will get hundreds of contacts when they’re debating issues like annexation, guns, and gay rights. And they pay attention. In fact, sometimes a small group of voters can have out-sized influence because they’re so squeaky.

But in the absence of constituent input, lawmakers are left to their own deductions – and the influence that comes from special interests. Bills about esoteric changes in insurance law or utility regulation don’t generate the voter input are the ones most likely influence by big money.

ILB: The result for the public can be the "legislative surprises" that turn up months after each session has concluded. Sometimes, as with this report July 16th by another long-time statehouse reporter, even the lawmakers are taken by surprise.

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

Ind. Decisions - Recent SD Ind. Decision Denies Motorist Right To Stop In Safe Location

The subheading to this story at TheNewspaper.com is: "Federal judge rules that waiting to pull over in a safe, well-lit location is equivalent to resisting arrest." The story also links to the July 10, 2015 opinion, U.S. v. McPaul, by Judge Tanya Walton Pratt.

Posted by Marcia Oddi on Sunday, July 26, 2015
Posted to Indiana Decisions

Friday, July 24, 2015

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

In Katherine Cerajeski v. Greg Zoeller (SD Ind., Magnus-Stinson), a 6-page opinion, Judge Posner writes:

This appeal is a sequel to our decision reported at 735 F.3d 577 (7th Cir. 2013), in which we held unconstitutional a provision of the Indiana Unclaimed Property Act, Ind. Code §§ 32-34-1-1 et seq. (Indiana’s version of the Uniform Unclaimed Property Act) that authorized the state to confiscate private property without any compensation—let alone just compensation—to the owner. [ILB: See ILB summary of the 2013 opinion.] * * *

So the case returned to the district court. Several months later the state, having in response to our decision amended its Unclaimed Property Act to provide for payment of inter-est on property to which the owner had made a valid claim, Ind. Code §§ 32-34-1-9.1, 32-34-1-30 (effective July 1, 2014), moved to dismiss the suit as moot. The plaintiff, objecting, asked the district court, pursuant to our judgment, to enter a declaratory judgment and also to award the attorneys’ fees incurred in prosecuting the appeal that had resulted in our judgment. (The plaintiff is not seeking an award of fees for any other part of the litigation in either the district court or this court.) The district judge refused, dismissed the suit as moot, and later denied the motion for attorneys’ fees primarily on the ground that, the suit having been dismissed, the plaintiff was not a prevailing party. The plaintiff has appealed.

The district judge was annoyed at the plaintiff because on remand from our court she’d asked permission to file an amended complaint that would have converted the suit to a class action. She did that because of intimations that the state would, despite our decision, compensate only the plaintiff, forcing the multitude of similarly situated creditors to bring their own suits. But she withdrew that request (as distinct from her request for an award of attorneys’ fees) when the state amended the Unclaimed Property Act. For the amendment mooted her federal claim for damages by entitling her to payment by the state of the interest that she had sought in her lawsuit.

By amending the statute the state conceded that it owed the interest to the plaintiff. But its concession could not deprive the plaintiff of her status as the prevailing party in the litigation. Our decision had preceded the amendment of the statute and by holding that she was entitled to damages equal to the unpaid interest had made her the prevailing party. See National Rifle Association of America, Inc. v. City of Chicago, 646 F.3d 992, 994 (7th Cir. 2011). She would not have been the prevailing party had the state, as in Zessar v. Keith, 536 F.3d 788, 797 (7th Cir. 2008), amended its law before our decision—that would have mooted the case and we would have had to dismiss it for want of jurisdiction, thus not deciding the merits and not ordering any relief. * * *

Even if our holding in the previous round that the plaintiff was entitled to just compensation in a suit under section 1983 (or perhaps in any federal suit) was incorrect and the challenge to it not waived by not being made in our court, the plaintiff nevertheless had obtained a judgment which compelled a change in state law that gave her compensation equal to the damages she was seeking, and it was a result brought about by the efforts of her lawyers. * * *

We therefore reverse the judgment of the district court and remand the case for a determination of the amount of attorneys’ fees to which the plaintiff is entitled. We offer the tentative view that the amount sought—$258,462.50 for 375.75 hours—is excessive, both in the amount of time for which fees are sought and in the average hourly billing rate ($687.86). Remember that this was just time spent on the appeal (the first, not the present, appeal), and the high average billing rate implies that few junior members of the two law firms who handled the appeal for the plaintiff could have been assigned to work on the appeal. In fact it appears that law-firm partners billed more than 93 percent of the total hours billed.

The plaintiff asks us to determine the amount of attorneys’ fees to which she is entitled, but we think it a task better left to the district court.

ILB: A look at the docket shows that Ms. Cerajeski's attorneys' firms are located in Chicago.

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

Law - "In Helping Those With Disabilities, ADA Improves Access For All"

I heard this 7-minute feature early today on NPR's Morning Edition; here is the audio, plus transcript with many photos. It is well-worth reading; the listeners'comments are also interesting.

Posted by Marcia Oddi on Friday, July 24, 2015
Posted to General Law Related

Ind. Decisions - Why is this decision today categorized as NFP?

Today's NFP decision in Kenneth Eugene Million v. Sheriff of Johnson County, Indiana; Indiana Department of Correction; Indiana State Police; and State of Indiana (mem. dec.), re sex offender registration, among the cases summarized earlier today, raises the ILB's "Why is this case NFP" question.

BTW, the ILB does not often summarize NFP cases, as decisions so designated by the panel deciding them are of no substantive value (per Appellate Rule 65(A)), but I looked though today's and found several decisions of at least academic interest.

Posted by Marcia Oddi on Friday, July 24, 2015
Posted to Why is this NFP?

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

For publication opinions today (1):

In Antyon Buford v. State of Indiana , an 11-page opinion, Judge May writes:

Antyon Buford appeals his convictions of Class A felony dealing cocaine, Class B felony unlawful possession of a firearm by a serious violent felon, and Class D felony maintaining a common nuisance. As the warrant on which the search of his residence was premised was not supported by probable cause, we reverse and remand. * * *

Buford argues the evidence obtained pursuant to the search warrant should have been suppressed because the affidavit the police offered in obtaining the warrant included uncorroborated hearsay and false or misleading statements. As the probable cause affidavit included hearsay information that was not corroborated by the totality of the circumstances, the warrant should not have been issued. * * *

In the case before us, the totality of the circumstances did not corroborate a hearsay statement that there was “dealing” of drugs from Buford’s residence or that “a search at that address would yield fruits of the crime” of dealing. Id. We must accordingly reverse and remand for further proceedings.

NFP civil decisions today (6):

In the Matter of the Adoption of: A.E.G.; A.G. v. E.R.J., and K.M.J. (mem. dec.)

In Charles Bradley Nixon v. JNJ Foods, LLC d/b/a McDonald's (mem. dec.), a 12-page, 2-1 opinion, Judge Baker writes:

Charles Bradley Nixon appeals the trial court’s grant of summary judgment in favor of JNJ Foods, LLC d/b/a McDonald’s (JNJ) on Nixon’s complaint for damages for injuries suffered after biting into food that allegedly contained a foreign object. Finding that there are genuine issues of material fact rendering summary judgment improper, we reverse and remand for further proceedings.
In In Re the Marriage of: David P. Allen v. Kimberly W. Allen (mem. dec.), an 8-page opinion, Judge Bailey writes:
David P. Allen (“Father”) appeals an order that he pay 100% of dental school tuition for Hunter Allen (“Hunter”), his youngest child with Kimberly W. Allen (“Mother”). * * * We reverse and remand for a college expenses order appropriately apportioning the costs between Hunter, her father, and her mother.
In Re the Marriage of John Lane v. Leisa Lane (mem. dec.)

Diane Lane, Darrell Lane v. Danny English (mem. dec.) -THIS LINK is wrong.

In Kenneth Eugene Million v. Sheriff of Johnson County, Indiana; Indiana Department of Correction; Indiana State Police; and State of Indiana (mem. dec.), a 7-page opinion, Judge May writes:

Keith Eugene Million appeals the denial of his request to be released from the requirement that he register as a sex offender in Indiana. We reverse. * * *

“Substantially Similar” Clause

Million argues he should not have to register under the “substantially similar” clause because the facts in his case are like those in Wallace v. State * * *

Million committed his crime in 1989, before Indiana enacted INSORA in 1994. Therefore, like in Burton and Hough, the imposition of a requirement that he register as a sex offender in Indiana violates our constitutional prohibitions against ex post facto laws.

Required to Register in Another Jurisdiction

Under Ind. Code § 11-8-8-19(f), an Indiana resident who is “required to register as a sex or violent offender in any jurisdiction” is required to register as a sex offender in Indiana for the time required by the other jurisdiction or the time required by INSORA, “whichever is longer.” Id. Million was not required to register as a sex offender in Florida. Therefore, he is not required to register as a sex offender in Indiana under Ind. Code § 11-8-8-19(f). See Andrews v. State, 978 N.E.2d 494 (Ind. Ct. App. 2012) (Andrews, who was convicted of multiple sex offenses in Massachusetts in 1984, was not required to register as a sex offender after moving to Indiana because he was not required to register as a sex offender under Massachusetts law).[5]
______
[5] The State relies on our recent holding in Tyson v. State, 28 N.E.3d 1074 (Ind. Ct. App. 2015), reh’g denied, however, Tyson is easily distinguishable. Tyson committed a sexual offense in Texas in 2002. Under Texas law, Tyson was required to register as a sex offender until 2014. When Tyson moved to Indiana in 2009, he did not register as a sex offender and was charged with Class D felony failure to register. Tyson moved to dismiss, and we affirmed based on the plain language of Ind. Code § 11-8-8-19(f). As Million had no requirement to register in Florida, Tyson is inapposite.

NFP criminal decisions today (4):

Anthony Levell Gregory, II v. State of Indiana (mem. dec.)

Walter L. Robertson v. State of Indiana (mem. dec.)

Manuel Guzman v. State of Indiana (mem. dec.)

Marcus Stidhum v. State of Indiana (mem. dec.)

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

Ind. Courts - Supreme Court posts additional e-filing amendments

Here is the order issued today,further amending Trial Rule 86, and concluding with this scheduling information for courts in which e-filing has been deployed:

We further find that our technology team, the EFM provider, and partner trial courts are, or are expected to become, ready to begin electronic filing in courts designated by the E-Filing Steering Committee as pilot courts. Accordingly, we find that Trial Rule 86 should become effective in the pilot E-Filing courts and in courts in which the Steering Committee subsequently deploys E-Filing, in accordance with a schedule to be established as ordered below. For courts in which E-Filing has not been deployed, all existing Rules of Court regarding filing and service shall remain in effect.

IT IS, THEREFORE, ORDERED that the Division of State Court Administration, with the approval of the E-Filing Steering Committee, shall establish and publish an E-Filing Implementation Schedule. This E-Filing Implementation Schedule shall be published in a prominent location on the website of the Supreme Court at http://courts.in.gov/efile. The Schedule shall state when and for which case types (as defined in Administrative Rule 8) T.R. 86 will be effective in the designated pilot courts and also when and in what courts E-Filing will become mandatory. The Division shall update the schedule periodically as directed by the Steering Committee.

Posted by Marcia Oddi on Friday, July 24, 2015
Posted to E-filing | Indiana Courts

Ind. Gov't. - Are custom home building plans "trade secrets" under the public records law?

In an interesting Public Access Counselor opinion from July 21st, 15-INF-15, re "Confidentiality of Building Plans, Town of Long Beach, Indiana," an informal opinion is sought by a town employee. Some quotes:

You requested an informal opinion on an Access to Public Access question regarding a person who requested “any and all information” on three new homes being built in the Town of Long Beach, Indiana (“Town”). These records are received and maintained by the Town for the purposes of issuing permits, etc. You expressed concern about providing information about the inside of the homes and asked for an informal opinion about how to approach the issue.

To aid in the determination, you provide several facts.

1. That these homes are intended to be custom-made and that the drawings have been copyrighted by the contractor.
2. Included in these drawings are locations of security systems, safes, electrical equipment, etc.
3. The contractor views the drawings as trade secrets

Ind. Code §5-14-3-4 does not make an exception of the release of public records with technical information which would compromise residential security systems. Similarly, records which include information concerning electrical equipment are not exempt, unless it would compromise the utility’s electrical infrastructure.

However, Ind. Code §5-14-3-4(a)(4) does exempt records that are considered trade secrets. A similar consideration was made in a previous Opinion of the Public Access Counselor 13-FC-49, which is incorporated into this opinion. * * *

In this situation, it does appear the plans could be considered trade secrets. Indiana courts have afforded trade secret status to documents that included customer blueprints. See Infinity Products, Inc. v. Quandt, 810 N.E.2d 1028, 1032 (Ind. 2004), trans. Denied.

Ind. Code 5-14-3-4(a) states that an agency may not disclose records declared confidential by state statute or required to be kept confidential by federal law unless access to those records is specifically required by a state or federal statute or is ordered by a court under the rules of discovery. Under this exemption, copyrighted plans are generally non-discloseable under the APRA. However, it should be noted that a public entity cannot copyright a document to prevent disclosure.

After several conversations with the requestor (see also Opinion of the Public Access Counselor 15-FC-197), I have determined the information he is seeking is information which would not be considered a trade secret, i.e. the exterior of the home, elevation, lot size, etc. Only the interior plans of the home would be considered to fall into an exception to disclosure. My anticipation and hope is that the requestor will be satisfied with the exterior plans, as that is the subject of his curiosity. The exterior plans, drawings and elevations should be released to him as soon as possible.

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

Ind. Law - Indiana Tech Law School giving "100-percent scholarships to every single student enrolled there next year"

On June 10th the ILB reported that Indiana's newest law school, Indiana Tech, had not been granted provisional accreditation by the American Bar Association. The school said it would "reapply for accreditation later this summer, with the hope of receiving a vote by the Council in 2016."

As Linda Lipp of KPCNews reported last week in a lengthy story, the school is now reapplying:

The founding dean, Peter Alexander, left abruptly at the end of the law school’s first academic year in 2014. An interim dean served in that position until [Charles] Cercone came on board in January.

The school’s enrollment the first two years did not live up to expectations. It had hoped for 100 the first year, and enrolled 25. The second year was a little better, but the school ended the year with just 57 first- and second-year students.

Because of the uncertainty over the accreditation status, some of those students may well transfer elsewhere, Cercone acknowledged. It also has put a damper on recruitment.

“Obviously, in the posture we’re in this year, I don’t expect that to improve,” he said. “We would like to have 20 students in the incoming class, and that’s what we’re shooting for.”

As an added enticement, the university is giving 100-percent scholarships to every single student enrolled there next year.

“It shows the university’s and the board of trustees’ support for the law school and their belief in the law school, and we hope that’s going to incentivize students to stay,” Cercone said.

The legal community in and around Fort Wayne also has been very supportive, among other things, by helping provide externships for students who wanted them.

Indiana Tech’s law school curriculum is very hands on in its approach.

“Traditionally, law schools kind of take education in silos. You learn theory for like the first two years and then you may do some real life stuff in the third year. And that separation between theory and really doing it puts a disconnect in the students’ heads,” he said.

Indiana Tech’s courses, on the other hand, teach theory about something, such as contracts, and then go straight into the application of that theory by having the students write contracts.

“That reinforces the theory. Our students learn by doing,” Cercone said.

Cercone came to Indiana Tech from Western Michigan University’s Thomas M. Cooley Law School, where he had been dean since 2003. He has since brought in some of his former coworkers to work at Indiana Tech.

See also this story from the WSJ Law Blog, headed "Law School Promises Free Tuition to All of its Students*," that begins:
A law school in Indiana is offering students an unbeatable price — a year of law school tuition free.

Indiana Tech Law School in Fort Wayne, which opened its doors two years ago, is waiving the more than $30,000 it normally charges tuition and fees, promising a full one-year scholarship to any student who enrolls this fall.

Students have to cover room and board but the rest is on the house. To stay eligible, they don’t even have to maintain high grades, as long as they stay in good academic standing, according to its dean.

There is a catch, though.

*Graduates of the school may not be able to take the bar exam and become a practicing lawyer.

The American Bar Association last month refused to grant Indiana Tech provisional accreditation for reasons neither the school nor the ABA will disclose. That means at least until next spring, enrolled students will be stuck in law school purgatory.

Most states, including Indiana, don’t let students take the bar exam unless they graduated from a law school accredited by the American Bar Association.

Posted by Marcia Oddi on Friday, July 24, 2015
Posted to Indiana Law

Thursday, July 23, 2015

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

In USA v. Emanuel Newman (ND Ind., Miller), a 5-page opinion, Judge Easterbrook writes:

More than 20 years ago, Emanuel Newman was sentenced to 540 months’ imprisonment for drug offenses, which included distributing between 40 and 50 kilograms of cocaine. See United States v. Newman, No. 91-3192 (7th Cir. Oct. 5, 1993) (unpublished order affirming his conviction and sentence). Congress and the Sentencing Commission have several times reduced permissible sentences for sellers of crack cocaine, but until recently none of these changes affected persons who distributed powder cocaine. Amendment 782 to the Sentencing Guidelines, however, effects an across-the-board reduction of two offense levels in the drug-quantity table at U.S.S.G. §2D1.1. Because the Sentencing Commission made that change retroactive, 18 U.S.C. §3582(c)(2) allows district judges to reduce the sentences of persons already in prison (though Amendment 782 provides that reductions under its terms cannot permit anyone to be released before November 1, 2015). * * *

The United States has confessed error, and for the reasons we have given we agree with its conclusion that the district court lacked the authority to increase Newman’s sentence by an order entered more than 14 days after December 30, 2014.

The district court’s decision of January 29, 2015, is vacat-ed, and the case is remanded with instructions to reinstate a set of terms that in aggregate cannot exceed 348 months.

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

Law - "Sandra Bland and the 'lawful order' problem"

An interesting article by Prof. Orin Kerr of the Volokh Conspiracy - the issue:

The Bland video brings up an overlooked problem with the law of police-citizen encounters. The police can back up their orders with force because it’s often a crime to disobey a lawful order from a police officer. But from a citizen’s perspective, it’s often impossible to know what is a lawful order. As a result, it’s often impossible for citizens to know what they can and can’t do during a police encounter.

Posted by Marcia Oddi on Thursday, July 23, 2015
Posted to General Law Related

Ind. Gov't. - Commission on Improving the Status of Children releases annual report

The news release this morning begins:

The annual report for the Commission on Improving the Status of Children in Indiana is now available online. The 35-page report is a window into the collaborative work being done across all three branches of Indiana government to improve the lives of Hoosier children--especially the most vulnerable. The report was developed by the 18-member Commission.

The report concentrates on access to and availability of mental health and substance abuse services; information sharing; promoting best practices, policies and programs; and obtaining information from agencies and experts.

Posted by Marcia Oddi on Thursday, July 23, 2015
Posted to Indiana Government

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

For publication opinions today (1):

In Shawn Wilson v. State of Indiana, a 25-page opinion, Chief Judge Vaidik writes:

Daniel Jaffke was working as a pizza-delivery driver when he was shot to death and his black Jeep was stolen from an apartment complex on the south side of Indianapolis. Jaffke’s Jeep was soon discovered in a laundromat parking lot located very near Shawn Wilson’s stepmother’s house, where Wilson appeared the night of Jaffke’s murder saying that he had just shot a man on the south side and had used the handgun that was—at that point—sticking out of his waistband. One of Wilson’s fingerprints was found inside Jaffke’s Jeep. Wilson was charged with murder; felony murder; robbery as a Class A felony; and carrying a handgun without a license, a Class A misdemeanor enhanced to a Class C felony due to a prior conviction. The State also sought a sentencing enhancement for use of a firearm in the commission of the offense. A jury found Wilson guilty of all charges. At sentencing, the trial court merged felony murder into murder, and reduced the robbery from a Class A felony to a Class C felony to avoid double-jeopardy concerns. The trial court also imposed the five-year use-of-a-firearm sentencing enhancement, for a total sentence of sixty-five years to be executed in the Indiana Department of Correction.

Wilson now appeals his convictions and sentence, contending first that the trial court abused its discretion in preventing Wilson from cross-examining a witness on prior inconsistent statements he had made during a deposition. Specifically, Wilson argues that the witness’s deposition testimony that he had been arrested once before when, in fact, he had been arrested four times should have been admitted under Indiana Evidence Rules 607, 616, and 608(b).

We find that these rules do not support the admission of the witness’s prior inconsistent statements. Wilson also contends that several statements made by another witness during her deposition—that she had heard someone say that he and Wilson had committed the offense; and had heard another person say that she had been asked to dispose of the weapon and had done so—should have been admitted as hearsay-exception “statements against penal interests” under Indiana Evidence Rule 804, but for the trial court’s determination that Wilson had not shown those individuals were “unavailable” as required by that rule.

We agree that Wilson did not make the requisite showing of unavailability and the hearsay statements were, therefore, inadmissible. Wilson additionally argues that the evidence is insufficient to sustain his convictions. Finally, Wilson challenges several aspects of his sentence. Finding no error, we affirm Wilson’s convictions and sentence.

NFP civil decisions today (0):

NFP criminal decisions today (2):

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

George McDade v. State of Indiana (mem. dec.)

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

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

In USA v. Joseph B. Miller (ND Ind., Moody), a 19-page opinion, Judge Flaum writes:

In 2013, a federal jury found Joseph Miller guilty of bank robbery. Miller now seeks a new trial, which he believes is warranted for two reasons: first, Miller contends that an FBI agent offered false testimony during his trial, and second, he argues that his trial counsel provided constitutionally ineffective assistance by failing both to seek suppression of an in-court identification and to challenge the credibility of the testifying FBI agent via cross-examination on certain specified issues. Because we conclude that neither the agent’s alleged misstatements nor counsel’s purported errors affected the outcome of Miller’s trial, we affirm the district court’s denial of his new trial motion.

________
[5] We note that because Miller brought his ineffective assistance of coun-sel claim on direct appeal, he will be barred from collaterally attacking his conviction on these same grounds. See Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005) (“[A] defendant who chooses to make an ineffective-assistance argument on direct appeal cannot present it again on collateral review.”).

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

Wednesday, July 22, 2015

Courts - More on: Ongoing Kentucky federal court trial of clerk who refused to issue same-sex marriage licenses [Updated]

Updating yesterday's long ILB post, David Wells of the Courthouse News Service is reporting that a somewhat similar lawsuit has been filed in Indiana federal court by a Harrison County Clerk's office employee, Linda Summers, against Harrison County and County Clerk Sally Whitis, for failure to provide "a religious accommodation to be exempt from processing same-sex marriage licenses, which Summers says is against her Christian beliefs."

In Kentucky, therefore, it is the ACLU suing a county clerk for refusal to issue licenses, as opposed to a clerk's employee in Indiana reportedly suing an Indiana county for being required to issue licenses, despite her request for religious accommodation.

The ILB will attempt to obtain copies of these lawsuits.

[Updated]

Here is the 8-page complaint in the SD IND. case of Summers v. Whitis, filed 7/15/15.

Here is the 15-page complaint in the ED KY case of Miller, et al v. Davis, filed 7/2/15.

[Updated 7/24/15] Here is an Indianapolis Star story from last evening, headed "Indiana woman who refused to process same-sex marriage applications files lawsuit," reported by Kristine Guerra. Some quotes:

Linda Summers, a former Harrison Superior Court Clerk’s Office employee, filed the lawsuit last week against Harrison County and County Clerk Sally Whitis in the U.S. District Court for the Southern District of Indiana in New Albany. The suit, which is filed in federal court, is not an invocation of the state’s new Religious Freedom Restoration Act or RFRA.

According to the complaint, Summers wrote and hand-delivered a letter to Whitis, telling her that processing licenses for gay couples is against her sincerely held religious beliefs against same-sex marriage, and asking that she not be required to do so.

Summers was fired on Dec. 9, shortly after she gave her letter to Whitis, who accused her of insubordination. She accused her former employer of unlawful employment practice and alleged that her termination is against the county policy of not discriminating against anyone based on “race, religion, color, sex, age, national origin, disability, military status, or any other classification under applicable law,” according to the complaint.

Whitis had sent a mass email to employees telling them they are required by state law to process applications for marriage licenses by same-sex couples even though it may be against their personal beliefs. The email was sent last October, a few days after the U.S. Supreme Court denied petitions to hear same-sex marriage in five states, including Indiana. The decision allowed lower-court rulings legalizing same-sex marriage to stay in place.

Louisville lawyer Richard Masters, who is representing Summers, said the lawsuit is “just a generic First Amendment free exercise case” and his client had the protected right to exercise her religious beliefs that go against same-sex marriage. He also said there are other employees at the clerk’s office who were willing to process same-sex marriage licenses.

Masters said he has not looked at the possible application of the federal RFRA law to the case.

“I’m not going to tell you it wouldn’t apply at all,” said Masters, of Masters, Mullins & Arrington. “What I’m saying is I think the First Amendment speaks for itself ... with or without RFRA.”

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

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

For publication opinions today (2):

In Thomas Bunger as Personal Representative of the Estate of Kenneth K. Kinney, and Cheryl Underwood v. Sheree Demming , a 26-page opinion, Judge May writes:

Cheryl Underwood, a real estate broker, and the estate of her business partner Kenneth Kinney appeal a judgment for Sheree Demming. * * *

The trial court’s determinations Underwood was Demming’s agent, that Kinney and Underwood were partners in the purchase of the Properties, and Underwood breached her duty to Demming were not clearly erroneous. The trial court did not abuse its discretion in calculating damages, awarding attorney fees, or denying Kinney’s motion for judgment on the pleadings. However, it should not have awarded prejudgment interest. We accordingly affirm in part, reverse in part, and remand for recalculation of the damage award to reflect the removal of prejudgment interest.

In Abdullatip Osmanov v. State of Indiana, a 12-page opinion, Judge Pyle writes:
Abdullatip Osmanov (“Osmanov”), a United States permanent resident who pled guilty to a felony and a misdemeanor, filed a petition for post-conviction relief, in which he claimed that his plea was entered unknowingly and that his trial counsel was ineffective, with both claims dependent on his contention that he had not been advised of the risk of deportation. Before the State filed a response to the petition, the post-conviction court—relying on a written advisement and waiver of rights form and the transcript from Osmanov’s guilty plea—summarily denied Osmanov’s post-conviction petition because the advisement/waiver form contained an advisement that a felony conviction could result in the possibility of deportation and because Osmanov stated during the guilty plea hearing that he had read the advisement and discussed it with his attorney. On appeal, Osmanov challenges both the propriety of the post-conviction court’s entry of a summary denial and the denial of his two post-conviction claims. We find Osmanov’s issue regarding the summary disposition to be dispositive and conclude that the post-conviction court erred by summarily denying Osmanov’s post-conviction petition. Accordingly, we reverse the post-conviction court’s judgment and remand for further proceedings. * * *

Osmanov’s petition—when reviewed without considering documents outside the pleadings—pled facts that raised issues of possible merit. Thus, the post-conviction court erred by summarily denying relief on his post-conviction petition under Post–Conviction Rule 1(4)(f). Accordingly, we must reverse the post-conviction court’s summary denial and remand for further proceedings on his ineffective assistance of counsel and unknowing guilty plea claims.

NFP civil decisions today (3):

Hameck Oil Company, Ltd., TWE Management, LLC, Eckard Global, LLC, and Troy W. Eckard v. J Group Energy I, LLC and Bakken Oil & Gas Management, Inc., and HOC Bakken Legacy I, LLC (mem. dec.)

Property-Owners Insurance Company v. Gerald T. Powers and Phyllis J. Powers, et. al. (mem. dec.)

In re the Matter of the Paternity of L.J.E.L., K.J.D.L. v. L.J.B. (mem. dec.)

NFP criminal decisions today (5):

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

Evelyn Butcher v. State of Indiana (mem. dec.)

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

Earl Edwards v. State of Indiana (mem. dec.)

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

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

Ind. Gov't. - "Carter eyes return as Indiana attorney general"

Interesting story last evening from Dan Carden of the NWI Times reported:

INDIANAPOLIS | Former two-term Attorney General Steve Carter, who grew up in Lowell, is talking with Hoosier Republicans about reclaiming his old office in 2016 now that the incumbent, Greg Zoeller, is running for Congress.

In an email message sent Monday night to potential GOP supporters, Carter said he plans to travel the state over the next few weeks gauging support for a sequel to his 2001-08 service as lawyer for the state.

"Should I decide to seek the office again, my sole focus will be on becoming the best attorney general I can be, fully committed to that office and the people of Indiana," Carter said.

Carter declared in his message that the achievements of his first stint as attorney general — cracking down on telemarketers, ending gas price gouging, taking on public corruption in East Chicago and defending the state's voter ID law and legislative prayer — show he successfully can handle the duties of the job. * * *

Carter may have an advantage over potential rivals since he never disbanded his campaign account after leaving office to work in the private sector and has nearly $100,000 cash on hand.

ILB: The ILB had a long Oct. 31, 2013 post on former AG Carter's role in the tobacco settlements.

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

Ind. Decisions - More on: Ruling [3/30/15] by Federal Judge Sarah Evans Barker means three Dearborn Co. judges may face jury trial

Updating this ILB post from March 31st, which included a copy of Judge Barker's 3/30/15 45-page opinion, Daniel Suddeath of the New Albany News & Tribune reported Tuesday:

NEW ALBANY — The state will pay $124,500 to end a lawsuit brought by a man who wasn’t provided with a sign language interpreter during his mother’s criminal hearings in 2010 and 2011.

In March, the U.S. District Court Southern District of Indiana in New Albany found in favor of Steven Prakel after he claimed courts and judges in Dearborn County failed to hire an interpreter during his mother’s hearings related to operating a vehicle while intoxicated and driving on a suspended license charges.

Prakel, who is deaf, requested an interpreter, but had to eventually hire his own after the courts denied his petition. Attorneys for Prakel, including New Albany lawyer Matthew Lorch and the firm Stein & Vargas, argued the Dearborn courts and judges violated the Americans with Disabilities Act by failing to provide an interpreter for Prakel.

The defendants had argued Prakel’s mother, Carolyn Prakel, suffered “no cognizable injury as a result of her son’s failure to receive interpreter services” according to the lawsuit.

The settlement includes attorney fees and costs. The parties settled the case with no admission of liability by the judges.

According to the order filed June 22, 2015:
The parties entered into settlement negotiations and were able to resolve the matter in principle, subject to approval by the Governor.

Posted by Marcia Oddi on Wednesday, July 22, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "State recommends local public hearing on pavilion alcohol license"

As mentioned near the end of this ILB post from Monday: "Pavilion Partners has applied for a liquor license, which will be considered by the state's Alcohol and Tobacco Commission on Tuesday in Indianapolis."

Late yesterday Dan Carden of the NWI Times reported in a long on the meeting:

INDIANAPOLIS | Supporters and opponents of a proposal to sell alcohol at a restored pavilion in Indiana Dunes State Park may get another chance to have their say.

The Indiana Alcohol and Tobacco Commission voted 4-0 on Tuesday to send the alcohol license application for Pavilion Partners LLC back to the Porter County Alcoholic Beverage Board for a second public hearing and board recommendation.

The local board deadlocked 2-2 following a June 11 public hearing where board members expressed frustration with the limited information they were provided and that only three residents commented on the proposal during the weekday morning meeting.

David Cook, chairman of the state alcohol licensing commission, said he's since received 264 letters and emails opposing the plan — many bemoaning the limited public notice and participation at the Porter County Board. * * *

Specifically, she said the application ownership listing differed from the company's pavilion lease with the Department of Natural Resources, a food sales estimate was tallied incorrectly and boxes required to be initialed were left blank.

She added that letters of opposition she's received also questioned the need for alcohol at the pavilion and the reputation of Charles Williams, primary owner of Pavilion Partners.

Cook said he plans to send a letter to the Porter County alcohol board urging it hold another public hearing on a corrected alcohol license application at a convenient time for maximum community participation.

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

Ind. Decisions - 7th Circuit decides a second Indiana case yesterday

In USA v. Michael McClellan (ND Ind., Simon), a 24-page opinion, Judge Ripple writes:

After a jury trial, Michael McClellan was found guilty of one count of harboring an illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii); three counts of mail fraud, in violation of 18 U.S.C. § 1341; and one count of engaging in a monetary transaction involving criminally derived property, in violation of 18 U.S.C. § 1957. Because we believe that the evidence presented to the jury was a suffi cient basis on which to rest its verdicts, and because we believe that the jury instructions on the harboring count did not constitute plain error, we affirm the judgment of the district court.

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

Tuesday, July 21, 2015

Ind. Courts - "The 7th Circuit just made it a lot easier to sue over data breaches"

Alison Frankel has just posted a long "On the Case" Reuters story on yesterday's 7th Circuit opinion in Hilary Remijas v. Neiman Marcus Group, LLC. A quote:

On Monday, a 7th Circuit panel reinstated a data breach class action against the retailer Neiman Marcus, holding that the theft of customers’ financial information was enough to satisfy constitutional standing requirements, even after Clapper.

“The Neiman Marcus customers should not have to wait until hackers commit identity theft or credit-card fraud in order to give the class standing, because there is an ‘objectively reasonable likelihood’ that such an injury will occur,” wrote Chief Judge Diane Wood for a panel that also included Judges Michael Kanne and John Tinder.

This is a really consequential decision. It’s the first time a federal appeals court has looked at a data breach class action that was dismissed because the trial judge said it fell short of Clapper standing requirements. The 7th Circuit said flatly that Clapper “does not, as the district court thought, foreclose any use whatsoever of future injuries to support Article III standing.” Sometimes, the opinion said – quoting a footnote from the Clapper opinion – standing can be established when there is a “substantial risk” of harm and plaintiffs “reasonably incur costs to mitigate or avoid that harm.”

According to the 7th Circuit, Neiman Marcus customers have standing to sue because are at substantial risk of fraudulent charges or identity theft. “Why else would hackers break into a store’s database and steal consumers’ private information?” the opinion said.

Posted by Marcia Oddi on Tuesday, July 21, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides Blagojevich appeal

This brief early story from the Chicago Tribune, by Jason Meosner, on the just released 7th Circuit opinion in US v. Blagojevich begins:

In a long-awaited ruling, a federal appeals court in Chicago on Tuesday threw out five of 18 counts against convicted former Gov. Rod Blagojevich, vacated his 14-year sentence and ordered him retried on the five counts.

While finding five of the counts invalid on technical grounds, the 7th Circuit U.S. Court of Appeals called the evidence against Blagojevich “overwhelming” and made clear that the former governor was not entitled to be released from prison in the meantime.

“It is not possible to call the 168 months unlawfully high for Blagojevich’s crimes, but the district judge should consider on remand whether it is the most appropriate sentence,” Judge Frank Easterbrook wrote in the unanimous opinion

This paragraph from page 5 of the 23-page opinion caught the ILB's eye:
But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich’s proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. A jury could have found that Blagojevich asked the President-­elect for a private-­sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment. [ILB emphasis]
The references to logrolling continue, including at p. 6-7:
A proposal to appoint a particular person to one office (say, the Cabinet) in exchange for someone else’s promise to appoint a different person to a different office (say, the Sen ate), is a common exercise in logrolling. We asked the prose cutor at oral argument if, before this case, logrolling had been the basis of a criminal conviction in the history of the United States. Counsel was unaware of any earlier conviction for an exchange of political favors. Our own research did not turn one up. It would be more than a little surprising to Members of Congress if the judiciary found in the Hobbs Act, or the mail fraud statute, a rule making everyday politics criminal.
And (skipping a couple, at p. 11:
Put to one side for a moment the fact that a position in the Cabinet carries a salary. Suppose that Blagojevich had asked, instead, that Sen. Obama commit himself to supporting a program to build new bridges and highways in Illinois as soon as he became President. Many politicians believe that public-­works projects promote their re-election. If the prosecutor is right that a public job counts as a private bene fit, then the benefit to a politician from improved chances of election to a paying job such as Governor—or a better pro spect of a lucrative career as a lobbyist after leaving office— also would be a private benefit, and we would be back to the proposition that all logrolling is criminal. Even a politician who asks another politician for favors only because he sin cerely believes that these favors assist his constituents could be condemned as a felon, because grateful constituents make their gratitude known by votes or post-­office employment.
The Tribune also has a valuable online respository of legal documents and admitted evidence for the Blagojevich trial.

Posted by Marcia Oddi on Tuesday, July 21, 2015
Posted to Ind. (7th Cir.) Decisions

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

In CHARLES S. HOWLETT v. JEFFREY HACK, et al. (SD Ind., Pratt), a 12-page opinion, Chief Judge Wood writes:

In the early hours of October 25, 2009, the Indianapolis Metropolitan Police Department received a 911 call reporting that someone had broken into Jeffrey Hack’s house. Officer Steven Beasley responded to the call and eventually arrested Hack’s neighbor, Charles Howlett. Howlett was later charged with a variety of offenses related to the alleged break‐in, but a jury ultimately acquitted him. He then filed this suit, alleging false arrest and malicious prosecution on the part of Beasley, the City of Indianapolis, Hack, and several others. The district court granted summary judgment to all of the defendants. Howlett now appeals, though only with respect to Beasley, the City, and Hack. We affirm the district court’s resolution of all claims against Beasley and the City as well as the federal malicious prosecution claim against Hack. We conclude, however, that the court should have relinquished supplemental jurisdiction over the state‐law claims against Hack, and so we remand for that limited purpose. * * *

This resolves all of Howlett’s federal claims. What remain are his state‐law false‐arrest and malicious‐prosecution claims against Hack. In a situation like this one, where the state‐law claims have not been the focus of the litigation, the better practice is for the district court to relinquish its jurisdiction over them. See 28 U.S.C. § 1367(c)(3); Williams Electronics Games, Inc. v. Garrity, 479 F.3d 904, 907 (7th Cir. 2007) (describing the “presumption that if the federal claims drop out before trial, the district court should relinquish jurisdiction over the state‐law claims”). The district court offered no reason for declining to dismiss the remaining supplemental claims. In our view, that is what should have happened. Once the judgment is revised to show that these claims were dismissed without prejudice, Howlett will be free to seek to pursue them in state court.

III. We conclude with a few words about Howlett’s request that we certify two state‐law issues to the Indiana Supreme Court. He would like us to ask that court to rule on whether § 34‐11‐2‐4 or § 34‐11‐2‐6 governs the statute of limitations for false‐arrest claims against police officers, and on whether the filing of a criminal case by a prosecutor effectively bars a malicious‐prosecution claim against persons (including police officers) who supplied information that led to the prosecution. These questions do not, however, meet the criteria for certification found in Circuit Rule 52.

The present case does not turn on the answers to either of those questions. See State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 672 (7th Cir. 2001). The statute of limitations question is not dispositive, because Howlett’s false‐arrest claim against Beasley and the City fails because probable cause supported the arrest, and because we are directing the district court to relinquish jurisdiction over the claim against Hack. We were able to resolve most of the malicious prosecution claims without having to delve into the issue of whether persons who supply information to a prosecutor can be liable for malicious prosecution. Finally, we have ensured that Howlett may pursue his remaining state‐law claims against Hack in state court. We see no reason to burden the Indiana Supreme Court with such matters, and we therefore deny Howlett’s request for certification.

IV. In summary, we conclude that even if Howlett’s statelaw false‐arrest claim against Beasley and the City is timely, it was properly dismissed because Beasley had probable cause to arrest Howlett. Beasley and the City are immune from Howlett’s state‐law malicious‐prosecution claim. Howlett’s § 1983 malicious‐prosecution claim against Beasley and the City cannot survive summary judgment because Howlett did not allege a separate constitutional injury and, even if he did, he has not submitted evidence that Beasley acted out of malice or lacked probable cause. Howlett cannot maintain his § 1983 malicious‐prosecution claim against Hack because Howlett has an adequate state remedy. Finally, we decline to certify any questions to the Indiana Supreme Court.

We therefore AFFIRM the judgment of the district court granting summary judgment to the defendants in all respects but one. We REMAND the case to the district court with instructions to change the dismissal of Howlett’s statelaw claims against Hack to one without prejudice, so that he may pursue them in state court.

Posted by Marcia Oddi on Tuesday, July 21, 2015
Posted to Ind. (7th Cir.) Decisions

Courts - Ongoing Kentucky federal court trial of clerk who refused to issue same-sex marriage licenses

The ILB has just become aware of this trial.

A July 2nd Louisville Courier Journal story by Phillip M. Bailey reported:

The American Civil Liberties Union of Kentucky filed a lawsuit Thursday on behalf of four couples who were denied marriage licenses by the Rowan County clerk in the wake of the U.S. Supreme Court's historic decision legalizing same-sex marriages.

Democrat Kim Davis is among a handful of clerks who have refused to grant licenses to any couples in order to avoid handing them out to gays and lesbians. The suit alleges four couples in Rowan — two same-sex and two straight — who have sought marriage licenses are having their 14th Amendment rights violated as a result. * * *

Gov. Steve Beshear, a Democrat, had defended the state's ban on same-sex marriage, but after the High Court's ruling on June 26, he issued an executive order telling all state agencies and clerks to comply with it.

Casey County Clerk Casey Davis, a Republican, said late Wednesday evening on MSNBC that the governor should provide "some sort of relief" for clerks who have moral objections to the Supreme Court's ruling. He also likened Beshear's order to putting county clerks in "prison."

"I did not take an oath that said I would lay my personal feelings down to do this job nor will I ever do that," Casey Davis said on air. "As a matter of fact I said I would do this job to the best of my ability, so help me God, and the best of my ability does not go beyond what my conscience will allow me to do."

This July 14th AP story by Adam Beam reported:
ASHLAND, Ky. — A federal judge on Monday delayed a decision on whether a local official in Kentucky can use her religious beliefs to justify not issuing marriage licenses to same-sex couples. * * *

The lawsuit is the first of its kind in the country and could serve as a harbinger for dozens of other officials seeking to test the limits of the Supreme Court’s historic ruling.

But US District Judge David Bunning suspended the hearing until next Monday at the earliest because attorneys from the American Civil Liberties Union have still not formally notified Davis of the lawsuit against her.

‘‘The ACLU. . . aren’t really concerned in the marriages of their clients. The plaintiffs can get married in at least 117 if not 118 counties in the state of Kentucky if they want to,’’ said Roger Gannam, Davis’s attorney and the senior litigation counsel for Liberty Counsel, a group that defends religious freedom. [ILB Note: In Indiana you must get your marriage license in the county of one of the applicant's residence.]

‘‘This case was about targeting a person of faith to make a point that everyone must comply with the agenda to impose same-sex marriage on all of America,’’ Gannam said.

American Civil Liberties Union attorney Dan Cannon said his clients are not targeting anyone; they simply want to get a marriage license in the county where they live and pay taxes.

From a July 16th story by Linda B. Blackford in the Lexington Herald-Leader:
A federal judge will resume a hearing at 10 a.m. Monday on whether Kentucky's county clerks must issue marriage licenses to same-sex couples.

U.S. District Judge David Bunning will hear evidence in Covington, most likely from Rowan County Clerk Kim Davis, who has refused to issue any marriage licenses since June 26, when the U.S. Supreme Court ruled that same-sex marriage is legal.

The Kentucky chapter of the ACLU sued Davis on behalf of two same-sex couples and two opposite-sex couples from Rowan County. The ACLU asked for a preliminary injunction requiring Davis to issue licenses.

Davis did not appear at the first hearing Monday in Ashland because she had not received her summons, her lawyers said. * * *

Lawyers expect a decision by mid-August. Bunning said he would include in his decision a second lawsuit filed by a fifth Rowan County couple against Davis.

That couple, David Moore and David Ermold, sued Davis after shooting video of her refusal to give them a license. The video has been viewed 1.75 million times on YouTube.

Several county clerks have asked Gov. Steve Beshear to call a special legislative session to consider changes that would accommodate county clerks who don't want to issue licenses to same-sex couples, but he refused. Meanwhile, at least two legislators have prefiled bills for the regular legislative session that begins in January.

Rep. Addia Wuchner, R-Florence, prefiled a bill that would exempt clergy and judges from performing same-sex marriages, although no existing law compels them to do so. Rep. Stan Lee, R-Lexington, and David Meade, R-Stanford, prefiled a bill that would exempt county clerks from issuing licenses if it goes against their religious beliefs.

From the July 21st LCJ, some quotes from a long story reported by Mike Wynn:
COVINGTON, Ky. – Rowan County Clerk Kim Davis testified in federal court Monday that she prayed and fasted over her decision to refuse marriage licenses for same-sex couples and believes she is upholding her oath under the Constitution.

“It wasn’t just a spur-of-the-moment decision,” she said. “It was thought out, and I sought God on it.”

Davis’ refusal to provide licenses has drawn wide attention after the U.S. Supreme Court ruled last month that marriage is a fundamental right for all couples and Gov. Steve Beshear ordered clerks to comply with the decision.

On the stand Monday, Davis described herself as an Apostolic Christian who believes marriage is defined as the union of one man and one woman under the Bible — “God’s holy word” — and said she contemplated her policy for months beforehand.

She choked back tears at times as she argued that issuing licenses under her name would violate her religious beliefs, even if a deputy clerk performs the task in her stead.

“If I say they are authorized, I’m saying I agree with it, and I can’t,” Davis said.

Monday’s testimony marked a second hearing in the case, and U.S. District Court Judge David Bunning said he expects to have a decision around Aug. 11. Davis, meanwhile, is denying licenses to all couples to avoid discriminating against those in same-sex relationships, she said. * * *

Daniel Canon, an attorney working with the ACLU, said after the hearing that Davis’ reasoning, if applied statewide, would create chaos, allowing anyone to deny a license at any time based on personal religious beliefs. He called it an “unsustainable policy.”

“Why should the taxpaying citizens of Rowan County have to go anyplace else aside from their own county to get a marriage license,” he said. “Why should they be held to a different standard than anybody else?”

But, attorneys from the Liberty Council, a religious freedom organization representing Davis, say people can still obtain licenses in surrounding counties and that Davis’ First Amendment liberties protect her decision — even in public office. * * *

Davis is among a number of clerks in Kentucky who have cited concerns over issuing licenses, though most have continued providing them. Gov. Steve Beshear’s office has received letters of concern from 10 clerks so far.

Though Beshear says he will not call a special session of the General Assembly, some lawmakers say they want to pass legislation that would allow couples to obtain licenses directly from the state or apply online. And it’s unclear how Bunning’s ruling might impact other county clerks.

Posted by Marcia Oddi on Tuesday, July 21, 2015
Posted to Courts in general

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

For publication opinions today (1):

In The First Bank of Whiting, as Trustee of Trust dated 12/30/86 a/k/a Trust No. 1865 v. 524, LLC, a 13-page opinion, Judge Friedlander writes:

On August 27, 2012, 524 LLC (524) purchased two parcels of real property (the Parcels) in Lake County, Indiana at a tax sale. After the time for redemption expired on August 27, 2013, 524 filed a Petition for Issuance of Deed. The First Bank of Whiting (the Trustee), as Trustee of Trust Dated 12/30/86 a/k/a Trust No. 1865 (the Trust), filed an objection to 524’s petition. The Trust appeals the granting of 524’s petition and the entry of 7/17/2015 Order Directing the Auditor of Lake County, Indiana to issue Tax Deed with respect to the Parcels. The following issues are presented for review: 1. Did the tax sale notices substantially comply with the requirements of Ind. Code Ann. § 6-1.1-24-4,1 I.C. § 6-1.1-25- 4.5,2 and I.C. § 6-1.1-25-4.6?3 2. Was the trial court’s order to issue tax deeds untimely? * * *

We understand that the Trust contends that the mailings should have been sent to the Westchester address “c/o SSAY Corp” because that was the owner’s listed address in the auditor’s office. In this context, however, “SSAY Corp” was merely a conduit by which the required notices were to be delivered to the owner, the Trust. SSAY Corp. simply did not have an ownership or beneficial interest in the property. Thus, it did not matter whether SSAY Corp., as a conduit, received notice. It mattered only that the Trust did. Moreover, the beneficiary and the Trust, by the Trustee, appeared by counsel at the hearing to contest 524’s request. Under these circumstances, we conclude that the various notices substantially complied with the applicable rules and therefore that the Trust’s due process rights were not violated. * * *

Pursuant to the terms of the statute, the trial court must enter an order directing the county auditor to issue a tax deed within sixty-one days of the time of the filing of the petition for tax deed, but only after certain enumerated condition are met. The fifth condition is that the petitioner has complied with all requirements that entitle the petitioner to the requested deed. The language of subsection (b)(1)-(5) focuses upon affirmative steps that a petitioner must undertake and accomplish in order to be entitled to a tax deed. It would seem in this case that 524 accomplished all of those steps upon the August 28, 2013 filing of its motion asking the court to order the auditor to issue a tax deed for the Parcels. * * *

[W]e conclude that there is implicit in the statute a sixth condition, which is that the petitioner is legally entitled to a tax deed after completing all of the requisite steps. * * *

In the present case, the trial court’s rejection of the Trust’s challenge was simultaneous with its order directing the auditor of Lake County to issue the tax deed for the Parcels. Therefore, we conclude the order was timely pursuant to I.C. § 6-1.1-25-4.6(b).

NFP civil decisions today (2):

In the Matter of: A.B. and C.S. (Minor Children), Children Alleged to be in Need of Services, S.W. (Mother) and M.S. (Father) v. The Indiana Department of Child Services, et al (mem. dec.)

Westville Lounge, Ltd., d/b/a Crossroads, and Michael Ganz d/b/a Crossroads Lounge v. Walter Wesley (mem. dec.)

NFP criminal decisions today (6):

Danney R. Lowery v. State of Indiana (mem. dec.)

Clayton Labarr v. State of Indiana (mem. dec.)

Austin Barnard v. State of Indiana (mem. dec.)

Robert S. Kaufman v. State of Indiana (mem. dec.)

Shawn Wayne Kinningham v. State of Indiana (mem. dec.)

Cory Alan Neal v. State of Indiana (mem. dec.)

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

Ind. Decisions - Supreme Court issues disciplinary opinion today, a Fort Wayne attorney is disbarred

In In the Matter of: Steven J. Ouellette, a 4-page, per curiam opinion, the Court writes:

We find that Respondent, Steven Ouellette, committed attorney misconduct by converting client funds and failing to cooperate with the disciplinary process. For this misconduct, we conclude that Respondent should be disbarred. * * *

In January 2005, “Clients” retained Respondent to represent them in their Chapter 13 bankruptcy. In December 2010, the bankruptcy trustee issued a refund check for $8,725.35, payable to Clients. For almost two and one-half years, Respondent did not disclose the existence of this check to Clients. Instead, Respondent fraudulently endorsed and deposited the check into an account that was not his attorney trust account, and thereafter used the proceeds for his own personal purposes. When the trustee’s final report (issued in June 2013) revealed the issuance of the refund check, Clients confronted Respondent, and Respondent promised to repay the amount to Clients. Respondent later issued a check in the amount of $8,725.35, drawn on an account other than his attorney trust account, but Clients were unable to negotiate the check due to insufficient funds in the account. When Clients later retained successor counsel, Respondent refused to return Clients’ file.

Based on the above events, Clients filed a disciplinary grievance against Respondent in October 2013. Respondent refused to cooperate with the Commission’s investigation and demands for information. Respondent has been suspended under a separate cause since August 2014 due to his noncooperation with the Commission. * * *

Respondent already is under indefinite suspension for failure to cooperate with the Commission’s investigation. For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent, and the hearing officer appointed in this case is discharged.

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

Ind. Courts - "First veteran graduates from special St. Joseph County court"

Christian Sheckler of the South Bend Tribune reports on "the first graduate of the St. Joseph County Veterans Court" - some quotes:

The veterans court, established in 2013 and run through the superior court, is designed to help military veterans avoid jail time and criminal records when they run into trouble with the law, diverting them instead to an 18-month program that requires them to undergo counseling, drug testing and other requirements. * * *

[Air Force veteran Wayne] Kuritz was arrested in October 2013 for growing marijuana. He could have served six months in jail, but when he reached a plea agreement with prosecutors he was deemed eligible for the veterans court. He was able to keep his job throughout the 18-month program and have his felony wiped from his record.

"The program is good for vets. It's a more compassionate way of dealing with them," he said. "It was much better that I was outside, doing some good, than sitting in jail doing nothing with my life."

About 15 other veterans are working their way through the program. Along with the required counseling and drug testing, veterans in the program may be required to obtain a high school diploma, if they did not already graduate, and maintain steady employment, said Tara Paiano, a supervisory probation officer and coordinator of the county's special "problem-solving" courts.

Posted by Marcia Oddi on Tuesday, July 21, 2015
Posted to Indiana Courts

Ind. Courts - Exterior repairs to Tippecanoe County Courthouse planned

Hannah Smith Kiefer reports in the Lafayette Journal&Courier:

Workers soon will study the Tippecanoe County Courthouse to see the extent of exterior damages.

The Tippecanoe County Commissioners on Monday approved a $25,000 feasibility study regarding the repairs. The contract was awarded to Arsee Engineers Inc., which Commissioner David Byers said has a history of working on older courthouses. The study will look at the large cupola and four smaller cupolas, the flat roof and the fountain, among other things. Byers said the fountain has a leak that can lose 20,000 to 30,000 gallons of water per year.

The study will begin in the next week or two, Byers said, and it will hopefully conclude by September. That way officials can build repair costs into next year’s budget. Work may begin this year, depending on funds. Byers said the repairs will likely take a year or more.

Posted by Marcia Oddi on Tuesday, July 21, 2015
Posted to Indiana Courts

Ind. Courts - "Greene County's First Magistrate Judge Sworn In"

There are plenty of photos in this story from last Friday, reported by Anna Rochelle, Editor, Greene County Daily World. A few quotes:

Greene County's first magistrate judge was sworn in during a ceremony in the Greene County Courthouse on Thursday afternoon.

Judge Lucas Rudisill was introduced by Greene Circuit Court Judge Erik "Chip" Allen and Greene Superior Court Judge Dena Martin to a standing-room-only crowd gathered to witness the historic moment for the county's court system.

The addition of a magistrate court promises to relieve the growing caseload burdening both existing Greene County courts. * * *

Earlier this year, seven Indiana counties were given approval to appoint new magistrate judges to serve their local courts and the legislation was signed by the governor on May 5. The new law, which went into effect on July 1, also expanded the abilities of a magistrate judge, allowing them to approve criminal plea agreements, approve settlements in civil matters, and approve dissolutions and other agreements in domestic relations and paternity actions.

A magistrate must be admitted to practice law in Indiana but may not engage in the practice of law while holding the office of magistrate. Under Indiana law, a magistrate may perform a number of duties including: administer oaths, solemnize marriages, take and certify affidavits and depositions, order subpoenas, issue warrants, set bail, enforce court rules, conduct various hearings and trials, enter orders, conduct sentencing hearings and impose sentences, and issue judgments in small claims cases and issue protective orders to prevent domestic or family violence.

Unlike the county's two current judge positions, the new magistrate is an appointed position, selected by the Greene and Superior Court judges who will oversee the activities of the magistrate.

One photo from the story is captioned:
This is a photo taken a few months ago of the posting of one day's docket of cases scheduled to be heard in Greene Circuit and Greene Superior Courts. The length of the schedule leaves little doubt that local courts have been bearing a heavy case load. (Photo by Anna Rochelle)

Posted by Marcia Oddi on Tuesday, July 21, 2015
Posted to Indiana Courts

Monday, July 20, 2015

Ind. Decisions - 7th Circuit decides two Indiana cases today

In Kent Higgins v. Koch Development Corporation (SD Ind., Young), a 13-page opinion, Judge Flaum writes:

After the district court disqualified plaintiff Kent Higgins’s causation expert—enlisted to prove that Higgins developed asthma and reactive airways dysfunction syndrome as a consequence of inhaling chlorine gas at an amusement park—he argued that he did not need an expert to prove negligence at all. Alternatively, Higgins argued that his treating physician could serve as such an expert. The district court disagreed, considering the causation issue too complex for an unassisted jury, and deeming Higgins’s treating physician’s qualifications and methodology too uncertain to permit her to opine on such matters. Consequently, the district court granted summary judgment in favor of the defendant. We affirm. * * *

In this diversity action, Indiana law governs whether an expert is needed to prove causation. See Wallace v. McGlothan, 606 F.3d 410, 419–20 (7th Cir. 2010). Under Indiana law, proving negligence in a case like this one requires proof of both general and specific (or individual) causation. 7‐Eleven, Inc. v. Bowens, 857 N.E.2d 382, 389 (Ind. Ct. App. 2006). The law of the Seventh Circuit acknowledges this same dichotomy. See Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 641–42 (7th Cir. 2010). General causation refers to “whether the substance at issue had the capacity to cause the harm alleged, while ‘individual causation’ refers to whether a particular individual suffers from a particular ailment as a result of exposure to a substance.” 7‐Eleven, 857 N.E.2d at 389. The district court concluded that, without an appropriate expert, Higgins could not establish specific causation—that is, that the inhalation of chemical fumes caused his health conditions. Higgins, however, maintains that he does not need an expert to establish that the incident at the Bahari River sparked his ailments. * * *

For all of these reasons, we conclude that a causation expert is required in this case.

We therefore turn to an evaluation of Higgins’s contention that Dr. Haacke can serve as such an expert. * * *

Higgins also contends that because Dr. Haacke has twenty years of experience as a board certified pulmonologist, “[i]t goes without saying she understands … reactive airways dysfunction syndrome.” Again, Higgins seems to misunderstand the requirements of Daubert and Rule 702.

As Judge Tinder articulated when he was a district judge in the Southern District of Indiana, although a doctor may have “experience diagnosing and treating asthma … that does not make him qualified to ‘assess its genesis.’” Cunningham v. Masterwear, Inc., 2007 WL 1164832, at *10 (S.D. Ind. Apr. 19, 2007). Higgins, however, put forth no evidence that Dr. Haacke has ever treated another patient for chlorine gas exposure or has any training in toxicology. Nor has Higgins established that Dr. Haacke employed a reliable methodology in forming her causation opinion (even assuming she is qualified to do so). The record demonstrates that Dr. Haacke essentially diagnosed Higgins after listening to his own description of his symptoms and the events at Holiday World—some fourteen months after the fact—and after looking at the results (though not the underlying data) of the pulmonary function study conducted by another doctor the year before. But the record is silent on whether Dr. Haacke considered other possible causes of Higgins’s ailments and, if so, how and why she ruled them out. * * *

“Many times we have emphasized that expertsʹ work is admissible only to the extent it is reasoned, uses the methods of the discipline, and is founded on data.” Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000). Here, Higgins simply failed to demonstrate this to be true with respect to Dr. Haacke’s causation opinion. Accordingly, we conclude that it was well within the district court’s discretion to deem Dr. Haacke unqualified to proffer expert testimony, even setting aside Higgins’s non‐compliance with Rule 26.

III. Conclusion For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment.

In USA v. Keon Thomas (and Styles Taylor) (ND Ind., Moody), a 13-page opinion, Judge Posner concludes:
The facts regarding Taylor’s personal history, if true (they have not yet been submitted to full evidentiary procedure), are possible grounds for mitigation—for reducing his sentence from life to a term of years. For they suggest that external forces beyond his ability to control created cognitive and psychological impairments that greatly diminished his ability to resist engaging in serious criminal activity. When substantial grounds for mitigation are presented, the sentencing judge must explain his reasons for rejecting them, see, e.g., United States v. Morris, 775 F.3d 882, 886–88 (7th Cir. 2015), and this the judge failed to do. The government agrees that Taylor’s sentence must therefore be vacated and the case remanded for resentencing. Although Thomas’s upbringing was not as awful as Taylor’s, it was similar enough to persuade the government that he too is entitled to be resentenced. In all other respects (including rulings that we have not discussed because the defendants’ challenges to them are plainly devoid of merit) the judgments are affirmed. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

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

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 12 NFP memorandum decisions)

For publication opinions today (2):

In In the Matter of the Civil Commitment of T.D. v. Eskenazi Health Midtown Community Mental Health Center, an 11page opinion, Judge Pyle writes:

Appellant-Respondent, T.D., appeals the trial court’s order granting Appellee-Petitioner, Eskenazi Health Midtown Community Mental Health Center’s (“the Hospital”), application for the emergency detention and involuntary civil commitment of T.D. based on her mental illness. She argues that the trial court erred in ordering her regular commitment because there was insufficient evidence that she was “gravely disabled,” as the Hospital was required by statute to prove. The only evidence in the record supporting her commitment was one isolated incident of unusual behavior, the fact that T.D. lived in a hotel, her psychiatrist’s recommendation, and her refusal to seek treatment. Because this did not constitute clear and convincing evidence to support her involuntary commitment, we reverse the trial court’s decision and remand for the trial court to vacate the commitment.
In Charles R. Ferguson v. The Estate of Lera V. Ferguson, a 10-page opinion, Judge Bradford writes:
Lera V. Ferguson passed away intestate in 2013 and was survived by her two children and sole heirs, Appellant Charles Ferguson and Nancy Mosson. Mosson was appointed personal representative of Lera’s estate (“the Estate”). Charles eventually filed a claim for over one million dollars against the Estate for services provided to Lera over her lifetime, a claim that Mosson disallowed.

Meanwhile, Mosson had petitioned the trial court for authority to sell real estate, namely a parcel that was the family farm (“the Farm”). Charles objected to Mosson’s petition and requested the trial court to set a bond sufficient to stay the sale. After a hearing, the trial court ordered Charles to deliver a surety bond of $1,133,833.71, which represented the amount of his claim plus some administrative costs, within thirty days in order to stay the sale of the Farm. Charles now appeals, contending that the trial court erred in setting his bond. The Estate argues that Charles’s interlocutory appeal should be dismissed because the trial court’s order did not give him an interlocutory appeal of right and he did not follow the procedures for discretionary interlocutory appeals. Because we conclude that Charles’s interlocutory appeal was properly taken and that the trial court abused its discretion in setting the amount of Charles’s bond, we reverse and remand with instructions.

NFP civil decisions today (3):

Raymond D. White v. Yvonne R. White (mem. dec.)

In re: the adoption of A.A., A.A. v. D.J. (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of E.B., Mother, C.T., Father, and K.B., Child, C.T. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (9):

Sherri Lane v. State of Indiana (mem. dec.)

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

Paul Scott Campbell v. State of Indiana (mem. dec.)

Jacob McDaniel v. State of Indiana (mem. dec.)

Kerry D. Ketchem v. State of Indiana (mem. dec.)

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

Trent Fitzmaurice v. State of Indiana (mem. dec.)

Deandre Averitte v. State of Indiana (mem. dec.)

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

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

Ind. Gov't. - "Zoeller running for Congress creates opening in AG contest"

Dan Carden writes today in the NWI Times:

INDIANAPOLIS | Attorney General Greg Zoeller announced Monday he is running to represent south central Indiana in the U.S. House, likely guaranteeing an open race for attorney general in 2016.

The Republican, originally from the Ohio River town of New Albany, said he plans to take the state's rights agenda he's championed for seven years as Indiana's top lawyer to Washington, D.C. to limit further interference with state sovereignty.

"To rein-in federal overreach, we need a Congress that works … and so beginning today, I will ask the people of the 9th Congressional District of Indiana to allow me the opportunity to help bring about a new day in Washington," Zoeller said. * * *

Zoeller's run nearly ensures the 2016 Indiana attorney general's election will feature two new faces. Though should Zoeller lose the House primary, he potentially could be renominated by Republicans at their state convention next summer for a third term.

But without an incumbent in the race, Hoosier Democrats likely have their best chance in years of reclaiming the attorney general's office, given the added turnout expected with presidential, U.S. Senate and gubernatorial elections also appearing on the ballot.

Gary Mayor Karen Freeman-Wilson was the most recent Democratic attorney general.

She was appointed in 2000 by Gov. Frank O'Bannon to complete the 11 months remaining in Jeff Modisett's term, but lost to Republican Steve Carter, of Lowell, in that year's election.

Zoeller was Carter's chief deputy and succeeded him when Carter chose not to run for re-election after two terms.

One potential Democratic attorney general candidate, state Sen. Karen Tallian, D-Ogden Dunes, said she still only is focused on her campaign for governor.

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

Ind. Decisions - Supreme Court enjoins non-lawyer from practicing law

In State ex rel. Ind. Supreme Court disciplinary Commission v. Brian K. Hill, a 2-page, July 17th order, CJ Rush writes:

The Verified Petition alleges Respondent, Brian K. Hill, who is not a licensed attorney, engaged in the unauthorized practice of law by offering and providing legal advice and services to Indiana residents in family law matters. The Verified Petition asks that Respondent be permanently enjoined from such conduct pursuant to Admission and Discipline Rule 24. * * *

The Court, having reviewed the allegations contained in the Commission’s Verified Petition, finds that Respondent has engaged in the unauthorized practice of law. Therefore, the Commission’s Verified Petition is GRANTED. Respondent, Brian K. Hill, is hereby PERMANENTLY ENJOINED from offering to provide and/or providing legal advice or legal services to others unless and until he obtains a license to practice law in Indiana. This restriction shall not preclude Respondent from seeking employment from, or being employed by, a lawyer or law firm as a non-lawyer assistant, so long as, while doing so, he abides by the terms of this permanent injunction and does not contravene the Indiana Rules of Professional Conduct or Guideline 9 for the Use of Non-Lawyer Assistants.

Finally, the Commission is DIRECTED to provide a file-stamped copy of this order to Ms. Amy DeWitt.

Posted by Marcia Oddi on Monday, July 20, 2015
Posted to Ind. Sup.Ct. Decisions

Ind Decisions - Supreme Court posts one disciplinary opinion, filed July 17

From In the Matter of Ayoade ADEWOPO, a 2-page order:

On or about March 7, 2011, Respondent and his now ex-wife had a confrontation at the conclusion of a therapy appointment for their minor child. Respondent was convicted after a bench trial of Domestic Battery, a Class A misdemeanor, on May 26, 2011. Respondent failed to report his conviction within 10 days to the Commission. Respondent’s conviction was affirmed by the Court of Appeals. Adewopo v. State, No. 41A05-1107-CR-380 (Ind. Ct. App. Feb. 13, 2012). The parties point to facts recited in that opinion indicating that Respondent pulled or pushed his now ex-wife to the ground, knocked her to the ground a second time, and then kicked her while she was on the ground. * * *

Discipline: The parties propose the appropriate discipline is a suspension of 60 days with automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 60 days, beginning August 27, 2015.

Posted by Marcia Oddi on Monday, July 20, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending July 17, 2015 [Updated]

Here is the Clerk's transfer list for the week ending Friday, July 17, 2015. It is two pages (and 24 cases) long.

One transfer was granted last week:

There was a notable denial of transfer, in the case of Charlie P. White v. State of Indiana. The vote was 4-0, with J.Massa not participating. Dan Carden of the NWI Times has this story, that begins:
INDIANAPOLIS | Former Secretary of State Charlie White is planning to appeal his felony convictions for vote fraud, theft and perjury to the highest court in the country after the Indiana Supreme Court refused to hear his case. In a one-page order issued late Thursday, Indiana Chief Justice Loretta Rush denied White's request to review a Dec. 29 Court of Appeals ruling that affirmed three of the six guilty verdicts against him.
In 3-2 votes: Finally, the Court failed to grant transfer in Norris Avenue Professional Building Partnership v. Coordinated Health, LLC,, by a vote of 3-2, with Rush, C.J., and Dickson, J. voting to grant the petition to transfer, leaving in place the March 25, 2015 COA opinion which holds: "Norris raises a single issue for our review, namely, whether the trial court erred when it concluded that Coordinated Health did not breach the lease agreement. We reverse and remand with instructions."

[Updated 7/21/15] Dan Carden of the NWI Times reported on another notable transfer denial last week, Manuel Montalvo, et. al. v. State of Indiana, thereby leaving in place the March 9, 2015 COA opinion. From the story:

In a 5-0 decision announced Monday, the state's high court left intact a March 9 Court of Appeals ruling that found the library's purchase of health, dental, vision and life insurance for Clifton Johnson, Gary McCracken, Hector Cavazos and Aldolfo Velez from 2008-10 violated a state law mandating that "a member of a library board shall serve without compensation."

The board members, who authorized the purchases, unsuccessfully argued in their appeal that "compensation" refers only to wages and does not include other benefits, such as insurance. * * *

According to court records, Johnson must repay $52,636.26, McCracken $24,604.76, Cavazos $27,965.53 and Velez $31,673.49.

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

Courts - Several interesting legal rulings noted by NYT this weekend

"U.S. Agency Rules for Gays in Workplace Discrimination,", July 17, Noam Scheiber's long story begins:

WASHINGTON — The United States Equal Employment Opportunity Commission has ruled that workplace discrimination on the basis of sexual orientation is illegal under federal law, setting the stage for litigation aimed at striking down such practices.

The commission’s ruling
, issued this week, hinged on the Civil Rights Act of 1964, which outlawed discrimination on the basis of sex in employment settings. In a 3-to-2 vote along party lines, the commission concluded that while the act did not explicitly prohibit discrimination against gays and lesbians, “an allegation of discrimination on the basis of sexual orientation is necessarily an allegation of sex discrimination.”

The commission did not widely publicize the ruling, dated Wednesday, but it quickly drew attention among advocacy groups and legal experts.

"Concussion Suit Dismissed" is the heading to this brief July 18th story:
A federal judge in California dismissed a lawsuit brought by soccer players and parents seeking to force FIFA and other governing bodies to change the sport’s rules to limit the risk of concussions and other head injuries, especially for children.

The judge, Phyllis Hamilton of United States District Court for the Northern District of California, said in a decision on Thursday that the plaintiffs could not use the courts to change FIFA’s “laws of the game,” noting that it was their decision to play soccer.

"$60 Million Settlement Approved in N.C.A.A. Video Game Lawsuit" is a July 17th story about the Ed O'Bannon case. In addition, SI reported earlier last week:
A judge ordered the NCAA to pay $44.4 million in attorneys' fees and another $1.5 million in costs to lawyers for the plaintiffs in the Ed O'Bannon class-action antitrust lawsuit against the NCAA.

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

Law - "The scariest thing about synthetic drugs is everything that’s unknown"

From the weekend Washington Post, a long story by Abigail Hauslohner and Peter Hermann subheaded "Abigail Hauslohner and Peter Hermann." A few quotes:

Synthetic drugs have been around for years. Also known as “synthetic cannabinoids,” the term encompasses a range of mind-altering chemicals that are constantly evolving and are marketed in wildly divergent ways, sometimes as marijuana substitutes on the streets and as incense in convenience stores. * * *

The truth about synthetic drugs, law enforcement officials and scientists say, is that the danger lies in the mystery. “Synthetic drugs” don’t refer to a single substance but to a multitude of combinations concocted in laboratories that federal investigators say are mostly in China.

The active ingredients are so shifting in form — the U.S. Drug Enforcement Administration has tracked more than 300 iterations in less than a decade — that no one can say definitively what effect they have on users or those around them.

A 2nd WAPO story, by Peter Hermann, is headed "Difficulties testing synthetic drugs are slowing criminal prosecutions." Some quotes:
Traditional drugs, such as cocaine and heroin, can quickly be detected, so they do not present such testing problems. Suspects are almost always immediately charged with possession or distribution.

But that is not the case with the synthetic varieties, which because of their complicated compounds must be sent to a lab after a drug arrest.

The charging delays are yet another example of police struggling to keep pace with designer drugs — with such names as Scooby Snax, Bizzaro and Spice — that officials say are made to bypass drug laws and whose manufacturers change formulas as quickly as new rules banning them are put on the books.

“The formulas of the synthetic drugs are constantly being changed to stay a step ahead of law enforcement,” the U.S. attorney’s office said in a statement. “Because the chemicals used in these drugs are constantly changing, and because there is no reliable means of testing those drugs in the field, we cannot sustain charges in these cases until laboratory testing of the compounds is completed.”

A 3rd WAPO story, from June 15th, reported by Abigail Hauslohner, is headed "D.C. wants synthetic drug suppliers to get more than just ‘a slap on the wrist.’"

Here are earlier ILB posts re synthetic drugs.

Posted by Marcia Oddi on Monday, July 20, 2015
Posted to General Law Related

Courts - Time for redefinition of "undue hardship" re the bankruptcy code?

"Judges Rebuke Limits on Wiping Out Student Loan Debt" is the heading to this important Tara Siegel Bernard column in Saturday's NY Times business section. There is much to learn in this must-read article. Some quotes:

On a typical day in her last job, Janet Roth left home at 4 a.m. each day and drove 40 miles to a tax preparation office in Glendale, Ariz. When she finally got back home, she had less than an hour before starting her 6 p.m. shift decorating cakes at Walmart. She worked until midnight, giving her just a few hours to sleep before starting all over again.

Ms. Roth, 68, worked in many jobs over the years, but she never made quite enough to pay back the $33,000 she borrowed years earlier for an education degree she couldn’t afford to complete, and certainly not the $95,000 it ballooned to in default.

She filed for bankruptcy, wiping out five figures in medical debts. But erasing student loans requires initiating a separate legal process, where borrowers must prove that paying the debt would cause an “undue hardship.”

To prepare her case, she copied down statutes at a local law library and watched episodes of “Law and Order.” Her efforts paid off: Ms. Roth’s loans were discharged in 2013.

That Ms. Roth, now living on Social Security, managed to succeed in what is known as a notoriously difficult process is not even the most remarkable aspect of her case. Instead, the ruling captured the attention of other judges and legal scholars because of a judge’s bluntly worded written opinion that rebuked the widely adopted hardship standard used to determine whether a debtor is worthy of a discharge.

The judge, Jim D. Pappas, in his concurring opinion for the bankruptcy appellate panel decision in the United States Court of Appeals for the Ninth Circuit, said the analysis used “to determine the existence of an undue hardship is too narrow, no longer reflects reality and should be revised.”

He added: “It would seem that in this new, different environment, in determining whether repayment of a student loan constitutes an undue hardship, a bankruptcy court should be afforded flexibility to consider all relevant facts about the debtor and the subject loans.” But the current standard, he wrote, “does not allow it.”

Judge Pappas isn’t the only critic. Although plenty of cases still hew closely to a strict interpretation of the test, some judges and courts have signaled in recent years that they believe the rigid standard — known as the Brunner test — should be reconsidered, even if they are still bound to it now. * * *

Bankruptcy scholars and judges said the test made sense at the time it was adopted because even if debtors could not pass the test, their debts — which were far more modest then — would automatically be discharged in bankruptcy five years after their repayment period started.

But the legal landscape has changed substantially since then. Before 1977, student loans could be discharged in bankruptcy alongside other debts like credit card balances. Congress toughened the law in 1976, adding the five-year period, and again in 1990, when the waiting period was extended to seven years.

In 1998, the waiting period was eliminated. So now, all debtors must prove undue hardship to erase their student debts. (In 2005, Congress added private student loans to the mix of federal education debt that could not be discharged, even though the loans are not backed by the government.) * * *

Another noteworthy case, also from 2013, involved a “destitute” paralegal named Susan Krieger, then about 53, who lived in a rural area of Illinois with her mother, according to court documents. Ms. Krieger received a bachelor’s degree in legal studies and a paralegal certificate, graduating when she was 43. But after a decade-long search, she couldn’t find a job. * * *

[I]t was the written opinion of a well-regarded judge in the Krieger case, questioning the application of the Brunner test, that has been repeatedly cited by other judges. In the ruling, Frank H. Easterbrook, then chief judge for the United States Court of Appeals for the Seventh Circuit, seemed to signal that requiring debtors to prove their futures were “hopeless” was taking the undue hardship standard too far.

He wrote that it was important not to allow “judicial glosses,” like the language in the Brunner case, “to supersede the statute itself.”

ILB: Here is the ILB post on the 2013 7th Circuit opinion in Krieger.

Posted by Marcia Oddi on Monday, July 20, 2015
Posted to Courts in general | Ind. (7th Cir.) Decisions

Courts - More on "Judge Kozinski on prosecutorial misconduct"

Supplementing this ILB post from Friday, Steven Greenhut, the California columnist for the San Diego Union-Tribune, wrote Friday in a story beginning:

SACRAMENTO — One of California’s most prominent federal judges, Alex Kozinski of the Ninth Circuit court of appeals, has sparked a nationwide debate about the state of the nation’s criminal-justice system with a recent 42-page jeremiad in the Georgetown Law Review. The article depicts a system that tilts heavily in favor of district attorneys, incarcerates thousands of innocent people and fails to hold accountable prosecutors who abuse their power.

The judge’s piece challenges many of our fundamental assumptions about the justice system. It is a compelling and important read — especially as the California Legislature wrestles with issues of prison overcrowding, police reform, changes to civil-asset forfeiture laws, police body camera bills and the like.

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

Ind. Gov't. - "Packed meeting focuses on State Park pavilion project"

Updating earlier ILB posts on this topic, Rob Earnshawof the NWI Times reported late last week, in a story with a number of photos:

VALPARAISO | Opponents are mostly in favor of the pavilion restoration but not the proposed banquet center. Propents say the entire project will bring tourism dollars and allow people access to the beach who otherwise wouldn't have it.

Speros Batistatos, chair of the Dunes National Park Association, said the DNPA supports the project. Batistatos is also the president and CEO of the South Shore Convention and Visitors Authority.

They all packed the Memorial Opera House on Thursday for a meeting designed to clear the air about the Indiana Dunes State Park pavilion restoration and expansion project.

The meeting was hosted by Indiana Dunes Tourism, whose board voted 6-1 in support of the project. Board member Chuck Williams recused himself from the vote because he is with Pavilion Partners LLC, the investment group behind the project. Board Vice President Jesse Harper cast the lone no vote.

"I am not opposed to a conference center but I would like to see a design first," he said.

He also noted that the contract between Pavilion Partners and the Indiana Department of Natural Resources has already been signed and the board is "closing the door after the horse has already left." * * *

Work continues on the pavilion and the comfort center. The banquet center should be completed in the spring of 2017. Butterfield said a hotel or marina are not part of the proposal or plan, but if discussions on those happen in the future it would require a separate process by the state.

The Gary Post-Tribune story by Amy Lavalley has a different take. Some quotes:
In a meeting that at times was raucous and threatened to veer out of control Thursday, all sides got to have their say about a controversial project that will put a banquet/conference center on the edge of the beach at Indiana Dunes State Park in Chesterton.

Representatives from Pavilion Partners LLC, which is renovating the beach pavilion and building the additional structure, talked about the project's added value to both the park and the local economy, and their commitment to an environmentally sound undertaking.

Supporters said the structure would keep people in Porter County to spend money and would provide additional access to views of Lake Michigan, while detractors noted worries about the safety of serving alcohol along the lakefront and a desire to retain the park as pristine.

And finally, the board of Indiana Dunes Tourism, which sponsored the meeting at the Memorial Opera House in Valparaiso so Pavilion Partners could present their plans publicly, voted to support the project in the name of tourism. Chuck Williams, a member of the tourism board and principle in Pavilion Partners, recused himself, and board member Jesse Harper voted against the move because final plans for the building haven't been developed yet.

The 360-seat opera house was filled, and many people stood along the walls. Porter County Sheriff's Department officers lined the back wall by the door and Mitch Peters, president of the tourism board and facilitator of the meeting, urged the audience to keep order. * * *

All the speakers agreed that the pavilion, constructed in 1930 and the former site for a restaurant that closed 35 years ago, was in disrepair and in need of the renovation by Pavilion Partners. The point of contention is the planned banquet center. * * *

Pavilion Partners has applied for a liquor license, which will be considered by the state's Alcohol and Tobacco Commission on Tuesday in Indianapolis. "It does not provide that alcohol will be allowed on the beach," she said, adding it would allow alcohol 100 feet from the structure in the parking lot, but only with a special event permit. She also said a marina and hotel are not part of the plans for the site.

Posted by Marcia Oddi on Monday, July 20, 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 7/20/15):

Next week's oral arguments before the Supreme Court (week of 7/27/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/20/15):

Next week's oral arguments before the Court of Appeals (week of 7/27/15):

Monday, July 27

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

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


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

Posted by Marcia Oddi on Monday, July 20, 2015
Posted to Upcoming Oral Arguments

Friday, July 17, 2015

Ind. Decisions - Tax Court decides one today

And it is a rare (for the Tax Court) NFP (memorandum) decision. In Richard D. Foster v. Indiana Department of State Revenue (mem. dec.), a 5-page decision, Judge Wentworth writes:

Richard D. Foster filed an appeal with this Court, claiming that as a result of his pleading guilty to possession of marijuana, the Indiana Department of State Revenue illegally assessed Controlled Substance Excise Tax (CSET) and seized the titles to his vehicles. The Department has moved to dismiss Foster’s appeal alleging that the Court lacks subject matter jurisdiction. The Court grants the Department’s motion. * * *

The Court, having found that Foster has not taken his appeal from a final determination of the Department, hereby GRANTS the Department’s Motion to Dismiss.

Posted by Marcia Oddi on Friday, July 17, 2015
Posted to Ind. Tax Ct. Decisions

Courts - "Judge Kozinski on prosecutorial misconduct"

Prof. Eugene Volokh has been serializing a new law journal article [44 GEO. L.J. ANN. REV. CRIM. PROC (2015)] by Judge Alex Kozinski. Today Volokh quotes from the section on prosecutorial misconduct.

Posted by Marcia Oddi on Friday, July 17, 2015
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 4 NFP memorandum decisions)

For publication opinions today (1):

In David C. Ennik v. State of Indiana , a 24-page opinion, Judge Riley writes:

Appellant-Defendant, David C. Ennik (Ennik), appeals his conviction for one Count of child molesting as a Class A felony, Ind. Code § 35-42-4-3(a)(1) (2012); and two Counts of child molesting as Class C felonies, I.C. § 35-42-4-3(b) (2012). We affirm.

ISSUES. Ennik raises two issues on appeal, which we restate as follows: (1) Whether the trial court abused its discretion by denying Ennik’s motion for severance; and (2) Whether the trial court abused its discretion by admitting hearsay evidence.

FACTS AND PROCEDURAL HISTORY[1] * * *

I. Joinder/Severance * * *

It is well established that offenses can “be linked by a defendant’s efforts to take advantage of his special relationship with the victims.” * * * In the present case, Ennik “exploited his position” as a babysitter by molesting three young females entrusted to his care. Pierce, 29 N.E.3d at 1266. Furthermore, Ennik’s “method was consistent.” * * * Accordingly, the trial court correctly found that joinder was proper under both subsection 9(a)(1) and 9(a)(2); thus, Ennik was not entitled to severance as a matter of right.

II. Admission of Hearsay * * *

Under all of these facts and circumstances, we cannot conclude that the trial court abused its discretion in admitting K.N.’s and M.W.’s statements to Mother and their recorded interviews with FCM Garrett and Detective Cale.

CONCLUSION. Based on the foregoing, we conclude that the trial court acted within its discretion in denying Ennik’s motion for severance, and the trial court did not abuse its discretion by admitting the hearsay statements of Mother and the recorded interviews with FCM Garrett and Detective Cale. Affirmed.
______________
[1] In accordance with the revised Administrative Rule 9(G), certain evidence was submitted to our court which is declared confidential and must be excluded from public access. See Ind. Administrative Rule 9(G)(2). Despite the fact that the parties have only partially complied with the Administrative Rule, we have endeavored to maintain confidentiality on appeal. However, as a number of facts derived from the confidential records are “essential to the resolution of litigation[,]” we have included confidential information in this decision only to the extent necessary to resolve this appeal. Admin. R. 9(G)(7)(a)(ii)(c).

NFP civil decisions today (0):

NFP criminal decisions today (4):

Jason M. Drinsky v. State of Indiana (mem. dec.)

Curtis D. Keplinger v. State of Indiana (mem. dec.)

Kevin J. Mamon v. State of Indiana (mem. dec.)

Thomas Daniel Sayre v. State of Indiana (mem. dec.)

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

Vacancy on COA 2015 - Gov. Pence selects Marion Co. Judge Altice for Court of Appeals

Judge Robert R. Altice, Jr. , Marion Superior Court, Civil Division 5 was named this morning by Governor Mike Pence to fill the vacancy which will be created later this summer by the retirement of Court of Appeals Judge Ezra H. Friedlander who in February submitted his resignation to Gov. Pence, effective Aug. 31, 2015.

The other two names recommended to the Governor by the Judicial Nominating Commission were Judge Christopher M. Goff, Wabash Superior Court; and Mrs. Patricia Caress McMath of Indianapolis.

All the ILB posts concerning this vacancy are compiled here.

[Updated]
Here is the Governor's news release on the announcement.

Posted by Marcia Oddi on Friday, July 17, 2015
Posted to Vacancy on COA 2015

Ind. Gov't. - "Easterly to retire after 10 years as IDEM commissioner"

From the AP:

INDIANAPOLIS (AP) — Thomas Easterly informed Gov. Mike Pence on Thursday he will retire from his post as commissioner of the Indiana Department of Environmental Management, a position he has held since 2005. Easterly's retirement is effective Aug. 28.

Posted by Marcia Oddi on Friday, July 17, 2015
Posted to Environment | Indiana Government

Thursday, July 16, 2015

Ind. Decisions - Here are the briefs in the Ashfaque / Tiplick cases before the Supreme Court

On July 2nd the Indiana Supreme Court heard oral argument in Aadil Ashfaque v. State of Indiana AND Christopher Tiplick v. State of Indiana - you can watch the archived video here. The same link leads to the now vacated Jan. 27, 2015 Court of Appeals opinions in both cases: Tiplick v. State and Ashfaque v. State.

Here is a list of all earlier ILB posts concerning the two cases. See particularly this July 13, 2015 post quoting a LCJ story. The cases go to the question of how much authority can the General Assembly delegate to an administrative agency? The question in these cases may touch not only the Pharmacy Board, but all other state agencies, including, for example, IDEM.

See also this June 19, 2015 post, on the recent SCOTUS opinion in McFadden.

Here are the petitions to transfer and responses:

Tiplick v. State

Ashfaque v. State The ILB has also obtained the briefs before the Court of Appeals:

Tiplick v. State

Ashfaque v. State

Posted by Marcia Oddi on Thursday, July 16, 2015
Posted to Indiana Decisions

Vacancy on COA 2015 - Expect announcement at 10 AM tomorrrow

The ILB has learned the Gov. will announce his appointment to the COA at 10 AM Friday. Background here.

Posted by Marcia Oddi on Thursday, July 16, 2015
Posted to Vacancy on COA 2015

Ind. Decisions - Judge Mathias' opinion today live-links to the Encyclopædia Britannica

Judge Mathias' majority opinion today in City of Beech Grove v. Cathy J. Beloat, includes, at p. 2, note #1, a live link to the definition of "tibia" in the Encyclopædia Britannica.

Posted by Marcia Oddi on Thursday, July 16, 2015
Posted to Ind. App.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 Beech Grove v. Cathy J. Beloat, a 15-page, 2-1 opinion, Judge Mathias writes:

The City of Beech Grove, Indiana (“the City”), appeals the order of the Marion Superior Court denying the City’s motion for summary judgment in the negligence claim brought against the City by Cathy J. Beloat (“Beloat”). The City appeals and argues that no genuine issues of material fact exist with regard to whether the City was entitled to immunity from suit for performance of a “discretionary function” under Indiana Code section 34-13-3-3(7). We reverse and remand. * * *

[O]n June 19, 2012, Beloat was walking across Main Street in Beech Grove, Indiana at the intersection of Main Street and 10th Street. As she walked across the street at the crosswalk, Beloat had to step outside of the crosswalk area to walk around a white pickup truck that had blocked part of the crosswalk. As Beloat did this, her foot went into a hole in the pavement and became stuck, causing her to trip. Beloat heard her left leg “snap,” and she fell to the ground. * * *

Prior to our supreme court’s decision in Peavler v. Board of Commissioners of Monroe County, 528 N.E.2d 40, 46 (Ind. 1988), this court distinguished between “ministerial” and “discretionary” acts to determine if certain conduct was included within the immunity exception. Discretionary acts were immune; ministerial acts were not. See Jackson, 9 N.E.3d at 236 (citing Harvey v. Bd. of Comm'rs of Wabash County, 416 N.E.2d 1296 (Ind. Ct. App. 1981)). * * *

However, in Peavler, our supreme court expressly rejected the ministerialdiscretionary distinction analysis and held that discretionary judgments are not immune from legal challenge under the ITCA unless they can be properly characterized as “policy” decisions that have resulted from a conscious balancing of risks and benefits and/or weighing of priorities. * * *

[U]nder Peavler, the discretionary function exception of the ITCA insulates from liability only planning activity, characterized as “only those significant policy and political decisions which cannot be assessed by customary tort standards” and as “the exercise of political power which is held accountable only to the Constitution or the political process.” * * *

Here, the City designated evidence indicating that it was in the process of making a decision on improving Main Street. Specifically, the City was planning to totally reconstruct that portion of Main Street at the intersection of 10th Street, where Beloat’s fall occurred, as opposed to performing piecemeal repairs. The City Council was in the process of approving the financing necessary to begin the complete reconstruction of Main Street at the time of Beloat’s fall. In fact, the day before Beloat’s fall, the City Council held the second of the three votes necessary to issue the bonds to fund the reconstruction project. This, the City argues, means that its decision not to improve the defects in Main Street prior to Beloat’s fall is subject to discretionary function immunity. * * *

The designated evidence establishes that the policy decision to reconstruct Main Street was made by the elected policy makers, and the reconstruction of Main Street was in the planning stages when Beloat fell. Accordingly, we hold that the City is entitled to discretionary function immunity under section 34-13-3- 3(7) of the ITCA. The trial court therefore erred in denying the City’s motion for summary judgment, and we accordingly reverse the order of the trial court and remand with instructions to enter summary judgment in favor of the City.

May, J., concurs.
Robb, J., dissents with opinion. [which begins at p. 13 - ILB emphasis added] I respectfully dissent from my colleagues’ determination that summary judgment was improperly denied because the City is entitled to “discretionary function” immunity from Beloat’s suit. See Ind. Code § 34-13-3-3(7), slip op. at ¶ 18. I believe that the decision takes too broad a view of the discretionary function exception. * * * In short, simply filling a pothole does not strike me as the kind of “piecemeal repair” that was set aside in favor of the overall improvement project, assuming that the City in fact made the policy decision to eschew repairs of any kind. It is not a matter of repaving several feet of a lane of traffic or realigning an intersection, for example. Although there are certainly claims surrounding this time and place for which the City would have discretionary function immunity due to the reconstruction project, I do not believe this is one of them.

In In re the Paternity of M.R.A. and L.R.C.: M.A. v. B.C. , a 15-page opinion, Judge Robb writes:
Michael Ayers (“Father”) appeals the trial court’s order regarding custody, parenting time, and child support for his two children, M.R.A. and L.R.A, with Brandy Caldwell (“Mother”). He raises two issues for our review: 1) whether the trial court erred in vacating an agreed paternity order and establishing Father’s child support obligation and setting his arrearage, including reimbursement to Mother for child care costs; and 2) whether the trial court erred in ordering Father to pay Mother’s attorney’s fees. Concluding the trial court did not abuse its discretion in its determination regarding attorney’s fees, we affirm that part of the trial court’s order. However, concluding the trial court applied an incorrect legal standard to the determination of child support and that its judgment regarding child care expenses is unsupported by the evidence, we reverse and remand in part.
NFP civil decisions today (1):

Christopher Lee Thompson v. Natasha Nicole Smith (mem. dec.)

NFP criminal decisions today (3):

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

Kenny Weaver v. State of Indiana (mem. dec.)

Christopher W. Hovis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, July 16, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "An intriguing look at how laws are made... "

That is Niki Kelly's Twitter description of her story today in the Fort Wayne Journal Gazette, which is headlined "Young drivers hit with cell ban: Even lawmakers taken by surprise." Some quotes:

INDIANAPOLIS – It wasn’t just some young adults who were surprised July 1 when restrictions banning cellphone use for drivers younger than 21 went into effect. It was lawmakers, too.

“I learned it on the news, but I didn’t remember that happening,” said Rep. Dan Leonard, R-Huntington. “There seems to be more and more times where people are not being forthright with what’s in their bills.”

He said he tries to read all the bills, but things can always slip by. He doesn’t recall a full discussion on the topic. And if he had been aware of the larger implications, “I think I would have been very hesitant to vote for it.”

At least three other lawmakers who voted for the legislation confirmed they did not understand that House Bill 1394 would prohibit cellphones for all drivers younger than 21.

“It’s sweeping,” said Josh Gillespie, spokesman for the Indiana Bureau of Motor Vehicles. “No one is grandfathered. The telecommunications portion is a big shocker.”

He said the BMV did not push for the change.

Before July 1, the state law applied only to teen drivers younger than 18. Now any driver younger than 21 may not use a phone in the car for any reason, including GPS or texting or even listening to music. There is an exception for calling 911. There is no provision allowing hands-free use. * * *

The summary of the bill isn’t clear about the expansion of the cellphone ban – simply saying an operator’s license issued to an individual who is less than 21 years of age is a probationary license. Anyone reading the summary would have to know exactly what limits a probationary license entails.

In the House and Senate committee hearings on the bill, there is only one mention of the phone language – one sentence, by Deane.

“The cellphone restriction would apply to all new drivers up to 21,” she said.

Not a single question was asked in either committee on the topic.

And it affects more than “new” drivers. Those who have already had their license for several years are also affected. For instance, teenagers who received their licenses at 17 and are now 19 and have been able to use cellphones for a year suddenly aren’t to allowed anymore. * * *

During debates on the bill on the House and Senate floors, there was no discussion of the ban on cellphone use for those younger than 21.

The closest thing to it came from Sen. Karen Tallian, D-Portage, who asked Sen. Mike Crider, R-Greenfield – the bill’s sponsor – “By doing this, are we making a probationary license until age 21?”

Crider said no, adding that it would apply only to those Hoosier teenagers who are waiting until 18 or after to get their license.

But Deane contends lawmakers knew what they were voting on.

She said in one-on-one conversations, she explained about applying the restrictions to those 18 and older. She recited the statistics and that the limitations were only for the first 180 days of having the license.

But the cellphone ban is for much longer than that.

[Sherry Deane of AAA Hoosier Motor Club] said 18- to 20-year-olds are now the most likely to be involved in a fatal crash, but there are no restrictions on them.

“They are inexperienced, but we are throwing them out to the wolves,” she said. “Using the cellphone, even for a very experienced driver, is very dangerous.”

ILB: Here is the bill, HEA 1394. It was authored by Rep. Edmond Soliday.

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

Law - "What Can You Legally Protect In The Social Media Age?"

This article in Financial Advisor, by Chris Pickett and Scott Apking, looks at "the challenge of applying established legal concepts to new questions posed by social media" including:

Posted by Marcia Oddi on Thursday, July 16, 2015
Posted to General Law Related

Ind. Gov't. - Digital access to local public records tested

"Test of open records law finds many agencies fall short of compliance" was the headline to a $$ July 13th story by Kat Carlton in the Bloomington Herald-Times. Some quotes:

Indiana law requires public agencies to disclose many records to the general public through electronic records requests. But recently, a group of Indiana University graduate journalism students found compliance with the law is far from complete. * * *

[The students] requested records from 90 public agencies in 30 Indiana counties. [The requests focused] primarily on electronic access, or digital elements such as asking to have electronic copies of records, either by taking pictures with cellphone cameras or having documents sent by email. * * *

The students began by emailing commissioners’ offices, sheriff’s departments and health departments in each of the 30 randomly selected counties. According to Indiana’s Access to Public Records Act, agencies are required to at least respond (even if they don’t send a record) within seven days of the initial contact.

Forty-eight agencies responded within the seven-day period. Forty departments did not respond to the email, but 10 gave verbal responses during follow-up calls. Of the 58 responders, 17 provided the documents requested. Thirty agencies never responded, and two more said they didn’t have public email addresses. * * *

The graduate students documented all their findings in a series of reports in partnership with the Indiana Coalition for Open Government.

For much more, see the July 13th reports at the Indiana Coalition for Open Government (ICOG) website. Especially see "Of search warrants and cell phone cameras."

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

Wednesday, July 15, 2015

Ind. Decisions - Tax Court decides one today, re standing to appeal

In Indianapolis Public Transportation Corporation v. Department of Local Government Finance, an 11-page opinion, Judge Wentworth writes:

Indianapolis Public Transportation Corporation (“IndyGo”) filed an appeal with this Court after the Department of Local Government Finance (“DLGF”) issued the 2012 Budget Order for Marion County. The matter is currently before the Court on the DLGF’s Motion for Judgment on the Pleadings (Motion). In that Motion, the DLGF asserts that IndyGo does not have standing to bring its appeal and therefore its case must be dismissed. Being duly advised, the Court denies the DLGF’s Motion. * * *

Because a “final decision” of the DLGF under Indiana Code § 6-1.1-17-16(d) is incorporated within a county’s budget order that may be appealed to this Court under Indiana Code § 6-1.1-17-16(g)(1), it logically follows that when a political subdivision responds to a DLGF 1782 Notice, it initiates an appeal for purposes of Indiana Code § 6-1.1-17-16(g)(1).

CONCLUSION. When IndyGo responded to the DLGF’s 1782 Notice, it initiated an appeal that conferred standing for it to seek judicial review of the 2012 Marion County Budget Order under Indiana Code § 6-1.1-17-16(g)(1). Accordingly, the DLGF’s Motion is DENIED. The Court will schedule a case management conference under separate cover. SO ORDERED this 15th day of July 2015.

Posted by Marcia Oddi on Wednesday, July 15, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "Access to the Hancock County Courthouse has been limited to one door"

So reported Caitlin VanOverberghe July 10th in the Greenfield Daily Reporter. A few quotes:

Access to the Hancock County Courthouse has been limited to one door on the building’s east side as part of an effort to tighten security.

The modification is the first in a much-anticipated series of updates county leaders have planned that they say will make the courthouse safer for employees and visitors. * * *

“The courthouse was built in a simpler time,” Hancock Circuit Judge Richard Culver said. “As it stands now, it’s not conducive for security. And I don’t think anyone believes those (security) threats will decrease anytime soon.”

Now, officials are taking the first steps in easing safety concerns.

Three of the four entrances to the building now will be locked at all times, said Maj. Brad Burkhart, Hancock County sheriff’s chief deputy. Alarms that will sound if doors are opened from the inside are being installed on the north, south and west entrances, and signs have been put in place warning people to use those doorways only in an emergency, he said.

Plans are in place to install metal detectors at the east entrance as early as November, and proposals for hiring more security guards have been brought up at county government meetings, Burkhart said.

Posted by Marcia Oddi on Wednesday, July 15, 2015
Posted to Indiana Courts

Ind. Decisions - More details on two recent disciplinary opinions

In the Matter of: Michael P. Krebes, summarized here on July 9th in the ILB, was the subject this long July 14th story in the Kokomo Tribune, reported by Mike Fletcher. Some quotes:

A Kokomo attorney who serves as a deputy prosecutor has been placed on two years of probation by the Indiana Supreme Court’s Disciplinary Commission for professional misconduct due to his former office manager’s alleged illegal actions.

Police arrested Lacee Garber, who served as Michael Krebes’ former legal secretary and office manager, last July on a warrant out of Howard Superior Court 2 for two counts of theft and one count of forgery alleging she mismanaged the deputy prosecutor’s private practice. * * *

The Supreme Court’s Disciplinary Commission found Krebes failed to supervise Garber and ensure his non-lawyer employee’s conduct was compatible with his professional obligations.

Krebes was disciplined for delegating the authority over attorney/client relationships and the collection of filing fees from clients to Garber.

Krebes took full responsibility and has made restitution payments of about $67,000 directly to the affected clients and about $36,000 to other attorneys who took over his clients.

The South Bend Tribune has a brief story today headed "State suspends South Bend lawyer for 3 years after drug conviction," on the disciplinary ruling in In the Matter of: Tenneil E. Selner, summarized in this July 9th ILB post.

Posted by Marcia Oddi on Wednesday, July 15, 2015
Posted to Ind. Sup.Ct. Decisions

Courts - "Health Law’s Contraceptive Coverage Isn’t Burden on Religion, Court Rules"

Yesterday the 10th Circuit was the fifth circuit to so rule. Robert Pear writes today in the NY Times:

WASHINGTON — A federal appeals court Tuesday handed the Obama administration another victory in its effort to guarantee coverage of contraceptives under the Affordable Care Act, rejecting a challenge by the Little Sisters of the Poor, an order of Roman Catholic nuns.

The United States Court of Appeals for the 10th Circuit, in Denver, found that the nuns could opt out of a requirement to provide contraceptive coverage under an “accommodation” devised by the administration. The rule does not impose a “substantial burden” on the nuns’ free exercise of religion, the court said.

Four other federal appeals courts — in the District of Columbia, Philadelphia, Chicago and New Orleans — have issued similar decisions upholding the accommodation, which is intended to address the concerns of nonprofit religious organizations that object to providing contraceptive coverage for women enrolled in their health plans.

In the decision on Tuesday, Judge Scott M. Matheson Jr. called opting out of contraceptive coverage a routine administrative task, “as easy as obtaining a parade permit, filing a simple tax form or registering to vote.”

Here is the 133-page, 2-1, July 14th 10th Circuit opinion.

Posted by Marcia Oddi on Wednesday, July 15, 2015
Posted to Courts in general

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

For publication opinions today (1):

In Robert Seal v. State of Indiana , a 14-page opinion, Judge Crone writes:

Robert Seal appeals his convictions for two counts of class A felony child molesting, two counts of class B felony incest, and one count of class B felony sexual misconduct with a minor. He argues that his federal and state constitutional rights were violated by the State’s failure to preserve audio recordings of his victims’ interviews, that the trial court abused its discretion in instructing the jury that time is not an element of the offenses, and that his conviction for class B felony sexual misconduct with a minor should have been merged with one of the class A felony child molesting convictions because the conduct supporting those convictions constitutes a single transaction under the continuous crime doctrine. We conclude that no violation of Seal’s constitutional rights occurred, the trial court did not abuse its discretion in instructing the jury, and the continuous crime doctrine is inapplicable. Therefore, we affirm. * * *

Seal contends that the State’s failure to preserve the audio recordings of his daughters’ interviews in the patrol car immediately following their 911 call and their follow-up interviews a week later violated his federal and state constitutional rights. * * *

Here, the evidence showed that Seal sexually molested R.S. multiple times both before and after she turned fourteen. The molestation of R.S. before she turned fourteen is one chargeable crime, and the molestation of R.S. after she turned fourteen is a different chargeable crime. See Ind. Code § 35-42-4-3; 35-42-4-9. Seal was not charged multiple times with the same offense. Under Hines, the continuous crime doctrine does not apply.

NFP civil decisions today (1):

Jeff Griffin, d/b/a JDA Trailers v. Dennis Martin and Lisa Martin (mem. dec.)

NFP criminal decisions today (5):

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

John W. Taylor, IV v. State of Indiana (mem. dec.)

Daytwon Tyrone Black v. State of Indiana (mem. dec.)

Ariel Kennedy v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Wednesday, July 15, 2015
Posted to Ind. App.Ct. Decisions

Tuesday, July 14, 2015

Ind. Decisions - "Preliminary ruling allows local bar to keep its license"

The ILB does not often post about administrative board decisions, which are not often reported in the news. However, Niki Kelly of the Fort Wayne Journal Gazette has this story today about the decision of a hearing judge with the Indiana Alcohol and Tobacco Commission, which preliminary decision, as she reports, can be accepted or rejected by the 4-member Commission at a future meeting. Some quotes:

Brothers Burke Baughman and Craig Baughman have owned the bar at 1723 E. Wayne St. since 2010. There has been a litany of trouble at the bar over the years from shootings and arrests to gun and drug seizures, fights and robberies.

There was also an August police raid that led to the arrest of four people. Burke Baughman was charged with a felony - maintaining a common nuisance - but he pleaded to a misdemeanor instead.

At one point last year, Fort Wayne police had been called to the bar 135 times in less than two years - 68 times in 2013; 67 times in 2014, according to police records.

ATC General Counsel David Rothenberg heard evidence from two Fort Wayne police officers, the owners and several employees and patron in April.

"As case law states, these police runs have no bearing unless there is a nexus between the actual criminal conduct and either one of the (owners)," the recommendation said.

"In that there is not a strong nexus between the owners and the police runs or the illegal incidents taking place in and outside the premises, the decision to deny the applicants' permit by the local board was improper."

The findings said there was no evidence of the allegation that the owner allowed marijuana to be smoked in the bar, and noted the local decision relied on the felony charge which was dismissed.

Rothenberg did warn that the owners are now on notice as to illegal activities occurring at the business, and could be taken into consideration in any future proceedings.

Posted by Marcia Oddi on Tuesday, July 14, 2015
Posted to Ind. Adm. Bd. Decisions

About this Blog - Without substantial new front-page contributors, the ILB will close down on September 30th

This post first appeared on July 6th in a longer version ...

The ILB is at a crossroads

Without significant additional funding, I will have no choice but to close the blog the end of this quarter and devote my time and energy elsewhere. The ILB has been in operation since 2003 - 12 years now. Beginning in July of 2007, I was happy to receive a significant annual donation from the Indiana State Bar Association, the largest bar organization in the State, which has a stated mission of serving both the bar and the public. Doxpop, a company which provides on-line access to Indiana county court case records, became a "front-page" donor the following year, joined in 2010 by the Litigation Section of the ISBA, and this month by the Indiana Trial Lawyers Association. As I wrote in 2008, on the 5th Birthday of the ILB:

Become an Annual Supporter. Your firm or company can join the list of annual ILB [front-page] supporters. I hope you will consider doing so, thereby permitting me the time to keep the ILB operating at a consistently high level.
  • What will be your benefits? Your name listed as a supporter in the right-hand column and on the supporters' page with a link to your site. Exposure to a statewide and national legal readership. The knowledge that you are contributing to an effort that has demonstratively enhanced communication, insight and understanding, both within the Indiana legal community, and with the general public.
  • Non-benefits of supporting the ILB. The ILB speaks with an independent voice, supporters have no influence on our editorial judgment.
This June, the ISBA, the ILB's largest donor, informed the blog that its board had voted not to continue its annual contribution.

This leaves the ILB with a deficit of nearly $20,000 this year. I plan to continue blogging through the current quarter, relying on my limited resources and on the contributions (for the quarter) of remaining donors. But unless generous new continuing support can be found, and quickly, the ILB's 12-year run will end on September 30th.

I tweeted a few weeks ago that the ILB was on course to reaching 1 million page views in 2015, besting its 2014 record of 898,899. But now the ILB needs a number of $3,000 to $5,000 annual donors, or several larger donors, in order even to continue past September 30th.

What can you do?

Thanks for reading.

Posted by Marcia Oddi on Tuesday, July 14, 2015
Posted to About the Indiana Law Blog

Courts - "Justice Antonin Scalia is setting a terrible example for young lawyers"

Those of you who watched the 5th Annual Supreme Court Term in Review yesterday (you can still watch the archived version) heard Erwin Chemerinsky, UC Irvine Law Dean, say this in his closing remarks. Now he has expanded the remarks for this op-ed in the LA Times today. Some quotes:

Consider several examples. In his dissent in Obergefell vs. Hodges, which declared unconstitutional state laws prohibiting same-sex marriage, Scalia said that Justice Anthony M. Kennedy's majority opinion was "as pretentious as its content is egotistic" and that its "showy profundities are often profoundly incoherent."

In a footnote he wrote, "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag." He likened the majority opinion to "mystical aphorisms of the fortune cookie."

Such mockery does not amount to a legal argument; it's nothing more than an attack on the author's writing technique. A litigator who compared an opponent's brief to a fortune cookie likely would be, and should be, sanctioned by the court.

In Glossip vs. Gross, which upheld the three-drug protocol used in lethal injection, Justice Stephen G. Breyer urged the court to solicit arguments on the death penalty — specifically whether it's a cruel and unusual punishment and thus in violation of the 8th Amendment.

Scalia wrote a scathing response. He referred to Breyer's opinion as "gobbledy-gook" and said his argument was "nonsense." He concluded by stating, "Justice Breyer does not just reject the death penalty, he rejects the Enlightenment." * * *

If legal professionals ignore Scalia's meanness or — worse — pass around his insults at cocktail parties like Wildean witticisms, they'll encourage a new generation of peevish, callous scoffers.

Posted by Marcia Oddi on Tuesday, July 14, 2015
Posted to Courts in general

Ind. Law. - More on "Indiana struggles to tackle synthetic drug problem"

Responding to this ILB post from yesterday, an attorney-reader writes:

Regarding your coverage of the synthetic drug cases, I am watching the July 2 argument from Ashfaque and Tiplick v. State, and the justices are grilling Mark Rutherford about whether it’s really his position that only the legislature can put synthetic drugs on the list defining crimes.

I haven’t seen the briefs but I’m puzzled that no one has mentioned, or asked about, the significance of Ind. Code 1-1-2-2:

Ind. Code Ann. § 1-1-2-2 (2014)

1-1-2-2. Criminal offenses statutory.

Crimes shall be defined and punishment therefor fixed by statutes of this state and not otherwise.

HISTORY: 1 R.S. 1852, ch. 61, § 2, p. 351; Acts 1978, P.L. 2, § 101.

It seems to me that this statute sheds some light on how separation of powers works in Indiana, and strongly supports the appellant’s position.

Posted by Marcia Oddi on Tuesday, July 14, 2015
Posted to Indiana Law

Ind. Gov't. - ACLU: "It's not enough to simply pass laws that say we'll do the right thing"

That is a quote from a news release issued this morning by the ACLU of Indiana:

Indianapolis - A case manager at the Indiana Department of Child Services filed a lawsuit today claiming that the failure of DCS to adequately staff the department as required by law does not allow her and her colleagues to keep caseloads at levels that allow children to be effectively protected and served.

The American Civil Liberties Union of Indiana brought the class-action lawsuit on behalf of DCS family case manager Mary Price and other case managers against DCS for violating Indiana Code § 31-25-2-5, which mandates the maximum number of caseloads case managers may have. According to the law, a case manager such as Price, who monitors and supervises active cases of child abuse and neglect, may supervise no more than 17 children at one time. Price, whose current caseload is 43 children, contends that it is extremely difficult, if not impossible, to effectively meet all their needs even when she works significantly more than 40 hours per week.

"We are asking the court for an injunction to force DCS to address the urgent need for more case managers," said Ken Falk, ACLU of Indiana legal director. "The department is required by law to meet the case ratios laid out by the Indiana General Assembly more than seven years ago, and the legislature must appropriate sufficient funds to meet these requirements."

"It's not enough to simply pass laws that say we'll do the right thing," said ACLU of Indiana Executive Director Jane Henegar. "The purpose of caseload limits is the safety and welfare of vulnerable children. We expect government to meet the letter and the spirit of the law, providing children with the protections they deserve."

The ILB has obtained a copy of the 7-page complaint.

Marisa Kwiatkowski has this report on the IndyStar site.

Posted by Marcia Oddi on Tuesday, July 14, 2015
Posted to Indiana Government

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

For publication opinions today (1):

In Parkview Hospital, Inc. v. John J. Wernert, in his official capacity as Secretary of the Indiana Family and Social Services Administration, and The Methodist Hospitals, Inc., a 45-page opinion, Judge Brown writes:

Parkview Hospital, Inc. (“Parkview”), appeals the July 25, 2014 judgment of the trial court in favor of Indiana Family and Social Services Administration (“FSSA”), and Methodist Hospitals, Inc. (“Methodist,” and FSSA and Methodist, together, “Appellees”) on Parkview’s petition for judicial review. Parkview raises two issues, which we revise and restate as whether the court erred in entering the July 25, 2014 order affirming the decision of the Secretary of FSSA regarding the denial of disproportionate share hospital payments to Parkview. * * *

Based upon the record, the decision of the Secretary of FSSA was not arbitrary, capricious, or unsupported by substantial evidence. In addition, there was no contract or agreement of material terms and conditions regarding DSH payments supporting a forfeiture claim.

For the foregoing reasons, we affirm the July 25, 2014 judgment of the trial court affirming the decision of the Secretary of FSSA.

NFP civil decisions today (2):

Mobile Tire and Axle, Inc., et al. v. Superior Tire, LLC, et al. (mem. dec.)

Brian A. Reeve v. Paula B. Reeve (mem. dec.)

NFP criminal decisions today (1):

Daniel R. Jones v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, July 14, 2015
Posted to Ind. App.Ct. Decisions

Monday, July 13, 2015

Courts - "Battles over religious freedom are sure to follow same-sex marriage ruling"

A few quotes from a long story by David G. Savage of the LA Times:

Though some conservatives have complained that the decision forces religious people to perform same-sex weddings they believe violate their faith, ministers and pastors still have a right to refuse to participate in such ceremonies, as even supporters of gay rights are quick to acknowledge. * * *

On the other hand, county clerks must be willing to provide all marriage licenses, regardless of their personal religious views. The difference, of course, is that the Constitution limits the government and its employees, not private citizens.

"The state and its counties are bound by the decision, and they do not have religions," said University of Virginia law professor Douglas Laycock, an expert on the 1st Amendment and religious liberty. "Someone has to issue licenses, and I would say they must do so without imposing delay or inconvenience on the same-sex couples." * * *

Washington attorney Walter Dellinger, a former solicitor general, questioned the notion that public employees had a religious right to refuse to serve some people. "How long, in minutes, would a Texas county clerk last in a job if he or she refused to issue hunting licenses because of a personal religious objection to killing animals?" he asked in a blog post shortly after the ruling.

Government employees who violate someone's constitutional rights are subject to lawsuits in federal court. And in extreme cases, they can be forced to pay damages.

Looking ahead, both religious rights advocates and gay rights supporters say they can see the government ending the tax exemptions for religious colleges and universities that discriminate against gays and lesbians. * * *

[T]he most publicized disputes have focused on the handful of cases in which someone in the wedding business — a cake maker, florist or photographer — refuses to serve a same-sex couple, citing their religious faith as the reason.

These cases are largely unaffected by the same-sex marriage ruling and instead turn on laws in about half the states that require businesses that are open to the public to serve customers without regard to sexual orientation.

Posted by Marcia Oddi on Monday, July 13, 2015
Posted to Courts in general

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

In USA v. Joshua R. Mackin (ND Ind., Springmann), an 18-page opinion, Judge Kanne writes:

Appellant Joshua Mackin was charged with one count of being a felon in possession of a firearm. During discovery, the government disclosed an in-complete copy of the continuity slip used to track the fire-arm’s chain of custody. Later, at trial, the government pro-duced the correct and complete copy. Mackin moved for a mistrial, arguing that the government violated its Rule 16 obligation to turn over the correct and complete document, as the document was material to preparing his defense. The trial court denied his motion, and he now appeals that denial. For the reasons discussed below, we vacate Mackin’s conviction and remand the case for further proceedings.

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

Ind. Gov't. - "Indiana struggles to tackle synthetic drug problem"

Roberto Roldan reported this weekend in the Louisville Courier Journal:

Synthetic drugs such as “spice” and “bath salts” are moving from the corner store to the black market as Indiana searches for the best way to eradicate the dangerous chemicals.

State lawmakers had passed a ban on synthetic drugs in 2013 allowed the state Pharmacy Board to add new chemicals to the list as state drug labs identified them.

But that part of the law has been ruled unconstitutionally vague by a state court of appeals because it said information on new banned chemicals isn’t made readily available to residents. The case has advanced to the state Supreme Court. * * *

Much of the controversy over synthetic drug prosecutions are due to the ever-changing nature of the drug. Lawmakers in Indiana have struggled for years to define exactly what kind of blanket ban would put the biggest dent in the industry.

Under the 2013 law, the Pharmacy Board of Indiana has identified and banned roughly 80 new substances. And the U.S. Drug Enforcement Agency is currently looking at more than 300 synthetic drug compounds known to them.

Kim Early, who tests seized drugs at the Indiana State Police crime lab in Evansville, said it is not always clear when running the tests whether or not the drugs are actually known to the state as an illegal substance.

And because reporting new substances and getting them on state ban lists can take months, possession of these unknown chemicals can fall into a legal gray area.

“Sometimes it seems like the criminals are a step ahead of us in terms of new chemicals and sometimes it feels like we are caught up, it just depends,” Early said.

Law enforcement officers in Southern Indiana said they are left confused about whether or not they can arrest individuals if they don’t know what they have is actually illegal.

“If there is a banned substance in there, by the time we get it back from the state crime labs, they’ve changed it up,” Kessinger said. “We can’t ever get ahead of it unless we find some old stock that still has some banned stuff in there.”

ILB: For background, start with this ILB post from June 19th.

You can watch the July 2nd Supreme Court oral argument in Aadil Ashfaque v. State of Indiana AND Christopher Tiplick v. State of Indiana here.

Posted by Marcia Oddi on Monday, July 13, 2015
Posted to Indiana Courts | Indiana Government

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 4 NFP memorandum decisions)

For publication opinions today (1):

In Sanitary District of the City of Hammond, Indiana and the City of Hammond, Indiana v. Town of Griggith, Indiana; Town of Highland, Indiana, et al., a 22-page, 2-1 opinion, Judge Kirsch writes:

This case focuses on whether the Sanitary District of the City of Hammond, Indiana (“the District”) had the authority to cancel three long-term wastewater services contracts between it and the Town of Griffith, Indiana, the Town of Highland, Indiana, and the City of Whiting, Indiana (collectively “the Customer Communities”). Claiming that the contracts had become financially untenable and that the Customer Communities would not agree to reform the contracts, the District made a formal finding under Indiana Code section 5-22-17-5 that funds were not appropriated or otherwise available to support the continuation of performance of the contracts and passed a resolution cancelling the contracts. The Customer Communities sued the District and filed motions for summary judgment and judgment on the pleadings. The trial court granted the motions and held that the District exceeded its statutory authority when it passed the resolution, that the resolution purporting to cancel the contracts had no effect, and that the contracts were to remain in full force. The trial court ordered the parties to arbitrate all disputes arising under the contracts. The District appeals, raising the following restated issues for our review:

I. Whether the trial court erred in holding that the District was not statutorily authorized to cancel the wastewater services contracts pursuant to Indiana Code section 5-22-17-5(a); and

II. Whether the trial court erred in ordering the parties into arbitration rather than conducting judicial review where there is no dispute as to performance under the Treatment Agreements. * * *

[I] We conclude that, because the Treatment Agreements are contracts between governmental bodies, they are excluded from the scope of the Public Purchasing Statute unless otherwise authorized in the Public Purchasing Statute. Contrary to the District’s contention, we do not find that Indiana Code section 5-22-6-1 specifically authorizes contracts for services between governmental bodies. As such, under Indiana Code section 5-22-1-3(a)(1), the Public Purchasing Statute does not apply to the Treatment Agreements, and the District was not within its statutory authority to cancel the Treatment Agreements pursuant to Indiana Code section 5-22-17-5. The trial court did not err in its determination that the District did not have statutory authority to cancel the Treatment Agreements. * * *

[B]ecause we have concluded that the Public Purchasing Statute does not apply to the Treatment Agreements, judicial review under Indiana Code sections 5-22-19-1 and -2 is likewise not available. * * *

[II] [B]y entering into the Treatment Agreements with the Customer Communities, the District agreed that, if a dispute arose regarding rights or obligations under the Treatment Agreements, such dispute would be submitted to binding arbitration. Arbitration was, therefore, the method that all of the parties agreed to use if a contractual dispute arose during the contractual period, and the Treatment Agreements require arbitration when a dispute arises concerning any right or obligation under the Treatment Agreements. We, therefore, conclude that the trial court did not err when it ordered the parties into binding arbitration as to all disputes concerning the Treatment Agreements. * * *

We conclude that the trial court did not err in finding that the District lacked statutory authority to cancel the Treatment Agreements because the Public Purchasing Statute did not apply to the Treatment Agreements. The trial court also did not err in ordering the parties to arbitration for all disputes concerning the Treatment Agreements, as arbitration was mandated by the Treatment Agreements for all such disputes. We further determine that, even if the Public Purchasing Statute did apply to the Treatment Agreements, pursuant to paragraph 10A, the parties were required to submit to arbitration before any other action could be taken regarding any disputes the parties had under the Treatment Agreements. Affirmed.

Crone, J., concurs.
Robb, J., dissents with separate opinion. [which begins, at p. 19] I respectfully dissent from the majority’s determination that the District did not have statutory authority to cancel the Treatment Agreements pursuant to Indiana Code section 5-22-17-5 and was therefore not entitled to judicial review.

NFP civil decisions today (1):

Tod E. Elias v. Janet R. Elias (mem. dec.)

NFP criminal decisions today (3):

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

David Reyes-Valdes v. State of Indiana (mem. dec.)

Gene Hooks v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, July 13, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending July 10, 2015

Here is the Clerk's transfer list for the week ending Friday, July 10, 2015. It is one page (and 1 case) long.

One transfer granted last week:

Posted by Marcia Oddi on Monday, July 13, 2015
Posted to Indiana Transfer Lists

Law - "Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled"

7-page ABA Formal Opinion 471, July 1, 2015 - summary:

Upon the termination of a representation, a lawyer is required under Model Rules 1.15 and 1.16(d) to take steps to the extent reasonably practicable to protect a client’s interest, and such steps include surrendering to the former client papers and property to which the former client is entitled. A client is not entitled to papers and property that the lawyer generated for the lawyer’s own purpose in working on the client’s matter. However, when the lawyer’s representation of the client in a matter is terminated before the matter is completed, protection of the former client’s interest may require that certain materials the lawyer generated for the lawyer’s own purpose be provided to the client.

Posted by Marcia Oddi on Monday, July 13, 2015
Posted to General Law Related

Ind. Gov't. - "Problems and opportunities: Electronic access in Indiana"

The Indiana Coalition for Open Government joined with The Media School at Indiana University to put together this report on the status of digital access at the local level in Indiana.

Posted by Marcia Oddi on Monday, July 13, 2015
Posted to Indiana Government

Ind. Gov't. - More on: Appraisal/assessment of big box stores remains a big issue

Following on the ILB's comprehensive July 7th post on this topic, the Fort Wayne Journal Gazette on Sunday had a long editorial on the tax rulings and the "dark store" effect.

Posted by Marcia Oddi on Monday, July 13, 2015
Posted to Indiana Government

Environment - "High water levels, waves eating away at Lake Michigan shore"

Joyce Russell had this long story in the NWI Times on July 11th. It includes a striking video, and other photos, and begins:

PORTAGE | Just a year ago, people could walk down the concrete handicapped-accessible ramp at Portage Lakefront and Riverwalk to an expanse of beach.

If they took the same walk today, they'd drop off onto rock and into Lake Michigan's waters. The National Park Service has closed the ramp for safety concerns.

High lake levels and recent storms have eaten away at Lake Michigan's shoreline in recent months.

Posted by Marcia Oddi on Monday, July 13, 2015
Posted to Environment

Ind. Gov't. - "How parole boards keep prisoners in the dark and behind bars"

The Washington Post on Sunday ran a long story by Beth Schwartzapfel of The Marshall Project. After a brief review, it looks like Indiana comes out well, as according to the story Indiana is one of two states (along with Illinois) where parole (in the sense used in the story) was abolished long ago. Some quotes from the story:

A months-long Marshall Project investigation reveals that, in many states, parole boards are so deeply cautious about releasing prisoners who could come back to haunt them that they release only a small fraction of those eligible — and almost none who have committed violent offenses, even those who pose little danger and whom a judge clearly intended to go free. * * * [ILB: Note this is "parole," not "clemency."] * * *

Parole boards are vested with almost unlimited discretion to make decisions on almost any basis. Hearsay, rumor and instinct are all fair game. In New Mexico, the law directs the board to take into account “the inmate’s culture, language, values, mores, judgments, communicative ability and other unique qualities.”

The boards’ sensitivity to politics stems in part from the heavy presence of politicians in the ranks of board members. At least 18 states have one or more former elected officials on the board. In 44 states, the board is wholly appointed by the governor, and the well-paid positions can become gifts for former aides and political allies.

While some state laws require basic qualifications, these statutes are often vaguely worded, with language that is easily sidestepped. Many states have no minimum requirements at all.

And unlike politicians, who are bound by open records and disclosure laws and are accountable to their constituents, parole boards often operate behind closed doors. Their decisions are largely unreviewable by courts — or anyone else. * * *

In many states, the boards’ most basic workings are shielded by law from public view. Boards are not obligated to give any but the most cursory reasons for their decisions, which include not only whether to release prisoners but also how long they must wait to be considered again or what they can do to increase their chances in the meantime.

In 24 states, boards need not disclose what material they relied upon to reach their decisions. Courts have consistently upheld this prerogative, ruling that inmates have no due process right to parole. * * *

Determining whether an offender poses a manageable risk is a major preoccupation in criminal justice circles. At many steps in the process — from sentencing to probation — offenders’ histories are plumbed to produce data-driven, research-tested assessments of the threat they pose to public safety.

In the past five years, at least 10 states have passed laws requiring parole boards to use risk assessment tools and other quantitative guidelines. Many other state boards also use them.

But the quality of the tools varies widely, and even high-quality tools are often ignored. * * *

Many state parole boards claim exemptions from state sunshine laws that would be unthinkable for other government officials.

In 19 states, some or all parole board hearings are closed to the public. In 24 states, board files and documents are sealed. In 18 states, parole files are not available to the inmates themselves.

Charts published with the story show that in Indiana:Here is the Indiana Parole Board website. As it explains:
The Board has jurisdiction over all offenders who committed their crimes before October 1977 (referred to as “old code” offenders), and exercises discretionary parole release authority over them. The Board also has jurisdiction over all offenders who committed their crimes after October 1977 (referred to as “new code” offenders) whose release on parole is mandatory. When parole is violated, the Board makes discretionary decisions regarding the reinstatement of parole of all “new code” offenders whose parole has been revoked.

In addition, the Indiana Parole Board acts as a Clemency Commission for all capital cases and makes recommendations to the Governor concerning clemency or commutation requests.

Here is an undated memo on the difference between probation and parole, authored by attorney Cara Wieneke.

Posted by Marcia Oddi on Monday, July 13, 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 7/13/15):

Next week's oral arguments before the Supreme Court (week of 7/20/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/13/15):

Next week's oral arguments before the Court of Appeals (week of 7/20/15):

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, July 13, 2015
Posted to Upcoming Oral Arguments

Friday, July 10, 2015

Law - "Lawyers for rape accusers of Kobe Bryant, Jameis Winston altered U.S. campus culture"

A very long, fascinating story today in the Washington Post, reported by Will Hobson. From the start:

Their stories vary but usually share similarities: a rape, an indifferent police officer, a fumbled response by the school.

They’re either calling for John Clune, the attorney who helped rape accusers take on star athletes Kobe Bryant, Johan Santana and Jameis Winston, or they’re calling for his coworker, Baine Kerr, whose landmark lawsuits on behalf of women who said athletes raped them at the University of Colorado and Arizona State ended with massive settlements.

Clune and Kerr are widely recognized as the best attorneys in the country for victims of sex crimes at colleges, with an expertise in high-profile cases involving athletes. They currently represent women suing Florida State, the University of Oregon, and the University of Tulsa — all asserting the schools are financially liable for sex crimes committed by athletes — and are also suing Winston, the Tampa Bay Buccaneers quarterback and former Florida State star, on behalf of his accuser.

Over the past 15 years, these two lawyers — and a troubling number of athletes — have played starring roles in cases that have triggered a seismic change in how American colleges handle reports of sex crimes.

Clune and Kerr’s cases usually involve unproven allegations, drawing complaints by defense attorneys of a rush to judgment based on one side of a story. America’s legal community, meanwhile, is sharply divided on the wisdom of this new world order Clune and Kerr have helped impose, requiring colleges to investigate and adjudicate complex, emotionally charged cases that could bedevil even the most experienced detective.

To victim’s advocates, however, Clune and Kerr — and their clients — are heroes in a modern day civil rights movement, waging legal battles that have made America’s college campuses safer, exposed a corrosive side of college sports and highlighted a critical failing of the criminal justice system.

Posted by Marcia Oddi on Friday, July 10, 2015
Posted to General Law Related

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

For publication opinions today (1):

In State of Indiana v. Braeden Terrell, an 11-page opinion, Judge Crone writes:

Braeden Terrell was placed on probation and was ordered not to possess or consume alcoholic beverages and not to possess firearms as conditions of his probation. As another condition of his probation, he waived “any and all” of his search and seizure rights under state and federal law and agreed to submit to reasonable searches of his property or residence at any time by a probation officer. State’s Ex. 2. During a home visit, a probation officer found alcoholic beverages in Terrell’s kitchen and searched his nightstand for firearms and found marijuana and paraphernalia.

The State charged Terrell with class B misdemeanor marijuana possession and class A misdemeanor paraphernalia possession. Terrell filed a motion to suppress the contraband, arguing that the search of the nightstand was unconstitutional under the Fourth Amendment of the U.S. Constitution and Article 1, Section 11 of the Indiana Constitution. The trial court granted the motion, finding that the search of the nightstand “went well beyond the scope of the reasonable searches up to that point.” Appellant’s App. at 15.

The State appeals, claiming that the trial court erred in granting Terrell’s motion to suppress. We agree. With respect to the Fourth Amendment, Terrell waived his search and seizure rights and agreed to submit to searches of his property and residence, and the search of the nightstand for firearms was not unreasonable. And as for Article 1, Section 11, the search was reasonable under the totality of the circumstances. Therefore, we reverse and remand.

NFP civil decisions today (2):

Rose A. Martiradonna f/k/a Rose A. Rynberk v. Gilbert W. Rynberk (mem. dec.)

Wernle Youth & Family Treatment Center, Inc. v. Review board of the Indiana Department of Workforce Development and C.B. (mem. dec.)

NFP criminal decisions today (1):

Derek Lee Morris v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, July 10, 2015
Posted to Ind. App.Ct. Decisions

Thursday, July 09, 2015

Ind. Decisions - Supreme Court issues disciplinary opinion today, re South Bend attorney convicted of distributing pseudoephedrine

In In the Matter of: Tenneil E. Selner, a 3-page, 4-1 per curiam opinion, the Court writes:

We find that Respondent, Tenneil Selner, engaged in attorney misconduct by unlawfully distributing pseudoephedrine. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least three years without automatic reinstatement. * * *

On September 12, 2012, Respondent was indicted in federal court on three counts involving the manufacture of methamphetamine. On October 4, 2013, Respondent pled guilty to one count of unlawful distribution of pseudoephedrine and the other two counts were dismissed. In her factual basis, Respondent admitted purchasing pseudoephedrine four times at different drug stores and then providing the pseudoephedrine to two other individuals, allowing those individuals to evade the identification statutes governing the purchase of pseudoephedrine. Respondent was sentenced to twenty-one months of imprisonment and two years of subsequent probation. * * *

The Court concludes that Respondent violated the Indiana Rules of Professional Conduct by unlawfully distributing pseudoephedrine. Respondent already is under an order of interim suspension in this cause and a separate suspension order for dues nonpayment and continuing legal education noncompliance. For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than three years, without automatic reinstatement, effective from the date of this opinion. * * *

Rush, C.J., and Rucker, David, and Massa, JJ., concur.

Dickson, J., dissents, and would reject the Conditional Agreement, believing that the Respondent, by engaging in conduct resulting in her conviction of a serious felony, has demonstrated unfitness to responsibly represent, advise, and serve future clients.

Posted by Marcia Oddi on Thursday, July 09, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court posts two disciplinary orders, dated July 8th

From In the Matter of: David W. Russell is a 2-page, 5-0 order:

On August 11, 2014, Respondent was convicted on a guilty plea to operating a motor vehicle while intoxicated (“OWI”) with a previous OWI conviction within five years, a class D felony. Respondent’s felony conviction was later modified to a misdemeanor.

The parties cite as a fact in aggravation that this is Respondent’s second conviction for an OWI-related offense. * * *

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 90 days, beginning on the date of this order, all stayed subject to completion of at least two years of probation with JLAP monitoring.

From In the Matter of: Michael P. Krebes, a 2-page, 5-0 order:
Respondent employed L.G. from 2002 until 2013 as a paralegal, secretary, and office manager for his private practice. Respondent delegated to L.G. authority for establishing attorney-client relationships. On several occasions, L.G. collected client filing fees and converted those fees for her own personal use, and on at least two occasions L.G. provided clients with fabricated notices of automatic stay in order to conceal her conversion of bankruptcy filing fees. L.G. also stole client funds from Respondent’s trust account. In sum, L.G. misappropriated about $103,000 from Respondent’s clients. L.G.’s improper actions were caused, in part, by Respondent’s failure to appropriately supervise her and by Respondent’s improper delegation of authority to her.

Respondent has made restitution payments of about $67,000 directly to some affected clients and has made payments of about $36,000 to other attorneys so that other affected clients could secure successor counsel to have their bankruptcy matters completed. * * *

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

Posted by Marcia Oddi on Thursday, July 09, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Tom Graziani v. D&R Construction, a 5-page opinion, Judge Brown concludes:

Here, our review of the evidence reveals that, although the trial began at 3:00 p.m. on December 8, 2014, Graziani’s attorney advised Graziani in writing that it was not scheduled to begin until 3:30 p.m. Graziani arrived at the hearing nine minutes after a default judgment was entered against him. He filed a motion to set aside the default judgment that same day.

Based upon these facts, and in light of the material issues of fact accompanying the allegations, the short length of the delay, the lack of prejudice to D&R by the delay, and the defenses raised by Graziani in his motion for relief from judgment, we conclude that Graziani has shown good cause for his failure to attend his 3:00 trial.

Conclusion. For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

NFP civil decisions today (5):

Donald W. Harshaw v. Elizabeth A. Harshaw (mem. dec.)

In the Matter of T.D., A Child Alleged To Be In Need Of Services, W.D., Father v. The Indiana Department of Child Services (mem. dec.)

David Moss v. Indianapolis Department of Natural Resources (mem. dec.)

Derrick Harris v. State of Indiana, Parole Board (mem. dec.)

Charles Stierwalt v. Travis Barton and City of Linton, Indiana (mem. dec.)

NFP criminal decisions today (3):

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

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

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

Posted by Marcia Oddi on Thursday, July 09, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decided one Indiana case July 8, re Kansas Fed.Ex. drivers

In Carlene Craig v. FedEx Ground Package System (ND Ind., Miller), a 6-page per curiam opinion, the panel writes:

This appeal is from the MDL court’s grant of summary judgment to FedEx Ground Package System, Inc., and denial of summary judgment to the plaintiffs, holding that the plaintiff drivers were independent contractors as a matter of law under the Kansas Wage Payment Act (KWPA), Kan. Stat. Ann. §§ 44-312 to 33-340. See In Re FedEx Ground Package Sys., Inc., 734 F. Supp. 2d 557 (N.D. Ind. 2010).

After hearing oral argument, we certified two questions to the Kansas Supreme Court: (1) Given the undisputed facts presented to the district court in this case, are the plaintiff drivers employees of FedEx as a matter of law under the KWPA? (2) Drivers can acquire more than one service area from Fed Ex. Is the answer to the preceding question different for plaintiff drivers who have more than one service area? Craig v. FedEx Ground Package Sys., Inc., 686 F.3d 423, 431 (7th Cir. 2012). The court expresses its appreciation to the Justices of the Kansas Supreme Court for their willingness to answer these questions. * * *

The application of Kansas law to FedEx’s relationship with its drivers has been authoritatively decided by the Kansas Supreme Court: “under the undisputed facts presented, the FedEx delivery drivers are employees for purposes of the KWPA.” Craig, 335 P.3d at 92. The Kansas Supreme Court’s decision necessitates the reversal of the MDL court’s grant of summary judgment in favor of FedEx and denial of the plaintiff drivers’ summary judgment motion. Accordingly, we now REVERSE the MDL court’s denial of the plaintiff drivers’ motion for summary judgment and its grant of Fed- Ex’s motion for summary judgment. The Craig case is REMANDED to the MDL court with instructions to enter judgment for the plaintiff drivers that they are employees of FedEx for purposes of the KWPA and for further proceedings consistent with this opinion, which ultimately may require a remand of the case to the Kansas district court for a determination of damages.

Posted by Marcia Oddi on Thursday, July 09, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Credit cards will soon be accepted for bail in Floyd County"

Chris Morris writes in a brief story in the New Albany News & Tribune (as reprinted in the Indiana Economic Digest):

Those arrested in Floyd County will soon be able to use a credit card to get out of jail.

In the past when bail was set, offenders would have to use cash or go through a bondsman to post bail. Now, through govpaynet.com, credit cards are accepted and the county will receive 15 percent of the fee charged to the card user.

Sheriff Frank Loop and Clerk Christy Eurton had an ordinance approved Tuesday night by the Floyd County Commissioners. Once Loop gets the county council’s blessing and all the equipment is up and running, credit cards will be allowed for bond payment.

“We are just trying to make it more accessible for the public,” Loop said.

If offenders bond out through the sheriff’s department using a credit card, 15 percent will go into the sheriff’s perpetuation fund. If a credit card is used to bond out from 8 a.m. to 4 p.m. during the week through the clerk’s office the 15 percent will go into the clerk’s perpetuation fund.

The clerk’s office also accepts credit cards for traffic tickets and court costs.

Loop said he has trained his staff on the new method and will not have to hire additional help.

Offenders will still be able to use a bondsman or cash to make bail.

Posted by Marcia Oddi on Thursday, July 09, 2015
Posted to Indiana Government

Wednesday, July 08, 2015

Environment - 3rd Circuit "upholds EPA in putting Chesapeake Bay on 'pollution diet'"; Indiana sues over water rules

The story July 6th by Baltimore Sun reporter, Timothy B. Wheeler, began:

A federal appeals court upheld Monday the Environmental Protection Agency's authority to order pollution reductions by Maryland and all the other states that drain into the Chesapeake Bay.

In a 60-page ruling, the U.S. 3rd Circuit Court of Appeals in Philadelphia brushed aside challenges from agricultural and home building groups to the "pollution diet" that EPA imposed for the bay in 2010.

"Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution," Judge Thomas L. Ambro wrote for the three-judge panel that heard the appeal.

The federal agency, acting after more than 25 years of little or no cleanup progress, had set a "total maximum daily load" (TMDL) of nutrients and sediment washing into the Chesapeake from the six bay states and the District of Columbia. EPA set a deadline of 2025 for the states to adopt measures needed to reduce all sources of pollution, or face possible federal sanctions.

The American Farm Bureau Federation, the National Assocation of Home Builders and other groups had sued in 2011 to block the bay pollution plan, claiming that EPA overstepped its legal authority in demanding that the states curb runoff from farms and new development as well as from industry and sewage plants.

Environmental groups and municipal wastewater agencies joined EPA in defending the bay strategy, arguing that if federal regulators could not insist on across-the-board pollution reductions, urban and suburban water and sewer system customers would be left to shoulder the entire cleanup burden. Agriculture is the leading source of nutrient and sediment pollution, according to the EPA, while storm-water runoff is the only source of pollution still growing.

The appeals court sided with EPA and its supporters, calling the farm bureau's arguments "unpersuasive."

How Appealing collected a number of stories on the ruling, here, along with a link to the opinion.

Also on July 6th, Max Bomber of The Statehouse File reported in a story picked up by the Indianapolis Star - it begins:

Indiana will join a multistate lawsuit against the federal government, accusing the EPA of overreach in its water rule.

Indiana Attorney General Greg Zoeller announced Monday that his office will soon join the more than 12 state suit filed June 30 against the Environmental Protection Agency, which challenges as unconstitutional a new definition of streams, creeks, ponds and wetlands as the "waters of the United States."

The agency's new Clean Water Act rules would be costly to farmers and could harm Indiana's agricultural economy, Zoeller said. * * *

However, Kim Ferraro, water and agriculture policy director and senior staff attorney for the Hoosier Environmental Council, * * * said the EPA proposal clarifies existing rules about what is considered a waterway for regulation.

Posted by Marcia Oddi on Wednesday, July 08, 2015
Posted to Environment

Ind. Gov't. - Gov. Jay Nixon of Missouri and Gov. Sam Brownback of Kansas react to same sex marriage

This was a long, interesting story in the Kansas City Star yesterday, reported by Dave Helling. A few quotes:

The legal battle over same-sex marriage may have ended, but its value as a wedge issue remains intact — a fact governors in Kansas and Missouri demonstrated Tuesday.

In Missouri, Gov. Jay Nixon ordered state boards and agencies to “immediately” implement the U.S. Supreme Court’s June 26 decision protecting same-sex marriage.

A few minutes later, Kansas Gov. Sam Brownback ordered agencies in his state to protect clergy from legal complaints if they object to same-sex ceremonies.

The orders — one endorsing the ruling, the other criticizing it — carry debatable impact. Both states have moved slowly but steadily in recent days to issue same-sex marriage licenses and to adopt regulations compatible with that right.

But the conflicting announcements reflect the still-unsettled political climate surrounding the issue and the perceived political advantage from supporting or opposing it. In a CNN poll taken after the ruling, 59 percent of those surveyed supported the decision, while 39 percent opposed it.

Only 2 percent had no opinion.

The Kansas and Missouri orders also suggest coming challenges in merging family law into the reality of same-sex families. Adoption, taxation, divorce and child custody, visitation, grandparents’ rights, pensions and other work benefits — all must now be understood through the prism of legal same-sex marriage and its implications for broader discrimination laws.

Posted by Marcia Oddi on Wednesday, July 08, 2015
Posted to Indiana Government

Ind. Courts - Changes to Supreme Court Rules Committee

By a July 7th order, the Court appoints to the Committee on Rules of Practice and Procedure Professor Del Wright, Jr. to the seat currently held by Professor Jeffrey O. Cooper.

Trial Rule 80 governs the Committee.

Posted by Marcia Oddi on Wednesday, July 08, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 12 NFP memorandum decisions)

For publication opinions today (5):

In In re the Matter of: I.J., Child, T.M. v. L.D. and J.D. , an 11-page opinion, Judge May writes:

T.M. appeals following the adoption of I.J., asserting the court erred when it denied his motions for genetic testing and to intervene in the adoption proceedings. We reverse. * * *

The trial court determined T.M.’s registration was untimely under that statute because it occurred after the filing of the petition for adoption. (Appellant’s Br. at 16.) However, pursuant to the statute, a putative father would still be entitled to notice of an adoption if he registered “no later than . . . thirty (30) days after the child’s birth . . . ,” Ind. Code § 31-19-5-2(a), because the deadline is thirty days after the birth or the date a petition is filed, “whichever occurs later.” Id. (emphasis added). T.M. registered after the petition for adoption was filed, but that does not foreclose his right to challenge the adoption if he registered before I.J. was thirty days old. * * *

Adoptive Parents assert the court properly granted their petition to adopt I.J. because Mother and Ke.J. consented. As the court should not have dismissed T.M.’s motion to contest the adoption without providing T.M. an opportunity to undergo genetic testing, we cannot agree. * * *

T.M.’s timely registration with the putative father registry entitled him to an opportunity to challenge the presumption that Ke.J. is the father of I.J.

We are mindful of the fact that I.J. has been in the care, custody, and control of Adoptive Parents since birth and our reversal may create instability in her young life. But we cannot ignore the constitutional dimension of the parental right that arose with T.M.’s timely registration with the putative father registry. Accordingly, we reverse and remand.

Mathias, J., concurs. Robb, J., concurs in result with opinion.

Robb, Judge, concurring in result. * * * [T]he majority does not specifically say why the trial court erred in refusing T.M.’s request for a genetic test.
[22] Indiana Code section 31-19-9-1(a)(1) allows a man who is presumed to be the child’s biological father because of a marital relationship to consent to an adoption only “if [he] is the biological or adoptive parent of the child.” The consent statute itself therefore grants a third party who claims to be the biological parent the right to seek genetic testing in order to rebut a husband’s presumption of paternity. If the third party is otherwise entitled to notice of the adoption, a trial court is required by statute to grant such a request.

As we have determined herein that T.M. timely registered with the putative father registry, and with the clarification that T.M. has the right to seek genetic paternity testing irrespective of Ke.J.’s presumed paternity, I concur.

In 2513-2515 South Holt Road Holdings, LLC v. Holt Road, LLC, Res Holt Road, LLC, MSP Holt Road, LLC, K3D Holt Road, LLC, and Roll & Hold Warehousing & Distribution Corp. , a 17-page opinion, Judge Brown writes:
Lender raises one issue, which we revise and restate as whether the court erred in ruling that the Lender is not entitled to recover certain property tax refunds received by Borrowers. * * *

For the foregoing reasons, we reverse the trial court’s judgment awarding receipt of the Tax Refunds to Borrowers and remand with instructions to enter judgment awarding receipt of the Tax Refunds to Lender.

In Virginia Tramill, Miah Gant, Marquel Cheaney and Jeremiah Tramill, the Mother and Children of Sara Tramill, Deceased v. Anonymous Healthcare Provider, a 15-page opinion, Judge Barnes writes:
The Appellants assert that the trial court should have granted their motion for declaratory judgment and determined the proper method for selecting the third panelist. The Uniform Declaratory Judgment Act is intended to furnish an adequate and complete remedy where none before had existed. * * *

To say that the parties have filed repetitive motions regarding the selection of the third panelist is an understatement. Notwithstanding these motions, the composition of the medical review panel remains unresolved more than four years after the filing of the proposed complaint. Accordingly, because declaratory relief is appropriate, if not necessary, to resolve the parties’ dispute regarding the selection of the third panelist and to facilitate the medical review panel process, the trial court should have granted the Appellants’ motion. * * *

The trial court should have granted the Appellants’ motion for declaratory judgment to facilitate the medical review panel process in this case. Regarding the specialty of the third panelist, although the Appellants agreed not to object to the selection of a forensic pathologist, they did not agree that only a forensic pathologist could be selected. Regarding challenges to the third panelist, Indiana Code Section 34-18-10-10 does not provide a method for challenging a chairman’s selection. As for the Facility’s cross-appeal, we do not have authority to review the challenged rulings because they were not final judgments. We affirm in part and reverse in part.

In In Re: The Matter of the Supervised Administration of the Estate of Wayne Lewis Stayback, Deceased, Joseph Stayback v. Jeffrey Stayback and Julie Warnke, a 23-page opinion, Judge Najam concludes:
The trial court did not err when it denied Joseph’s motion for fees and expenses. The trial court erred when it ordered that the income from the billboard leases be distributed to Joseph, Jeffrey, and Julie. That income is derived from the real estate held in trust and belongs to Joseph as long as he fulfills the condition of his life estate. And the trial court did not err when it denied Jeffrey and Julie’s motion to dissolve and terminate the trust. Wayne loved the paintball business, and the purpose of the Trust was to make certain that Joseph would be able to continue in the paintball business after Wayne’s death. Affirmed in part and reversed in part.
In Cathy Rexroad, et. al. v. Greenwood Motor Lines, Inc. d/b/a R+L Carriers, r&L Carriers Shared Services, LLC, and Richard C. Maples, Sr., a 7-page opinion, Judge Bradford writes:
Appellee-Defendant Richard C. Maples, an Ohio resident, was employed as a truck driver by Appellant-Defendant R&L Carriers, an Ohio limited liability company. The tractor-trailer driven by Maples was owned by Appellee-Defendant Greenwood Motor Lines, Inc. (“Greenwood”). On February 14, 2012, while in the course of his employment, Maples was driving on an Indiana interstate when he lost control of his vehicle and struck another tractor-trailer resulting in the death of Arnold Rexroad, Sr. (“Rexroad”), an Illinois resident. Several members of Rexroad’s family were named as special administrators of his estate and filed a negligence action against defendants. Ultimately, Greenwood admitted that it was entirely at fault for the accident. Plaintiffs requested that the trial court apply Illinois law to the only remaining unsettled issue, damages. The trial court denied plaintiffs’ request and chose to apply Indiana law. We affirm. * * *

Plaintiffs essentially argue that Greenwood’s admission of fault effectively negates the importance of the location of the accident and, consequently, the lex loci delecti presumption. We disagree. For one, this approach would cause peculiar results in cases such as this. At any point during litigation, if the defendant admits fault, then the applicable state law could change. Such a precedent would significantly discourage stipulations of fault. Furthermore, we think it would be improper to so easily disregard the lex loci delecti presumption. “People do not take the laws of their home state with them when they travel but are subject to the laws of the state in which they act.” Id. at 807. Indiana law unquestionably applies to determine liability in this case. To apply another state’s laws to the issue of damages would require us to engage in dépeçage , which we cannot do.

ILB Comment. The above opinion ends with a reference to "dépeçage", at pp.6-7. The term, used in a 2004 Supreme Court opinion (Simon), and a 2010 Supreme Court opinion (Nat'l. Fire v. Standard Fusee) is also used in a footnote in a 2007 COA opinion (Shaw) by Judge May:
[1] Dépeçage is the process of analyzing different issues within the same case separately under the laws of different states. Simon v. United States, 805 N.E.2d 798, 801 (Ind. 2004). Indiana’s choice-of-law rules do not permit dépeçage. Id. at 803. This appears to be the reason the counts were dismissed rather than analyzed under Illinois law by the Indiana court.
NFP civil decisions today (5):

Jamie Johnson v. Courtney Johnson (mem. dec.)

Christopher Rehtorik v. Jamie Rehtorik (mem. dec.)

Mohammed Nadeem v. Shahidatul Abubakar (mem. dec.)

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

Allen E. Wilson v. Amy L. Wilson (mem. dec.)

NFP criminal decisions today (7):

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

Kyle Beals v. State of Indiana (mem. dec.)

Eric L. Carter v. State of Indiana (mem. dec.)

Anteis Robinson v. State of Indiana (mem. dec.)

Rumaldo M. Juarez v. State of Indiana (mem. dec.)

Christopher J. Wilson v. State of Indiana (mem. dec.)

Kenneth Cushingberry v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, July 08, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on Wisconsin public records brohaha; Indiana parallels

More from the Milwaukee Journal-Sentinel:

Yesterday, July 7th, an editorial headed "Public deserves answers on assault on open records." As you read it, keep in mind that Indiana already has a "deliberative" materials exception in its law; the Indiana House's current efforts appear to go beyond anything Wisconsin is attempting (and which has caused such outcry in that State):

The measure that was slipped into the state budget Thursday by 12 Republicans on the Legislature's Joint Finance Committee would have set new exemptions to the open records law, including one that would explicitly create an exception for "deliberative materials." Such an exception would make it impossible for the public to see how state, local and school officials made their decisions. The measure also would have made a number of records from lawmakers' offices inaccessible to the public.

The public reaction was quick and virtually unanimous, with groups from all sides condemning the attempt to shut off these records from public view, and Republicans quickly backed off. On Tuesday, the Journal Sentinel reported that the exemptions had been removed.

The legislators need to make sure it stays that way; not even a hint of these changes can be allowed to stand. But the legislators need to do more than that. They need to answer some troubling questions.

The editorial ends on a different point, but one also applicable to Indiana:
Finally: When will legislators stop slipping things into this budget that have no business being there? The records changes were a terrible idea that alert watchdogs were able to catch. But this and other items never should have been put in the budget to begin with, a practice that Republicans and others such as the Journal Sentinel rightly criticized when Democrats were doing it. It's time to end this gamesmanship.
Today the Journal-Sentinel has a long story by Patrick Marley, including:
On Tuesday, Walker spokeswoman Laurel Patrick acknowledged for the first time the role of the governor's office in developing the now-scrapped records proposal, confirming it after Republican legislative leaders had identified Walker's involvement. * * *

That change would have allowed state and local officials to keep from the public information about the process used to make their decisions. Other abandoned changes on public access to records would have allowed lawmakers to keep private nearly all documents they maintain.

"Our intent with these changes was to encourage a deliberative process with state agencies in developing policy and legislation," Patrick, the Walker spokeswoman, said. "This allows for robust debate with state agencies and public employees over the merit of policies and proposed initiatives as they are being formed, while ensuring materials related to final proposals, as well as information related to external stakeholders seeking to influence public policy, would remain fully transparent."

But Sen. Jon Erpenbach (D-Middleton) warned on the Senate floor that the proposed exemption for "deliberative materials" would have blocked the public from getting "everything under the sun." Sen. Lena Taylor (D-Milwaukee) said: "The governor has a track record of secrecy. This motion has Governor Walker's hands all over it."

Senate Majority Leader Scott Fitzgerald (R-Juneau) said he hopes to consider changes to the open records law in the future, but that lawmakers can't now because of the public outrage over the plan the committee passed last week.

And from the July 7th Columbia Journalism Review, some quotes from the start of a long, self-congratulatory story by Anna Clark. Again, the Wisconsin story seems a marked contrast to Indiana's situation:
Wisconsin lawmakers tried to sneak one by the state’s journalists over the holiday weekend—and found that the watchdog wasn’t asleep.

On Thursday, July 2, the Republican-led legislature’s joint finance committee voted along party lines, 12-4, to add a broad provision to the budget bill that would sharply curtail the state’s open-records law. No longer would reporters or members of the public have access to communications between elected officials and their staff, or “deliberative materials,” such as draft legislation and briefings. The measure also would have created a nationally unprecedented “legislator disclosure privilege,” permitting lawmakers to keep records secret if they are being sued, empowering them to bar current and former staff from disclosing information, and admonishing legislative agencies to “at all times observe the confidential nature” of records covered by the privilege.

In a state that has often seen pitched political battle in recent years, the measure threatened to shroud much of the lawmaking process in secrecy.

[More] The Wisconsin Attorney General has a good website on open government.

Posted by Marcia Oddi on Wednesday, July 08, 2015
Posted to GA and APRA

Tuesday, July 07, 2015

Ind. Decisions - 7th Circuit decides a second Indiana case today, re "coercion" to engage in illegal activity

In USA v. John Smith (ND Ind., Simon), an 18-page opinion, Judge Ripple writes:

John Smith was arrested after a sting operation in which the Government had organized two fictional drug transactions. Based on his participation in that operation, a jury convicted Mr. Smith of both conspiring and attempting to possess with intent to distribute more than five kilograms of cocaine, transferring firearms with knowledge that they would be used in a drug trafficking crime, and possessing a firearm in furtherance of a drug trafficking crime. Mr. Smith appeals his conviction, arguing that the Government’s conduct violated his right to due process of law by coercing him to engage in illegal activity. After careful study of the governing case law and of the record, we conclude that no such coercion took place. The district court, therefore, did not plainly err by failing to dismiss Mr. Smith’s indictment. We therefore affirm the judgment of the district court. * * *

Mr. Smith contends that the Government violated his right to due process of law by soliciting him to participate in a fictional drug transaction completely operated by undercover agents. He relies on United States v. Russell, 411 U.S. 423 (1973), and its progeny. He acknowledges that he did not raise this argument before the district court, and therefore we review for plain error. See United States v. Duncan, 896 F.2d 271, 275 (7th Cir. 1990). * * *

Our early cases expressed skepticism about the validity of the “outrageous government conduct” defense. See, e.g., Duncan, 896 F.2d at 275, 277 (noting that the doctrine’s validity was questionable and concluding that the district court did not commit plain error in refusing to recognize an “outrageous governmental conduct” defense); United States v. Belzer, 743 F.2d 1213, 1216–20 (7th Cir. 1984) (holding that the Government’s conduct was not outrageous and therefore did not violate due process). More recently, we have said that the defense “does not exist in this circuit.” [25] United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995). In Boyd, we explicitly rejected the “intimations that ‘outrageous governmental misconduct’ is an independent ground for ordering a new trial.” Id. Our rejection of the defense was premised in part on the Supreme Court’s instruction in United States v. Hasting, 461 U.S. 499 (1983), that “we are not to reverse convictions in order to punish prosecutors.”[26] * * *

Although we recognize that the Supreme Court has not closed the door entirely on this matter, this case certainly does not present us with an opportunity to reconsider our position. Instead, this case, in which the Government simply provided the defendant with the opportunity to commit an offense, is governed by the basic principles of entrapment. * * *

Conclusion. Because we do not recognize outrageous government conduct as cause for dismissing an indictment, Mr. Smith’s challenge to his conviction fails. In any event, the evidence reveals that Mr. Smith jumped at the opportunity to make money by providing protection for individuals involved in the illicit drug trade and that he was an active and enthusiastic participant throughout the sting operation. The district court, therefore, did not commit plain error by failing to dismiss Mr. Smith’s indictment on account of the Government’s conduct. The judgment of the district court is affirmed.

Posted by Marcia Oddi on Tuesday, July 07, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Warrant required for police to search GPS device"

Today's COA opinion in Christopher Wertz v. State of Indiana (ILB summary here) is the subject of a story this afternoon in the NWI Times, reported by Dan Carden. Some quotes:

INDIANAPOLIS | Police cannot search or review the data recorded by a vehicle's navigation system without first obtaining a warrant, the Indiana Court of Appeals ruled Tuesday.

In its 3-0 decision, the court determined GPS data is entitled to the same privacy protections under the Fourth Amendment that the U.S. Supreme Court recently guaranteed to cellular phone data, which also typically contains location information.

"In our view, the GPS unit in this case is akin to a computer or cell phone. The device stores large amounts of information that could not possibly be stored in an ordinary physical container," wrote Appeals Judge Margret Robb. "Moreover, the location data it does store has been identified by the Supreme Court as private information." * * *

Police in Madison County, northeast of Indianapolis, seized Christopher Wertz's portable GPS device following a one-vehicle crash into a utility pole on Sept. 9, 2011, that killed Wertz's passenger, Megan Solinski.

After bypassing Wertz's passcode with help from the GPS manufacturer, police used data captured by the device to determine Wertz's route and traveling speed prior to the accident. * * *

Madison Circuit Judge Dennis Carroll rejected Wertz's pretrial motion to suppress the GPS data.

The appeals court said in reversing Carroll's decision that recent U.S. Supreme Court rulings require cell phones be treated differently than physical objects typically encountered in permissible police searches of individuals or vehicles because they often contain massive amounts of private data — including pictures, videos, address books, call logs and Internet search histories.

Similarly, a person using a GPS device for navigational assistance is not consenting to police accessing potentially years of travel records without probable cause, the court said.

"Although a person can expect to be seen by someone when he leaves his home and drives to a given destination, it does not follow that he should expect the government to know his whereabouts all the time," Robb wrote.

Oral arguments before the three-judge appellate panel were heard April 14 at Hammond Academy of Science and Technology, a charter school.

And, as it turns out, the NWI Times was at the oral argument, with a camera. The April 14th story by Carmen McCollum begins:
HAMMOND | The case was real. The defendant was real. The attorneys and judges were real.

The State of Indiana Court of Appeals heard oral arguments in the case of Wertz v. State at Hammond Academy of Science & Technology, giving high school students an opportunity to see attorneys and judges in action. The event was hosted by Hammond Legal Clinic, organized by Executive Director Kris Sakelaris, who is also president of the HAST charter school board.

Posted by Marcia Oddi on Tuesday, July 07, 2015
Posted to Ind. App.Ct. Decisions

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

In Choice Hotels International In v. Anuj Grover (ND Ind., Van Bokkelen), a 7-page opinion, Judge Easterbrook writes:

As a substantive matter, relief under Rule 60(b)(6) requires the movant to establish that “extraordinary circumstances” justify upsetting a final decision. See Gonzalez v. Crosby, 545 U.S. 524, 535–38 (2005).

The district court thought these circumstances to be short of “extraordinary.” Lawyers sometimes fail to protect their clients’ interests, and the district judge observed that the remedy for legal neglect lies in a malpractice suit against the lawyer, rather than continuing the original litigation and upsetting the adversary’s legitimate expectations based on a final judgment. Litigants who choose a poor lawyer may bear the costs themselves, or shift them to the lawyer, but cannot shift them to an adversary who bore no fault for the problem. (Johnson unquestionably is a poor lawyer. The Supreme Court of Indiana suspended him from practice on March 20, 2014, less than four years after his admission to the bar, following five disciplinary complaints against him. His suspension—for failure to cooperate in the investigation of these grievances—is of indefinite duration, and he has been removed from the roll of attorneys authorized to practice in the Northern District of Indiana.)

The district court’s approach is well grounded in decisions of the Supreme Court and this circuit. * * *

The Investors recognized that Chawla was not protecting their interests, and they sensibly insisted that he find someone who would. When they began to suspect that Johnson likewise was not protecting their interests, they did not replace him. Sending him emails, and making unreturned phone calls, is no substitute for action. They readily could have consulted the docket in the litigation and learned that Johnson was not filing essential documents, but they didn’t. Johnson did not abandon the investors; he performed some legal tasks, though not enough, and responded to three of Anuj Grover’s inquiries. Unlike the attorneys in Thomas and Maples, he had not cut off all communication with his clients and walked away from the litigation. But even if we were to treat the Investors as abandoned by Johnson, still they must bear the consequences of their own inaction. They were sued and did not defend the litigation, personally or by counsel. They were able to monitor the proceedings yet did not follow through. The district judge therefore did not abuse his discretion in denying their motion for relief from judgment. AFFIRMED

Posted by Marcia Oddi on Tuesday, July 07, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Democrats want details of Pence public relations spending"

Dan Carden reports today in the NWI Times in a story that begins:

INDIANAPOLIS | Hoosier Democrats are demanding Gov. Mike Pence detail exactly what Indiana received for the $365,000 it paid an international public relations firm to improve the state's image following April's "religious freedom" debacle.

John Zody, chairman of the Indiana Democratic Party, submitted a public records request to the Republican governor Monday seeking copies of all email messages, documents and agreements involving state officials and PR firm Porter Novelli.

"Mike Pence wasn't being transparent with Hoosiers when he terminated the taxpayer-funded contract with Porter Novelli the day before a long holiday weekend," Zody said. "Hoosiers need to know their tax dollars are being managed properly."

The state's commerce agency, known as the Indiana Economic Development Corp., announced Thursday afternoon it was ending the six-month, $750,000 contract just six weeks after it was signed.

Later in the story:
The joint termination agreement requires the IEDC and Porter Novelli keep confidential all aspects of the firm's work for the state and data provided by the state to the company.

It's not clear whether Indiana's open records law can force the governor's office to share Porter Novelli's work with the Democrats or anyone else who requests it.

ILB: That agreement looks to bear parallels to a settlement agreement between the government and a private entity... See this May 30, 2013 ILB post on past efforts to keep settlement agreements secret.

The NWI Times story today includes links to the IEDC professional services agreement with Porter Novelli, and to the termination agreement, as well as the Indiana Democrats request for records of Porter Novelli work.

Posted by Marcia Oddi on Tuesday, July 07, 2015
Posted to Indiana Government

Law "What Are the Limits of ‘Religious Liberty?’"

Emily Bazelon has authored this July 7th overview of the concept of "religious liberty" for the NYT Magazine. A sample:

The court’s decision led to a burst of feminist outrage, but Hobby Lobby didn’t face a sustained boycott. And so it was surprising when another push for religious objection crashed into a wall of public condemnation earlier this year. Legislators in Indiana and Arkansas expected a smooth ride for their versions of a bill called the Religious Freedom Restoration Act. The first law by that name was passed by Congress in 1993 by huge, bipartisan margins. R.F.R.A. established a balancing test that remains in effect: When someone complains that a federal law substantially burdens his or her free exercise of religion, the government must show that it has a compelling interest in applying that law.

The R.F.R.A.s proposed in Indiana and Arkansas were more expansive: They would have allowed people and corporations to bring religious-liberty claims against one another, as well as the government. But that change didn’t really explain why Indiana and Arkansas found themselves on the wrong side of the culture wars; the context did. The new religious-liberty bills appeared to be shielding businesses that didn’t want to serve gay couples, who had recently won the right to marry in Indiana. ‘‘If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no,’’ Crystal O’Connor, an owner of Memories Pizza in Walkerton, Ind., told a local news station. This time, the boycott materialized, and Memories Pizza temporarily shut its doors (supporters also raised more than $800,000 on the owners’ behalf). When major companies threatened to pull up stakes in Indiana and Arkansas, the states retreated, altering their religious-freedom bills. * * *

Refusing to serve customers has an ugly history. A half-century ago, the civil rights movement held lunch-counter sit-ins to protest Jim Crow. No one succeeded then in claiming a God-given right to refuse to serve black customers. Throughout the South, businesses open to the public became open to all. Today, in the name of religious liberty, there is robust Southern opposition to same-sex marriage. But supporters say the analogy to the exclusions of Jim Crow is inapt, because racial segregation was never central to Christian teaching the way traditional marriage has been. They also correctly point out that strong national laws protect against discrimination on the basis of race, but not against discrimination on the basis of sexual orientation. In many states, in the South and elsewhere, a business or a landlord doesn’t need a special faith-based reason for turning away a gay client or tenant. They’re simply free to do so.

Given the speed with which public support for same-sex marriage is growing, gay people may win other rights against discrimination. But what about private religious schools and social-service organizations?

Posted by Marcia Oddi on Tuesday, July 07, 2015
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decisions)

For publication opinions today (2):

In Bryan A. Cox v. State of Indiana, a 6-page opinion, Judge Baker writes:

Bryan Cox appeals from the sentence enhancement imposed as a result of his Habitual Offender adjudication. Cox argues that the doctrine of amelioration applies and that the habitual offender statute that became effective on July 1, 2014 should have been applied at his sentencing. Finding no error, we affirm. * * *

In the instant case, Cox’s crime was committed before, and all proceedings began before, the effective date of the amended habitual offender statute. In addition, it is clear that the legislature did not intend the doctrine of amelioration to apply. Therefore, Cox’s argument fails.

In Christopher Wertz v. State of Indiana, a 21-page opinion, Judge Robb writes:
Christopher Wertz brings this interlocutory appeal, challenging the trial court’s denial of his motion to suppress. He presents one issue, which is a matter of first impression: whether the warrantless search of his personal Garmin Global Positioning System (“GPS”) device violated the Fourth Amendment to the United States Constitution.1 We conclude Wertz’s GPS device is not a “container” under the automobile exception and that he has a reasonable expectation of privacy in the device and its contents. Therefore, the warrantless search of the GPS device violated the Fourth Amendment. * * *

We conclude Wertz’s GPS device cannot be treated as a “container” under the automobile exception. We further conclude that he has a reasonable expectation of privacy in the device and in the historical location data that the device stores. Therefore, the warrantless search of the GPS device violated the Fourth Amendment. We reverse and remand.

NFP civil decisions today (2):

Peter D. Nugent v. Phyllis N. Nugent (mem. dec.)

Scott Meisberger, d/b/a Meisberger Construction v. D. Brent Hanger and Gregory Bishop d/b/a H & B Enterprises, Inc. (mem. dec.)

NFP criminal decisions today (5):

Clemmeth and Janis Leach v. State of Indiana (mem. dec.)

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

Herbert Cox III v. The State of Indiana (mem. dec.)

John Wesley Kimbrough, Jr. v. State of Indiana (mem. dec.)

Vincent D. Quarles Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, July 07, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Appraisal/assessment of big box stores remains a big issue

The ILB's first major post on this issue was on Jan. 18th, and quoted the IBJ, the FWJG and the LCJ, as well as linked to both the Meijer and Kohl opinions. This was followed by about half-a-dozen subsequent posts, the most recent a brief post on May 5th pointing to 2015 amendments that, I wrote: "[N]ow address the issue. They are retroactive to March 1, 2014. As for exactly what they do ..."?

Yesterday an important $$ story by Megan Banta in the Bloomington Herald-Times addressed the question. Some quotes, but it really needs to be read in full:

Tax refunds and a steep decline in the property tax base are at stake as counties across the state and the country, including Monroe County, battle a new tactic that big retailers are using to slash their property taxes.

County assessors value real estate based on the current condition of the business, but big-box chains across the country are pushing to have their buildings compared to others that have been vacated and sold. Appraisers across the nation refer to this tactic as the "dark store" method.

The county currently is battling at the state level with Lowe's over the assessment of the company's store in Whitehall Crossing on Bloomington's west side after the national retailer appealed its assessment in June 2014.

Monroe County Assessor Judy Sharp called the case "the one that broke my back." * * *

Tax refunds and a steep decline in the property tax base are at stake as counties across the state and the country, including Monroe County, battle a new tactic that big retailers are using to slash their property taxes.

County assessors value real estate based on the current condition of the business, but big-box chains across the country are pushing to have their buildings compared to others that have been vacated and sold. Appraisers across the nation refer to this tactic as the "dark store" method.

The county currently is battling at the state level with Lowe's over the assessment of the company's store in Whitehall Crossing on Bloomington's west side after the national retailer appealed its assessment in June 2014.

Monroe County Assessor Judy Sharp called the case "the one that broke my back." * * *

If the dark store method were to become the norm in the state, the value of more than 17,000 commercial properties would drop by $3.5 billion, according to a study commissioned by Indiana county officials. Their big-box retail owners would shift a tax burden of $120 million onto other types of taxpayers, such as locally owned stores and working families.

All that because corporations, mostly from out of state, found a way to use "a loophole in bad laws" to save money on their tax bills, Sharp said.

That's why local governments and the state need to respond, she said. As president of the Indiana County Assessors Association, Sharp pushed for legislation that passed during the most recent session of the Indiana General Assembly following a ruling that slashed the assessment for a Meijer store in Marion County from $83 per square foot to $30 per square foot.

The new law was signed in May; it states that new properties and properties less than 10 years old should be valued using what's known as the cost approach, where appraisers use the cost of land and construction, less depreciation. It also requires that in cases where comparable sales are used, the properties cannot have been sitting vacant for more than one year or have deed restrictions. The law is not retroactive to appeals filed before its enactment.

Today the Herald-Times has an editorial headed "Confusion, mistrust of local government create knotty tax problems for county." A few quotes:
The push for a change to dark box assessments started in other states, but has made its way to Indiana, with a Meijer’s in Indianapolis reducing its assessment from $83 to $30 a square foot, based on the dark box method.

That reduction pushed the Indiana Legislature to pass a new law that addresses the issue, but according to [Monroe County Assessor Judy] Sharp, who’s president of the Indiana County Assessors Association, that law is so garbled and confused that no one on either side of the battle lines can figure out where to go with it.

Such confusion, along with its general distrust of local government that leads to such messes, is the part of the production the Legislature owns.

If the Lowe’s appeal to state regulators holds up, the hit on other taxpayers and ultimately on local government services will definitely be felt, Sharp says.

And there remains the unanswered question: If big box stores, which open their doors to customers every day, can use dark box assessment, why should any other company not be able to claim the same thing for their places of business?

The solution?

Sharp thinks it has to come from the legislature, and Indiana State Rep. Matt Pierce, D-Bloomington, agrees.

Pierce thinks majority Republican legislators realize the problem and want to fix it. “I think they understand a fix is needed,” he says. But having observed the battles among lobbyists and the amount of confusion generated with this past session’s attempted patch job, he’s unsure of whether that can happen.

Posted by Marcia Oddi on Tuesday, July 07, 2015
Posted to Indiana Government

Ind. Decisions - SD Ind. decides Benton County wind turbine contract dispute; more on wind turbines

This 68-page opinion dated July 6th, from SD Indiana Judge Barker, is in the case of Benton Co. Wind Farm v. Duke Energy. The sumary of the parties' dispute begins on p. 29:

The dispute between the parties in this litigation boils down to a determination of their existing contractual relationship in view of significant changes in the manner of wind energy production and distribution that have occurred following the execution of their long-term agreement. When the parties entered into the PPA (and commenced performing their obligations thereunder), BCWF was the sole wind farm in the Benton County (Indiana) area. As previously noted, after BCWF began generating energy for Duke’s purchase, several additional wind farms entered the market area, which ultimately caused electrical transmission lines to be congested and gave rise to the need for manual generation curtailments. For a period of time, because the Wind Farm was a “must run” facility, Duke suffered a negative fiscal impact of the oversupply of energy based on the negative LMPs. However, after wind energy was re-classified as DIR, the negative impact of the additional wind energy generation shifted to BCWF who was faced with curtailment orders from MISO, requiring it to decrease its output by approximately 41%.

Two intertwining legal issues have arisen under the PPA as a result: First, does the PPA’s requirement that Duke “reasonably cooperate” with BCWF when bidding power require Duke to perform its obligations in such a way that its bids result in BCWF’s maximum production of electricity? Second, when Duke makes bids to MISO that result in the curtailment of BCWF’s production, is Duke indirectly violating the PPA’s prohibition against Duke’s curtailment of BCWF’s output? The answers to these questions turn on whether the PPA is properly construed as an output contract or a take-or-pay contract, the latter requiring Duke to purchase all the power BCWF was (is) capable of producing.

BCWF seeks by this litigation to compel Duke to purchase all the power BCWF is able to generate, thereby forcing Duke to make aggressive bids to MISO in order to maximize BCWF’s output and the benefits of its bargain under the PPA. * * *

For the foregoing reasons, we DENY BCWF’s Motion for Summary Judgment and GRANT Duke’s Motion for Summary Judgment. Final judgment shall enter accordingly.

Much wind-energy is being generated in Benton County, as reported in this Feb. 4, 2015 Lafayette Journal & Courier story by Chris Morisse Vizza, headed "Amazon harnesses Benton County winds." Some quotes:
The unstoppable winds that howl across Benton County's crop land will move Amazon Web Services toward its long-term goal of using 100 percent renewable energy. * * *

Amazon Web Services in November announced its commitment to achieve complete renewable energy usage for its global infrastructure footprint.

Amazon Web Services and Pattern Energy Group Inc. last month announced a 13-year deal in which Amazon agreed to purchase energy generated by more than 60 wind turbines that Pattern will build and operate near Fowler.

Pattern Energy will erect the turbines in phase four of Fowler Ridge Wind Farm, which was sold to Pattern Energy by BP Wind Energy, BP press officer Jason Ryan said. BP continues to operate the first three phases, he said.

By early next year, the new turbines will generate about 500,000 megawatt hours of wind energy annually, enough to power 46,000 homes in the United States, Pattern Energy spokesman Matt Dallas said.

Near the end of the long story:
The county has seen a lasting impact from the previous building boom.

Managers stayed to operate the wind farms. Overall, 95 jobs have been added since 2009, Kepner said.

And more than 1,000 visitors have taken the guided wind farm tour she created after the first round of contractors left.

The take-away is that Benton County's sparse population of 8,700 — typically a drawback for economic development — can be turned into a positive.

"We have a lot of farm ground for these wind farms to be dispersed on and don't have the population nearby," she said.

"When you have a niche, you make that work for you."

Here is a long June 26th story by Frank Denzler in the Rushville Republican headed "Rush County wind farm issue up in the air." It begins:

For a number of years, rural and city residents have silently been choosing sides on should energy producing wind turbines become a part of the county’s landscape. However, in recent months, as the possible reality of wind turbines nears, the silence has been broken, with those for and against the issue willing to discuss their side of the matter.

Currently, county leaders are weighing the situation, gathering information and listening to those on both sides of the issue regarding the placement of 600-foot towers on rural property. Earlier this week, a number of county officials made a trip to Benton County and spoke with that county’s leaders and residents to gain still another aspect of what has become a controversial topic locally.

The Rushville Republican also had a June 30th story headed "Tax analysis from proposed Rush County wind farms."Yesterday, July 6th, Dave Schultz of the Bluffton News-Banner reported: "Wind turbines out in Wells County after zoning rules revision." Some quotes:
The Area Plan Commission is recommending that no large wind energy conversion systems, better known as wind turbines, be placed in Wells County.

The ban does not affect the locations that have already been approved for Apex Wind Energy, sites that have been the subject of recent litigation and face an uncertain future with county officials. It does mean that, after the county’s zoning and subdivision control ordinances have been amended, there will be no zoning classification that will allow large WECS to be sited anywhere in Wells County. * * *

[O]ne member of the Wells County Board of Commissioners, Tamara Dunmoyer, said she and her fellow commissioners — Blake Gerber and Kevin Woodward — wanted wind turbines written out of the county’s zoning ordinance.

Dunmoyer, who is a party to a lawsuit that has been working its way through the Indiana appellate system, emphasized her point by walking over to a chalkboard that had three options concerning wind turbines. She wrote KW, TD, and BG, the initials of the three commissioners, and circled Option 1 — the elimination of large WECS.

The nine APC members present Thursday night then voted unanimously to recommend that option as part of a massive revision of the ordinances. There are 70 revisions in total, but three of them — wind ordinances, concentrated feeding operations, and allowing the use of truck bodies for storage — drew the most comment as the APC considered the changes.

In the end, however, the rules on CFOs — in particular, the distance the operations can be located from wells — and the proposed rule changes on the use of truck bodies for storage remained what had been recommended to the APC by an ordinance redraft committee. A CFO or manure lagoon must be at least 500 feet from any well other than that which services the CFO or manure lagoon, and truck bodies as storage units are allowed only in agriculture and industrial zoning, forbidden in residential zoning, and may be used in some other zoning classifications by request.

Wind turbines, however, got the ax. Dunmoyer had asked for that during the APC’s June meeting, citing the controversy they had brought to the county.

The prohibition, however, applies only to large WECS. Small- and medium-sized WECS may still be approved.

Posted by Marcia Oddi on Tuesday, July 07, 2015
Posted to Environment | Ind Fed D.Ct. Decisions | Indiana Government

Monday, July 06, 2015

About this Blog - Without substantial new front-page contributors, the ILB will close down on September 30th

The ILB is at a crossroads. Without significant additional funding, I will have no choice but to close the blog the end of this quarter and devote my time and energy elsewhere. The ILB has been in operation since 2003 - 12 years now. Beginning in July of 2007, I was happy to receive a significant annual donation from the Indiana State Bar Association, the largest bar organization in the State, which has a stated mission of serving both the bar and the public. Doxpop, a company which provides on-line access to Indiana county court case records, became a "front-page" donor the following year, joined in 2010 by the Litigation Section of the ISBA, and this month by the Indiana Trial Lawyers Association. As I wrote in 2008, on the 5th Birthday of the ILB:

Become an Annual Supporter. Your firm or company can join the list of annual ILB [front-page] supporters. I hope you will consider doing so, thereby permitting me the time to keep the ILB operating at a consistently high level.
  • What will be your benefits? Your name listed as a supporter in the right-hand column and on the supporters' page with a link to your site. Exposure to a statewide and national legal readership. The knowledge that you are contributing to an effort that has demonstratively enhanced communication, insight and understanding, both within the Indiana legal community, and with the general public.
  • Non-benefits of supporting the ILB. The ILB speaks with an independent voice, supporters have no influence on our editorial judgment.
This June, the ISBA, the ILB's largest donor, informed the blog that its board had voted not to continue its annual contribution.

This leaves the ILB with a deficit of nearly $20,000 this year. I plan to continue blogging through the current quarter, relying on my limited resources and on the contributions of remaining donors. But unless generous new continuing support can be found, and quickly, the ILB's 12-year run will end on September 30th.

The history of the ILB.

In 2002 Howard Bashman, a Philadelphia lawyer, began publishing a blog devoted to appellate litigation. He named it “How Appealing” and posted a number of entries each day. This law blog quickly caught on with lawyers and judges all over the country; there was nothing else like it at the time.

After a few months of reading this blog, a light bulb went off in my head – I could do the same for an Indiana audience! After some planning and building of the website, I went online with the Indiana Law Blog in March of 2003. Here are the goals I established then and continue to follow:

As may go without saying, in recent years the ILB has ballooned into practically a full time job. I spend 4 to 6 hours a day, 5 to 7 days a week on the blog. I start out in the morning reviewing Indiana papers and big national papers for stories of interest, at about mid-morning during the work week I check the Indiana supreme, appellate and tax courts for new opinions, as well as the federal 7th Circuit. I review and summarize the opinions and try to get the summaries online within an hour or two of issuance. Some days there may be only a few opinions, other days there may be dozens. My goal is to provide enough information about a decision for readers to decide whether it is a ruling they need to read in full.

I check out other law and political blogs for anything of interest. I also post totally original entries based on my own research or observation. Many of the ILB readers report to me that the blog is their go-to site for review of the daily appellate opinions and commentary. Here is a note I received from a county judge:

I have been a trial court judge for 15+ years in X County. I handle both criminal and civil cases and I am in the courtroom most days almost all day. I look forward to visiting your blog each morning before starting my day to read the Appellate and Supreme Court opinions (both published and non-published), and to read the other legal stories. You have allowed me to take back my evenings, which were previously spent reading advance sheets and other legal news, and spend more time with my wife and family. Thank you!
The ILB has been recognized with awards from:

Where we are now.

The ILB would run a deficit of $20,000 this year, if it continued to operate at its current level without new donors. I do plan to continue blogging during this quarter, through Sept. 30, relying on my own limited resources and on the contributions (for the quarter) of my remaining donors.

I tweeted a few weeks ago that the ILB was on course to reaching 1 million page views in 2015, besting its 2014 record of 898,899. But now the ILB needs a number of $3,000 to $5,000 annual donors, or several larger donors, in order even to continue past September 30th.

If you are a state or local bar association, a judges' group, a bar or law firm litigation or appellate section, or a provider to the legal community, please consider becoming a major ILB supporter. If you are a member of such a group, please contact your board. Thanks for reading.

Posted by Marcia Oddi on Monday, July 06, 2015
Posted to About the Indiana Law Blog

Ind. Decisions - Tax Court posts two today, dated July 2nd

In Kooshtard Property I, LLC v. Monroe County Assessor, a 6-page opinion, Sr. Judge Fisher writes:

Kooshtard Property I, LLC has challenged the Indiana Board of Tax Review’s final determination that valued its land at $1,050,000 for the 2010 tax year. The Court affirms. * * *

An Indiana Board final determination is not supported by substantial evidence if a reasonable person, after reviewing the administrative record in its entirety, could not find enough relevant evidence to support the Indiana Board’s decision. See Amax Inc. v. State Bd. of Tax Comm’rs, 552 N.E.2d 850, 852 (Ind. Tax Ct. 1990). Based on its review of the administrative record, the Court concludes that Kooshtard has not established that the Indiana Board’s final determination was not supported by substantial evidence. Accordingly, the final determination of the Indiana Board is AFFIRMED.

In Monroe County Assessor v. Kooshtard Property I, LLC, a 7-page opinion, Sr. Judge Fisher writes:

This case examines whether the Indiana Board of Tax Review erred in reducing Kooshtard Property I, LLC’s land assessments for the 2008, 2009, and 2011 tax years (the years at issue). The Court finds no error.

Posted by Marcia Oddi on Monday, July 06, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 4 NFP memorandum decisions)

For publication opinions today (1):

In Linda Rosenberg v. Kenneth Robinson, a 16-page opinion, Judge Brown writes:

Linda Rosenberg appeals from the entry of default judgment under two causes, raising three issues, which we consolidate and restate as whether the trial court erred in denying her motion to set aside default judgment against her and denying her motion to correct error. We reverse and remand. * * *

We conclude that the small claims court erred in entering default judgment in favor of Robinson under Cause No. 1965 and Cause No. 1966 without first making inquiry so as to assure the court that Robinson as the plaintiff had a prima facie case as contemplated by Indiana Small Claims Court 10(B). See Smith, 560 N.E.2d at 1260-1261. Accordingly, Rosenberg has established prima facie error and that she, within one year after the entry of default judgment, established good cause under Indiana Small Claims Rule 10(C) for the court to vacate the judgments and reschedule the hearing of the original claims. The small claims court abused its discretion in denying Rosenberg’s motion to set aside the default judgments and her motion to correct error. We remand with instructions to vacate the entry of judgment and reschedule the hearing of the original claims.

NFP civil decisions today (1):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of C.W., Minor Child, and his parents, B.S. and Ch.W. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

Elmer Bryant v. State of Indiana (mem. dec.)

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

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

Posted by Marcia Oddi on Monday, July 06, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending July 3, 2015

Here is the Clerk's transfer list for the week ending Friday, July 3, 2015. It is three pages (and 26 cases) long.

Three transfers were granted last week:

A notable 3-2 denial of transfer occurred June 29th, concerning the Indiana Tort Claims Actʼs aggregate liability cap. See this July 1st ILB post for more.

Posted by Marcia Oddi on Monday, July 06, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - Wis. Gov. "Walker office operating as if proposed open records exemptions are law"

Updating this post from earlier this morning, where the ILB wrote: "Wisconsin now has backed down, for now," apparently not so, accoridng to a new story this morning in the Milwaukee Journal Sentinel, reported by Patrick Marley that begins:

Madison— Gov. Scott Walker announced over the weekend that Republicans would not create new exceptions to the state's open records law, but for months the all-but-certain presidential candidate has been operating as if the exemptions were already in place.

Two months ago, Walker declined to make public records related to his proposal to rewrite the University of Wisconsin System's mission statement and release the Wisconsin Idea from state law. He argued he didn't have to release those records to the Milwaukee Journal Sentinel and others because they were part of his office's internal deliberations.

The Progressive magazine and the Center for Media and Democracy sued Walker over those denials. The cases are pending in Dane County Circuit Court.

[h/t Rick Hasen]

Posted by Marcia Oddi on Monday, July 06, 2015
Posted to GA and APRA

Ind. Law - "Indiana Teenager’s Jailing Brings a National Call to Fix Sex Offender Registries"

This is a must-read story from the NY Times, reported by Julie Bosman. (You can also find a shorter version in the Seattle Times, headed "Playground-hookup case fuels calls to change sex-offender registry.") Some quotes:

ELKHART, Ind. — Until one day in December, Zachery Anderson was a typical 19-year-old in a small Midwestern city.

He studied computer science at the local community college. He lived with his parents and two younger brothers in a sun-filled home on the St. Joseph River, where framed family photos hang from the walls and a pontoon boat is docked outside.

And he dated in the way that so many American teenagers do today: digitally and semi-anonymously, through apps where prospects emerge with the swipe of a finger and meetings are arranged after the exchanges of photos and texts.

In December, Mr. Anderson met a girl through Hot or Not, a dating app, and after some online flirting, he drove to pick her up at her house in Michigan, just miles over the state line. They had sex in a playground in Niles City, the police report said.

That sexual encounter has landed Mr. Anderson in a Michigan jail, and he now faces a lifetime entanglement in the legal system. The girl, who by her own account told Mr. Anderson that she was 17 — a year over the age of consent in Michigan — was actually 14. * * *

He was arrested and charged and, after pleading guilty to fourth-degree criminal sexual conduct, was sentenced to 90 days in jail and probation.

As an Indiana resident, Mr. Anderson will most likely be listed on a sex offender registry for life, a sanction that requires him to be in regular contact with the authorities, to allow searches of his home every 90 days and to live far from schools, parks and other public places. His probation will also require him to stay off the Internet, though he needs it to study computer science.

Some advocates and legal authorities are holding up Mr. Anderson’s case as the latest example of the overreach of sex offender registries, which gained favor in the 1990s as a tool for monitoring pedophiles and other people who committed sexual crimes. In the decades since, the registries have grown in number and scope; the nearly 800,000 people on registries in the United States go beyond adults who have sexually assaulted other adults or minors. Also listed are people found guilty of lesser offenses that run the gamut from urinating publicly to swapping lewd texts.

As Mr. Anderson’s defenders see it, his story is a parable of the digital age: the collision of the temporary relationships that young people develop on the Internet and the increasing criminalization of sexual activity through the expansion of online sex offender registries.

ILB: Read the whole story, this is just the start.

Posted by Marcia Oddi on Monday, July 06, 2015
Posted to Indiana Law

Ind. Gov't. - "GOP lawmakers, Scott Walker abandon open records changes"

Updating this long ILB post from July 4th (""Wisconsin Republicans vote to dramatically scale back oversight of lawmakers"), Wisconsin now has backed down, for now, according to this story yesterday by Mary Spicuzza in the Milwaukee Journal Sentinel. Some quotes:

Faced with a swift and fierce backlash, Republicans on Saturday abandoned a plan that would have gutted the state's open records law.

In a joint statement issued Saturday afternoon, Gov. Scott Walker and GOP legislative leaders said the provisions relating to any changes to the law would be removed from the state budget.

"After substantive discussion over the last day, we have agreed that the provisions relating to any changes in the state's open records law will be removed from the budget in its entirety. We are steadfastly committed to open and accountable government," the statement read. "The intended policy goal of these changes was to provide a reasonable solution to protect constituents' privacy and to encourage a deliberative process between elected officials and their staff in developing policy. It was never intended to inhibit transparent government in any way."

The announcement came from Walker, but it was also attributed to Senate Majority Leader Scott Fitzgerald (R-Juneau), Assembly Speaker Robin Vos (R-Rochester), Sen. Alberta Darling (R-River Hills) and Rep. John Nygren (R-Marinette). Darling and Nygren are co-chairs of the Joint Finance Committee.

They added, "In order to allow for further debate on this issue outside of budget process, the Legislature will form a Legislative Council committee to more appropriately study it and allow for public discussion and input." * * *

The turnaround came less than 48 hours after lawmakers slipped the plan into the budget unannounced in a late-night session heading into a three-day holiday weekend. * * *

The open records overhaul was blasted by a broad range of liberals and conservatives alike, who said the move would lead to a secretive government hidden from public oversight.

On Saturday, Walker did not specifically say whether he and his office were part of planning the proposed open records changes, or whether he objected to them in advance. * * *

The Legislature's Joint Finance Committee tucked the changes to the open records law into the version of the state budget proposal it passed late Thursday. The changes were sweeping and would essentially have allowed public officials to keep secret records that reveal how they do their jobs. * * *

The proposed GOP plan would have limited public records requests for lawmakers' communications with their staffs and for drafting records of legislation after it was introduced. It would have also exempted a host of records created by Walker's administration, state agencies and local governments and put new limits on public access to information about dismissed criminal charges in some instances.

The measure would also have given lawmakers a broad legal privilege that would allow them to refrain from releasing records when they are sued and bar their current and former staff members from disclosing information legislators wanted kept private.

ILB: If this sounds familiar, see this long list of ILB posts about the similar, and ongoing, efforts of the Indiana House.

Posted by Marcia Oddi on Monday, July 06, 2015
Posted to GA and APRA | Indiana Government

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

From Sunday, July 5, 2015:

From Saturday, July 4, 2015: From Friday, July 3, 2015:

Posted by Marcia Oddi on Monday, July 06, 2015
Posted to Upcoming Oral Arguments

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 7/13/15):

Webcasts of Supreme Court oral arguments are available here.


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

Tuesday, July 7

Next week's oral arguments before the Court of Appeals (week of 7/13/15):

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, July 06, 2015
Posted to Upcoming Oral Arguments

Sunday, July 05, 2015

Environment - "EPA regulations entering 2015 governor race"

A few quotes from a long story this weekend from Chelsea Schneider of the Evansville Courier & Press:

INDIANAPOLIS - The Indiana Republican Party is maneuvering to make proposed environmental regulations that would require the state to reduce greenhouse gas emissions from power plants a campaign issue in the 2016 governor’s race.

The day after Gov. Mike Pence blasted the forthcoming federal regulations state GOP Chairman Jeff Cardwell released a statement asking where Democratic candidates John Gregg and Glenda Ritz stood on the issue. Cardwell argued “hardworking Hoosiers deserve answers.” It’s one of the first issues out of the gate for the party following Pence announcing his re-election bid last month.

Pence’s disdain for the regulations is evident.

In his strongest words to date on the proposed regulations by the U.S. Environmental Protection Agency, the Republican governor visited Evansville last month – in the heart of Southern Indiana’s coal industry – to announce the state won’t comply with the emissions reduction targets unless the federal government significantly changes the new regulations before they’re finalized.

Pence indicated to President Barack Obama the state would use its legal muscle to fight the regulations, which in current form would require Indiana to reduce its carbon dioxide emissions by 20 percent by 2030.

“Energy policy should promote the safe, environmentally responsible stewardship of our natural resources with the goal of reliable, affordable energy. Your approach to energy policy places environmental concerns above all others,” Pence wrote to Obama.

Pence’s Democratic opponents were critical of his response.

In speaking with the Courier & Press last week, Gregg, who is making another bid for governor after narrowly losing to Pence in 2012, said the state needs to focus on clean coal technology.

Gregg, who previously worked as a land agent for Peabody Coal and a governmental affairs representative for Amax Coal, spoke of his background in the industry. He recalled Hoosiers from his hometown of Sandborn who worked at mines.

“We need to balance those good-paying jobs. We need to balance those concerns with that and the environment. We need to take a hard look at this,” Gregg said.

Gregg declined to comment on the emissions standards until they’re released, which is expected in August. But he said more discussion needs to occur as the state waits to see how the proposed rules evolve and the final product comes out – rather than talk of lawsuits.

“It’s that quick reaction that I think gets (Pence) into a lot of problems,” Gregg said.

Related stories include this July 4th editorial from the Indianapolis Star headed "Indiana needs to reduce its dependency on coal," and this long July 3rd story in the Gary Post-Tribune, from Teresa Auch Schultz and Christin Nance Lazerus, headed "Local environmentalists concerned with mercury ruling."

Posted by Marcia Oddi on Sunday, July 05, 2015
Posted to Environment

Ind. Courts - "Guilty verdict in federal Facebook threats case"

The ILB has had a number of earlier posts on the Samuel Bradbury case. Friday Steven Porter reported on the verdict in the Lafayette Journal & Courier:

Samuel Bradbury was found guilty Thursday of violating federal law by stating in a Facebook post last year that he intended to kill four public officials and destroy public property, including the Tippecanoe County Courthouse.

The post — which his parents, friends and attorneys defended as satire — articulated plans to "purge the vile pig scum from this land and restore constitutional rights to the people."

Bradbury, 23, of Pine Village had initially been indicted on one federal charge: willfully making a threat to use fire or explosives.

A second charge was added in May, alleging that he "maliciously conveyed false information" concerning an attempt to carry out an attack with fire or explosives. * * *

Assistant U.S. Attorney Jill Koster said the latter set of allegations — that Bradbury "maliciously conveyed false information" — was the only box checked on the jury's special verdict form.

"We will continue to investigate and where appropriate bring federal charges against those individuals who utilized social media for illegal purposes," said David Capp, who is the U.S. attorney for the northern district of Indiana.

The offense carries a maximum penalty of 10 years.

Koster said closing arguments concluded about 4 p.m. Central Daylight Time, with the jury beginning deliberations about 5:30 p.m.

The verdict was announced about four hours later.

Also interesting is this information at the end of the story:
Stan and Linda Bradbury, the defendant's parents, were anxiously awaiting the verdict from a parking lot outside the federal courthouse in Hammond.

Linda Bradbury said she was on the prosecution's witness list but was never called to testify, so she wasn't allowed to step foot into the courtroom until after both sides had finished presenting evidence.

"The only thing I saw was closing arguments," she said, noting that the conclusion of his trial was the first time in a year that she'd seen her son in person.

The jail where he's been awaiting trial, she explained, only permits visitation via phone or computer monitor.

Posted by Marcia Oddi on Sunday, July 05, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Death penalty in Indiana "is fading from people’s minds and memories"

Some quotes from a story Maureen Hayden of CNHI reported last Thursday:

Longtime public defender Paula Sites once devoted a significant part of her work to training lawyers to represent clients facing execution.

She offered sessions each year in her role as assistant executive director at Indiana Public Defender Council.

Now, she does offers the sessions every two years – the minimum required by the state. With so few death penalty cases, she said, there’s no need to have them more often.

“We’ve been steadily stopping the use of the death penalty,” she said.

Executions were back in the national news this week when the U.S. Supreme Court, ruling in an Oklahoma case, upheld the use of a controversial drug blamed for several botched executions.

It barely added to the din of news here in Indiana.

Sites thinks that’s not just because Indiana uses a different combination of drugs to execute condemned prisoners. It’s that the death penalty is fading from people’s minds and memories.

The last execution by the state was in 2009. The last execution by the federal government at the U.S. Penitentiary in Terre Haute was 2003.

There’s no scheduled execution for any of the 61 federal death-row inmates. Nor for the dozen men on death row at the Indiana State Prison in Michigan City, or for the sole woman under an Indiana death sentence who is incarcerated in an Ohio prison on a separate murder conviction. * * *

In the last legislative session, the General Assembly moved to make capital punishment more available to prosecutors. Lawmakers added two elements to a list of crimes eligible for the death penalty — lethal campus shootings and beheadings.

But that likely won’t significantly reverse the trend, Sites said. Too many other factors are involved.

Cost is one of them.

The Legislative Services Agency – the General Assembly’s nonpartisan research arm – calculates the average cost to taxpayers of a murder case resulting in a sentence of life without parole is $42,000.

A murder case with the death sentence costs more than 10 times as much - usually due to years of legal appeals before the penalty is carried out.

Posted by Marcia Oddi on Sunday, July 05, 2015
Posted to Indiana Courts

Ind. Gov't. - "Questions remain about independent redistricting commission"

Lesley Weidenbener has a good column in the Sunday Louisville Courier-Journal on the potential impact here in Indiana of last Monday's SCOTUS decision on Arizona redistricting:

INDIANAPOLIS – The U.S. Supreme Court has cleared the way for states to use independent redistricting commissions to draw maps for legislative districts.

That’s particularly timely in Indiana, where lawmakers are about to study whether to move the redistricting process to such a commission. * * *

In a decision last week, the U.S. Supreme Court said a redistricting commission in Arizona is constitutional. In that case, the commission was created by voters through an initiative process. The court said disallowing the commission would “run up against the Constitution’s animating principle that the people themselves are the originating source of all the powers of government.”

But that raises a question: In a state like Indiana, without a ballot initiative process, would an independent commission actually honor the idea that the “the people themselves are the originating source of all the powers of government?”

After all, the elected legislature would be turning authority over to an unelected body.

At least when lawmakers are in charge, the voters have – at least in theory – the power to get rid of them if they do a bad job.

It’s just something to think about. And advocates for a commission would rightly point out that it’s tough to vote out a legislator whose district has been gerrymandered to the point that it’s not competitive.

Regardless, the U.S. Supreme Court’s decision didn’t clear all the hurdles Indiana lawmakers face in creating a commission in the state.

The Indiana Constitution requires that every 10 years lawmakers set the number of House and Senate members and “apportion them among districts” according to number of people counted in the federal census. Essentially, the state constitution gives the power for drawing maps to lawmakers, not an independent commission.

That could mean a constitutional amendment is necessary. It could mean an independent commission would draw maps that the General Assembly would approve.

These are all the issues the study group this summer needs to tackle. But the debate shouldn’t be just about the logistics. It needs to be about the larger questions as well.

Posted by Marcia Oddi on Sunday, July 05, 2015
Posted to Indiana Government

Ind. Courts - "Limits at DNA lab add twist to cases"

Rebecca S. Green reports today, in a long Fort Wayne Journal Gazette story, about restrictions on the usage of the Indiana state police crime lab analysis, which is:

... part of the sorting all crime scene technicians engage in at crime scenes large and small. And they are limited as to what potentially important items they can send off to the Indiana State Police crime lab for DNA analysis.

If it is a garden-variety burglary, they can send two items to the lab.

But if it is a homicide, they can send up to 10 items, and then the appropriate DNA standard requests. DNA standards are known samples of DNA used to identify specific people, such as suspects, witnesses, victims, etc.

Sexual assault investigations allow the rape kit and DNA standards. If no rape kit, up to three items and standards.

For other crimes against a person, such as aggravated battery or attempted murder, the total number submitted is four, plus standards.

The state police crime lab is a finite resource, one plagued in the past by backlogs and delays. The limits on evidence submission keep things moving more smoothly, but to jurors used to their forensic evidence-heavy TV shows and movies, the limits might sound jarring.

Posted by Marcia Oddi on Sunday, July 05, 2015
Posted to Indiana Courts

Saturday, July 04, 2015

Ind. Gov't. - "Wisconsin Republicans vote to dramatically scale back oversight of lawmakers"; parallels to Indiana effort

The end of June, the ILB started a new category, "GA and APRA", to make it easy to find all the ILB's posts on the Indiana House's efforts to avoid the Access to Public Records Act.

Now it turns out that the Wisconsin General Assembly has embarked on a similar course. Jason Stein of the Milwaukee Journal Sentinel reported Thursday, July 2nd, in a lengthy story:

Madison— In one of their final votes on the state budget Thursday, GOP lawmakers approved sweeping limits on public access to records that would shed light on future actions of legislators, Gov. Scott Walker's administration, state agencies and local governments.

The proposals were tucked into an expansive measure that passed the Joint Finance Committee 12-4, with all Republicans in favor and all Democrats against. Hours later, with another party-line vote, the committee early Friday sent the overall budget to the Senate and Assembly.

The GOP plan would limit public records requests for lawmakers' communications with their staff and for drafting records of legislation after it's been introduced. It would also exempt a host of records created by the Walker administration, state agencies and local governments and put new limits on public access to information about dismissed criminal charges in some instances.

The measure would also give lawmakers a broad legal privilege that would allow them to refrain from releasing records when they are sued and bar their current and former staff from disclosing information legislators wanted kept private. * * *

Records of draft legislation are routinely used by journalists and citizen groups to shed light on the lawmaking process, revealing the intentions of elected officials and the outside interests that may have helped to shape them. In recent years, those legislative records showed mining company Gogebic Taconite had a prominent role in writing legislation easing environmental regulations for iron ore mines.

In February, the Milwaukee Journal Sentinel used the drafting file for the budget to show that Walker's administration had insisted to the University of Wisconsin System on changes to the system's mission that for generations enshrined the Wisconsin Idea in state law. Shortly afterward, Walker backtracked from a previous statement that UW officials had overlooked the changes and not objected to them.

From a Jan. 30, 2013 J-S story:
The Journal Sentinel reported in December 2011 that Gogebic Taconite met with business lobby Wisconsin Manufacturers & Commerce and a handful of lawmakers on the first drafts of the bill, which narrowly failed to pass in March 2012.

At the time, Republican legislators said they welcomed input from Gogebic because the company knows best how current mining laws would affect its project.

"We are the only metallic mining company in Wisconsin," Bob Seitz, lobbyist for Gogebic, said on Tuesday. "You would expect that we would be offering our input."

Details in the latest drafting notes were made public on Tuesday by One Wisconsin Now, a liberal group, which was critical of the Gogebic's influence in the legislation.

"You didn't see any members of the public, you didn't see Republican leaders asking environmental groups how the bill should be stronger," said Scot Ross, executive director of One Wisconsin Now.

"Wisconsin Republicans vote to dramatically scale back oversight of lawmakers, other public officials," is the headline of a long July 3rd story by Molly Beck of the Wisconsin State Journal. Some quotes:
Wisconsin legislative Republicans on Thursday passed sweeping changes to the state’s open records law that would dramatically curtail the kind of information available to the public about the work that public officials do.

The proposal blocks the public from reviewing nearly all records created by lawmakers, state and local officials or their aides, including electronic communications and the drafting files of legislation. * * *

“This is the single most sweeping and outrageous affront to Wisconsin’s tradition of open government that I have seen in my quarter-century of involvement with the (Wisconsin) Freedom of Information Council,” council president Bill Lueders said.

One provision creating a broad “legislator disclosure privilege” has no counterpart in any other state, a spokesperson for the nonpartisan Legislative Reference Bureau testified.

Despite voting for the motion, Republican members of the panel all professed not to know who proposed the public-records changes. Joint Finance Committee co-chairman Rep. John Nygren, R-Marinette, refused to answer a State Journal reporter when asked which lawmakers requested them. * * *

Democrats on the panel railed against the changes.

“Deals will be done in secret,” said Sen. Jon Erpenbach, D-Middleton. “Corruption will happen. And nobody’s going to know about it.”

Critics said the change would make it impossible for voters to know whether special interests are writing legislation.

“It’s in the cloak of darkness that you want more darkness,” said Rep. Chris Taylor, D-Madison.

Budget committee member Sen. Luther Olsen, R-Ripon, said he didn’t seek the changes and isn’t sure who did. “I honestly don’t need (the changes) for my purposes,” he said. “We have nothing to hide.”

Olsen said lawmakers have previously raised concerns about whether communication between lawmakers and constituents should be public. * * *

“If Wisconsin wants to take a giant leap into corruption, I think that’s a good move for them to make,” Lueders said. “It’s cowardly. It’s dirty. It violates the tradition of the state of Wisconsin, and it shows what miserable cowards that these people are that they would stick this in an omnibus motion.”

Lueders said the proposal could be in response to news organizations using the open records law to reveal that Walker’s initial budget pushed for removal of language embodying “the Wisconsin Idea” — the University of Wisconsin System’s mission statement — from state law despite opposition from state higher education leaders.

Lueders also cited a 2014 State Journal examination of legislative drafting files that showed Rep. Joel Kleefisch, R-Oconomowoc, helped write a bill that could have significantly reduced a wealthy, divorced donor’s child-support payments. A State Journal article this spring also used the records law to examine proposals, known as “term papers,” that new lawmakers were offering to Assembly Speaker Robin Vos, R-Rochester.

“They’ve been embarrassed by too much that has come out,” Lueders said. * * *

Under the motion, records and correspondence of any officer or employee of the state Legislature or legislative service agency would not be considered public record.

Change in definition

The definition of public records would change, too, by exempting “deliberative materials” from the public’s view.

Deliberative materials are defined in the motion as “communications and other materials, including opinions, analyses, briefings, background information, recommendations, suggestions, drafts, correspondence about drafts, and notes, created or prepared in the process of reaching a decision concerning a policy or course of action” or in preparing a draft of a document.

The motion also gives a legislator a “legal privilege” or right to refuse to disclose and to prevent a current or former staff member from disclosing a wide array of types of communication that occurred during the lawmaker’s term in office.

In another proposal, the Legislative Reference Bureau would be required to keep all drafting files for legislation confidential. The LRB would no longer be required to maintain and house the drafting records of legislation introduced in prior legislative sessions and use such records to provide information about legislative intent when questions arise about a particular law. Currently, the public can examine drafting files for bills after they have been introduced.

The motion also eliminates the requirement that the LRB maintain all drafting files for legislation during the current legislative session and release those files for public view once the Legislature adjourns.

ILB: There are a number of parallels between the Wisconsin effort and the Indiana effort. The cynical might suspect this to be part of a new push from ALEC, the American Legislative Exchange Council.

Posted by Marcia Oddi on Saturday, July 04, 2015
Posted to GA and APRA

Friday, July 03, 2015

Ind. Decisions - 7th Circuit decided one Indiana case July 2nd

In Corre Opportunities Fund, LP v. Emmis Communications Corp. (SD Ind., Barker), a 10-page opinion, Judge Easterbrook writes:

Plaintiffs, who own preferred stock in Emmis Communications Corp., contend that Emmis violated Indiana law by voting some shares. The suit is in federal court because, at its outset, it included a non-frivolous claim under federal securities law. The district court analyzed the federal claim at length before ruling against the Owners (as we call the plaintiffs). 892 F. Supp. 2d 1076 (S.D. Ind. 2012). The Owners now rely entirely on Indi-ana corporate law. To keep this opinion manageable, we pare away all but the most vital facts; the rest are in the district court’s exhaustive opinions. (The district court’s 2014 opinion on the state-law issues is not published but is available from the court.) * * *

Indiana’s willingness to allow corporations to vote their own shares may be good, or it may be bad, but the ability to negotiate for better terms, or invest elsewhere, rather than judicially imposed “best practices,” is how corporate law protects investors. AFFIRMED

Posted by Marcia Oddi on Friday, July 03, 2015
Posted to Ind. (7th Cir.) Decisions

Thursday, July 02, 2015

Ind. Decisions - Supreme Court decides one today, with 3-2 split

In Marq Hall v. State of Indiana, a 28-page, 3-2 opinion, Justice David writes:

Following a jury trial, Marq Hall was convicted of class A felony child molesting. On appeal, he claimed that the trial court erred in denying his motion to compel the victim’s mother to answer a deposition question about an incident in the victim’s past and in excluding from evidence a phone conversation with the victim’s mother in which they discussed the incident. Finding that the trial court abused its discretion in both instances, the Court of Appeals reversed Hall’s conviction and remanded for a new trial. However, our review of the evidence, construed in a light most favorable to the conviction, leads us to conclude that the two errors, even if considered violations of Hall’s Sixth Amendment right to confront witnesses against him, were harmless beyond a reasonable doubt. We accordingly affirm Hall’s conviction. * * *

In summary, given the extensive evidence of Hall’s guilt presented by the State, the likely minimal impact of the information he wanted before the jury, and the cross-examination of witnesses Hall was otherwise able to conduct, the jury’s verdict would not have been any different had the jury heard and considered Hall and A.D.’s conversation and the Kentucky incident. Consequently, we can confidently say that, on the whole record, the trial court’s twin errors were harmless beyond a reasonable doubt, and Hall’s otherwise valid conviction should not be set aside.

Conclusion. Because the trial court’s alleged errors in denying Hall’s motion to compel discovery and in excluding from evidence the phone conversation between Hall and A.D., even if considered violations of Hall’s Sixth Amendment right to confrontation, were harmless beyond a reasonable doubt, we affirm Hall’s conviction for class A felony child molesting.

Dickson and Massa, J.J., concur.
Rucker, J., dissents with separate opinion in which Rush, C.J., joins. [which begins, at p. 24] No matter how finely the evidence is parsed in this case, the inescapable fact is that Hall was denied his Sixth Amendment right of cross-examination. At stake here is whether that denial—a clear constitutional error—was harmless. In Chapman v. California the Supreme Court declared “before a federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. 18, 24 (1967). Because I can make no such declaration, I respectfully dissent. * * *

In order to declare the error committed in Hall’s case harmless beyond a reasonable doubt, the Court must be unequivocally convinced this error did not contribute to a guilty verdict. It seems to me incongruous for the majority to say on the one hand “the State’s line of questioning succeeded in” “elicit[ing] testimony from A.D. that Hall had baselessly inquired about M.T.’s credibility,” and “also served to mislead the jury, who had no way of knowing that Hall was in fact seeking more information about a potential prior false accusation of sexual misconduct.” Slip op. at 20-21 (footnote omitted). But then declare on the other hand “it is apparent that the trial court’s denial of Hall’s motion to compel discovery [and exclusion of the phone conversation], even if in violation of the Sixth Amendment, was harmless beyond a reasonable doubt.” Id. at 14. To the contrary, the record makes clear Hall was erroneously denied his constitutional right to cross-examination. And the State has failed in its burden to demonstrate the “error did not contribute to the verdict.” Koenig, 933 N.E.2d at 1273. Accordingly I cannot conclude the error was harmless beyond a reasonable doubt. See Reed v. State, 748 N.E.2d 381 389-90 (Ind. 2001) (concluding that violation of defendant’s Sixth Amendment right constituted reversible error where trial court denied defendant’s motion to compel deposition testimony and refused to admit videotape of the same subject matter to impeach witness during trial). I would therefore reverse Hall’s conviction and remand this cause for a new trial.

Rush, C.J., concurs.

Here is the Sept. 4, 2014 COA opinion.

Posted by Marcia Oddi on Thursday, July 02, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Sex offenders in Allen/Elkhart challenging state restriction on where they can attend church" [Updated]

Here is a copy of the complaint in John Doe 1, John Doe 2, et al., v. The Allen and Elkhart County Prosecutors, and the Sheriffs of Allen and Elkhart County, et al..

From the complaint:

Indiana Code § 35-42-4-14 (eff. July 1, 2015) provides that certain sex offenders, defined by the statute as “serious sex offenders,” are prohibited from entering school property. This statute has a number of serious effects, not the least of which is to ban these persons from going to worship in churches, synagogues, mosques, or other religious buildings that are located on the same as property parochial schools or certain preschool programming. Banning sex offenders from, for example, church on Sunday, because there are students in a school on the same grounds on Monday, is irrational and violates the due process of law protected by the Fourteenth Amendment to the United States Constitution. It also violates Indiana’s newly enacted Religious Freedom Restoration Act, Indiana Code § 34-13-9-0.7, et seq. (eff. July 1, 2015), which prohibits government from imposing a substantial burden on a person’s exercise of religion absent a compelling governmental interest and a showing that the action is the least restrictive means to further that interest. * * *

Legal claims

57. Indiana Code § 35-42-4-14 violates RFRA, Indiana Code § 34-13-9-0.7, et seq., because it substantially burdens the exercise of religion without a properly tailored justification.

58. Indiana Code § 35-42-4-14 is fundamentally irrational and arbitrary in violation of the due process clause of the Fourteenth Amendment to the United States Constitution.

ILB: IC 35-42-4-14 is headed "Unlawful entry of school property by a serious sex offender" and is on the last page of this copy of IC 35-42-4.

Posted by Marcia Oddi on Thursday, July 02, 2015
Posted to Indiana Courts

Ind. Gov't. - "Indiana impact of high court's decision on emissions rules uncertain"

The SCOTUS decision Monday in Utility Air Group v. EPA (ILB post here) was the subject of a useful long story yesterday in the $$ Bloomington Herald Times, reported by Ernest Rollins. Some quotes:

Interest groups differ on what effect Monday’s U.S. Supreme Court decision, which put the brakes on regulation of coal plants’ mercury emissions, will have on the state.

In Michigan v. the Environmental Protection Agency, justices voted 5 to 4 that the EPA needs to consider the costs associated with limiting power plants’ mercury emissions as part of the Mercury and Air Toxic Standards.

That means the proposed rules will have to be revised to take such costs into account and weigh those costs against health risks before ordering emissions reductions.

Bruce Stevens, president of the Indiana Coal Council, said while he was pleased with the court’s decision, it comes too late. Stevens said the time it took for the case to go through the court was longer than the period companies had to become compliant, forcing utility companies to either begin installing costly new technologies to comply or shut down.

“Plants are going totally offline or switching from coal to other fuel sources because of the MATS regulation,” Stevens said, referring to Indianapolis Power & Light’s decision to switch the Harding Street power plant from coal to other energy sources.

Environmentalists are not happy with the decision either, but for different reasons. Jesse Kharbanda, executive director of the Hoosier Environmental Council, said he was disappointed with the ruling because it creates uncertainty about whether the issue of mercury emissions from coal-powered plants will be addressed.

“The practical reality of the ruling is it puts power companies in a state of uncertainty,” Kharbanda said

Some power plants already have proceeded to install mercury controls, he said, and those that have not done so will hopefully follow in order to better protect communities from the dangerous emissions.

Stevens said the costs that would be incurred in plant upgrades to meet the regulations would increase both residential and industrial energy bills. Gov. Mike Pence called that detrimental to Hoosiers.

“For too long, the repercussions of costly regulations and federal overreach have been overlooked in Washington, where the administration’s approach to energy policy has placed environmental concerns above all others,” Pence said in a statement on the ruling.

But Kharbanda said those opposing regulation aren’t telling the whole story when they claim the rules would increase Indiana’s electricity rates.

“It is not telling the full and accurate picture,” Kharbanda said.

The average Indiana plant is more than 40 years old, he said, and aging power plants require upgrades and modernization regardless of federal policies. Money will have to be spent for that, he said.

Jim Barnes, a former dean of Indiana University’s School of Public and Environmental Affairs, said that both the court’s majority and dissenters agreed costs need to be considered in drawing up such rules.

But estimates of costs varied dramatically in the opposing opinions. * * *

Barnes said that while costs to the coal industry increase with regulation, it is fair to weigh those costs with benefits such as improving people’s health, which is seriously threatened as mercury levels build up in waterways and fish make their way through the food chain to humans, where the element can affect the nervous system and brain, especially in children.

The decision sends the case back to the United States Court of Appeals for the D.C. Circuit. Barnes said in the long run, the Supreme Court’s decision is not going to deter the EPA from regulating mercury emissions, but the agency will have to produce some additional analysis before moving forward with the rules.

Posted by Marcia Oddi on Thursday, July 02, 2015
Posted to Environment | Indiana Government

About the ILB - Light blogging until Monday

And to quote Rick Hasen:

Enjoy the 4th, be safe, and celebrate this amazing country and democracy!

Posted by Marcia Oddi on Thursday, July 02, 2015
Posted to About the Indiana Law Blog

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

For publication opinions today (1):

In Town of Fortville v. Certain Fortville Annexation Territory Landowners, a 10-page opinion, Judge Baker writes:

The Town of Fortville (Fortville) appeals the trial court’s order denying annexation in favor of certain Fortville annexation territory landowners (the Remonstrators). Fortville argues that the trial court erred when it failed to apply substantial deference to Fortville’s adoption of an annexation ordinance—a legislative function delegated to the Fortville Town Council by the Indiana General Assembly. Fortville also contends that the trial court erred when it found that Fortville had not presented evidence that the area to be annexed was needed and can be used for Fortville’s development in the near future. Finding that the trial court erred by applying the wrong evidentiary standard when analyzing Fortville’s need to annex the area and plans for the areas development, we reverse and remand for proceedings consistent with this opinion. * * *

To allow the trial court’s order to stand would be to hold that a city—if it does not have impending plans to build on land that it seeks to annex—must sit and watch the land be used and developed in ways that might harm or impede its future plans for urban management of the land, until the “long-term inevitability” of annexation takes place. This result would be bad policy and likely harm both the area to be annexed and the municipality that seeks to annex it. Thus, we determine that the trial court should not have limited its analysis to evidence of physical construction or development in determining whether Fortville fulfilled the requirements of Indiana Code section 36-4-3-13(c)(2).

Therefore, we hold that the trial court applied the wrong evidentiary standard as a matter of law and find that, in determining whether a municipality fulfills the requirements of Indiana Code section 36-4-3-13(c)(2), a trial court may, and should, consider non-physical brick and mortar development uses, such as those—using annexed territory for “transportation linkages with other developing areas, to control adjacent development on its borders, and to prevent conflicting land uses”—noted by our Supreme court in Hobart. 631 N.E.2d at 913 n. 6. We reverse and remand with instructions that the trial court apply the correct standard and reconsider its judgment.

NFP civil decisions today (0):

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Thursday, July 02, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Drawing a line: Public the winner in redistricting decision"

The SCOTUS opinion Monday in Arizona Legislature v. Arizona Independent Redistricting Commission (see earlier ILB post here) is the subject of an editorial today in the Fort Wayne Journal Gazette. Some quotes:

If Monday’s Supreme Court ruling on election redistricting didn’t draw the same strident response as other recent rulings, it’s for good reason: Voters on both sides of the aisle won; hard-line Democratic and Republican politicians lost.

House Speaker John Boehner, R-Ohio, inadvertently offered the best illustration of how partisan redistricting works when he commented on proposed redistricting reform in his home state: “For 40 years, the Democrat Party had the pencil in their hands, and for the last 20 years we’ve had the pencil. When you’ve got the pencil in your hand, you’re going to use it to the best of your advantage.”

In a 5-4 ruling, the Supreme Court ruled it constitutional for the pencil to be held by an independent commission in drawing congressional maps. In upholding the use of a redistricting commission by the state of Arizona, it preserved the rights of other states, including Indiana, to limit political control of map-drawing.

Currently, the redistricting task in Indiana falls to a five-member commission only if the legislature fails to come up with new legislative and congressional maps. That’s unlikely in a state where Republicans enjoy a stranglehold on the General Assembly. But legislative leaders have agreed to consider turning redistricting over to an independent commission, with a two-year study set to begin this summer.

Posted by Marcia Oddi on Thursday, July 02, 2015
Posted to Indiana Government

Wednesday, July 01, 2015

Ind. Decisions - 7th Circuit decides a Wheaton College (Ill.) case on emergency contraception

In Wheaton College v. Sylvia Mathews Burwell (ND Ill.), an 18-page opinion, Judge Posner concludes:

Quite apart from the merits of its arguments, or lack thereof, Wheaton College has failed to satisfy two basic re-quirements for the issuance of a preliminary injunction. It has failed to show that delaying a judgment in its favor to the conclusion of proceedings in the district court would do the college any harm. In the absence of any evidence or even allegation that any member of the college community is violating or is expected to violate or believed likely to violate the college’s prohibition of emergency contraception, there is no reason to think that even if the college’s merely notifying the government of its objection to emergency contraception could “trigger” emergency-contraception coverage it would do so while this case was pending. The college has also failed to match the relief it seeks to the illegalities it alleges. Almost the entire weight of its case falls on attempting to show that the government is trying to “use” the college’s health plans, and it is this alleged use that it primarily asks us to enjoin. But the government isn’t using the college’s health plans, as we have explained at perhaps excessive length. And the relief sought has no connection to Wheaton’s complaints about allegedly forced speech and the alleged violation of ERISA and the APA; nor has Wheaton offered support for its claim to be treated as if it were a church.

The denial of a preliminary injunction is therefore AFFIRMED.

Posted by Marcia Oddi on Wednesday, July 01, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, singling out attorney ...

In Darryl Pierce v. Visteon Corporation (SD Ind., McKinney), a 10-page opinion, Judge Easterbrook writes:

Federal law requires em ployers to offer laid off or discharged workers an opportuni ty to continue health insurance (including dental and vision benefits) at their own expense. This is called COBRA cover age, after the Consolidated Omnibus Budget Reconciliation Act of 1985. An employer has 44 days after the end of a person’s employment to provide notice and essential details. * * *

Plaintiffs in this suit, which the district court certified as a class action, contend that Visteon Corp. failed to deliver timely notice to some of its ex-­employees. The district court defined the class in a way that contains 1,593 persons. * * *

The class filed a notice of appeal on July 11, 2014, and contends that the penalties are too low, the class too small, and the attorneys’ fees too modest. * * *

We were interested in two things: whether these loose ends had been tied up, and, if not, whether the omissions affected the finality of the June 25 decision, as opposed to providing a ground to reverse it. Our briefing order directs counsel to address “how Federal Rule of Civil Procedure 23(c)(3) inter acts with Rule 58 in class action cases.”

Ronald E. Weldy, representing the class, ignored our question. His post-­‐‑argument memorandum does not men tion Rule 23(c)(3). Visteon’s lawyers, by contrast, addressed the issue with care. * * *

That’s not all. We have mentioned Weldy’s failure to comply with our order to address the interaction between Rule 23(c)(3) and Rule 58. And his brief on the merits has problems beyond those pointed out already. It presents 13 issues for decision, violating the principle that appellate counsel must concentrate attention on the best issues. (To brief more than three or four issues not only diverts the judges’ attention but also means that none of the issues will be addressed in the necessary depth; an appellate brief cov-­‐‑ ering 13 issues can spend only a few pages on each.) The brief’s writing is careless to boot; it conveys the impression of “dictated but not read.” Here are two sentences: “This Court should be entered a high daily statutory penalty in this matter. Respectfully, the award of the District Court to the contrary law and an abuse of discretion.” There’s more, equally ungrammatical. Weldy is in no position to contend that his compensation is too low.

The appeal is limited to the award of attorneys’ fees, which is AFFIRMED

Posted by Marcia Oddi on Wednesday, July 01, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on: Supreme Court denies transfer in Mid American Sound

Updating this post from earlier today, Tom davies of the AP reports:

INDIANAPOLIS — The state won't have to pay any more damages from the 2011 deadly Indiana State Fair stage collapse under a decision by the state Supreme Court.

The justices, in a 3-2 vote announced Wednesday, decided to not hear an appeal of a Court of Appeals ruling from January that upheld the state's $5 million liability cap in a case brought by Jordyn Polet of Cincinnati, who was 10 when she was hurt in the collapse.

The lawsuit argued the cap violates the Indiana Constitution and that Jordyn was treated differently than others who sued the state. She rejected the state's offer of $1,690, the only one of 65 claimants not to settle with the state. * * *

One of the girl's attorneys, Robert Peck, said her injuries merited $100,000 in damages and that she should've been allowed to press her case in court.

"We're disappointed that by a single vote the court chose not to take this issue," Peck said in a telephone interview. "Our client, and others who may be injured in the future, get no compensation at all for injuries that were the fault of the state." * * *

In a separate case, the attorney general's office is appealing a state appeals court ruling from March that the state might be responsible for some legal damages faced by the company that provided the stage rigging. Mid-America Sound Corp. has argued that the state is financially responsible by contract for the cost of its defense and any judgments against it.

The separate case is Polet, et al. v. Mid-America Sound, a 2-1 March 30, 2015 opinion of the Court of Appeals. Here is an update from the following day. Both posts include ILB comments. According to the docket, the case is awaiting action by the Supreme Court on a petition to transfer, it was transmitted on transfer on June 9, 2015.

Posted by Marcia Oddi on Wednesday, July 01, 2015
Posted to Ind. Sup.Ct. Decisions | Indiana Decisions | Stage Collapse

Ind. Gov't. - This is a disaster! Supreme Court fenced hunting decision leads to DNR deregulating possession of many wild animals

Niki Kelly's must-read story this afternoon in the Fort Wayne Journal Gazette reports:

INDIANAPOLIS - More than 30 wild animals around the state - from alligators to bears and bobcats - will no longer be regulated by the Indiana Department of Natural Resources.

The agency recently sent letters to anyone with a wild animal possession permit saying an appellate court ruling - and the Supreme Court's refusal to review the case last month - means they have no authority to impose rules, restrictions or permits on legally-owned wild animals.

Really. The story continues:
DNR Spokesman Phil Bloom said there were 263 wild animal possession permits. The vast majority are for smaller animals, such as raccoons, squirrels and striped skunks.

But 38 of them were considered Class 3 animals. Those included 12 venomous snakes; eight black bears; seven alligators; six bobcats; two gila monsters; one wolf; one tiger and one cougar.

The Indiana Court of Appeals ruling related to whether the DNR had the ability to regulate or ban the hunting of deer behind fences on private property, also known as captive hunting. It said the legislature has the authority but attempts to reach a middle ground on high-fenced hunting failed this session. Then the Indiana Supreme Court refused to hear the case. [ILB: See this June 5, 2015 post]

The wild animal possession permit is in administrative rules - not statute passed by legislators.

"This basically throws open the door," Bloom said. "It's something that we regulated for a period of time in very public and open process through administrative rules procedures. We'll just have to see where it goes from here and what the will of the legislature is."

Many animals would still be covered under a federal U.S. Department of Agriculture permit but not all of them.

For instance, the federal permit covers only mammals. But the state permit covered venomous snakes or alligators and crocodiles over five feet long. * * *

Also, the USDA requires a federal license only if the person is exhibiting, breeding or selling the animals.

The state permit went further to cover anyone simply possessing wild animals as pets. It had extensive enclosure and care requirements for the animals, as well as inspection powers.

ILB readers may recall the October, 2011 disaster in Ohio. The WSJ reported on Oct. 20, 2011 under the heading "One Man's Zoo Turns Into a Killing Field in Ohio":
A rural area near Zanesville, Ohio, was turned into a killing zone Tuesday evening and Wednesday as authorities destroyed 48 exotic animals—including 12 lions, eight bears and 18 endangered Bengal tigers, after their owner released them and apparently took his own life. * * *

Ohio is among 10 states with the weakest restrictions on exotic pets, said Wayne Pacelle, president of the Humane Society of the U.S. "It's become ground zero for the exotic animals trade" as dealers have moved from other states to set up shop in Ohio to avoid tougher regulation elsewhere, he said.

At the time the ILB quoted WTHR 13:
In the state of Indiana, the exotic animal licensing laws are fairly strict for private owners. * * *

But in Ohio, there are no state exotic animal laws which opened the door for the situation in Zainesville to unfold.

See this longer story from the Oct. 19, 2011 ABC World News. A quote:
[T]his week's incident in Ohio could be a cautionary tale for states across the country.

"It's up to the states to pass strong laws prohibiting the citizens that live there from keeping these dangerous exotics," said Adam Roberts, executive vice president of Born Free USA. "Ohio is one of the bad actors as far as we're concerned -- a state that has very limited regulations on the keeping of exotic animals, especially as pets. ... We've been pushing in Ohio for them to change their law for many years."

Posted by Marcia Oddi on Wednesday, July 01, 2015
Posted to Indiana Decisions | Indiana Government

Ind. Courts - "Vanderburgh courts dress and conduct rules are relaxed "

Updating a May 29th ILB post, Mark Wilson of the Evansville Courier & Press reports today in a story that begins:

EVANSVILLE - Gum chewing in the courtroom is still forbidden but an amended update of Vanderburgh County court policies has greatly scaled back dress requirements for the public.

The local court rule titled "Conduct, Dress, and Court House Policies" addressing courthouse behavior was effective beginning on July 1. It covers everything from behavior, appearance and dress to prohibited items such as weapons.

The rule, which applies to both Superior and Circuit courts, was open for public comment in June.

"We had a lot of comments from the public and the bar (Evansville Bar Association)," said Superior Court Chief Judge Richard D'Amour.

The original proposal applied to litigants, witnesses and spectators, as well as lawyers, and covered the entire courthouse. It barred T-shirts, shorts, flip-flops, sweatpants, pajamas, sleeveless shirts and hats, as well as exposed midriffs and suggestive or otherwise inappropriate clothing.

That has changed.

"Now we have limited it to the courtrooms," D'Amour said. "The judges still expect proper attire but we leave it up to the individual judges."

Posted by Marcia Oddi on Wednesday, July 01, 2015
Posted to Indiana Courts

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

In USA v. Willie Harris (ND Ind., Simon), a 16-page opinion, Judge Bauer writes:

On May 10, 2013, defendant-appellant, Willie J. Harris, was convicted of two counts of fraud and one count of conspiracy to commit fraud with identification documents in violation of 18 U.S.C. §§ 1028(a)(7), 1028(f), 1029(b)(2), and 1349, three counts of production and trafficking in counterfeit devices (credit card fraud) in violation of 18 U.S.C. § 1029(a)(2), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A. The district court sentenced Harris to 156 months’ imprisonment and ordered him to pay $299,298.67 in restitution. On appeal, Harris contends that the court erroneously denied his pretrial motion to suppress and that there was insufficient evidence to support his conviction. He also appeals his sentence, arguing that the district court erred in applying a number of sentencing enhancements and imposed an unreasonable sentence. For the reasons that follow, we affirm.

Posted by Marcia Oddi on Wednesday, July 01, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court denies transfer in Mid American Sound

The Court of Appeals decision in J.P. et al. v. Mid American Sound, et al (Jan. 14, 2015 ILB summary here), holding:

Polet moved for partial summary judgment on the State’s affirmative defense it was immune under the ITCA. The trial court denied her motion. Polet argues the limits on the State’s aggregate tort liability, as applied to her, violate the Indiana Constitution’s open courts and equal privileges guarantees. * * *

The application of the ITCA aggregate liability cap to Polet did not violate the open courts clause of the Indiana constitution, nor was Polet in a class of persons treated unequally compared to other claimants seeking relief under the ITCA. We accordingly affirm.

was denied transfer by the Supreme Court on June 29, 2015. The vote was 3-2:
Rush, C.J., and Rucker and Massa, JJ., concur.

Dickson and David, JJ., dissent to the denial of transfer, believing the case warrants the Courtʼs consideration as to whether the Indiana Tort Claims Actʼs aggregate liability cap is unconstitutional as applied to the appellants in these particular circumstances where the legislature has increased the amount of money available to the victims yet the appellants are denied the opportunity to participate in any recovery.

ILB: Here is a news release from the Indiana Attorney General.

Posted by Marcia Oddi on Wednesday, July 01, 2015
Posted to Ind. Sup.Ct. Decisions | Stage Collapse

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

For publication opinions today (1):

In Joseph M. Johnson, III v. State of Indiana, a 14-page opinion, Judge Friedlander writes:

Joseph M. Johnson III appeals his conviction of Criminal Trespass, a class A misdemeanor, presenting the following restated issues for review:
1. Is the criminal trespass statute unconstitutionally vague as applied in this case?
2. Did the court properly apply the “mistake of fact” defense?
3. Was the evidence sufficient to sustain the conviction?
We affirm. * * *

In resolving this issue, we need not determine the full extent of the physical boundaries of Lee’s authority to order Johnson from common areas of the apartment complex, i.e., areas located adjacent to but outside her apartment unit. This is because, as set out above, the trial court found that Johnson went beyond the common areas of Lee’s apartment building and stood in the threshold of the doorway to her apartment such that she could not close the door. See Walls v. State, 993 N.E.2d 262. Upon this set of facts, which is the one we must accept, Johnson’s belief that he had a right to stand in the doorway to Lee’s apartment such that she was prevented from closing it, and that she lacked authority to order him to leave that location was not reasonable. The trial court did not err in rejecting Johnson’s mistake-of-fact defense.

NFP civil decisions today (2):

In re the Matter of the Involuntary Termination of Parent-Child Relationship of D.V., L.P.V., and J.M., Minor Children, T.F. (Mother) and L.V. (Father) v. Ind. Dept. Child Services et al (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of Je.Q., Ja.Q., and N.Q., Children, and T.Q.(Mother) & A.Q. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (3):

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

Jeffrey Billeaud, Jr. v. State of Indiana (mem. dec.)

Paul Jackson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, July 01, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court posts one, dated June 30th

In Asplundh Tree Expert Co. v. Indiana Department of State Revenue, an 11page opinion, Judge Wentworth writes:

Asplundh Tree Expert Company has appealed the Indiana Department of State Revenue’s denials of its claims for a refund of use tax. The matter is currently before the Court on Asplundh’s Motion for Partial Summary Judgment. Asplundh’s Motion presents two issues that the Court restates as: 1) whether Asplundh properly paid Indiana use tax on its out-of-state purchases of commercial motor vehicles; and if so, 2) whether the imposition of use tax violated the Commerce Clause of the United States Constitution. Finding that Asplundh properly paid use tax on its vehicle purchases and that the imposition of use tax did not violate the Commerce Clause, the Court grants partial summary judgment to the Department.

Posted by Marcia Oddi on Wednesday, July 01, 2015
Posted to Ind. Tax Ct. Decisions