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Monday, August 31, 2015

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

For publication opinions today (3):

In Jason Stanke v. Nicole Swickard, a 10-page opinion, Judge Brown writes:

The issue is whether the trial court erred in finding Stanke in contempt. Stanke argues in part that he was not afforded the due process required to find him in contempt of court because the court’s rule to show cause order did not meet the statutory requirements for such an order and did not properly notify him of the allegations against him. * * *

We conclude that Stanke has presented a case of prima facie error. For the foregoing reasons, we reverse with instruction to vacate the findings of contempt entered against Stanke, and we remand for a determination of appropriate attorney fees.

In Gordon A. Etzler v. Indiana Department of Revenue, a 14-page opinion, Judge Robb writes:
In December of 2000, the Indiana Department of Revenue (the “Department”) filed tax warrants against Dale Dodson in Marshall County and obtained a judgment creating a lien against Dodson’s real property and personal property in that county. In 2011, in an attempt to collect unpaid taxes owed by Dodson, the Department levied on money located in Marion County without obtaining a judgment in Marion County or otherwise establishing an interest in property located outside of Marshall County. We disapproved of the Department’s levy in this court’s decision in Etzler v. Ind. Dep’t of Revenue, 27 N.E.3d 1085 (Ind. Ct. App. 2015). In that opinion, we held that Indiana Code chapter 6-8.1-8 provides that a tax warrant entered as a judgment creates a lien on property in the county in which the judgment was entered, and the Department is not authorized to unilaterally levy on property on which a lien has not been established. Id. at 1088-89. The Department petitions this court for rehearing of that decision.

On rehearing, the Department argues that our reading of Indiana Code chapter 6-8.1-8 is incorrect and claims that public policy considerations entitle the Department to a victory in this case. The Department also, for the first time on rehearing, raises a number of new arguments under Indiana’s Uniform Commercial Code (Indiana Code chapter 26-1-9.1), asserting that several sections of that chapter grant the Department priority over Etzler and entitle the Department to the property at issue in this case. Finally, the Department asks that we clarify whether Etzler is entitled to prejudgment interest, an issue not previously before this court. We grant rehearing in order to address the Department’s supplementary arguments, but we affirm our original holding in Etzler, supra. * * *

We conclude that Indiana Code section 6-8.1-8-8 does not grant the Department statewide levying authority. We further conclude that sections of Indiana’s Uniform Commercial Code cited by the Department do not entitle it to priority in the breeder’s award proceeds that it levied upon. We reaffirm our original opinion that the trial court erred in granting summary judgment to the Department.

In Anthony Lamar Caldwell v. State of Indiana, a 20-page opinion, Chief Judge Vaidik writes:
Indiana Evidence Rule 404(b) provides that evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. However, the evidence may be admissible for another purpose, such as proving identity. The identity exception was crafted primarily for “signature” crimes with a common modus operandi. The exception’s rationale is that the crimes, or the means used to commit them, are so similar and unique that it is highly probable that the same person committed all of them. Crimes that are only “generally similar” do not qualify under this exception; rather, the crimes must be “strikingly similar.”

Anthony Lamar Caldwell was charged with Class A felony burglary and Class A felony attempted rape for breaking into a woman’s house, badly beating her, and attempting to rape her. At trial, the State introduced evidence that Caldwell looked in the window at another woman’s house—which was in the same neighborhood—fifty-seven days later. The trial court admitted this evidence under the identity exception in Evidence Rule 404(b) because it found that the second crime was “sufficiently similar” to the first crime and the crimes demonstrated Caldwell’s “signature.” The jury found Caldwell guilty as charged, and the trial court sentenced him to an aggregate term of 100 years.

Although there are general similarities between the crimes, we find that the similarities are not striking, primarily because the second incident did not involve an entry into the woman’s house or a sexual assault. Because they are not signature crimes, we conclude that the trial court abused its discretion in admitting evidence of the second crime. Nevertheless, we find that the error is harmless in light of the fact that Caldwell’s DNA was found at the scene of the first crime and the jury was admonished to consider the second crime for identification purposes only. In addition, because the enhancements to Caldwell’s burglary and attempted-rape convictions violate the common-law prohibition against double jeopardy, we reduce Caldwell’s burglary conviction from a Class A felony to a Class B felony, thereby resulting in a new aggregate sentence of seventy years.

NFP civil decisions today (1):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of, L.P. (Minor Child), and, B.A. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (7):

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

Kevin Hiten v. State of Indiana (mem. dec.)

Shamar D. Shelton v. State of Indiana (mem. dec.)

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

Karl A. Wikstrom, Jr. v. State of Indiana (mem. dec.)

Samuel Bellamy v. State of Indiana (mem. dec.)

Steven A. Curry, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, August 31, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 28, 2015

Here is the Clerk's transfer list for the week ending Friday, August 28, 2015. It is two pages (and 26 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, August 31, 2015
Posted to Indiana Transfer Lists

Friday, August 28, 2015

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

In Subah Packer v. Trustees of Indiana University (SD Ind., Pratt), an 18-page opinion, Judge Rovner writes:

This case is yet another cautionary tale about the consequences of not properly responding to a motion for summary judgment. Dr. Subah Packer was discharged from a tenured position at the Indiana University School of Medicine based on what the University says was a persistent failure to meet expectations, particularly with respect to publication and securing grant money for her research. Packer contends that the official rationale for her discharge is a mere pretext for sex discrimination, and that the dean of the medical school had long sought her discharge after he was unsuccessful in preventing her from obtaining tenure. The problem, for Packer, is that when the defendants (the trustees of the medical school—whom we shall refer to collectively as the “University”) moved for summary judgment, her counsel below did not properly support the elements of her claims with specific citations to admissible record evidence. Her new counsel has attempted to rectify the omissions on appeal, but this is too late in the day. Given the patent defects in Packer’s summary judgment memorandum below, we conclude that the district court properly entered judgment against Packer. [ILB emphasis]

In Michael A. Kelley v. Greg Zoeller (ND Ind., Soringmann), an 18-page opinion in a prisoner appeal, Judge Rovner writes:

On October 1, 1974, a then-eighteenyear- old Michael Kelley walked into a Hammond, Indiana, sandwich shop with a gun and demanded that an employee hand over all of the money in the store. Kelley walked out with $28 and a robbery conviction that would shadow him for more than thirty-seven years. In 2011, a federal judge in Missouri used that robbery conviction to enhance Kelley’s sentence for a firearms offense. Kelley now claims that the State of Indiana should have expunged the robbery conviction under a plea deal that he struck in 1975, and that the Missouri court should not have used the conviction to lengthen his federal sentence. We affirm the judgment of the Indiana district court dismissing for lack of jurisdiction. * * *

Finally, we note that the State of Indiana did not have a statute allowing for expungement of criminal convictions until 2013, nearly forty years after Kelley asserts that Indiana prosecutors agreed to expunge his conviction upon successful completion of his federal sentence. See Ind. Code § 35-38-9-1 et seq. (2013); Taylor v. State, 7 N.E.3d 362, 366–67 (Ind. Ct. App. 2014) (noting that the Indiana legislature passed the expungement statute in 2013 in order to give “individuals who have been convicted of certain crimes a second chance by not experiencing many of the stigmas associated with a criminal conviction–especially where an individual has completed the requirements established by the trial court and has since been a law-abiding citizen”). Although Kelley cited the FYCA as the law authorizing expungement of his federal conviction, he has never cited any Indiana law that would have allowed expungement of a state conviction in 1975. Nor has he ever asserted that prosecutors tried to mislead him regarding the terms of his plea agreement or the availability of expungement in Indiana, and we note that he was represented by counsel at the time. It therefore seems unlikely that his 1975 plea agreement with the State of Indiana contained the terms that Kelley asserts. In any case, the terms of the plea agreement are no longer relevant: the Indiana courts have concluded that Kelley waited too long to challenge the 1975 robbery conviction, and we may not review that judgment. For all of the foregoing reasons, the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Friday, August 28, 2015
Posted to Ind. (7th Cir.) Decisions

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

In Saint Catherine Hospital v. Indiana Family and Social Serv (SD Ind., Barker), an 11-page opinion, Judge Williams writes:

St. Catherine Hospital had to pay a Hospital Assessment Fee (“HAF”) as part of an Indiana program designed to increase Medicaid reimbursements to eligible hospitals. St. Catherine was required to pay its HAF in two installments, but after it failed to pay its HAF, the Indiana Family and Social Services Administration (“FSSA”) began withholding Medicaid reimbursements. On June 19, 2012, St. Catherine filed for bankruptcy under Chapter 11. After this date, FSSA continued to withhold reimbursements in satisfaction of St. Catherine’s HAF debt.

St. Catherine filed an adversary complaint against FSSA claiming that the HAF was a pre-petition claim subject to the automatic stay. The bankruptcy court granted St. Catherine summary judgment on this claim, ruling the HAF was an “act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case” pursuant to 11 U.S.C. § 362(a)(6) and was subject to the automatic stay. FSSA was ordered to repay St. Catherine the full amount it had withheld. FSSA appealed to the district court, which reversed the bankruptcy court’s judgment as to the HAF for fiscal year 2013 (the “2013 HAF”). St. Catherine now appeals, arguing the 2013 HAF, like the 2012 HAF, is a pre-petition claim subject to the automatic stay. We agree and reverse the decision of the district court.

Posted by Marcia Oddi on Friday, August 28, 2015
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (5):

In American Cold Storage NA, et al. v. City of Boonville, a 19-page opinion, Judge Baker writes:

Boonville seeks to annex an area of over 1,000 acres that is adjacent to the city. A group of landowners in the annexation area filed a remonstrance petition. The current appeal is the fourth time this particular annexation ordinance has reached the appellate courts (it has been twice to the Court of Appeals and once to our Supreme Court).

Here, the landowners in the annexed area appeal the trial court’s order finding in favor of Boonville on the remonstrance petition. The landowners argue that the trial court deferred too much to Boonville’s judgment and that the evidence does not support a conclusion that Boonville met its statutory burden of showing either that 60% of the land in the annexed area is “subdivided” or that the annexed area is needed and can be used by Boonville for development in the reasonably near future. Finding that the trial court applied the correct standard and that the evidence is sufficient to support the trial court’s order, we affirm.

In Winona Powder Coating, Inc., and Winona PVD Coatings, LLC v. Spark Energy Gas, LP, a 12-page opinion, Chief Judge Vaidik writes:
Following the deregulation of the natural-gas industry, choice programs emerged to provide Indiana customers with the opportunity to select their gas suppliers. In 2013, Winona Powder, an Indiana company engaged in the powder-coating business, and Winona PVD, an Indiana company engaged in the painting of automobile wheels (collectively “Winona”), entered into agreements to purchase natural gas from Spark Energy Gas through a choice program offered by Northern Indiana Public Service Company (NIPSCO). When Spark’s invoices were more than Winona expected, Winona filed a complaint with the Indiana Utility Regulatory Commission (the IURC or the Commission). The Commission concluded that it did not have jurisdiction over the case and dismissed it without prejudice.

Winona appeals. Because Spark is not a public utility, the Commission does not have statutory jurisdiction over the case. In addition, neither the Supplier Aggregation Service Agreement (SASA)—including its Code of Conduct—between NIPSCO and Spark, nor the Natural Gas Sales Agreement between Spark and Winona vest the Commission with jurisdiction. We therefore affirm the Commission’s dismissal of the case without prejudice.

In Abdullah Alkhalidi v. Indiana Department of Correction, a 10-page opinion with a pro se appellant, Judge Barnes concludes:
The small claims court had subject matter jurisdiction to consider Alkhalidi’s replevin claim. The DOC, not Alkhalidi, had the burden of proving that Alkhalidi failed to exhaust his administrative remedies before filing his claim. Because the DOC did not prove such, the small claims court erroneously dismissed Alkhalidi’s claim. We reverse and remand.
In In Re: Grandparent Visitation of K.M., F.M. v. K.F., a 21-page opinion, Judges Riley writes:
Appellant-Respondent, F.M. (Mother), appeals the trial court’s Order awarding grandparent visitation of her minor child, K.M. (Child), to Appellee-Petitioner, K.F. (Grandmother). We affirm in part, reverse in part, and remand. * * *

Based on the foregoing, we conclude that the trial court did not err in granting Grandmother’s petition for grandparent visitation. We further conclude that the trial court abused its discretion by ordering a visitation schedule that is excessive and unduly burdensome on both Mother and the Child.

In Jared Allen Mynatt v. State of Indiana , a 10-page opinion, Judge Riley writes:
Mynatt raises one issue on appeal, which we restate as: Whether the trial court abused its discretion in denying Mynatt’s request for counsel during trial. * * *

Here, Mynatt was advised at his pretrial hearing about the dangers of proceeding pro se. Even in light of these warnings, Mynatt was confident that he would successfully defend himself without the assistance of counsel. Mynatt stated that he had managed to have ten felony Counts dismissed for lack of evidence. Mynatt was also not concerned about picking out a jury or serving prison time if found guilty. Moreover, a continuance would have been imminent to enable the newly appointed counsel to become familiar with the case. As such, our analysis of the Koehler factors, in conjunction with Mynatt’s expression that he would adequately represent himself, leads us to conclude that the trial court did not violate Mynatt’s Sixth Amendment right to counsel.

NFP civil decisions today (1):

In the Matter of: B.S. and A.S., Children In Need of Services, and M.S. v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (6):

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

Thomas D. Sayre v. State of Indiana (mem. dec.)

Ralph Franklin, Jr. v. State of Indiana (mem. dec.)

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

James Matt Hayes v. State of Indiana (mem. dec.)

Phil L. Honer v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, August 28, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Commission on Judicial Qualifications new advisory opinion on judges receiving compensation for officiating over weddings

Here is the advisory opinion. Some quotes:

May judges receive compensation for officiating wedding ceremonies during the court’s regular hours? Is this analysis affected by whether the ceremony is performed at the courthouse or at an alternate location?

The Commission’s view is that a judge who performs wedding ceremonies during the court’s regular hours should remit any funds received for these services to the court. By receiving personal compensation for judicial duties performed at the courthouse while the court is open and conducting business, judges and judicial officers may be perceived as using their judicial position for pecuniary gain, in violation of Rule 1.3 of the Code of Judicial Conduct.

Judges and judicial officers who solemnize marriages outside of normal court hours, even at the court, may personally accept a reasonable fee for these services. However, as always, judges should conduct themselves in a manner to minimize any potential conflicts or the appearance of impropriety by the performance of these extrajudicial duties. * * *

To some members of the public, a judge’s receipt of a fee for performing a marriage ceremony during court hours may seem analogous to the receipt of a fee for signing an order or ruling upon a motion. Judges must therefore decline the personal acceptance of any fees or gratuities for solemnizing marriages during regular court hours while on court premises. If a judge is offered payment for performing an after-hours marriage ceremony, the source and amount of funds must still be evaluated to determine whether acceptance may lead to an appearance of impropriety.

Posted by Marcia Oddi on Friday, August 28, 2015
Posted to Indiana Courts

Ind. Courts - August Rehearing Surprises: “Wrong Version of Opinion” Issued, and a Published Opinion Becomes Memorandum

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

As the Court of Appeals’ annual reports show, rehearing petitions are filed in about 10% of cases, and the vast majority of petitions (84-89%) are denied each year. The rare petitions that are granted usually draw a few paragraphs clarifying (or perhaps correcting) a point before almost always reaching the same result.

Not so in August.

Two recent rehearing opinions have seemingly broken new ground in their approach.

“[W]rong [V]ersion” of Opinion Issued

On July 6, 2015
, the Court of Appeals reversed Richard Jones’ conviction for resisting law enforcement. The State filed a petition for rehearing on August 5. Just five days later, the Court of Appeals issued an order granting rehearing because “the wrong version of the Court's opinion was issued.” The order explains that “the Court formally withdraws and vacates the version of its opinion that was handed down on July 6, 2015” and simultaneously issued a “corrected version” that affirmed the conviction. This was not a grant of the State’s petition for rehearing, however, which August 10 order instead denied it as moot.

The July 6 and August 10 [also marked as "July 6"] versions of the opinion each rely on Gaddie v. State, 10 N.E.3d 1249 (Ind. 2014), although they reach different results.*

Published No More; Memorandum Rehearing Decision Issued

On April 16, 2015, the Court of Appeals issued a published opinion revising Jeffrey Hunt’s sentence from 120 years to 100 years. In early August I printed and later summarized the opinion for my upcoming “Criminal Justice Notes” column in Res Gestae. As a final check before submitting the article later this month, I checked the online docket for rehearing or transfer petitions or orders. The State had filed a petition for rehearing on May 18, which the Court of Appeals granted on August 7.

Instead of issuing an order clarifying or modifying some part of the opinion, the Court issued a memorandum decision that replaced the original opinion. It appears that a paragraph near the end of the opinion was removed, but the Court reached the same result. Because the published opinion is no more, you will not be reading about it in the next edition of Res Gestae -- nor will anyone be able to cite it in the future. Lawyers who rely on the advance sheets beware; the Hunt case published at 30 N.E.3d 18 is no longer good law -- and the replacement opinion will not appear in a future installment.

Conclusion

The response to the Jones and Hunt rehearing opinions are notable because of their novelty. Lawyers filing or defending rehearing petitions should not expect to see rehearing granted (or vacated as moot) to issue the correct opinion with a different outcome (as in Jones) or to strike a paragraph and change a published opinion to a memorandum one (as in Hunt) anytime soon.
__________________
*It’s not entirely clear whether the original July 6 opinion was memorandum or published. The footer states it is a memorandum decision, but there is no text box at the top of the first page with the Appellate Rule 65(D) language. The online docket entry suggests it was published. The August 10 decision is clearly marked memorandum.

Posted by Marcia Oddi on Friday, August 28, 2015
Posted to Schumm - Commentary

Ind. Gov't. - Questions and outcry about the Dunes Pavilion project continue to compound

The ILB has been following this story from the start; here is a long list of posts dating back to 2006.

Today Brian Slodysko of the AP has a long "big story" headed "Deal to develop parkland near dunes riles conservationists," which the ILB has seen this morning in the Chicago Tribune and the South Bend Bend Tribune. Some quotes:

Te parkland surrounding Indiana's towering dunes was intended to keep industry away from a geological marvel molded over thousands of years at the southern tip of Lake Michigan.

Yet five years after a politically connected developer suggested officials should hire a company to rehabilitate a dilapidated beachfront pavilion at the popular tourist destination, a small construction project has ballooned into a decades-long privatization deal with the state. It includes two beachfront restaurants, a rooftop bar, a glass-walled banquet hall promising "the best view in Indiana" — and there is potential for more development to come.

What's more, the company ultimately picked to do the job was co-founded by Chuck Williams, the developer who pitched the initial idea. Williams, a regional chairman of the state Republican Party, worked behind the scenes for over a year with the administrations of two GOP governors, shaping and expanding the plans. He faced competition from just one other company — a bid that was deemed "good" though not as profitable.

"On its face, it looks suspicious," Antony Page, vice dean of the Indiana University law school in Indianapolis, said of the deal by Williams' Pavilion Partners. "A big Republican supporter gets a potentially very lucrative contract?"

Deb Butterfield, a spokeswoman for Pavilion Partners, called the effort "a showcase project" for Indiana that would "put an exclamation point on what a beautiful asset this is."

Conservationists since the late 1800s have sought to protect the dunes on Lake Michigan's southern shore, which offer a glimpse of Chicago's skyline on a clear day. First came Indiana Dunes State Park, which turns 90 on Saturday. Later, Congress created the Indiana Dunes National Lakeshore, a 15-mile sliver of land encompassing the park. * * *

[O]pponents say the favorable terms of the contract, as well as the apparent advantage Williams had over his competitors, are indicative of murky proceedings that can surround privatization deals. Aside from Williams' involvement, some question whether the state should have involved any private company to shape the long-term vision for Indiana Dunes State Park, a publicly owned property that draws more than a million yearly visitors.

Jim Sweeney of the conservationist group The Izaak Walton League of America said it adds up to a "usurping" of public land in the name of private development. He and other critics maintain the state Department of Natural Resources did not hold public meetings or seek out more competitive bids because Williams was the preferred candidate all along.

"The DNR sold their soul on this thing," Sweeney said. "The amount of money coming back into the state coffers is paltry." * * *

Preliminary figures submitted to the DNR by Williams suggest the project will yield a handsome profit. In its first year, the development is expected to turn a $141,000 profit — a figure projected to climb to nearly $500,000 in a decade.

In return, the DNR will get 2 percent of the company's annual revenues and $18,000 a year in rent for property that state parks Director Dan Bortner describes as having a "million dollar smile."

The scope of Williams' deal could also expand. Under the terms of the contract, Pavilion Partners gets first right-of-refusal if additional projects are planned for the park, which could include a hotel or marina. The company is also authorized to hold private events on the beach, including concerts and festivals.

Deanna Malatesta, an associate professor and Indiana University, characterized the contract as a "sell off of public property."

Before becoming one of nine regional chairmen of the state Republican party, Williams served as the head of the Porter County GOP. Over roughly a decade, Williams, his wife and business ventures collectively pumped roughly $350,000 into the county political operation, according to state records. He also donated about $8,000 to former Gov. Mitch Daniels and has given about $3,500 to Gov. Mike Pence, both of whom are Republicans. Williams, who was once a Valparaiso city councilman, currently serves on a public tourism board tasked with promoting the Indiana Dunes State Park.

The appearance that politics played a role has rankled many in the area, said House Minority Leader Scott Pelath, a Democrat whose district neighbors the dunes.

"People see certain public private-partnerships that evade the normal types of transparency and they become worried about sweetheart deals," said Pelath, of Michigan City. "There is an increasing worry that natural resources continue to be seen as something to be exploited rather than be enjoyed."

A news release from Dunes Action, a group opposed to expanding the footprint of the existing pavilion, includes:
Chesterton, In – Dunes Action is calling for an immediate halt to the Pavilion development project at the Indiana Dunes State Park and is recommending that a full investigation be done into whether political ties influenced the lucrative lease award to Pavilion Partners LLC (PPLLC) by the Indiana Department of Natural Resources (IDNR). An Associated Press story by Brian Slodysko casts additional doubts on the legitimacy of the process and suggests that politics were involved. The story was filed early today and has been picked up by national news media. * * *

Emails obtained by Dunes Action via open records requests have shown that members of what is now PPLLC actually pitched the project to the IDNR well over a year before a public solicitation was issued. Both PPLLC principal Chuck Williams, and Scott Virtue, the project architect, exchanged emails and met with IDNR staff in 2010 and early 2011. PPLLC was awarded a 35 year lease with two possible 15 year extensions in February of this year to renovate the iconic Pavilion building, construct restroom facilities and build a banquet center at the Indiana Dunes State Park.

It is unclear whether the Natural Resources Commission (NRC) was aware of the prior contact between PPLLC and the department. The NRC was required to approve the IDNR's vendor selection to negotiate a contract, and did so by voice vote at a commission meeting on May 15, 2012. Few details about the extent of the project were recorded in the official meeting minutes. * * *

The Porter County Chapter of the Izaak Walton League and Dunes Action have already made a case for stopping the project on the grounds that it violates federal guidelines set out in the Land and Water Conservation Fund Act of 1965. The guidelines require approval from the National Park Service prior to the start of the project. The IDNR started that approval process after the outcry from Izaak Walton and Dunes Action.

Posted by Marcia Oddi on Friday, August 28, 2015
Posted to Environment | Indiana Government

Ind. Courts - "Former Valpo attorney called 'thief and a liar' at sentencing"

The ILB has had a number of earlier posts on former Valparaiso attorney Clark Holesinger. Today Bob Kasarda had this story in the NWI Times. Some quotes:

SOUTH BEND | Former Valparaiso attorney Clark Holesinger told the court and theft victims Thursday that his behavior was "disruptive" and "evil."

Holesinger apologized and made the comments shortly before he was sentenced by a federal judge to an agreed-to 10-year prison term and to pay a restitution balance amounting to $986,480.

One of Holesinger's victims, from whom he stole $612,043 in a medical malpractice settlement for her child, said, "You, sir, are a thief and a liar."

"You stole money from an 8-year-old child — an 8-year-old handicapped child." * * *

Holesinger, 54, pleaded guilty in April to federal counts of wire fraud and money laundering. * * *

The federal plea agreement calls for Holesinger to plead guilty to charges from the same case filed in the Porter County courts. He is to receive a sentence of probation at the county level, which will run consecutive to the federal term.

He is scheduled to appear Tuesday before Porter Circuit Court Judge Mary Harper.

Holesinger said as part of his federal sentencing memorandum that he agreed to the 10-year federal term — even though it exceeds the advisory period by three to four years — because he hopes to avoid separate and serial incarcerations.

United States District Court Judge Robert Miller Jr. and Assistant United States Attorney William Grimmer both said they have never seen an attorney sentenced to this long of a term.

"People will feel different about attorneys because of what you did," Miller said.

Holesinger, who is said to have taken more than $2 million in all, had already settled financially with businesses that fell victim to his actions, the judge said.

Holesinger resigned from the state bar in March 2014.

Posted by Marcia Oddi on Friday, August 28, 2015
Posted to Indiana Courts

Ind. Courts - Maybe LWOP Cases Shouldn’t Go Directly to the Indiana Supreme Court (or routinely be granted oral argument)

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

Two of the Indiana Supreme Court’s oral arguments yesterday were in life without parole cases. Appellate Rule 4 gives the court mandatory and exclusive jurisdiction over death penalty and life without parole (LWOP) cases. After reading and attempting to summarize some recent LWOP cases for my Res Gestae column and watching yesterday’s arguments, I have begun to question whether LWOP cases should instead go to the Court of Appeals—or, if they do continue to go to the Indiana Supreme Court, whether the practice of routinely granting oral argument should be discontinued.

Before the Indiana Constitution was amended in 2000, the Indiana Supreme Court had mandatory jurisdiction over cases in which a defendant received more than fifty years on a single count, which meant nearly every murder case went to the Court. Many of the issues in those cases were straightforward and easily resolved in relatively few pages; oral argument was rarely granted.

The constitutional amendment in 2000 -- like one in 1988 before which the Indiana Supreme Court heard cases with sentences over ten years -- was designed to clear the docket of routine cases and allow the Court to “act more as a court of last resort,” allowing the justices instead to focus on deciding cases on petitions to transfer involving conflicts between decisions or important unsettled issues of law.

Article 7, Section 4 simply requires the Indiana Supreme Court to hear appeals involving a “sentence of death,” but not LWOP cases. As I understand it, the LWOP provision in Appellate Rule 4 was included to ensure the Supreme Court had control over the interpretation of Indiana Code Section 35-50-2-9, the statute that governs not only death sentences but also life without parole.

Why Change?

Although life in prison is surely a lengthy sentence, many sentences in term-of-years cases are de facto life sentences. For crimes committed after July 1, 2014, a Level 1 Felony carries maximum sentence of fifty years, and it’s not at all uncommon for a person to be convicted of multiple Level 1 (robbery, burglary, child molesting, rape, etc.) offenses. Two fifty-year sentences, ordered consecutively, is a 100 year sentence—75% of which the defendant must serve, assuming good behavior. Life expectancy in prison is lower than in the general population; even a very young defendant is unlikely to see the outside of the prison walls.

Some LWOP cases present significant or novel legal issues, but others do not. Listen to the oral argument yesterday morning in Blaize v. State, which is summarized on the Court’s website in the following two sentences: “Following a jury trial at which Blaize was found guilty of murder and other offenses, the Gibson Circuit Court sentenced him to life imprisonment without the possibility of parole. In this direct appeal, Blaize argues that a comment made by the judge during the trial deprived him of a fair trial.” The judge’s off-hand comment was about cellphone sectors “whatever that means.” Many of the justices’ questions suggested they thought the judge was not only joking but that his comment may well have helped the defense. As Justice Massa put it: “He’s making a joke, but the joke seems to be on the prosecution. He’s making fun of their evidence. How does that hurt your client?” Even if improper, none of the justices said anything to suggest that the single comment in the course of a long trial would warrant a new trial.
Nevertheless, the one-issue case, without a challenge to the sentence of life imprisonment, took up a spot on the Court’s argument docket and will result in an opinion. And all opinions from the Indiana Supreme Court are published, even in cases that would have resulted in a short memorandum decision without oral argument had it gone instead to the Court of Appeals.

If yesterday’s (non)argument happens at least a few times each year, perhaps mandatory jurisdiction for LWOP cases should be reconsidered—or at least the practice of scheduling the cases for oral argument should be discontinued.

Posted by Marcia Oddi on Friday, August 28, 2015
Posted to Schumm - Commentary

Ind. Courts - "0INK" license plate case argued yesterday before our Supreme Court

Commissioner of the Indiana Bureau of Motor Vehicles v. Rodney Vawter, et al., the "0INK" license plate case, was argued yesterday before the Indiana Supreme Court. You may watch the entire oral argument for yourself here. As the ILB reported Aug. 7th, on July 7th the parties had been granted "permission to file supplemental briefs addressing the recent decision of the [U.S.] Supreme Court in Walker v. Texas Div., Sons of Confederate Veterans, Inc., No. 14-1444 (U.S. June 18, 2015)."

Kristine Guerra reported on yesterday's argument in a long story in the Indianapolis Star. Some quotes:

The Indiana Supreme Court justices must decide whether the letters and numbers on a personalized license plate is a form of government speech that should be controlled, or a person’s speech that should be protected by the First Amendment.

The Indiana Bureau of Motor Vehicles is asking the justices to overturn a ruling by a Marion County judge who found the agency’s process of reviewing and approving personalized license plates was unconstitutional. Justices heard arguments Thursday from Thomas Fisher, solicitor general for the Indiana attorney general’s office, which is representing the BMV on the appeal, and Ken Falk, legal director for the American Civil Liberties Union of Indiana. * * *

At issue now before the Indiana justices is whether a recent U.S. Supreme Court ruling that confirmed a government’s right to decide which groups can be honored with specialty license plates applies in the BMV case. The country’s highest court in June ruled 5-4 that Texas had the right to reject a request by the Sons of Confederate Veterans for a plate that would’ve included the image of a Confederate flag.

Fisher’s arguments Thursday relied heavily on the Texas ruling, saying it’s squarely in line with the BMV case, even though Indiana’s focus is on personalized license plates, not specialty ones.

Fisher said the state can exercise some discretion over excluding messages on personalized plates that it considers offensive. A government review of the messages is necessary, he said. Fisher also conceded that the legislature can amend the existing statute that allows the state to approve and reject messages on personalized plates.

“The letters, the numbers themselves are exactly the core of government speech,” Fisher said, adding that the government has a final say on what message should or should not be on personalized plates.

Falk [of the ACLU] said considering personalized license plates a government speech would be “a real problem” for the state, which, for years, has been approving plates with overly religious messages. He said that shows that the government favors one religion over another, and therefore, violates the Constitution.

“It’s perfectly fine as a personal expression,” Falk said, “but those are clear Establishment Clause violations.”

Echoing [Superior Court Judge] Osborn, Falk said the state should have more precise standards of reviewing and approving personalized plates. Currently, he said, standards by the BMV are so “malleable” and produce “diametrically inconsistent results” based on who’s reviewing the plates that such rules might as well not exist at all.

“This would not be the Wild West,” he said. “This would be approving plates pursuant to clear standards.”

Brian Slodysko of the AP reported:
In its arguments, the state cited a statute allowing it to refuse to issue a plate deemed "offensive to good taste and decency" or that "would be misleading." But a Marion County judge ruled in Vawter's favor, saying the BMV lacks consistent rules for determining what is and isn't appropriate and directed the agency to come up with new guidelines.

That process is on hold pending the outcome of the case. The BMV also stopped offering vanity plates in 2013 until the case was decided.

To bolster the state's case, Fisher cited a recent U.S. Supreme Court ruling that found Texas did not violate the free speech rights of some residents by refusing to issue a license plate featuring the Confederate battle flag. Texas had argued that the license plates are government property, and so what appears on them is not private individuals' speech but the government's.

Falk, who also appeared on behalf of a client whose revoked vanity plate said "UNHOLY" — a reference to a song by the rock group KISS — noted that the state has sanctioned religious-themed plates and questioned if it was using a double standard that violates freedom of religion protections.

"Clearly, if you are going to allow people to have 'BIBLE 4 ME' or 'GOD THANKS' you have to allow 'UNHOLY,' " Falk said. "You can't pick and choose sentiments."

Posted by Marcia Oddi on Friday, August 28, 2015
Posted to Indiana Courts

Thursday, August 27, 2015

Ind. Decisions - Supreme Court decides two today, including GWDS issue

In JPMorgan Chase Bank, N.A. v. Claybridge Homeowners Association, Inc. v. Deborah M. Walton, et al., an 11-page, 5-0 opinion, Chief Justice Rush writes:

Three years after a final judgment foreclosing Plaintiff’s judgment lien—and six years after the suit began—a successor mortgagee moved to intervene to assert its interest in the foreclosed property. We hold the trial court did not abuse its discretion in denying the motion to intervene as untimely because Plaintiff’s lis pendens notice, filed at the beginning of the suit, provided constructive notice of the suit. That notice was valid because it was based on an enforceable, unrecorded judgment lien, and Plaintiff’s action to foreclose its judgment lien was an in rem real estate action. We therefore affirm denial of the mortgagee’s motion to intervene.
In Sci Propane, LLC; South Central Indiana Rural Electric Membership Corp.; RushShelby Energy Rural Electric Co-op, Inc. v. Courtney Frederick, as Personal Rep. of the Est. of Stephan Fredrick, Deceased, a 10-page, 5-0 opinion, Justice Massa writes:
We are asked to resolve a matter of first impression with respect to Indiana’s fifty-year-old General Wrongful Death Statute [GWDS]; specifically, whether attorneys’ fees are recoverable as a form of damages when the decedent is survived by a spouse and/or dependents. Finding that they are not, we reverse the attorneys’ fee award. * * *

In light of our precedent strictly construing the GWDS, the presumption against the abrogation of the American Rule, and a valid policy rationale in support, we find attorneys’ fees are not recoverable as compensatory damages under the GWDS when the decedent leaves a surviving spouse and/or dependents.[9] Finding this issue dispositive, we need not reach the remaining issues presented by the parties on transfer.

Conclusion. For the foregoing reasons, we reverse the award of attorneys’ fees under the General Wrongful Death Statute, Indiana Code section 34-23-1-1.
________________
[9] As we stated in Durham, “we believe policy setting on an issue such as this is for the elected branch of government. If the legislature disagrees with this longstanding interpretation of the statute, it can correct it.” 745 N.E.2d at 763.

Posted by Marcia Oddi on Thursday, August 27, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Jury finds former attorney guilty on drug charges"

The Corydon Democrat reports today in a story by Alan Stewart:

A jury found former Corydon attorney and candidate for superior court judge Leah Fink guilty of several felony and misdemeanor drug charges Thursday evening. * * *

During closing arguments, Fink's attorney, Mark Clark of Salem, said his client wasn't disputing most of the charges and admitted to using drugs. He said the ones at issue were dealing in methamphetamine and possession of precursors.

Clark unsuccessfully argued that none of the evidence shown to the jurors, including an undercover surveillance video recording, directly implicated Fink and said that co-defendant Jeremy Ripperdan had everything to gain by testifying against Fink, including a plea agreement.

While tossing a baseball in the air, Harrison County Prosecutor J. Otto Schalk told jurors they needed to keep their eye on the ball in the case and look at all of the evidence and not just the video.

In August 2011, Fink and her boyfriend, Ripperdan, were arrested at Fink's home along East Ridge Road south of Corydon. About a minute into a search of the home, officers located a working methamphetamine lab, which was cleaned up by the Indiana State Police's clandestine team.

In 2008, Fink was unsuccessful in her bid to receive the Democratic nomination to unseat Harrison Superior Court Judge Roger D. Davis. She lost by slightly more than 2,000 votes.

Fink had 20 years of legal experience, with about half of those serving as the felony public defender in Harrison Superior Court. Fink was licensed to practice law in Indiana and Kentucky in 1991.

Posted by Marcia Oddi on Thursday, August 27, 2015
Posted to Indiana Courts

Ind. LCourts - ACLU of Indiana Challenges State Law Prohibiting Ballot "Selfies"

Updating this long ILB post from Tuesday, headed "Is Indiana law explicitly banning taking photographs in voting booth unconstitutiional?" the Indiana ACLU today has issued this news release:


Indianapolis - The American Civil Liberties Union of Indiana is challenging a state law that took effect on July 1 that makes it a potential felony for Hoosiers to take a picture of their election ballot or to share it on social networks, saying the law violates the First Amendment to the U.S. Constitution.

"Taking a picture of one's ballot and sharing it with family and friends is an expression of pride and enthusiasm about voting, and is a form of political speech that must be protected," said ACLU of Indiana Legal Director Ken Falk. "This law, which is a content-based regulation of speech, deprives Hoosiers of this fundamental right and is unconstitutional."

The lawsuit, brought on behalf of members of the ACLU of Indiana who wish to take and share pictures of their ballots seeks to stop enforcement of Indiana Code 3-11-8-17.5 and to prevent anyone who takes a ballot "selfie" from being arrested. A core function of the ACLU of Indiana is to protect the rights of free speech and expression guaranteed by the Constitution.

The case Indiana Civil Liberties Union Foundation, Inc., d/b/a American Civil Liberties Union of Indiana v. Indiana Secretary of State, et al., Case 1:15-cv-1356-SEB-DML was filed in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on August 27, 2015.
The ILB will add a link to the complaint when it becomes available.

Posted by Marcia Oddi on Thursday, August 27, 2015
Posted to Indiana Courts

Ind. Courts - ACLU of Indiana Challenges State Law Prohibiting Ballot "Selfies"

Updating this long ILB post from Tuesday (inlcuding the text of the Indiana law), headed "Is Indiana law explicitly banning taking photographs in voting booth unconstitutiional?" the Indiana ACLU today has issued this news release:


Indianapolis - The American Civil Liberties Union of Indiana is challenging a state law that took effect on July 1 that makes it a potential felony for Hoosiers to take a picture of their election ballot or to share it on social networks, saying the law violates the First Amendment to the U.S. Constitution.

"Taking a picture of one's ballot and sharing it with family and friends is an expression of pride and enthusiasm about voting, and is a form of political speech that must be protected," said ACLU of Indiana Legal Director Ken Falk. "This law, which is a content-based regulation of speech, deprives Hoosiers of this fundamental right and is unconstitutional."

The lawsuit, brought on behalf of members of the ACLU of Indiana who wish to take and share pictures of their ballots seeks to stop enforcement of Indiana Code 3-11-8-17.5 and to prevent anyone who takes a ballot "selfie" from being arrested. A core function of the ACLU of Indiana is to protect the rights of free speech and expression guaranteed by the Constitution.

The case Indiana Civil Liberties Union Foundation, Inc., d/b/a American Civil Liberties Union of Indiana v. Indiana Secretary of State, et al., Case 1:15-cv-1356-SEB-DML was filed in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on August 27, 2015.
The ILB will add a link to the complaint when it becomes available.

Posted by Marcia Oddi on Thursday, August 27, 2015
Posted to Indiana Courts

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

For publication opinions today (1):

In Denna Delacruz and Barry Barger v. Paul Wittig, a 10-page opinion, Judge Crone writes:

Reserve Sheriff’s Deputies Denna Delacruz and Barry Barger (collectively “the Deputies”) were assaulted and suffered injuries during their investigation of a disturbance at a Fourth of July party. They arrested and later filed a tort action against the alleged assailant, Paul Wittig. More than two years after the incident, Wittig filed a counterclaim alleging that the Deputies used excessive force during his arrest. The Deputies filed a motion to dismiss Wittig’s counterclaim as untimely, which the trial court denied. We accepted the Deputies’ interlocutory appeal and conclude that Wittig’s counterclaim is barred by the two-year statute of limitations. We therefore reverse the trial court’s denial of the Deputies’ motion to dismiss the counterclaim. * * *

In sum, Wittig’s counterclaim was untimely filed and does not otherwise qualify for exemption under Trial Rule 13(J)(1). As such, it was time-barred and subject to dismissal. Based on the foregoing, we conclude that the trial court erred in denying the Deputies’ motion to dismiss the counterclaim pursuant to Trial Rule 12(B)(6). Accordingly, we reverse and remand for proceedings consistent with this opinion.

NFP civil decisions today (0):

NFP criminal decisions today (3):

Antonio L. Chandler v. State of Indiana (mem. dec.)

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

Paul R. Hoffert v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, August 27, 2015
Posted to Ind. App.Ct. Decisions

Law - "In Law School Moves: A Politician, a Prof and a Prosecutor"

From Karen Sloan of The National Law Journal, a long story that begins:

The lines between law school, the bench and politics blurred a bit this week as schools announced a number of high-profile faculty visitors and one major appointment.

University of Arkansas law professor Howard Brill on Tuesday was appointed as the new chief justice of the state’s Supreme Court, to serve out the term of Justice Jim Hannah, who is resigning on Aug. 31 for health reasons. Arkansas Governor Asa Hutchinson made the appointment.

Meanwhile, The University of Georgia School of Law said that former U.S. Sen. Saxby Chambliss would co-teach a law course on political leadership this fall. And Indiana Tech Law School said current State Attorney General Greg Zoeller will teach a class on Indiana constitutional law.

Posted by Marcia Oddi on Thursday, August 27, 2015
Posted to General Law Related

Courts - "Kentucky clerk again refuses to grant license"

Updating a long list of earlier entries on the refusal of the Rowan County, Kentucky refusal to grant marriage licenses to same-sex couples, yesterday the 6th Circuit upheld the district court order that she comply. Last evening How Appealing collected several stories on the 6th Circuit decision, plus the opinion.

This morning, however, an AP story in the Evansville Courier & Press reports:

MOREHEAD, Ky. - William Smith Jr. and James Yates strode Thursday morning into their county clerk's office for their third attempt to get a marriage license. The office of Rowan County Clerk Kim Davis once again denied them, despite an order from a federal appeals court issued hours earlier that upheld a judge's directive to issue the licenses.

Davis has refused to issue marriage licenses, citing her Christian faith and constitutional right to religious liberty, despite a U.S. Supreme Court ruling.

U.S. District Judge David Bunning had already ordered Davis to issue marriage licenses two weeks ago. He later delayed that ruling until Aug. 31 or until the U.S. 6th Circuit Court of Appeals issued a ruling. The appeals court did so on Wednesday, denying Davis' appeal.

But a deputy clerk in Davis' office told Smith and Yates that the office believes Bunning's delay remains in effect until Aug. 31. He refused to give his name or give them a license.

Posted by Marcia Oddi on Thursday, August 27, 2015
Posted to Courts in general

Ind. Gov't. - "Lawmakers hear testimony on body cameras" [Updated]

The Interim Study Committee on Government met yesterday, here is the agenda and here are the appendices for the Aug. 26 meeting. There does not appear to be an archived video of the meeting, it would be located here.

Niki Kelly of the Fort Wayne Journal Gazette has good coverage of the testimony yesterday in this story. Some quotes:

INDIANAPOLIS - As police agencies across the state consider adding body cameras, Indiana lawmakers heard testimony Wednesday about how to govern access to the sometimes controversial recordings.

The cameras have gained national attention following a number of questionable police shooting deaths.

"If you are going to use the tool for accountability then you have to make sure it is available," said Steve Key, executive director of the Hoosier State Press Association.

He said a wide investigatory records exemption is sometimes used by police to protect an officer accused of doing something wrong.

The issue was discussed at a meeting of the Interim Study Committee on Government. More testimony will come in September before recommendations to the full General Assembly.

Indiana police regularly decline to disclose a host of information through an "investigatory records" exception to Indiana public records law, said Indiana Public Access Counselor Luke Britt.

Body cameras aren't specifically covered by Indiana law right now but generally count as recorded material similar to dash camera videos.

Sen. Greg Taylor, D-Indianapolis, said the videos can be used to exonerate an officer quickly and head off potentially-expensive litigation.

Those savings could help cover the cost of archiving the video, which was mentioned as a concern. The Oakland Police Department records 7 terabytes of video every month, which could equate to $1,000 a month according to testimony.

A private consultant - and former Fort Worth police chief - said the cost to run that city's body camera program was $500,000 a year.

And there is much more involved than just the cost. Who keeps and is charged with redacting video? How long should a video be held before it is destroyed? What about videos showing the inside a person's home? How should videos with juveniles be handled?

Britt said jurisdiction are all over the board on the issue - from Seattle that puts everything online to South Carolina which passed a law saying no footage is public record.

"I think there is an argument to be made that there is a happy medium there," he said.

Key mentioned that Ohio is considering a state agency to handle all the video and requests so that police aren't in charge of redacting or editing video that could help or hurt them.

[Updated at 10:19 AM] Jill Disis of the Indianapolis Star has this story, headed "Should police body camera video be made public?." Some quotes:
“It’s a bit of a brave new world,” said Indiana Public Access Counselor Luke Britt, who was the first to offer testimony before the committee. As the state’s public-access statutes are now written, Britt said, police departments have broad discretion about the release of evidence. The question is whether body camera evidence should be handled differently.

Even without permanent funding for body cameras in Indianapolis, police officials already have wrestled with the public-access question. During a seven-month body camera pilot program that ended in July, an Indianapolis Metropolitan Police Department officer equipped with a camera shot and killed 35-year-old Mack Long after he ran from a traffic stop.

Footage of that incident was shown to Long’s family and to the media after a grand jury decided not to indict the officers involved in the shooting, but physical copies of the video have not been released. Long’s widow, Debbie Long, who testified about her husband’s case Wednesday, has called on officials to release the entire video.

“I knew that this video would give me closure on a lot of the questions I had,” Debbie Long said, adding that she could not understand why she was unable to view raw video footage. “I’m really, really confused about this whole transparency issue.”

IMPD Chief Rick Hite has called his department’s decision to release portions of the video “unprecedented.”

Britt said different states have different policies for the release of body camera footage.

In Seattle, for example, officials post all of their footage online but blur out faces and private information, Britt said. But in South Carolina, lawmakers this year passed legislation exempting such footage from public record disclosure laws – leaving the release of body camera video subject to court order.

Britt called both examples extremes, adding: “I think there’s probably an argument to be made that there’s a happy medium there.”

Steve Key, the executive director of the Hoosier State Press Association, said while department discretion can be important in cases where officials don’t want to compromise an investigation or taint evidence, it’s a power that needs to be used appropriately.

“It’s very easy to fall back on the investigatory records exception to keep that information that may put their fellow officer in a bad light,” Key said. “If they can use the discretion to say it’s an investigatory record, then you basically have lost the ability for body cams to be used as an accountability tool.”

Others who testified stressed massive financial and logistical issues with the collection and storage of body camera video.

Posted by Marcia Oddi on Thursday, August 27, 2015
Posted to Indiana Government

Wednesday, August 26, 2015

Ind. Courts - Federal Judge dismisses lawsuit against DCS over unpaid overtime

Marisa Kwiatkowski of the Indianapolis Star reports today:

A federal judge has dismissed a lawsuit filed by two Department of Child Services employees who claimed the state agency failed to pay them overtime.

In the lawsuit, Arlene Nunez and Veronica Martinez argued they were forced to work during their lunch hours, rarely got five hours of continuous sleep during on-call shifts and spent extensive time outside of regular work hours responding to emergencies, conducting investigations and writing reports — all without receiving earned overtime pay.

They filed a lawsuit against DCS last year in federal court in Hammond, claiming the state agency violated the Fair Labor Standards Act by denying them and other employees payment for overtime they worked.

U.S. District Court Judge Jon DeGuilio dismissed that lawsuit earlier this month. He ruled Indiana has not waived its right to “sovereign immunity” under the 11th Amendment, meaning the state can’t be sued in federal court over the Fair Labor Standards Act unless it agrees to be sued.

Here is a copy of Judge DeGuilio's 8-page opinion in Nunez v. Ind. DCS.

Here is a Sept. 25, 2014 ILB post, including a copy of the complaint.

Posted by Marcia Oddi on Wednesday, August 26, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Ind. toxic tort case today and a tax case of interest

In C.W. & E.W. v. Textron, Inc. (ND Ind., Simon), a 21-page opinion, Judge Kanne writes:

Government regulators and scientists agree: exposure to vinyl chloride poses serious health risks to humans. Vinyl chloride is a known carcinogen, mutagen, and genotoxin. But in what quantity and for how long must a human—in this case, two infant children—be exposed to vinyl chloride before those health risks materialize? The experts for C.W. and E.W., the minor children of Jason and Adele Wood, attempted to answer these difficult questions in this toxic-tort case.

Unfortunately for the Woods, their attempts fell short. The district court excluded each of the appellants’ experts, observing they did not use reliable bases to support their opinions. Having excluded the appellants’ experts, the district court then granted summary judgment in favor of Textron. It found that, without the experts’ opinions, the appellants could not prove general and specific causation— required elements under Indiana law in a toxic-tort case. Although we disagree with the district court’s rationale regarding causation, we nevertheless affirm. * * *

For the foregoing reasons, the district court properly applied the Daubert framework to the appellants’ experts. It did not abuse its discretion in excluding their testimony. Without expert testimony to prove general and specific causation, the appellants could not prove their case. Although we disagree with the district court that differential etiology can never be used to establish general causation, we nevertheless AFFIRM its final judgment.

In Craig Patrick v. Comm. Internal Revenue (US Tax Ct), a 7-page opinion, Judge Williams writes:

This case concerns the proper tax treatment of nearly $7 million that the government paid Craig Patrick for uncovering a Medicaid fraud scheme where the government paid in excess of $75 million in phony billings. Patrick and an associate filed a qui tam suit under the False Claims Act against Kyphon, Inc. alleging that the company induced hospitals to file claims for Medicare reimbursement “for unnecessary inpatient hospital stays.” The United States intervened and settled the case. For his role in initiating the suit Patrick received a relator’s share of the government’s recovery, totaling $5.9 million. Patrick also received $900,000 from the settlement of related qui tam actions against hospitals that overbilled Medicare.

Patrick and his wife, Michele, filed joint tax returns for 2008 and 2009 reporting his share of the qui tam recoveries as capital gains. The Commissioner of Internal Revenue issued deficiency notices, notifying the Patricks that the relator’s shares must be reported as ordinary income. The Tax Court upheld that determination. We agree with the Commissioner and the Tax Court that the relator’s share of a qui tam recovery is not the result of a “gain from the sale or exchange of a capital asset.” Rather, Patrick’s relator’s shares are a reward for filing the suit against Kyphon and the hospitals and must be treated as ordinary income.

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

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

For publication opinions today (4):

In Lydia Lanni v. National Collegiate Athletic Association, University of Notre Dame Du Lac, and United State Fencing Association, Inc., a 30-page opinion, Judge Najam writes:

Lydia Lanni appeals from the trial court’s entry of summary judgment for the National Collegiate Athletic Association (“NCAA”) and the United States Fencing Association, Inc. (“USFA”). In her complaint, Lanni alleged that the NCAA and the USFA sponsored a fencing competition at the University of Notre Dame (“Notre Dame”)[1] in South Bend, which Lanni attended as a student-athlete and at which she suffered a serious eye injury while standing near one of the competitions. She further alleged that her injury resulted from negligence on the part of the NCAA, the USFA, and Notre Dame.

We address the following issues in this appeal:

1. Whether the NCAA owed Lanni a duty of care.
2. Whether the USFA owes a duty of care to those who participate in fencing matches that are played under the USFA’s rules and that are refereed by USFA-trained referees.
3. Whether the trial court erred when the court denied Lanni’s motion for a change of judge on remand from this court following our reversal of an earlier entry of summary judgment. * * *

In sum, the evidence most favorable to Lanni fails to demonstrate that either the NCAA or the USFA owed her a duty of care. Lanni also was not entitled to a new judge following this court’s remand in Lanni I. Thus, we affirm the trial court’s entry of summary judgment for the NCAA and the USFA.
________________
[1] Notre Dame is also a named defendant in Lanni’s action; Lanni’s claims against Notre Dame remain pending in the trial court.

In Seth Curtis v. State of Indiana, a 20-page opinion, Judge Bradford writes:
On appeal, Curtis contends that the State presented insufficient evidence to sustain his convictions. He also contends that the imposition of judgment of conviction against him and a sentence for both of the armed robbery counts and for both the armed robbery and auto theft counts violated the single larceny rule. We affirm. * * *

Concluding that the evidence is sufficient to sustain Curtis’s convictions and that the imposition of a judgment of conviction and sentence for each of Counts I, II, and IV did not violate the single larceny rule, we affirm the judgment of the trial court.

In Jesse Wharton v. State of Indiana, a 5-page opinion, Judge May writes:
Jesse Wharton appeals his convictions of level 6 felony operating a vehicle while intoxicated with a prior conviction and level 6 felony operating a vehicle with an alcohol concentration equivalent (ACE) of .08 or more with a prior conviction. Wharton asserts his convictions subjected him to double jeopardy because the same act was the basis for both offenses. We affirm in part, vacate in part, and remand with instructions. * * *

Wharton’s protection from double jeopardy was violated by two convictions based on the same act. Therefore, we affirm his conviction and sentence for operating a vehicle while intoxicated, we vacate the conviction of and sentence for operating a vehicle with an ACE of .08 or more with a prior conviction, and we remand to the trial court to amend its order.

In Bruce Ryan v. State of Indiana , a 16-page opinion, Judge Najam writes:
Following this court’s reversal of Bruce Ryan’s convictions on direct appeal but before this court’s opinion was certified as final, Ryan petitioned the trial court for an appeal bond. The court granted Ryan’s petition but placed him under numerous restrictions, which were supervised by the local community corrections program. The Indiana Supreme Court then reversed this court’s decision and reinstated Ryan’s convictions. See Ryan v. State, 9 N.E.3d 663, 673 (Ind. 2014) (“Ryan I”). Ryan spent a total of 429 days under the conditions of his appeal bond, and he never violated any of those conditions. As such, following the reinstatement of his convictions, Ryan moved the trial court for an award of credit time1 for the time he had served under the conditions of the bond.

Ryan now appeals the trial court’s denial of that request, and he and the State present numerous arguments for our review. We hold, as a matter of first impression, that credit time for a defendant’s release on an appeal bond is prohibited under Indiana law. We also hold that, insofar as his arguments require this court to review the conditions of his release on his appeal bond, Ryan’s arguments are moot. Indiana Appellate Rule 18 provided Ryan with clear and immediate opportunity to have the court on appeal review the conditions of his release when they were imposed, but Ryan did not exercise that option. He may not now ask this court to review the conditions of his release under the guise of a request for credit time. Thus, we affirm the trial court’s judgment. * * *

In sum, we hold that Indiana Code Section 35-33-9-5(c) and Appellate Rule 18 prohibit an award of credit time for the time a defendant is released on an appeal bond, regardless of the conditions of the defendant’s release. Cf. Kindred v. State, 172 Ind. App. 645, 648-49, 362 N.E.2d 168, 170-71 (1977) (holding that the defendant had the right to surrender himself while released on his appeal bond in order to accrue credit time). We also hold that, insofar as Ryan’s arguments require this court to review the conditions of his release on his appeal bond, Ryan’s challenge is untimely. Ryan could have sought, but chose not to seek, immediate review of the conditions of his release pursuant to Appellate Rule 18. Having forfeited that remedy, Ryan’s challenge to the conditions of his release is now moot. Thus, we affirm the trial court’s denial of Ryan’s motion for credit time.

NFP civil decisions today (4):

In the Matter of: R.F. (Minor Child), Child in Need of Services and A.P. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Runningman, LLC v. Joshua Nagy and Robert Sak (mem. dec.)

In the Matter of: J.S. (minor child), a Child in Need of Services, and T.S. (mother) v. The Indiana Department of Child Services (mem. dec.)

In Re the Paternity of H.A., A.A. v. R.M. and B.M. (mem. dec.)

NFP criminal decisions today (4):

Patrick Kene Talley v. State of Indiana (mem. dec.)

Malcolm M. Pettis v. State of Indiana (mem. dec.)

Kevin Singh v. State of Indiana (mem. dec.)

Titus D. Fields v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, August 26, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one opinion today, re mechanic's liens and attorney's fees

In Goodrich Quality Theaters, Inc., and Roncelli, Inc. v. Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc., and Johnson Carpet, Inc., a 10-page, 5-0 opinion, Justice David writes:

The question before us is whether, under Indiana’s mechanic’s lien statute, lienholders are entitled to collect attorney’s fees incurred in foreclosing upon their liens from a party who posts a surety bond securing the liens. By the statute’s plain language, under the circumstances our answer is yes.

Posted by Marcia Oddi on Wednesday, August 26, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "Guilty verdict in federal Facebook threats case"

Updating this July 5th ILB post, Steven Porter of the Lafayette Journal & Courier reported late Monday:

A man convicted of violating federal law with a violent Facebook post he wrote last year now has a jury trial scheduled in Tippecanoe Superior Court 1 to determine whether his post violated state law as well.

Samuel Bradbury, 23, of Pine Village is scheduled to appear for trial beginning Nov. 17 on four felony charges of intimidation.

His alleged offenses are defined by Indiana law as the communication of a threat to another person, with the intent of causing an evacuation, placing the victim "in fear of retaliation for a prior lawful act" or causing the victim to engage in conduct against his or her will.

Bradbury's federal conviction was entered on the basis that his post — which his parents and defense attorneys defend as satire — constituted maliciously conveyed false information concerning an attempt to carry out an attack with fire or explosives.

Posted by Marcia Oddi on Wednesday, August 26, 2015
Posted to Indiana Courts

Ind. Gov't. - More on: First it was the big boxes, now the CVS stores ...

Updating this post from yesterday, WTTV4's Jill Glavan reported very late last evening in a story headed "Assessor calls tax court ruling in favor of Bloomington CVS store ‘sickening.’" A few quotes:

BLOOMINGTON, Ind. (Aug. 25, 2015) — A tax court ruled in favor of a CVS store in Bloomington, the latest in a series of cases that has county assessors calling for action.

The ruling, by the Indiana Board of Tax Review, lowered the property assessment on the CVS store by more than $1 million a year. It means Monroe County could owe hundreds of thousands in back taxes and the store will now pay less in property taxes.

“It was sickening and it still is,” Monroe County Assessor Judy Sharp said.

Sharp has been speaking out against big chain stores that are using what’s been dubbed the “dark box” method to lower their taxes. Those stores argue that their property should be assessed similarly to vacant properties, significantly dropping their property taxes.

“It’s going to be a lot of money,” Sharp said.

That money could ultimately come from homeowners.

“As one type of property pays less, other people pay more,” said David Bottorff, Executive Director of the Association of Indiana Counties.

Posted by Marcia Oddi on Wednesday, August 26, 2015
Posted to Indiana Government

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

Updating this ILB post from June 30th, Mike Emery of the Richmond Palladium-Item reported late yesterday:

A special judge has ruled against a former local bankruptcy attorney’s motion to dismiss 21 felony charges against him.

Charles R. Hyde Jr. was charged with 26 counts of Class D felony theft and one count of Class C felony corrupt business influence after he allegedly collected fees from clients without completing their bankruptcies.

Special Judge Marianne Vorhees of Delaware County heard arguments earlier this month on the defense’s motions to dismiss the charges, which she has denied. However, a prosecution motion to dismiss six of the theft charges has been granted. The defense claimed Hyde had referred those clients to another attorney for the completion of their bankruptcies. * * *

A trial is scheduled for 9 a.m. on Nov. 16 in Wayne County Superior Court I.

Hyde, who was arrested on Aug. 7, 2013, resigned in May 2012 from the practice of law with the Indiana bar through a filing to the Indiana Supreme Court. He is not permitted to petition for reinstatement in Indiana until five years after his resignation.

Posted by Marcia Oddi on Wednesday, August 26, 2015
Posted to Indiana Courts

Tuesday, August 25, 2015

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

In Eric Harden v. Marion County Sheriff's Dept. (SD Ind., Pratt), a 17-page opinion, Judge Kennelly (ND Ill., sitting by designation) writes:

In 2012, Eric Harden sued the Marion County Sheriff’s Department for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e‐3(a). He alleged that the Sheriff’s Department terminated him in retaliation for testifying on behalf of African‐ American police officers in a race discrimination investigation. The district granted summary judgment for the Sheriff’s Department. Harden now appeals that decision. We affirm.

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

Ind. Law - Is Indiana law explicitly banning taking photographs in voting booth unconstitutiional?

"Selfies in Voting Booths Raise Legal Questions on Speech and Secrecy" is the heading of a long Aug. 24th NY Times story by Erik Eckholm that reports in part:

Excited first-time voters; those proud to show that they voted for or against, say, President Obama; and those so disgusted that they wrote in the name of their dead dogs have all been known to post snapshots of their ballots on Twitter or Facebook.

Now, a legal fracas has erupted over whether the display of marked ballots is a constitutionally protected form of speech and political expression — as a federal court in New Hampshire declared this month, overturning a ban on such photographs — or a threat to the hallowed secret ballot that could bring a new era of vote-buying and voter intimidation.

The New Hampshire case is unlikely to be the last to grapple with what are commonly called ballot selfies, whether they include an image of the phone user or not. Numerous states have laws to protect voter secrecy, drafted in an earlier era, that could be construed to ban ballot photographs, said Gilles Bissonnette, the legal director of the American Civil Liberties Union of New Hampshire, which challenged the New Hampshire ban.

A new law in Indiana
explicitly bans taking photographs in a voting booth, and rights advocates there are mulling a similar challenge. At the same time, Maine, Oregon and Utah have recently revised their laws, effectively permitting the posting of these images.

In New Hampshire, officials and legislators were so alarmed by the dangers of cellphone photos in voting booths that they outlawed them in 2014, setting a fine of up to $1,000 for showing photographs of completed ballots to others or posting them on social media. * * *

On Aug. 11, in a 42-page opinion that reviewed the history of ballot secrecy and voter intimidation, Judge Paul Barbadoro of Federal District Court in Concord struck down the law.

The state provided no evidence of “an actual or imminent problem with images of completed ballots being used to facilitate either vote buying or voter coercion,” Judge Barbadoro said.

“The new law is invalid,” he said, “because it is a content-based restriction on speech that cannot survive strict scrutiny,” the most stringent standard for judging infringements on fundamental rights.

Many constitutional scholars praised the decision. So heads snapped last week when Richard L. Hasen, a prominent elections expert at the School of Law at the University of California, Irvine, called Judge Barbadoro’s opinion misguided and said allowing voting-booth photography posed a real risk.

In “Why the Selfie is a Threat to Democracy,” an article posted last Tuesday by Reuters and on the Election Law Blog he edits, Mr. Hasen wrote that the court decision “might seem like a victory for the American Way.”

“But the judge made a huge mistake,” he continued, “because without the ballot-selfie ban, we could see the re-emergence of the buying and selling of votes — and even potential coercion from employers, union bosses and others.”

ILB: Here is the new Indiana law, SECTION 112 of SEA 466-2015 (p.89):
Sec. 17.5. (a) Voters may use cellular telephones or other electronic devices in the polls as long as
electioneering or loud or disruptive conversations do not occur.
(b) A voter may not do the following:
(1) Take a digital image or photograph of the voter's ballot
while the voter is in a polling place, an office of the circuit
court clerk (under IC 3-11-10-26), a satellite office established
under IC 3-11-10-26.3, or a vote center established under
IC 3-11-18.1-4, except to document and report to a precinct
election officer, the county election board, or the election
division a problem with the functioning of the voting system.
(2) Distribute or share the image described in subdivision (1)
using social media or by any other means.

Posted by Marcia Oddi on Tuesday, August 25, 2015
Posted to Indiana Law

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

For publication opinions today (1):

In John B. Davis, Sr., as Administrator of the Estate of John B. Davis, Jr., Deceased v. Edgewater Systems for Balanced Living, Inc., a 10-page opinion, Judge Riley writes:

Davis contends that the trial court abused its discretion in granting Edgewater’s motion for judgment on the pleadings pursuant to T.R. 12(C). Specifically, he claims that Edgewater is not civilly immune from the lawsuit. * * *

In its motion, Edgewater advanced that it was entitled to civil immunity for the claims asserted against it based upon two sub-sections of the mental health care provider immunity statute, included at I.C. §§ 34-30-16-1 & -2. * * *

Here, Edgewater asserted a civil immunity defense in its motion for judgment on the pleadings. By claiming immunity, Edgewater is not relying on a procedural defect in Davis’ Complaint, rather Edgewater is advancing a “determination of the substantive merits of the controversy.” See id. Accordingly, any amendment of the Complaint will not alter the existence of Edgewater’s civil immunity defense.

Based on the foregoing, we affirm the trial court’s Order granting Edgewater’s motion for judgment on the pleadings, and we deny Davis’ request for an opportunity to amend his Complaint. Affirmed.

NFP civil decisions today (3):

In the Matter of: L.E. III, B.E. & A.E. (Minor Children), Children in Need of Services and E.E. (Mother) & L.E. (Father) v. The Indiana Department of Child Services (mem. dec.)

William G. Zartman, Jr., and Marilyn M. Zartman, et al. v. Donald R. Towne and Larry J. Towne, and State of Indiana (mem. dec.)

K.L. v. Review Board of the Indiana Department of Workforce Development and Indiana University Health (mem. dec.)

NFP criminal decisions today (3):

Darrell Mattingly v. State of Indiana (mem. dec.)

Harold Baker v. State of Indiana (mem. dec.)

Jose Urbano v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, August 25, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - First it was the big boxes, now the CVS stores ... [Updated again]

Updating a long list of ILB entries on appeals of the assessments of big box stores, Ernest Rollins of the $$ Bloomington Herald Times reports today in a story that begins:

The Indiana Board of Tax Review has ruled in favor of CVS on its appeal of the county’s assessments of its College Avenue location from 2009 to 2013.

The decision, handed down last week, could be the first of many, as other CVS stores in Monroe County have also filed appeals for previous tax years, county Auditor Steve Saulter said.

ILB: It appears no August decisions of the Tax Board are yet posted online. The ILB has requested a copy of the CVS ruling.

[Updated at 1:10 PM] The ILB emailed the Tax Board (at "contact us") a few minutes ago:

Could you email a copy of the tax board decision two weeks ago on the assessment of the Bloomington CVS?
There was a prompt response:
There are several CVS decisions that were issued in Monroe County If you are not a part to it or the Attorney of record you would need to make a request to the Board because of Confidential information.
[Updated at 2:21 PM] Thanks to a call from the IBTR counsel, I now understand the process: The parties have 2 weeks after a decision is reached to identify any confidential information that needs to be redacted. Once that is done, the opinion will be publicly available and the ILB will receive a copy for posting.

Posted by Marcia Oddi on Tuesday, August 25, 2015
Posted to Indiana Government

Ind. Courts - Judge Friedlander retirement ceremony this Thursday

From a news release:

The Court of Appeals will conduct a retirement ceremony for Judge Ezra H. Friedlander on Thursday, Aug. 27 at 2:30 p.m. in the Indiana Supreme Court courtroom. Chief Judge Nancy H. Vaidik will preside.

Judge Friedlander joined the court on Jan. 7, 1993 and is retiring after 50 years in the practice of law. He will continue to serve the state of Indiana as a part-time senior judge on the Court of Appeals.

Judge Friedlander will be succeeded by Marion Superior Court Judge Robert R. Altice, Jr., who is Governor Mike Pence’s first appellate court appointment. Judge Altice will take the oath of office in a private ceremony on Sept. 1, followed by a public robing ceremony in the Supreme Court courtroom on Sept. 21.

Posted by Marcia Oddi on Tuesday, August 25, 2015
Posted to Indiana Courts

Ind. Courts - "Recognize when a judge needs help & take action early. Don't wait for call from Judicial Qualifications to intervene."

Adrienne Meiring, counsel to the Indiana Commission on Judicial Qualifications, has this article , titled "Time to Ask for Help," in the current issue of Indiana Court Times.

Posted by Marcia Oddi on Tuesday, August 25, 2015
Posted to Courts in general

Ind. Gov't. - Pence Names Carol Comer as new IDEM head

From a news release:

Governor Mike Pence today announced that Carol Comer will serve as Commissioner of the Indiana Department of Environmental Management (IDEM), effective August 28, 2015. Comer currently serves as Chief of Staff at IDEM. This announcement comes after current IDEM Commissioner Tom Easterly announced his retirement in mid-July.

“Today I’m pleased to announce Carol Comer as Commissioner for the Indiana Department of Environmental Management,” said Governor Pence. “I know that with Carol’s extensive experience, she will continue to serve Hoosiers with integrity and dedication and follow in the footsteps of Commissioner Tom Easterly in ensuring healthier environments in all corners of our state.”

Prior to her role as Chief of Staff, she served at IDEM as General Counsel, where she oversaw approximately thirty attorneys and support staff. Previously, she served as a senior administrative law judge for the Indiana Board of Tax Review and as an Administrative Law Judge with the Indiana Utility Regulatory Commission. Comer started her environmental law career at Plews and Shadley in Indianapolis and later at Lewis and Roca in Phoenix. * * *

Comer received her undergraduate degree from Indiana University School of Business and a joint master’s and law degree simultaneously from Indiana University School of Public and Environmental Affairs and Indiana University Robert H. McKinney School of Law, where she was the law school’s first Environmental Law Fellow.

In addition to Comer’s announcement as Commissioner, Governor Pence today announced that Bruno Pigott will serve as IDEM’s Chief of Staff. Pigott currently serves as Deputy Chief of Staff and Assistant Commissioner in the Office of Water Quality, where he has served since 2005. Previously, Pigott served as Chief of the Permits Branch and as Chief of the Compliance Branch in the Office of Water Quality. He received his undergraduate degree from Michigan State University and his master’s degree from Indiana University – Purdue University Indianapolis.

Posted by Marcia Oddi on Tuesday, August 25, 2015
Posted to Environment | Indiana Government

Ind. Decisions - A third Indiana decision yesterday from 7th Circuit

In D. S. v. East Porter County School Corp (ND Ind., Cherry, Magistrate Judge), an 11-page opinion, Judge Bauer writes:

Plaintiff-appellants, D.S. and her parents, Debbie Lynn Stahl and George M. Stahl, brought suit under 42 U.S.C. § 1983 against defendant-appellees, East Porter County School Corporation and Morgan Township Middle/ High School (collectively “East Porter”), and Porter Township School Corporation and Boone Grove Middle School (collectively “PTSC”), alleging various constitutional and state law claims. East Porter and PTSC filed separate motions for summary judgment, which the district court granted in full. D.S. and the Stahls appeal the district court’s grants of summary judgment as to their constitutional claims only. We affirm.

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

Monday, August 24, 2015

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

In Terrence Preddie v. Bartholomew Consolidated Schools (SD Ind., Pratt), a 30-page per curiam opinion, the panel (Flaum, Ripple, Williams) writes:

Terrence Preddie worked as a fifth-grade teacher at Columbus Signature Academy-Codrea Elementary School—part of the Bartholomew Consolidated School Corporation (“BCSC”)—during the 2010–2011 school year. After Mr. Preddie was absent twenty-three times, the BCSC did not renew his contract. Mr. Preddie is diabetic, and his son, Elliot, suffers from sickle cell anemia. Mr. Preddie is also African-American. Following the non-renewal of his contract, Mr. Preddie filed suit against the BCSC in state court, alleging claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act, (“FMLA”), 42 U.S.C. § 1981, and the Civil Rights Acts of 1866, 1871, and 1991. The case was removed to the Southern District of Indiana, and the district court granted summary judgment in favor of the BCSC on all of Mr. Preddie’s claims. We affirm the district court’s judgment for the BCSC except as it relates to Mr. Preddie’s FMLA claims. With respect to Mr. Preddie’s FMLA interference and retaliation claims, we believe that genuine issues of material fact preclude judgment for the BCSC on the present record. We therefore reverse the district court’s judgment on those claims and remand for further proceedings in the district court. * * *

For the foregoing reasons, we affirm the judgment of the district court with the exception of its judgment for the BCSC on Mr. Preddie’s FMLA claims. With respect to those claims, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion. The parties shall bear their own costs in this appeal.

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

Ind. Gov't. - Common Cause asks Attorney General to file amicus brief in Indiana House public records case

The ILB has received this note:

This letter was hand delivered by Common Cause of Indiana to the AG’s office today, asking AG Zoeller to file an amicus brief in the soon-to-be-filed appeal in CAC, et al. v. Koch in support of the governmental transparency policies embodied in APRA similar to the one he recently filed in ESPN v. Univ. of Notre Dame Police Department.
Here is Aug. 14th ILB post on the news release of Attorney General Zoller re the ESPN case, headed "Attorney General Zoeller urges Court to make police report records public."

Here is a long list of ILB posts
on the Indiana House public records case.

From today's letter from Julia Vaughn of Common Cause Indiana:

Dear Attorney General Zoeller:

I am writing to thank you for your recent advocacy on behalf of Indiana’s Access to Public Records Act (APRA) and to request that you continue your strong commitment to transparency in Indiana by weighing in on the issue of public access to legislative emails – the matter over which we and two other public interest advocates have initiated litigation, Marion Superior Court Cause No. 49D14-1504-PL-012401.

It was absolutely appropriate for your office to submit an amicus brief in the case involving the records of the Notre Dame Police Department. In that brief you state that “The trial court’s decision runs contrary to the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” You also note that your office “frequently advocates in favor of these policy interests, arguing for greater transparency in government and clear and consistent application of the Act.”.

This is not the first time you have publicly championed open government. When your office co-hosted public forums to educate government officials and others about APRA, you stated, “To gain and maintain the trust of the public, government must be open and transparent in the way it conducts the public’s business. If government officials huddle behind closed doors or refuse to release public records, then they won’t enjoy the public’s trust.”

The House Republican Caucus’ refusal to release legislative emails and to recognize that they are indeed subject to the Access to Public Records Act runs counter to an opinion from the Public Access Counselor and harms the public trust. If the decision issued in Marion County earlier this month is allowed to stand, the logical outcome is a legislature with virtually unchecked power, free to ignore any public records request and to conduct the people’s business in secrecy. Essentially, the curtains are drawn tight around the legislative process, depriving Hoosiers of their right to government that is transparent and ultimately accountable.

Your past actions indicate you are a strong supporter of open government. We hope you will be consistent in that role and agree to support transparency by putting the weight of your office behind our challenge to legislative secrecy.

Posted by Marcia Oddi on Monday, August 24, 2015
Posted to GA and APRA | Indiana Government

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

In JMB Manufacturing, Inc. v. Harrison Manufacturing, LLC (SD Ind., Pratt), a 24-page opinion, Judge Hamilton writes:

This case presents a merchant’s creative effort to avoid the limited remedies that contract law provides for a seller’s delivery of non-conforming goods. After the seller delivered about $90,000 worth of nonconforming wood products, the buyer sought recovery from both the seller and its president personally for tort damages on a tort theory, that they negligently misrepresented the quality of the delivered goods.

The district court ruled in favor of the buyer and awarded damages of more than $2.7 million on the theory that the non-conforming goods caused the complete destruction of the buyer’s business. This damages theory echoed the proverb of Poor Richard’s Almanack (“A little neglect may breed mischief; for want of a nail, the shoe was lost; for want of a shoe the horse was lost; for want of a horse the rider was lost; for want a rider the battle was lost.”), and Shakespeare’s story of Richard III, where the loss of a horse led in turn to the loss of a battle, the death of a king, and the loss of a kingdom. Cf. Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145 (1854) (damages for breach of contract limited to consequences reasonably contemplated by both parties when they made contract).

We reverse the award of damages against the seller and the seller’s president, but for reasons that do not depend on the flawed “want of a nail” theory. Under Indiana law, a buyer who has received non-conforming goods cannot sue a seller for negligent misrepresentation to avoid the economic loss doctrine, which limits the buyer to contract remedies for purely economic losses. See Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722 (Ind. 2010). Second, there is no basis for transforming the buyer’s breach of contract claim into a tort claim for negligent misrepresentation to hold the seller’s president personally liable. See Greg Allen Construction Co., Inc. v. Estelle, 798 N.E.2d 171 (Ind. 2003). In all other respects, we affirm the judgment of the district court. * * *

We REVERSE the district court’s judgment on Child Craft’s negligent misrepresentation counterclaim against Ron Bienias and Summit and direct the district court to enter final judgment in favor of Bienias and Summit on that counterclaim. In all other respects, we AFFIRM the district court’s judgment. All parties shall bear their own costs on appeal.

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

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

For publication opinions today (2):

In Benny Harris v. Tonya Harris (n/k/a Keith) , a 16-page, 2-1 opinion, Judge Barnes concludes:

Because the trial court erroneously ordered the division of Benny’s Tier I railroad retirement benefits when the account reaches pay status, we reverse and remand with instructions to strike that language from the order. However, Benny has not established that the trial court abused its discretion in dividing the marital estate, and Tonya has not established that an award of appellate attorney fees is warranted. We affirm in part, reverse in part, and remand. Affirmed in part, reversed in part, and remanded.

Najam, J., concurs.
Kirsch, J., concurs in part and dissents in part with opinion [which begins at p. 16, with] I fully concur with my colleagues' holding that the trial court erred by ordering Husband to make an off-setting payment to Wife for his future receipt of the Tier I benefits. I reach a different conclusion regarding the division of the remainder of the marital estate, and for such reason, I respectfully dissent.

In Thomas Missler and Allison Missler v. State Farm Insurance Company and Indiana Restoration & Cleaning Services, Inc., a 13-page opinion, Judge Kirsch writes:
We conclude that, based on the designated evidence, there remain genuine issues of material fact as to whether the terms of the Contract entered into by the Misslers with IRCS were so oppressively one-sided and harsh as to make the Contract unconscionable. Therefore, the trial court erred when it granted summary judgment in favor of IRCS. We remand to the trial court for further proceedings to determine whether the Contract between the Misslers and IRCS was enforceable. Affirmed in part, reversed in part, and remanded.
NFP civil decisions today (3):

In the Matter of the Term. of the Parent-Child Relationship of T.K., Mother, J.W.R., Father, and K.R., J.R., and N.K., Children: T.K. and J.W.R. v. Ind. Dept. of Child Services (mem. dec.)

Dennis Gifford and Mary Gifford v. Jeffrey Wicks and James Ector (mem. dec.)

Kirsten L. Nolan v. Matthew A. Huff (mem. dec.)

NFP criminal decisions today (6):

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

Patrick D. Keith v. State of Indiana (mem. dec.)

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

Hans Gunther Oberth v. State of Indiana (mem. dec.)

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

Donnis K. Wilkerson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, August 24, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 21, 2015

Here is the Clerk's transfer list for the week ending Friday, August 21, 2015. It is one page (and 1 case) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, August 24, 2015
Posted to Indiana Transfer Lists

Ind. Courts - Use of grand juries in Indiana explored

Jill Disis of the Indianapolis Star reports today in a long story headed "Families seek answers about loved ones’ deaths in police shootings." Some quotes:

The routine use of grand juries to investigate officer-involved shootings keeps evidence and testimony secret, even from the families of the deceased. Many such families are left with unanswered questions, forced to fight the system or blindly accept the version of events laid out in secret hearings before anonymous jurors. * * *

Citing other issues with grand juries, California Gov. Jerry Brown this month signed legislation that would prevent grand jury hearings from being used in officer-involved deaths.

Prosecutors say grand juries have a purpose. And some say confidentiality is important to protect the identities of witnesses who would otherwise be unwilling to testify, as well as the officers whose reputations could be tarnished, even if their actions do not cross legal lines.

In the post-Ferguson era, however, when the fairness of numerous shootings have been called into question, some say it’s time to ask if that confidentiality comes at too high a price. * * *

[Marion County proescutor Terry] Curry said his office is bound by a state confidentiality statute from releasing any information about what the jury considered — a statute that makes it a class B misdemeanor for “a person who has been present at a grand jury proceeding” to knowingly or intentionally disclose “any evidence or testimony given or produced” to anyone who was not at the hearing.

Curry said the confidentiality was important because it protects not only the jurors, but reluctant witnesses. In the case of an officer-involved shooting, those witnesses could include police officers.

In Indiana, Curry said, some information from grand jury investigations can be made public by the police department, as recently happened in Long’s case. “We determined that once there was no indictment, those items reverted to the owner of the property — in that case, IMPD,” Curry said, “and it was their determination as to whether that should be released.” * * *

One criticism of grand juries is that prosecutors, who rely on close relationships with police departments, can influence the outcomes, while enjoying the political cover that a panel of anonymous citizens provides.

And that was the rationale behind the changes in California’s law.

The Marion County Prosecutor’s Office has presented 30 police-action fatality cases to grand juries since 2008, none of which have resulted in indictments. Those cases are not limited to shootings and include officers from a variety of agencies, not just IMPD, office spokeswoman Peg McLeish said.

In this Jan. 2, 2015 ILB entry, headed "Bill to abolish use of grand juries by county prosecutors back again this session," included these quotes from an earlier Star story:
n Marion County, the use of grand juries is rare. The agency averages about four grand jury indictments out of about 40,000 criminal cases filed annually in the past five years.

The Marion County cases typically involve issues of self-defense, such as Schlenkert's case, police-action shootings and public corruption. The cases involve witnesses with conflicting versions of what happened and long-term investigations with multiple people involved, Marion County Prosecutor Terry Curry said.

This very long 2013 story in the South Bend Tribune, reported by Virginia Black, is headed "Little-understood grand jury system under debate."

The ILB also had several posts in 2010 under the heading "Grand jury can be used to insulate prosecutor." The first post in the series quoted a John Tuohy Star story that began:

For delicate cases, grand juries can be a prosecutor's best friend.

"Historically, it has been used to provide political coverage on hot-potato issues," said defense attorney Robert Hammerle. "If a prosecutor has a sensitive political issue, sending it to the grand jury is like the legislature sending an issue to a blue-ribbon commission."

By taking the Carmel High School cases to a grand jury, Hamilton County Prosecutor Sonia Leerkamp didn't have to make a controversial decision herself.

"The grand jury can help inoculate prosecutors against criticism in the community," said IU law Professor Norman Lefstein.

A grand jury is a panel of citizens that convenes in secret to hear evidence presented by a prosecutor and decide whether probable cause exists to charge someone with a crime.

Posted by Marcia Oddi on Monday, August 24, 2015
Posted to Indiana Courts

Ind. Law - "'Did we go to far?' County prosecutors seek tougher penalties for drug dealers"

Maureen Hayden, CNHI Statehouse Bureau Chief, reported August 21st in the Washington Times Herald (here via the Indiana Economic Digest) - the long story begins:

INDIANAPOLIS – Facing the sprawling problem of heroin and opioid abuse, prosecutors want to restore tough penalties for drug dealers and increase the threat of jail time for addicts who resist treatment.
A call for stiffer penalties comes just two years after lawmakers significantly reduced drug sentences in hopes of shrinking the prison population.

But it also comes as Indiana faces a record number of deaths linked to heroin and opiate use - they've more than tripled in the past decade - and fights a continuing problem with methamphetamine.

“We need to ask the question, 'Did we go too far?'” said David Powell, head of the Indiana Prosecuting Attorneys Council.

He plans to put the question to a legislative committee charged with looking at the impact of allowing the distribution of clean needles to intravenous drug users.

The needle-exchange law was prompted by an HIV outbreak in rural Scott County among drug users injecting the opiate-based painkiller Opana. Since the law's passage, 19 counties plagued by opiate abuse have initiated efforts to begin needle-exchanges to ward off HIV and stop the spread of Hepatitis C.

The Interim Committee on Public Health, scheduled to meet Monday, will also look at a sentencing reform law that reduced drug penalties across the board in order to shrink prison populations and costs.

Posted by Marcia Oddi on Monday, August 24, 2015
Posted to Indiana Law

Law - Police "used the phone tracker, commonly known as a stingray, to locate the perpetrators of routine street crimes"

Here is a long list of ILB posts on the "stingray" phone tracker, beginning with a 2013 post headed "Indiana State Police tracking cellphones — but won’t say how or why."

Today USAToday has a long article by Brad Heath, headed "Police secretly track cellphones to solve routine crimes." Some quotes:

BALTIMORE — The crime itself was ordinary: Someone smashed the back window of a parked car one evening and ran off with a cellphone. What was unusual was how the police hunted the thief.

Detectives did it by secretly using one of the government’s most powerful phone surveillance tools — capable of intercepting data from hundreds of people’s cellphones at a time — to track the phone, and with it their suspect, to the doorway of a public housing complex. They used it to search for a car thief, too. And a woman who made a string of harassing phone calls.

In one case after another, USA TODAY found police in Baltimore and other cities used the phone tracker, commonly known as a stingray, to locate the perpetrators of routine street crimes and frequently concealed that fact from the suspects, their lawyers and even judges. In the process, they quietly transformed a form of surveillance billed as a tool to hunt terrorists and kidnappers into a staple of everyday policing.

The suitcase-size tracking systems, which can cost as much as $400,000, allow the police to pinpoint a phone’s location within a few yards by posing as a cell tower. In the process, they can intercept information from the phones of nearly everyone else who happens to be nearby, including innocent bystanders. They do not intercept the content of any communications.

Dozens of police departments from Miami to Los Angeles own similar devices. A USA TODAY Media Network investigation identified more than 35 of them in 2013 and 2014, and the American Civil Liberties Union has found 18 more. When and how the police have used those devices is mostly a mystery, in part because the FBI swore them to secrecy. * * *

In court records, police routinely described the phone surveillance in vague terms — if they mentioned it at all. In some cases, officers said only that they used “advanced directional finding equipment” or “sophisticated electronic equipment" to find a suspect. In others, the police merely said they had “located” a suspect’s phone without describing how, or they suggested they happened to be in the right place at the right time.

Such omissions are deliberate, said an officer assigned to the department’s Advanced Technical Team, which conducts the surveillance. When investigators write their reports, “they try to make it seem like we weren’t there,” the officer said.

Public defenders in Baltimore said that robbed them of opportunities to argue in court that the surveillance is illegal. “It’s shocking to me that it’s that prevalent,” said David Walsh-Little, who heads the felony trial unit for Baltimore’s public defender office. “We can’t challenge it if we don’t know about it, that’s sort of the horror of it.”

Defendants usually have a right to know about the evidence against them and to challenge the legality of whatever police search yielded it. Beyond that, Maryland court rules generally require the government to tell defendants and their lawyers about electronic surveillance without being asked. Prosecutors say they are not obliged to specify whether a stingray was used. Referring to direction-finding equipment “is sufficient to place defense counsel on notice that law enforcement employed some type of electronic tracking device,” Ritchie said.

There is much more in the lengthy article.

Posted by Marcia Oddi on Monday, August 24, 2015
Posted to General Law Related

Ind. Courts - "Former Madison attorney held on $1M cash-only bond"

Renee Bruck of the Madison Courier reported August 22nd:

A former Madison attorney was arrested on 30 criminal charges Friday afternoon by the FBI and Texas law enforcement following a year-long investigation.

John C. Eckert, 66, faces multiple Class C felony counts of forgery and fraud on a financial institution, a Class C felony count of racketeering and a Class C felony count of theft.

Eckert is being held in a Dallas jail on a $1 million cash-only bond.

Jefferson County Chief Deputy Prosecutor D.J. Mote said Friday afternoon that an investigation into allegations of mishandling funds held in Eckert’s attorney’s trust account began more than 12 months ago by the Indiana State Police.

During the course of the investigation, the FBI took over the investigation. FBI Special Agent Derek Schoon serves as the lead investigator on the case.

Federal authorities recently presented the case to Jefferson County prosecutors for prosecution of the state charges. * * *

The Indiana Supreme Court had opened a case against Eckert in July 2013 based on allegations of misconduct, but he did not face any disciplinary action after surrendering his law license.

Posted by Marcia Oddi on Monday, August 24, 2015
Posted to Indiana Courts

Enviropnment - "Development of Kokomo solar park moves forward"

It will be in Kokomo, on the site of the former Continental Steel plant Superfund site. From the story this weekend in the Kokomo Tribune:

Construction of new $10 million solar park in Kokomo is set to begin this fall after the Indiana Utility Regulatory Commission Thursday approved an agreement to sell the electricity produced at the facility to Duke Energy. * * *

The IURC Thursday also approved purchased-power agreements between three other solar parks and Duke Energy Indiana. Those facilities will be located in Clay, Vigo and Sullivan counties.

Posted by Marcia Oddi on Monday, August 24, 2015
Posted to Environment

Ind. Courts - More on: Blackford County judges enjoin county clerk from entering the Courthouse

The ILB posted the Blackford County judges' 6-page order here on Friday.

Today Keith Roysdon and Douglas Walker have a story in the Muncie Star-Press headed "County clerk banned from courthouse by judges." The long story essentially recounts the order and notes:

A staffer in Blackford Circuit Court Dean Young’s office told The Star Press on Friday that the judge would not comment on the dispute, which boiled over in recent days. Blackford Superior Court Judge Nick Barry — who joined Young in signing the order — did not return a call from The Star Press seeking comment.

Posted by Marcia Oddi on Monday, August 24, 2015
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 8/24/15):

Thursday, August 27

Next week's oral arguments before the Supreme Court (week of 8/31/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 8/24/15):

Wednesday, August 12

Next week's oral arguments before the Court of Appeals (week of 8/31/15):

Monday, August 31

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, August 24, 2015
Posted to Upcoming Oral Arguments

Sunday, August 23, 2015

Ind. Law - More on: Ken Stroud, DeBruler clerk and long-time IU-McKinney professor, dies

Updating this ILB post from August 21st, here is the obituary today from the Indianapolis Star.

Posted by Marcia Oddi on Sunday, August 23, 2015
Posted to Indiana Law

Ind. Gov't. - "THE PRIZE: Who’s in Charge of America’s Schools?"

Review of new book, "The Prize," by Dale Russakoff, on the effort to reform Newark's school, a book the reviewer, Alex Kotlowitz, calls "a brilliantly reported behind-the-scenes account of one city’s attempt to right its failing public schools." Here is the final paragraph from today's NY Times book reveiw:

“The Prize” may well be one of the most important books on education to come along in years. It serves as a kind of corrective to the dominant narrative of school reformers across the country. I’m not giving anything away by telling you that this bold effort in Newark falls far short of success. Most everyone moves on. Booker is elected to the Senate — and his nemesis, a high school principal deeply critical of his school reform efforts, becomes the city’s next elected mayor. Christie gets caught up in the bridge-lane-closure scandal, and of course is now running for president. Anderson recently announced her resignation as superintendent. The one individual who appears changed by the experience is, somewhat surprisingly, Zuckerberg. Last year, along with his wife, Priscilla Chan, who as a pediatric intern cared for underserved children around San Francisco, Zuckerberg announced a gift of $120 million in grants to high-poverty schools in the Bay Area. This time, though, they declared their intent to include parents and teachers in the planning process. But more to the point, a key component to their grants includes building “a web of support for students,” everything from medical to mental health care. Zuckerberg came to recognize that school reform alone isn’t enough, that if we’re going to make a difference in the classroom, we also need to make a difference in the lives of these children, many of whom struggle against the debilitating effects of poverty and trauma. Here is where this story ends — but also where the next story begins.

Posted by Marcia Oddi on Sunday, August 23, 2015
Posted to Indiana Government

Friday, August 21, 2015

Ind. Decisions - Supreme Court issues one opinion today

In The Huntington National Bank v. Car-X Assoc. Corp., an 11-page, 5-0 opinion, Justice David writes:

After suing a mortgagee to foreclose on a lien, junior creditor Car-X Associates Corporation (Car-X) obtained a default judgment against co-defendant and senior creditor Huntington National Bank (Huntington) after Huntington failed to timely respond to the complaint and summons. A few weeks later, Huntington filed a motion to set aside the default judgment, arguing that it was entitled to relief under Indiana Trial Rule 60(B)(1) because of its excusable neglect and under Indiana Trial Rule 60(B)(8) because such relief would be just and equitable under the circumstances. Finding that Huntington failed to establish either avenue of relief, the trial court denied its motion. The Court of Appeals, however, determined that Huntington had in fact proven the existence of excusable neglect and accordingly held that the trial court abused its discretion in deciding otherwise.

By their nature, cases involving claims of excusable neglect are highly fact sensitive. Here, the record reveals that the source of Huntington’s untimely response was that, in the absence of the employee who typically received service, a supervisor failed to refer the summons and complaint to counsel until after the deadline had passed. “This is neglect, but not excusable neglect as the term appears in Rule 60(B)(1).” Smith v. Johnston, 711 N.E.2d 1259, 1262 (Ind. 1999).

Thus, we find that the trial court did not abuse its discretion in denying Huntington’s motion to set aside Car-X’s default judgment on this basis. But this conclusion does not terminate Huntington’s appeal, for there is still the question of whether the denial of Huntington’s motion was just and equitable under the circumstances. To best answer this question, we remand this case to the trial court to reevaluate the motion under Trial Rule 60(B)(8), especially in light of Huntington’s meritorious defense to the underlying foreclosure suit (as Car-X concedes), the substantial amount of money involved, and Car-X’s lack of prejudice from the delay, among other considerations. * * *

We affirm the trial court’s denial of Huntington’s motion to set aside the default judgment under Trial Rule 60(B)(1) for excusable neglect but remand to the trial court to reconsider whether equitable reasons support granting Huntington’s motion under Trial Rule 60(B)(8).

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

Posted by Marcia Oddi on Friday, August 21, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Applicants for the upcoming Marion County Superior Court vacancy announced

The ILB has just received this information from Gov. Pence's office:

Interviews for the Marion County Superior Court vacancy will begin next week. The applicants are:
  • David Cook
  • Curtis Foulks
  • Sarah Glasser
  • Alicia Gooden
  • Therese Hannah
  • Maura Hoff
  • David Hooper
  • Kimberly Mattingly
  • Duane Merchant
  • Paul Ogden
  • Denise Robinson
  • David Seiter
  • Kurt Webber
This is to fill the vacancy caused by Judge Altice's selection for the Court of Appeals.

Posted by Marcia Oddi on Friday, August 21, 2015
Posted to Indiana Courts

Ind. Courts - Ken Stroud, DeBruler clerk and long-time IU-McKinney professor, dies

From the law school:

We were notified today of the loss of one of our esteemed emeritus faculty members, Ken Stroud. Many of us who were around prior to 1999 remember Ken fondly. His funeral will be held next Tuesday, August 25th, at noon at Holy Cross Catholic Church, with calling beginning at 9:30 a.m. that morning. The address is 125 N. Oriental Ave., Indianapolis. There will also be a lunch served there at the church around 1:00 p.m. following the service.
Professor Joel Schumm sends a link to this "Tribute to Ken Stoud" upon his retirement, written by Professor James W. Torkle, that appeared in issue #2 of the 1999 Indiana Law Review. Ken Stroud joined the IU faculty in 1972.

Posted by Marcia Oddi on Friday, August 21, 2015
Posted to Indiana Courts

Ind. Courts - Blackford County judges enjoin county clerk from entering the Courthouse

Here is the 6-page order, issued August 20th by the two judges of Blackford County. Some quotes:

Finding 3: A. On August 3, 2015, Derinda Shady behaved inappropriately at a Blackford County Council meeting wherein celtain matters regarding the Clerk's budget were discussed, including the termination of funding for two positions in the Office of the Clerk. B. On August 4, 2015, the Clerk threatened the Superior Court Judge with tenninating supervision and oversight of Superior Court business; a threat which she had also communicated to the Blackford Circuit Court Judge regarding Superior Court business. * * *

Finding 4. That irreparable harm will be occasioned the COUlts if a temporary restraining order andlor injunction is not entered against Derinda Shady, Clerk of the Blackford Circuit and Superior Court, in that the evidence indicates that she will refuse to obey the lawful commands of the Courts regarding COUlt business; will refuse or sabotage the specific business of the Blackford Superior Court whom she has indicated she will not serve; will act out of control and erratically in the presence of the public and other members of her office staff such that a hostile work environment is created throughout the courthouse; and, will not permit the Judges of the Blackford Circuit and Superior Courts to consult with her on matters of Court business in a civil and professional fashion. * * *

Finding 7. That further hearing in this cause shall be held on Wednesday, August 26, 2015, at 11 :00 a.m. with an order to appeal to be issued to Clerk Shady and should she fail to do so, the Court may conduct the hearing in her absence to determine her continuing fitness to serve as Clerk of the Blackford Circuit and Superior Courts.

[h/t Doug Masson]

Posted by Marcia Oddi on Friday, August 21, 2015
Posted to Indiana Courts

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

For publication opinions today (1):

In Amanda Dillon v. Matthew Dillon, a 12-page opinion, Judge Baker writes:

Amanda Dillon (Mother) appeals the judgment of the trial court granting custody of their daughter to Matthew Dillon (Father). Finding no error, we affirm. * * *

To be sure, the trial court has made a difficult decision in this case. However, its order displays a breadth and depth that has not only assisted our review, but assured us that we would be foolish not to defer to its judgment. Simply put, it is clear that the trial court has thought this one through. The judgment of the trial court is affirmed.

NFP civil decisions today (2):

Floyd Kinslow v. Dennis Coddington, Travis Sheets and Gina Sheets (mem. dec.)

In James Pollard v. Michael Pence, as Governor of the State of Indiana, Bruce Lemmon, as the Comm. of the Ind. Dept. of Corr., and the Ind. Parole Board (mem. dec.), a 7-page opinion, Judge Baker writes:

In State v. Hernandez, our Supreme Court examined the law as it existed in 1975 and held that individuals serving life sentences for crimes committed at this time are not eligible for parole. 910 N.E.2d 213 (Ind. 2009). James Pollard, who is currently serving four life sentences for crimes he committed in 1975, believes this decision was erroneous. Accordingly, Pollard filed a petition for writ of mandamus in the trial court asking it to order the respondents, Governor Pence, Commissioner Lemmon, and the Indiana Parole Board, to consider him eligible for parole. The trial court denied the petition, and we are compelled to affirm. * * *

In Hernandez, our Supreme Court determined that, under the law as it existed in 1975, those serving life sentences were not eligible for parole. Hernandez, 910 N.E.2d at 221. Thus, the Court, in its estimation, had simply determined what the law had always been. Pollard therefore suffered no disadvantage, as the law had never given him the advantage he claims. The same analysis can be applied to Pollard’s claim that the decision in Hernandez constitutes judicial legislation. The Court was not creating anything new and, therefore, did not “legislate.” See Black’s Law Dictionary (10th ed. 2014) (defining “legislate” as “[t]o make or enact law”; “[t]o bring (something) into or out of existence by making laws.”).

Respondents argue that we need not have considered Pollard’s arguments at all because the constitutional prohibition on ex post facto laws is a prohibition placed on the legislature alone and “‘does not of its own force apply to the Judicial Branch of government.’” Armstrong, 848 N.E.2d at 1093 (quoting Marks, 430 U.S. at 191). We agree, however, this is not to say that individuals are provided no constitutional protection from judicial interpretations that effectively function as ex post facto laws. “[T]he Due Process Clause of the Fifth Amendment, made applicable to the states by the Fourteenth Amendment, protects offenders from judicial decisions that retroactively alter the import of a law to negatively affect the offender’s rights without providing fair warning of that alteration.” Id.

However, we are not at liberty to conclude that such is the case here. Not only are we bound by our Supreme Court’s holding as to the meaning of the previous parole eligibility statute, we are also bound by its implicit holding that this is what the statute has always meant. Thus, we are compelled by Hernandez to conclude that Pollard’s claims must fail. The judgment of the trial court is affirmed.

NFP criminal decisions today (3):

Percy Lee Blake v. State of Indiana (mem. dec.)

Matthew Flowers v. State of Indiana (mem. dec.)

Antwon Davis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, August 21, 2015
Posted to Ind. App.Ct. Decisions

Thursday, August 20, 2015

Ind. Decisions - Tax Court decides one today [Updated, now two]

In R. R. Donnelley & Sons Company v. Indiana Department of State Revenue, an 8-page opinion, Judge Wentworth writes:

R.R. Donnelley & Sons Company has appealed the Indiana Department of State Revenue’s assessments of Indiana use tax on its purchases of shipping pallets for the 2007, 2008, and 2009 tax years (the years at issue). The matter is currently before the Court on the parties’ cross-motions for summary judgment, which present one issue for the Court to decide: whether RR Donnelley’s purchases of shipping pallets are exempt from use tax under Indiana Code § 6-2.5-5-9(d) (“Nonreturnable Container Exemption”). The Court finds that they are not. * * *

For the reasons stated above, RR Donnelley’s pallets are returnable containers, and RR Donnelley’s purchases of those pallets do not qualify for the Nonreturnable Container Exemption. Accordingly, the Court GRANTS summary judgment in favor of the Department and against RR Donnelley.

Here is a second opinion from today, a 4-page order on rehearing in Property Development Company Four, LLC v. Grant County Assessor. Judge Wentworth writes:
On May 12, 2015, this Court reversed, in part, the Indiana Board of Tax Review’s final determination in the above-captioned matter. See Property Dev. Co. Four, LLC v. Grant Cnty. Assessor, 31 N.E.3d 1049 (Ind. Tax Ct. 2015). In its opinion, the Court held that the Grant County Assessor’s retroactive assessments of Property Development Company Four, LLC’s real property were invalid because Property Development had not received sufficient notice of the assessments and the property tax liabilities arising therefrom. See id. at 1052-54. The Assessor has filed a Petition for Rehearing pursuant to Rule 63(B) of Indiana’s Rules of Appellate Procedure. The Assessor’s Petition presents two issues that the Court restates as: 1) whether the Court omitted a material fact when it determined that Property Development received insufficient notice; and, if not, 2) whether the Court erred in invalidating the assessments. The Court, having reviewed the Assessor’s Petition and Property Development’s response thereto, grants the Assessor’s Petition for the sole purpose of clarifying its opinion.

Posted by Marcia Oddi on Thursday, August 20, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court issues one opinion today, reversing termination of Father's parental rights

In In Re the Involuntary Term. of the Parent-Child Relationship of K.E., a Minor Child, and His Father, J.E., and His Mother, S.S. v. Ind. Dept. of Child Services, a 17-page, 5-0 opinion, Justice David writes:

As this Court has recognized, incarceration is an insufficient basis for terminating parental rights. See e.g. In Re G.Y., 904 N.E.2d 1257, 1264-66 (Ind. 2009). In the present case, Father made extensive efforts to better himself by learning parenting skills, addressing his problems with substance abuse, and establishing a bond with both of his children. We accept transfer in this case and hold that there was insufficient evidence to demonstrate a reasonable probability that Father could not remedy the conditions for removal or that Father poses a threat to K.E.’s well-being. Accordingly, we reverse the trial court’s order terminating Father’s parental rights. * * *

Without clear and convincing evidence to support each of the factors set out in Indiana Code § 31-35-2-4(b), we cannot terminate a parent-child relationship. As such, we reverse the trial court’s order terminating Father’s parental rights.8 Our holding does not impact the underlying CHINS proceedings as to K.E. The orders entered in the underlying CHINS proceeding for K.E., lower court cause number 82D01-1211-JC-459, will remain in effect.

Posted by Marcia Oddi on Thursday, August 20, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Applicants for the upcoming Marion County Superior Court vacancy?

Updating this post from this morning, no official word yet from the Governor's people, but the ILB is hearing a dozen or so applicants are vying for Judge Altice’s spot on the Marion County bench. With only a week before Judge Altice makes his move to the Court of Appeals, interviews should start soon.

Posted by Marcia Oddi on Thursday, August 20, 2015
Posted to Indiana Courts

Ind. Decisions - Supreme Court suspends Indianapolis attorney

In In the Matter of: Dana E. F. DANIELS, a 2-page order:

... the Court suspends Respondent from the practice of law in this state for a period of not less than one year, without automatic reinstatement, beginning October 2, 2015.

Posted by Marcia Oddi on Thursday, August 20, 2015
Posted to Ind. Sup.Ct. Decisions

Courts - "Court sides with ESPN in lawsuit vs. Michigan State"

The South Bend Tribune is reporting:

LANSING, Mich. — The Michigan Court of Appeals sided with ESPN in a public records dispute with Michigan State University over the release of names of student-athletes mentioned in campus police reports, the Lansing State Journal reported.

The lawsuit was prompted by the same ESPN investigation that resulted in the sports cable channel suing the University of Notre Dame for access to its campus police records. That suit is pending.

In September 2014, ESPN submitted a Freedom of Information Act request to MSU for incident reports involving 301 student-athletes, the Lansing newspaper reported. The university responded to the request with two sets of records but redacted the names of student-athletes listed as suspects, witnesses or victims, according to the Court of Appeals’ opinion released Wednesday.

ESPN sued MSU and in March, Judge Clinton Canady ordered the university to release the names of the student-athletes if they were identified in the reports as suspects, according to the opinion. Canady didn’t order the release of the names of victims or witnesses, citing privacy exceptions in the law.

MSU appealed Canady’s ruling.

The Court of Appeals affirmed Canady’s order, saying he didn’t abuse his discretion when balancing interest in how MSU police handle investigations of student-athletes and the student-athletes’ privacy, the newspaper reported.

“ESPN seeks the information to learn whether policing standards are consistent and uniform at a public institution of higher learning,” the unanimous decision said. “The disclosure of the names is necessary to this purpose.

“In order to determine whether the student-athletes were treated differently from the general student population ... it is necessary to know the student-athlete’s name and the nature of the allegations involved in the investigation.”

The opinion said that even if the release of the names is considered a “revelation of information of a personal nature,” the revelation is not unwarranted because it allows investigation of how MSU handles the cases.

Posted by Marcia Oddi on Thursday, August 20, 2015
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 9 NFP memorandum decisions)

For publication opinions today (4):

In Uthman Cavallo, M.D. v. Allied Physicians of Michiana, LLC, a 27-page opinion, Judge Pyle writes:

Appellant/Defendant, Uthman Cavallo, M.D. (“Cavallo”), appeals the trial court’s order denying his request for a jury determination of the amount of attorney fees he owed Appellee/Plaintiff, Allied Physicians of Michiana, LLC (“Allied”), after Allied prevailed in a breach of contract claim against Cavallo. Cavallo and Allied were parties to an employment contract, and Allied filed a complaint against Cavallo alleging that he had breached the contract. Cavallo filed a counter-claim and a jury demand, alleging in the counter-claim that Allied, instead, had breached the contract. The trial court conducted a jury trial, and the jury found that Cavallo had breached the contract.

Subsequently, after the trial court entered judgment against Cavallo, Allied filed a petition requesting attorney fees, which was based on a fee-shifting provision in the contract. * * *

We conclude that Allied’s claim was not barred by res judicata or waiver because the issue of attorney fees could not necessarily have been raised during trial, such that res judicata or waiver should apply. We also conclude that the trial court did not err when it denied Cavallo a jury trial because Cavallo did not have a right to a jury trial on the reasonableness of attorney fees; nor did the trial court abuse its discretion in determining a reasonable amount of attorney fees to award to Allied. Finally, because it is undisputed that the contract between Cavallo and Allied provided for recovery of attorney fees, we grant Allied’s request for appellate attorney fees and remand for further proceedings so that the trial court may determine a reasonable amount.

In Pardip Singh v. State of Indiana, a 13-page opinion, Judge Mathias concludes:
For all of these reasons, we conclude that the State presented sufficient evidence to support Singh’s conviction for attempted promotion of human trafficking. We also conclude that none of Singh’s convictions are barred on double jeopardy grounds under the actual evidence test and that the trial court did not abuse its discretion in sentencing Singh.
In Jamar Washington v. State of Indiana, a 6-page opinion on rehearing, Judge Brown concludes:
We cannot say that our previous memorandum decision conflicts with the holding in Rodriguez. Accordingly, we reaffirm our previous decision.
ILB: The initial opinion, Jamar Washington v. State, from Dec. 23, 2014, was, and remains, NFP. But today's opinion on rehearing is not...

In Maurice Knight v. State of Indiana, a 9-page opinion, Judge Mathias concludes:

The State presented evidence sufficient to support Knight’s convictions for Class D felony invasion of privacy and Class D felony intimidation. Knight’s arguments on appeal are little more than a request that we consider the evidence in a light most favorable to him, reweigh the evidence, and come to a conclusion opposite that reached by the trial court as the trier of fact. This is beyond our prerogative as an appellate court. Affirmed.
NFP civil decisions today (4):

In re the paternity of T.M. T.M., by next friend, Jeffrey D. Drinkski, Newton County Prosecuting Attorney and L.M. v. D.H. (mem. dec.)

Eddie Wilkerson v. Robert R. Carr and Lawyer Transport, Inc. (mem. dec.)

In Re the Termination of the Parent-Child Relationship of: E.B. (a Minor Child) and B.H. (Father) v. Ind. Dept. of Child Services (mem. dec.)

Family Dollar Stores of Indiana, L.P., Family Dollar Holdings, Inc., and Baugo Creek Realty, LLC v. Charissa A. Heeter, Anthony P. Heeter et al (mem. dec.)

NFP criminal decisions today (5):

Emily Duncan v. State of Indiana (mem. dec.)

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

Daquion L. Shears v. State of Indiana (mem. dec.)

Emery D. Scruggs v. State of Indiana (mem. dec.)

Maurice Knight v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, August 20, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Applicants for the upcoming Marion County Superior Court vacancy?

A July 30 ILB post began:

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.
A check of the page again today shows the same thing.

But for a few fleeting moments, or days, at least according to a Goggle entry that turned up after a search this morning, a check of the same link would have revealed:

Governor Pence: Judicial Appointments - IN.gov
www.in.gov › Governor Pence › Gubernatorial Appointments Indiana
The Governor's Office is now accepting applications for Marion County Superior Court Judge due to the resignation of Judge Robert Altice, effective September 1 ...
Yes, it is gone now. It was posted I believe, on Friday Sept 30/Aug 1st and applications closed Tuesday August 11th.

Why is no record retained of this and earlier judicial openings and appointments? This July 30th ILB post reported on the five applicants seeking a Warrick Superior Court opening, taken from the Evansville Courier & Press, but the information is not on the Governor's website.

The ILB has contacted Kara Brooks from Governor Pence's office for a list of the applicants to fill Judge Altice's vacancy.

Posted by Marcia Oddi on Thursday, August 20, 2015
Posted to Indiana Courts

Ind. Gov't. - "Public ill served by legislative secrecy"

That is the heading to an opinion column by Gabe Elsner, executive director of the Energy & Policy Institute, which appears today in the Fort Wayne Journal Gazette:

James Madison wrote in 1822, “A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both.”

The blatant refusal from the House Republican caucus and Rep. Eric Koch to provide public records under the Access to Public Records Act is, perhaps, the beginning of a tragedy for the state of Indiana and its representative government.

If the state legislature is allowed to operate in complete secrecy, then how will citizens be able to hold them accountable for their actions?

That’s the fundamental question behind our lawsuit calling for the release of public records under the Access to Public Records Act. After the House Republican Caucus refused to provide public records between Koch and special interests in the electric utility industry regarding an anti-solar bill, we, along with Citizens Action Coalition and Common Cause Indiana, sued for access to those public records.

We wanted to know whether and how special interests in the utility industry were involved in the legislative process in part because, three years ago, power companies and their trade association, Edison Electric Institute, launched a national campaign to weaken competition in the solar energy industry through regulatory and legislative assaults.

We believe the public has a right to know how lobbyists are working with elected officials on legislation that could specifically benefit special interest groups. Indiana Public Access Counselor Luke Britt agreed that the legislature is subject to the public records act and wrote, “I humbly and respectfully request the (Republican) Caucus to reconsider its position on the blanket inapplicability of the Access to Public Records Act and treat public records requests in a manner consistent with the spirit of transparency and openness.”

Providing the public with information regarding the affairs of government is an essential function of a representative government, and access to public records is fundamental to creating a transparent and accountable government. Without knowledge of how elected officials are operating behind closed doors, how can voters determine whether or not to re-elect their representatives?

Madison continued by saying: “Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

The Access to Public Records Act serves as a check on the power of our government officials by providing citizens with information and knowledge about the activities of those in positions of power.

Similarly, the members of the media rely on the Access to Public Records Act to uncover the workings of government and provide an accurate account of the legislative process.

However, the Republican Caucus claimed that the courts cannot check the power of the legislature with regard to the public records law by forcing the caucus to release records.

Unfortunately, last week, a Marion Superior Court judge dismissed our lawsuit, ruling the court could not do anything about the state legislature’s refusal to abide by the public records law.

The logical result would be a legislature with virtually unchecked power, free to ignore any public records requests and to conduct legislative business in absolute secrecy. As a result, citizens would have no means of acquiring the knowledge and popular information required to “be their own Governors…”

We believe the Access to Public Records Act provides citizens with those critical tools for a transparent and accountable representative government to function and intend to double our efforts to ensure the law is upheld and enforced.

Posted by Marcia Oddi on Thursday, August 20, 2015
Posted to GA and APRA

Ind. Courts - More on: ESPN files its brief in its state court appeal to obtain access to the reports of the Notre Dame police

Updating this ILB post from Aug. 17, which links to all the briefs, here is the conclusion of a South Bend Tribune editorial from August 19th:

The South Bend Tribune, which also has been denied access to university police reports in the past, and the Hoosier State Press Association filed amicus briefs in support of ESPN.

In filing his brief, Zoeller added another layer of support from the state level that argues Notre Dame’s police department is a public agency and should be held to the same standards as other police departments. Indiana Public Access Counselor Luke Britt has already issued two non-binding advisory opinions finding the incident reports and logs kept by the campus security police department are public records.

Indiana statute allows but does not require the attorney general to file amicus briefs in support of the PAC’s advisory opinion in cases that wind up in court. In this instance, Zoeller believed strongly enough in Britt’s opinion that he chose to support it publicly.

The case now is in the hands of the Indiana Court of Appeals. But while the court considers the issue, there are indications that several state legislators, including Rep. B. Patrick Bauer, D-South Bend, are willing to discuss changing state law to make police records at private universities public. This isn’t just an Indiana issue. Similar cases have occurred at Rice University in Texas and Otterbein University in Westerville, Ohio.

News organizations such as ESPN, The South Bend Tribune and HSPA aren’t asking for anything extraordinary in seeking more information from private institutions. It’s information already accessible from the state’s public universities. Police departments that operate under the same laws using the same powers granted by the state shouldn’t be treated differently. In issuing his brief, it’s clear Zoeller agrees and is willing to add the weight of his office to the fight.

Posted by Marcia Oddi on Thursday, August 20, 2015
Posted to Indiana Courts

Ind. Gov't. - "Indiana struggling to reduce prison recidivism"

The ILB has reported this week on the Tuesday meeting of the legislative Interim Study Committee on Corrections and Criminal Code's consideration of a proposal to collect DNA of all arrestees.

But the bulk of the meeting was devoted to another topic, this agenda item:

The problems faced by offenders when the offenders are: (1) released from a penal facility; and (2) attempting to find employment; including studying the possibility of establishing programs to encourage employers to hire these offenders.
Dan Carden covers this topic today in his NWI Times story, "Indiana struggling to reduce prison recidivism." (The ILB watched much of the Tuesday hearing and recommends the archived video of the testimony at the Aug. 18th meeting.) Some quotes:
State lawmakers learned Tuesday that Indiana has numerous in-prison and post-prison training and job programs that improve the lives of Hoosier offenders and significantly reduce recidivism, saving taxpayers millions of dollars a year.

However, only a fraction of the 20,000 men and women annually released from the Department of Correction participate in the services due to limited state financial support, staffing, space and business cooperation.

"We are not funding and we're not doing what we should be doing if we are going to be serious about this," said state Rep. Linda Lawson, D-Hammond, a member of the General Assembly's study committee on corrections.

That panel is tasked with devising potential legislative solutions to improve the transition from prison to society and reduce the 36.7 percent of felons who end up back in prison within three years of leaving.

While state prison officials told lawmakers there is no single answer, the programs they offer to offenders — including education courses, intensive drug counseling and apprenticeship training — routinely cut recidivism by one-third to one-half for active participants.

"It's one thing to lock somebody up and confine them and make sure they don't get out, but to change who they are from the inside out is a lot tougher thing. That takes the programs you've heard about ... combined with work," said Doug Evans, manager of PEN Products, the state's in-prison manufacturing program. * * *

But even if an offender is trained for work behind bars and ready to re-enter society, he or she almost immediately must deal with a host of practical problems relating to housing, transportation, health insurance, child care and family life on the outside.

Pam Ferguson, assistant superintendent of Rockville Correctional Facility, said the staff at her women's prison strive to wrap services around female inmates from the day they enter, to prepare them for the day they'll leave, and many times it's still not enough.

She said the state should establish a network of safe houses in major cities where newly released inmates could be reunited with their children and have a free or low-cost place to live while they start work, enroll their kids in school or daycare and just get on their feet.

"If I had a magic wand we'd have a house that was safe for her and her children," Ferguson said.

Posted by Marcia Oddi on Thursday, August 20, 2015
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided one Indiana case yesterday, a must read on independent research by judges [Updated]

In Jeffrey Rowe v. Monica Gibson (SD Ind., Barker), a 47-page opinion with a majority opinion by Judge Posner, a concurring opinion by Judge Rovner, and a concur/dissent by Judge Hamilton. J. Posner:

An Indiana prison inmate named Jeffrey Rowe, the plaintiff in this suit under 42 U.S.C. § 1983, charges administrators and prison staff (actually employees of Corizon, Inc., which provides medical services to the inmates at Pendleton Correctional Facility, Rowe’s prison) with deliberate indifference to a serious medical need—that is, with knowing of a serious risk to inmate health or safety but responding ineffectually (as by departing substantially from accepted professional judgment) or not at all. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994); Sain v. Wood, 512 F.3d 886, 894–95 (7th Cir. 2008). Such conduct was held in Farmer to violate the cruel and unusual punishments clause of the Eighth Amendment, deemed applicable to state action by interpretation of the due process clause of the Fourteenth Amendment. Rowe charges gratuitous infliction of physical pain and potentially very serious medical harm—cogent examples of cruel and unusual punishment. He has a subsidiary claim of having been retaliated against for filing this lawsuit, a claim we discuss briefly toward the end of our opinion. The district judge granted summary judgment in favor of the defendants on both claims, dismissing Rowe’s suit and precipitating this appeal. * * *

[continuing, J. Posner's opinion cites research from the Mayo Clinic website, Wikipedia, the PDR, then on p. 12]

In citing even highly reputable medical websites in support of our conclusion that summary judgment was premature we may be thought to be “going outside the record” in an improper sense. It may be said that judges should confine their role to choosing between the evidentiary presentations of the opposing parties, much like referees of athletic events. But judges and their law clerks often conduct research on cases, and it is not always research confined to pure issues of law, without disclosure to the parties. We are not like the English judges of yore, who under the rule of “orality” were not permitted to have law clerks or other staff, or libraries, or even to deliberate—at the end of the oral argument in an appeal the judges would state their views seriatim as to the proper outcome of the appeal.

We don’t insulate judges like that, but we must observe proper limitations on judicial research. We must acknowledge the need to distinguish between judicial web searches for mere background information that will help the judges and the readers of their opinions understand the case, web searches for facts or other information that judges can properly take judicial notice of (such as when it became dark on a specific night, a question we answered on the basis of an Internet search in Owens v. Duncan, 781 F.3d 360, 362 (7th Cir. 2015), citing WeatherSpark, “Average Weather On September 22 For Chicago, Illinois, USA: Sun,” https://weather spark.com/averages/30851/9/22/Chicago-Illinois-United-Stat es), and web searches for facts normally determined by the factfinder after an adversary procedure that produces a district court or administrative record. When medical information can be gleaned from the websites of highly reputable medical centers, it is not imperative that it instead be presented by a testifying witness. Such information tends to fall somewhere between facts that require adversary procedure to determine and facts of which a court can take judicial notice, but it is closer to the second in a case like this in which the evidence presented by the defendants in the district court was sparse and the appellate court need only determine whether there is a factual dispute sufficient to preclude summary judgment. * * *

[An appendix to J.Posner's opinion, begins at p. 21:]

We respectfully suggest that the dissenting opinion is misleading in certain respects that require a response; page references are to pages in the dissent. * * *

[p.27] J. Rovner, concurring.

A disagreement about the outcome of this relatively simple case has morphed into a debate over the propriety of appellate courts supplementing the record with Internet research. To be clear, I do not believe that the resolution of this case requires any departure from the record: as the majority opinion makes patently clear, * * *

[p.29] J. Hamilton, concurring in part and dissenting in part.

I agree with the majority’s disposition of most claims and issues: affirming summary judgment for defendants on several claims and reversing on Rowe’s retaliation claim and his claim for complete denial of his Zantac medicine for 33 days in July and August 2011.

I must dissent, however, from the reversal of summary judgment on Rowe’s claim regarding the timing for administering his medicine between January and July 2011 and after August 2011. On that claim, the reversal is unprecedented, clearly based on “evidence” this appellate court has found by its own internet research. The majority has pieced together information found on several medical websites that seems to contradict the only expert evidence actually in the summary judgment record. With that information, the majority finds a genuine issue of material fact on whether the timing of Rowe’s Zantac doses amounted to deliberate indifference to a serious health need, and reverses summary judgment. (The majority denies at a couple of points that its internet research actually makes a difference to the outcome of the case, see ante at 14, 16, but when the opinion is read as a whole, the decisive role of the majority’s internet research is plain.) * * *

[See especially, beginning at p. 33, "II. The Law on Judicial Research into the Facts"]

[Updated] The ABA Journal has a good discussion, by Debra Cassens Weiss, headed "Dissenter blasts Posner’s Internet research in inmate’s suit over acid reflux treatment."

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

Wednesday, August 19, 2015

Ind. Courts - ACLU of Indiana challenges Sellersburg ordinance allowing warrantless searches of private property

From the news release:

A man whose residential property was searched without his permission and without a warrant, who lives under threat of a repeated non-consensual search of his property, is challenging the section of a town ordinance that permits the search, claiming it violates Fourth Amendment protections against unreasonable searches and seizures.

The American Civil Liberties Union of Indiana brought the lawsuit today on behalf of William Schuler of Sellersburg, Ind. against the Town of Sellersburg. In 2013, an employee of the Sellersburg Commission of Buildings and Code Enforcement entered Schuler's property when he was not there and cited him for the existence of "nuisances" not visible from the street or from any public property. The ordinance allowing that search gives government officials and police permission to enter and inspect property after issuing the owner of the property a five-day notice, but it does not require the owner's permission or require that a warrant be issued before the property is inspected.

Town officials have informed Schuler that they plan another non-consensual search of his property.

"The Fourth Amendment provides the right of people to be secure against unreasonable searches and seizures," said Ken Falk, ACLU of Indiana legal director. "The ordinance and planned warrantless inspection of our client's property is unconstitutional."

The case, William Schuler v. Town of Sellersburg, Indiana, Case 4:15-cv-117-SEB-DML was filed in the U.S. District Court for the Southern District of Indiana, New Albany Division, on August 19, 2015.

Here is the complaint.

Posted by Marcia Oddi on Wednesday, August 19, 2015
Posted to Indiana Courts

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

For publication opinions today (2):

In John Counceller v. City of Columbus Plan Commission, an 11-page opinion, Judge Bradford writes:

In 1999, Appellant-Petitioner John Counceller submitted the first of four applications to subdivide his lot in the Indian Hills Estates (“the Lot”) in Columbus. The first two were withdrawn prior to action by Appellee-Respondent City of Columbus Plan Commission (“the Commission”). In 2013, Counceller again requested to subdivide the Lot, and the Columbus Plat Committee (“the Plat Committee”) granted primary approval to the application. Although no objection was filed to this approval, Counceller never acted on it, and it expired. The first three applications were to subdivide the Lot into two lots.

In 2014, Counceller again submitted an application that he be allowed to subdivide the Lot, this time into three lots, and the Plat Committee again granted primary approval to the request. When notified of the Plat Committee’s approval, all or almost all of the other property owners in Indian Hills Estates objected. Citing a Columbus ordinance that requires 75% of property owners in a subdivision to approve a further subdivision of one of the lots, the Commission ultimately rejected Counceller’s application. Counceller argues that the Commission should be estopped from relying on the 75% requirement and that it improperly abdicated its responsibility to exercise exclusive control of the subdivision of land to Counceller’s neighbors. We affirm.

In Tracy D. Guffey v. State of Indiana, a 24-page opinion, Judge Pyle writes:
While incarcerated in the county jail, Tracy D. Guffey (“Guffey”) made phone calls to his girlfriend. During these phone calls, which were recorded by the jail, Guffey encouraged his girlfriend to have sex with her twelve-year-old son so that she could make sure that he was not gay and told her to give her son alcohol prior to having sex so that he would be more comfortable. When the State moved to admit sixteen of these recorded jail telephone calls into evidence at trial, Guffey objected to fifteen of the calls.

On appeal, Guffey challenges the trial court’s admission of these fifteen recordings, argues that his convictions and sentences violate the actual evidence test of the Indiana Double Jeopardy Clause, and contends that there is insufficient evidence to support his convictions.

Because the record before us reveals that the trial court entered judgment of convictions on Counts II and IV before merging those convictions and that it also entered a separate sentence on Guffey’s habitual offender determination instead of enhancing one of his sentences, we remand to the trial court with instructions to correct these irregularities. We also conclude that the trial court did not abuse its discretion by admitting the fifteen recorded jail phone calls because they were relevant to show Guffey’s plan and preparation as they related to his conspiracy to commit child molesting charge. Additionally, as the State concedes, the evidence shows a reasonable possibility that Guffey’s remaining convictions on Counts I, III, and V were based on the same actual evidence, we remand to the trial court to vacate Counts III and V and instruct that trial court that it may resentence Guffey on Count I. Lastly, we conclude that there was sufficient evidence to support Guffey’s Class A felony conspiracy to commit child molesting as charged in Count I.

NFP civil decisions today (1):

In the Matter of the Termination of T.P. & D.P. (Minor children) E.N. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Wednesday, August 19, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decided another Indiana case yesterday, a reversal, re guaranteed federal student aid loan

Bryana Bible v. United Student Aid Funds, Inc. (SD Ind., Pratt), is an 82-page opinion, with a majority opinion by Judge Hamilton, a concurring opinion by Judge Flaum, and a concur/dissent by Judge Manion. J. Hamilton:

Plaintiff Bryana Bible obtained a student loan under the Federal Family Education Loan Program. She defaulted in 2012 but promptly agreed to enter into a rehabilitation agreement that required her to make a series of reduced monthly payments. She timely made all of the payments that were required of her under this agreement, and she remains current on her loan payments. Although Bible complied with her obligations under the repayment agreement, a guaranty agency assessed over $4,500 in collection costs against her.

The terms of Bible’s loan were governed by a form document known as a Federal Stafford Loan Master Promissory Note (MPN). This form has been approved by the U.S. Department of Education and is used in connection with many student loans across the country. The MPN incorporates the Higher Education Act and its associated regulations. In pertinent part, the MPN provides that Bible must pay “reasonable collection fees and costs, plus court costs and attorney fees” if she defaults on her loan. As we will see, “reasonable collection fees and costs” are defined by regulations issued by the Secretary of Education under the authority expressly conferred by the Higher Education Act. The MPN provided that Bible would owe only those collection costs that are permitted by the Higher Education Act and its regulations.

Bible sued the guaranty agency (defendant United Student Aid Funds, Inc.) alleging breach of contract and a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. Her breach of contract theory is that the MPN incorporated federal regulations that prohibit the guaranty agency from assessing collection costs against her because she timely entered into an alternative repayment agreement and complied with that agreement. Her RICO claim alleges that the guaranty agency, in association with a debt collector and a loan service provider, committed mail fraud in violation of 18 U.S.C. § 1341 and wire fraud in violation of 18 U.S.C. § 1343 when it assessed collection costs of more than $4,500 against her despite its representations that her “current collection cost balance” and “current other charges” were zero and that these costs would be “reduced” once she completed the rehabilitation process.

The district court granted the guaranty agency’s motion to dismiss Bible’s first amended class action complaint (we call this the “amended complaint”) under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for relief. The district court held that both claims were “preempted” by the Higher Education Act. It reasoned that both claims depend on alleged violations of the Act and should not be permitted because the Act does not provide a private right of action. The district court held in the alternative that the amended complaint failed to state a claim that is plausible on its face. It concluded that the breach of contract claim failed because both the MPN and the Higher Education Act expressly permit imposing collection costs against borrowers who default on their loans. The district court also concluded that the RICO claim failed because Bible’s amended complaint “has not shown participation in a scheme to defraud; commission of an act with intent to defraud; or the use of mails or interstate wires in furtherance of a fraudulent scheme.” Bible v. United Student Aid Funds, Inc., No. 1:13-CV- 00575-TWP-TAB, 2014 WL 1048807, at *10 (S.D. Ind. Mar. 14, 2014).

We reverse. Neither of Bible’s claims is preempted by the Higher Education Act. Bible’s state law breach of contract claim is not preempted because it does not conflict with federal law. The contract at issue simply incorporates applicable federal regulations as the standard for compliance. Accordingly, the duty imposed by the state law is precisely congruent with the federal requirements. A state law claim that does not seek to vary the requirements of federal law does not conflict with federal law.

We apply the Secretary of the Education’s interpretation of the applicable statutes and regulations, which is consistent with Bible’s. (The Secretary accepted our invitation to file an amicus brief addressing the question.) The Secretary interprets the regulations to provide that a guaranty agency may not impose collection costs on a borrower who is in default for the first time but who has timely entered into and complied with an alternative repayment agreement. Nor is Bible’s RICO claim preempted. RICO is a federal statute and thus is not preempted by another federal statute, and we see no conflict between RICO and the Higher Education Act. On the merits, both the breach of contract and RICO claims satisfy the plausibility standard under Rule 12(b)(6). * * *

Neither of Bible’s claims is preempted or otherwise displaced by federal law, and she has plausibly alleged all of the elements of both claims. The judgment of the district court is REVERSED and the case is REMANDED for further proceedings.

[p.50] J. Flaum, concurring in part and concurring in the judgment.

I join in full Judge Hamilton’s analysis of USA Funds’ preemption argument and Bible’s RICO claim. With respect to Bible’s breach of contract claim, I agree with the portion of the analysis that defers to the Secretary of Education’s interpretation of the statute and corresponding regulations. However, I am unable to join subsection II.A.1.b.i of Judge Hamilton’s opinion, which offers an alternative ground for holding that USA Funds was prohibited from assessing collection costs against Bible—that is, that the text of the regulations unambiguously supports Bible’s interpretation of the statutory and regulatory scheme. Instead, I find the regulatory landscape sufficiently complex to merit deference to the agency’s reasonable interpretation. * * *

[p.55] J. Manion, concurring in part and dissenting in part.

I agree with the court’s conclusion that Bible’s claims are not preempted, but I disagree that she pleaded a valid breach of contract or RICO claim. As a matter of law, United Student Aid Funds, Inc., did not breach the Master Promissory Note (MPN) and did not commit the fraud upon which Bible’s RICO claim is predicated. Bible’s entire theory is erected atop an erroneous equivocation, that the loan rehabilitation agreement of 34 C.F.R. § 682.405 is the same as the repayment agreement of § 682.410. I say Bible’s theory because it truly is her own contrivance. There is no evidence to suggest that the Department of Education ever interpreted the regulations in the manner advanced by Bible prior to our request for an amicus brief in this case. In fact, the record reflects that the Department agreed with USA Funds’ interpretation and had no cause to question USA Funds’ regulatory compliance, that is, until the Department filed its amicus brief. Applying the Department’s post hoc rule to USA Funds is both wrong and unjust. The fraud is on the guarantors and, because the Department ultimately guarantees the loans, on the taxpayer. For this and for the detailed reasons that follow, I respectfully dissent.

Posted by Marcia Oddi on Wednesday, August 19, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Still more on: Bill to collect DNA of all arrestees to be considered by study committee

Updating yesterday's ILB post, the House Democratic Caucus posted a summary of the testimony of Representative Pat Bauer and of Jayann Sepich, a national proponent of the legislation.

In addition, Chelsea Schneider of the Indianapolis Star has a story today on yesterday's hearing. Some quotes:

A proposal to expand testing in Indiana by requiring felony arrestees to take a DNA swab failed to advance in the legislature this year.

An author of this year’s bill, state Rep. Greg Steuerwald, said DNA testing is one of the most effective ways to catch a serial rapist, but it also can be used to exonerate people wrongly accused of crimes. The proposed expansion is a complicated issue, said Steuerwald, R-Avon, which is why it’s being aired in front of an interim study committee. The panel will decide whether to recommend that the proposal be approved by the legislature next year.

The Indiana State Police, which handles the processing of samples, estimates the cost associated with the expansion of testing would begin at about $1 million for the agency and go up.

Supporters of the expansion say one of the most prevalent concerns relates to the privacy of arrestees, but they sought to assure lawmakers Tuesday about the security of the DNA database. They also cited the U.S. Supreme Court ruling in 2013 that law enforcement taking a DNA sample at the time of an arrest is constitutional.

“It’s a great idea,” said David Powell, executive director of the Indiana Prosecuting Attorneys Council. “It exonerates the innocent and helps us truly find the guilty.”

This year’s proposal also included a provision permitting the expungement of a DNA sample if no charges were filed against an individual after 30 days. The same goes if an individual is acquitted of charges or they’re dismissed, according to a fiscal analysis of the bill.

Posted by Marcia Oddi on Wednesday, August 19, 2015
Posted to Indiana Law

Law - "New breed of investor profits by financing surgeries for desperate women patients"

Reuters Investigates today has a lengthy story, "The Lien Machine", reported by Alison Frankel and Jessica Dye. The subhead:

In the little known world of medical lending, financiers invest in operations to remove pelvic implants from women suing device makers - and reap an inflated share of the payouts when cases settle.
A sample from the story:
Medical funders, often working through go-betweens like Fisher or doctors’ billing services, purchase medical bills at a deep discount from physicians, hospitals and others who have provided care to patients involved in personal injury litigation. Some medical funders also provide “concierge care” to these patients, fronting them travel and expense money at a high rate of interest.

Patients who rely on medical funders tend to be poor. They either lack private insurance or can’t afford to pay cash deductibles or out-of-network fees charged by their doctors.

When a patient’s lawsuit settles, the medical funder stakes a claim to part of the settlement by placing a lien for the full amount of the surgical bill. The funder’s profit lies in the difference between what it pays the medical provider to buy the bill and what it is able to recover from the patient’s settlement.

These medical liens sometimes spiral to as much as 10 times what private insurers or government programs like Medicaid would pay for the same procedures. The standard insurance reimbursement for mesh removal surgery, for instance, ranges from about $2,000 to $7,000. Medical lenders have demanded as much as $62,000 for surgery and related services from patients whose care they funded.

Posted by Marcia Oddi on Wednesday, August 19, 2015
Posted to General Law Related

Courts - Donald Trump's older sister, Maryanne Trump Barry, a 3rd Circuit judge

The NY Times yesterday had a long story by Jason Horowitz about Donald Trump's older sister, Maryanne Trump Barry, who is a " senior judge on the United States Court of Appeals for the Third Circuit who was appointed to the bench by Ronald Reagan and promoted by Bill Clinton." A quote:

Ms. Barry — whose husband, John J. Barry, was a politically connected New Jersey lawyer who counted Mr. Trump as one of his clients — now lives in a Fifth Avenue apartment in Manhattan overlooking Central Park. She declined to comment for this article.

“I have a sister who just doesn’t want to talk to reporters. Can you believe it?” Mr. Trump said, explaining that he had called his sister and suggested that she speak with an inquiring reporter. “I said: ‘Maybe they mixed us at birth. Maybe one of us got mixed up a little bit. Who knows.’ ”

People close to Ms. Barry say she is decidedly not the mixed-up one in the family.

Although she did not start law school until after her son was in sixth grade, Ms. Barry has had a four-decade career as a prosecutor and federal judge, achieving a measure of celebrity independent of her brother. (“This is not the Trump Princess,” The Chicago Sun-Times wrote in 1989.) Some friends say they did not even know she was part of the famous family.

“There was a story in Time magazine or something, and a couple of the other lawyers come in and go, ‘Did you know Maryanne is a Trump?’ ” said Donald J. Volkert Jr., a former New Jersey Superior Court judge who became a close friend of Ms. Barry’s. “And I said, ‘What’s a trump?’ ”

Ms. Barry earned a reputation as a tough judge with a strong command of her courtroom. In 1989, as a district court judge in Essex County, N.J., she blocked a plea deal that would have freed two county detectives accused of protecting a drug dealer. She forced the case to trial, where the detectives were convicted and received 12- and 15-year jail terms. She presided over the conviction of Louis (Bobby) Manna, the Genovese crime family boss accused of trying to assassinate a rival, John Gotti. And in 1996, she chastised federal prosecutors for trying to deport a former deputy attorney general of Mexico, calling their efforts politically motivated, unconstitutional and “Kafkaesque.”

As an appellate judge for the Third Circuit — with chambers in Newark and jurisdiction over Delaware, New Jersey, Pennsylvania and the United States Virgin Islands — she has forcefully rebuked prosecutors and defense lawyers, but also trial judges she considered inept. And in 2000, still new to the appeals court, she wrote a 40-page unanimous decision calling a New Jersey law banning late-term abortions “unconstitutionally and incurably vague” and saying that it put an “undue burden” on women’s constitutionally protected right to the procedure.

Posted by Marcia Oddi on Wednesday, August 19, 2015
Posted to Courts in general

Ind. Gov't. - More on: Carmel's proposal to adopt LGBT protections - two surprises

Apparently the ILB wasn't the only one surprised. Yesterday the ILB posted about Carmel's proposed new non-discrimination ordinance, concluding that the exemption the mayor of Carmel proposed adding to a new anti-discrimination ordinance being considered by the Carmel city council would legitimize refusals by business owners to provide "off-premises services or custom products" within the City of Carmel. Examples that came to the ILB's mind: installation of kitchen counters, termite inspection, etc.

Today Stephanie Wang reports in the Indianapolis Star:

But some experts say the way it is written could unwittingly lead to expanding discrimination in the city.

Carmel’s compromise would allow private business owners to refuse to provide wedding services for same-sex couples as part of the proposal to protect lesbian, gay, bisexual and transgender individuals from discrimination. * * *

“I understand the desire to protect religious freedom,” said Indiana University law professor Robert Katz, “but the proposed amendments do so in a way that expands the ability of businesses that serve the public to discriminate on grounds that have nothing to do with religious belief.”

In waiting to see whether the state will move on the hotly contested issue, a handful of Indiana cities have taken on the task of writing sexual orientation and gender identity into local ordinances as protected classes. But with pushback from powerful social conservatives, they’re each left to find their own balance for religious opposition to same-sex marriages.

Carmel’s proposal attempts to directly address opponents’ primary concerns about devoutly Christian bakers or florists, for whom providing services for a same-sex wedding ceremony would violate deeply held beliefs.

“It’s a modest advancement, but it’s a major concession at the same time,” said Robert Dion, a political scientist at the University of Evansville. “In the language of law, they call it dignitary harm. It allows for the dignitary harm that the Supreme Court has already said is impermissible.

“It harms the dignity of a person,” he continued, “to go to a place of business and be told, ‘We don’t serve your kind.’ ”

The advocacy from Carmel’s Republican Mayor Jim Brainard for a nondiscrimination ordinance including sexual orientation and gender identity had already attracted attention in the GOP suburban stronghold. And how it unfolds now, Dion said, could be a microcosm of how a similar Statehouse conversation could go with a Republican supermajority and socially conservative Republican Gov. Mike Pence. * * *

After hours of public comment Monday night, Brainard suggested adding some exemptions to the ordinance. One would allow “the refusal to provide off-business premises personal services,” which would appear to include wedding photographers, caterers and such. Another would allow “the refusal to create or produce custom products requested by customers,” which would seem to cover bakers and florists.

Carmel’s drafted ordinance, however, does not specify that religious reasons must be cited to use those or any other exemptions. Also, unlike some other cities, the exemptions don’t apply only to instances involving sexual orientation or gender identity, which some say could encourage discrimination against other protected classes, such as race and gender.

“Those exemptions are incredibly broad, and they would affect all of the protected classes,” said Jennifer Wagner, spokeswoman for Freedom Indiana, a grass-roots group campaigning for LGBT rights. “It could completely backfire and end up outlining ways for people to discriminate.

“From our vantage point,” she added, “that still allows a category of discrimination to be carved out in law."

Posted by Marcia Oddi on Wednesday, August 19, 2015
Posted to Indiana Government

Tuesday, August 18, 2015

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

In Kyle Alaura v. Carolyn Colvin (ND Ind., Simon), a 12-page opinion in a social security appeal, Judge Posner concludes:

The denial of the application for benefits, and the affirmation of that denial by the district court, were premature. The judgment is reversed with directions to remand the case to the Social Security Administration for further consideration of Alaura’s application for benefits. REVERSED AND REMANDED

Posted by Marcia Oddi on Tuesday, August 18, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Carmel's proposal to adopt LGBT protections - two surprises

The ILB has been reading about the efforts in the City of Carmel to adopt an ordinance to add LGBT protections to its city code. The ILB assumed that the proposal was to amend Carmel's current non-discrimination ordinance to include "sexual orientation, gender identity or expression" under its protections.

But when I located the draft language, which is in the City Council packet from last evening, it turns out that Carmel currently has no official non-discrimination policy at all.

No only "sexual orientation, gender identity or expression", but also "race, color, religion, national origin, gender, disability, family or marital status, ancestry, age, and/or veteran status" currently are not protected by ordinance in Carmel. They all would be added to the City of Carmel ordinances by the proposed amendment.

(Some may assert that the language for the non-"sexual orientation, gender identity or expression" categories has been unnecessary because those categories are protected by the state civil rights law.)

The second surprise was in today's IndyStar story recounting last night's council meeting. Stephanie Wang reported:

Several council members said they wanted more time to work out a proposal that could strike a compromise between competing interests.

Republican Mayor Jim Brainard offered changes Monday night that would allow religious business owners to refuse to provide off-premises services or custom products, which could address some of the concerns over catering same-sex weddings.

He said he still expects the council to pass the proposed ordinance.

The proposal brings a fiery political issue to a Republican stronghold that is setting the tone for surrounding suburbs. * * *

The ordinance would establish a citywide policy that prohibits discrimination on the basis of sexual orientation and gender identity, with exemptions carved out for religious groups. It also would include classes such as race and religion, which are already protected under state and federal law, and it would carry fines of $500 for each violation and for each day until a discriminatory practice is resolved.

Advocates are pushing for the passage of such local ordinances in cities across the state in the run-up to what’s expected to be one of the most controversial issues in next year’s legislative session.

They say the state needs to add sexual orientation and gender identity as protected classes to Indiana’s civil rights law to prevent discrimination against lesbian, gay, bisexual and transgender individuals. They say Indiana’s Religious Freedom Restoration Act raised fears that religious beliefs could be cited as reasons to discriminate in business transactions, housing, employment and education. [ILB emphasis added]

The original proposal offered last evening already has a number of exceptions, including (and remember these would apply to race, religion, etc. as well as LGBT):
(1) Religious worship and clergy while engaged in religious duties or activities; however, business activities by religious institutions or clergy are not excepted;
(2) A not-for-profit membership club organized exclusively for fraternal or religious purposes and/or any not-for-profit social club that is not open to the general public, so long as the same is exempt from taxation under the Internal Revenue Code, as amended; * * *
According to the Star story, the Carmel mayor last night proposed to add to this list of exemptions another, one "that would allow religious business owners to refuse to provide off-premises services or custom products." The term "religious business owners" was not defined in the story.

As our state law currently does not include "sexual orientation, gender identity or expression" under its coverage, this new exemption, if adopted, would seem to affirmatively authorize such refusal to provide off-premises services or custom products within the City of Carmel. Examples that come to mind: installation of kitchen counters, termite inspection ...

Posted by Marcia Oddi on Tuesday, August 18, 2015
Posted to Indiana Government

Ind. Courts - ACLU of Indiana challenges law prohibitng sex offenders from voting on school property

Here is today's ACLU news release. Some quotes:

Indianapolis – A law that took effect last month prohibiting people who have committed certain sex offenses from entering school property is being challenged by a Blackford County man on behalf of himself and potentially hundreds of others whose polling places are located on school property.

The American Civil Liberties Union of Indiana brought the class action lawsuit today on behalf of Brian Valenti of Hartford City, who committed a sex offense in California more than a quarter century ago. The claim, on First Amendment and Fourteenth Amendment grounds, attempts to stop enforcement of Indiana Code § 35-42-4-14, which prevents sex offenders from voting in person at their precinct voting places. School children are not permitted in polling areas unless accompanied by adult voters.

Here is the 12-page complaint, Brian Valenti, et al., v. Indiana Secretary of State, Indiana Election Commission, Indiana State Police and Blackford County Prosecutor, Case 1:15-cv-1304, filed in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on August 18, 2015.

Posted by Marcia Oddi on Tuesday, August 18, 2015
Posted to Indiana Courts

Ind. Law - Barnes & Thornburg minority partner featured in NYT story today

The August 17th story, by Elizabeth Olson, is headed "Many Black Lawyers Navigate a Rocky, Lonely Road to Partner." It begins:

Jimmie L. McMillian’s path to partnership in an Indianapolis law firm might seem unexceptional — except for a few telling details.

He left behind the South Side of Chicago, where he grew up in a family troubled by domestic violence, went to college in Indiana and then earned his law degree in the state. He joined the law firm, Barnes & Thornburg, and six years ago, was promoted to partner, the legal profession’s brass ring.

But Mr. McMillian, 40, has few counterparts and even fewer role models because he is African-American. Only 5.6 percent of lawyers who hold top leadership positions at law firms are anything other than white, according to a study by the National Association for Law Placement.

For someone “who had no experience, or even exposure, to corporate America, it was a completely new environment for me when I joined the law firm,” Mr. McMillian said.

Fewer than 2 percent of law firm partners are black, according to the study, based on data collected in 2014; black women are even more uncommon in that rarefied air.

Law firms maintain that, despite their best efforts to recruit black associates over the last two decades, large numbers leave for better-paying, more secure jobs or for less quantifiable reasons, like family responsibilities. Only a handful persevere on the yearslong path to joining a firm’s lucrative leadership circle.

More from the lengthy story:
The hierarchy of law firms does not suit everyone, said Mr. McMillian, a graduate of Indiana University School of Law, but he says his law firm went out of its way, “from Day 1,” to provide him with the mentoring, experience and relationships needed to become a top-performing lawyer. Barnes & Thornburg, which has 600 lawyers, has nine African-American partners, up from four in 2004 when Mr. McMillian joined the firm.

“I had challenges, including developing my technical skills, and juggling my family responsibilities,” said Mr. McMillian, the father of twin sons born prematurely. “When I came to the firm, I had to learn to develop relationships with people internally.”

“There were cultural barriers,” he added. “I had gone to majority-white schools, but I hung with the people I knew so I never had to develop close relationships with other groups. I quickly realized that in a law firm, your livelihood depends on more than just the work.”

The lack of cross-racial relationships that knit lawyers into teams to handle high-pressure client legal tasks is part of what knocks some blacks off the partnership track, said Deborah L. Rhode, a Stanford University Law School professor and director of its Center on the Legal Profession.

Posted by Marcia Oddi on Tuesday, August 18, 2015
Posted to Indiana Law

Ind. Decisions - 7th Circuit decides one Indiana case today, involving a reality television program filmed in Indy

In Carlton Hart v. Chrristen Mannina, et al (SD Ind., Lawrence), a 31-page opinion, Judge Hamilton writes:

Allowing a reality television program to film an ongoing murder investigation is a recipe for trouble. It is easy to imagine a detective with a looming television deadline cutting a corner to ensure that a suspect is arrested in time for the final episode. Without an arrest, the show has no resolution to satisfy the audience.

The Indianapolis Metropolitan Police Department (IMPD) participated in this sort of reality television program called The Shift. The film crew followed a team of homicide detectives as they investigated a deadly home invasion in November 2008. Two victims were shot. One was killed; the other survived. Police eventually arrested plaintiff Carlton Hart, and his arrest was the centerpiece for the final episode of the program’s first season. As it turned out, though, Hart was the wrong man. After he had spent nearly two years in jail awaiting trial, the charges were dismissed and Hart was released. The audience of The Shift was none the wiser.

Hart filed this lawsuit under 42 U.S.C. § 1983 against several detectives in their individual capacities and against the City of Indianapolis alleging a variety of constitutional violations. The core of his complaint is that he was arrested without probable cause and that the lead detective on the case made false or misleading statements in her probable cause affidavit for his arrest. The district court granted defendants’ motion for partial judgment on the pleadings on two claims and, after discovery, defendants’ motion for summary judgment on the remaining claims.

There are many troubling aspects of IMPD’s investigation, and this case should warn police departments about having their detectives moonlight as television stars. But on this record, we must affirm. Even the troubling aspects of the investigation do not add up to evidence of a violation of Hart’s constitutional rights. A reasonable trier of fact could not find that police lacked probable cause to arrest him. Nor could a reasonable jury find that the lead detective, defendant Christine Mannina, made false or misleading statements in her probable cause affidavit. Four surviving witnesses from the home invasion separately identified Hart as one of the men who attacked them. None of the police had any reason to doubt these identifications when they arrested Hart. * * *

We find no abuse of discretion here. In a thorough written order, the district court explained that Hart’s motion focused on the failure by defense counsel to respond to the October 2012 deficiency letter in writing but did not explain adequately the substance of the parties’ continuing discovery dispute. By the time Hart actually filed the motion in July 2013 (seven months after the letter was sent), defendants had diligently provided discovery and answered Hart’s numerous written discovery requests. The court also found that Hart had failed to specify the discovery items that were still outstanding at the time the motion was filed. Hart has demonstrated neither an abuse of discretion nor actual and substantial prejudice. The judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Tuesday, August 18, 2015
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Richard Steele v. State of Indiana, a 12-page opinion, Judge May writes:

Richard Steele appeals his conviction of Class D felony domestic battery. On appeal, Steele raises the following restated issues: whether the trial court abused its discretion when it admitted testimony and a medical report from a forensic nurse examiner; whether the evidence is sufficient to support Steele’s conviction; and whether Steele’s convictions subjected him to double jeopardy. * * *

Steele has not demonstrated error in the admission of the testimony of and medical record produced by Baer. Steele’s conviction is supported by sufficient evidence. Steele was not subjected to double jeopardy when the court merged the findings of guilt into one conviction. Accordingly, we affirm.

NFP civil decisions today (5):

Robert E. Helmer v. TLC Properties, Inc. (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: S.M. & M.M. (minor children) and M.M. (mother) v. The Ind. Dept. of Child Services (mem. dec.)

Warren David Berglund v. Victoria L. Schutzius (mem. dec.)

Horizon Bank, N.A. v. Centier Bank (mem. dec.)

Everett E. Powell, et. al v. Green Tree Servicing LLC (mem. dec.)

NFP criminal decisions today (2):

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

Kenneth Jaquin Washington v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, August 18, 2015
Posted to Ind. App.Ct. Decisions

Courts - Still more on "Federal judge orders Rowan County Kentucky Clerk to issue same-sex marriage licenses"

Updating earlier ILB posts, including this one linking to the 8/12/15 preliminary injunction, and quoting a report that "U.S. District Judge David Bunning [has] granted a preliminary injunction against [Rowan Clerk] Davis sought by four Rowan County couples who applied for marriage licenses," Mike Wynn reported late yesterday in the Louisville Courier Journal:

Attorneys disagree on whether a federal judge is still demanding that Rowan County Clerk Kim Davis issue marriage licenses to same-sex couples — a matter now headed to the appeals court.

U.S. District Court Judge David Bunning ruled last week that Davis, an Apostolic Christian, cannot deny licenses based on her private religious beliefs. He granted a preliminary injunction against the clerk, finding that she has interfered with a now-fundamental right of all couples to marry.

Attorneys representing Davis asked Bunning to stay his order pending a resolution of her appeal, and he denied that request on Monday. But Bunning also issued a “temporary stay” of his decision until the 6th Circuit can review the matter.

“Because Davis’ ‘no marriage licenses’ policy likely infringes upon plaintiffs’ fundamental right to marry, and because Davis herself is unlikely to suffer a violation of her free exercise rights if compelled to issue marriage licenses, the court concludes that the public interest is not served by granting a stay,” Bunning wrote.

However, he also found that “in recognition of the constitutional issues involved, and realizing that emotions are running high on both sides of the debate, the court finds it appropriate to temporarily stay this order pending review of defendant Davis’ motion to stay by the Sixth Circuit.”

Dan Canon, an attorney for the couples who wish to wed, said he has never seen a judge take that approach.

“It appears to me that we are in the same procedural position as we were in before,” he said. “There is still an injunctive order out that Davis has to abide by. There is nothing excusing her from abiding by that order.”

But Mat Staver, founder and chairman of the Liberty Counsel, a religious freedom organization representing Davis, said Davis is not subject to the injunction until the appellate court weighs in.

“The motion to stay was with the previous order,” he said. “As I read it, that is being stayed temporarily.”

Here is Judge Bunning's August 17th order.

Posted by Marcia Oddi on Tuesday, August 18, 2015
Posted to Courts in general

Ind. Gov't. - "Arredondo seeks Indiana attorney general post"

Dan Carden reports today in the NWI Times:

NDIANAPOLIS | A former Lake County judge, who served 34 years on the bench, wants to become the state's next top lawyer.

Lorenzo Arredondo has formed a campaign committee to seek the Democratic nomination for Indiana attorney general.

He filed his declaration of candidacy with the secretary of state's office late last week. Though he still only is quietly rounding up supporters.

"We are in the process of getting organized before the announcement of the official campaign," Arredondo said Monday.

Arredondo was the longest-serving Hispanic state trial judge in the nation when he retired from the bench in 2011.

The Lake County courthouse in his hometown of East Chicago is named for him in recognition of his decades of accomplishments in the legal profession.

More from the story:
Arredondo currently is the only declared candidate for attorney general in either the Democratic or Republican Party. However, numerous local and state officials reportedly are eyeing the race.

The incumbent, Republican Greg Zoeller, opted against campaigning for a third term in 2016 to instead run for Congress from his hometown in southern Indiana.

Former Attorney General Steve Carter, a Republican from Lowell, has formed an exploratory campaign committee for the post he held from 2001 to 2009, but has not yet officially declared his intent to run.

The attorney general nominees of both political parties will be selected next summer by delegates at their state conventions.

See also this August 2nd column in the Times from Rick James.

Posted by Marcia Oddi on Tuesday, August 18, 2015
Posted to Indiana Government

Ind. Law - More on: Bill to collect DNA of all arrestees to be considered by study committee

Updating this long ILB post from Aug.13th, the Interim Study Committee on Corrections and Criminal Code will meet for the first time this year at 10 AM today, Tuesday, August 18th. Here is the agenda. You will be able to watch the meeting via this link.

Maureen Hayden, CNHI State Reporter, writes this morning in the New Albany News & Tribune:

INDIANAPOLIS — Lawmakers have long opposed collecting DNA samples from crime suspects, but the mother of a young murder victim who waited years to learn the identity of her daughter’s killer is hoping to change their minds.

JayAnn Sepich said the rights of victims of violent crime should trump the concerns of lawmakers who fear treading on citizens’ right to be presumed innocent until proven guilty.

“It’s no more invasive than fingerprinting,” said Sepich, whose 22-year-old daughter, Katie, was raped and killed in 2003 in New Mexico. “If I thought this was an invasion of privacy, I’d oppose it, too.”

Sepich is scheduled to testify in front of a legislative committee today. Her appearance will be the latest in more than a decade spent advocating to give police the authority to collect DNA samples from people charged, though not convicted, with violent crimes.

Early DNA collection will help police more quickly detect people who’ve committed other crimes, Sepich said.

In the decade she’s spent working on the issue, at least 25 states have expanded police powers. Those include her own home state of New Mexico, whose governor has advocated for the measure, known there as Katie’s Law.

Indiana has repeatedly turned back efforts to expand a current law that allows DNA samples to be taken from convicted felons. Lawmakers have stood firm even after the U.S. Supreme Court upheld a Maryland law that opened the door to more widespread DNA collection. * * *

The Americans for Civil Liberties Union has long opposed the routine collection of DNA from those under arrest. In the 2013 case before the U.S. Supreme Court, the ACLU argued that Maryland’s law allowing police to collect DNA after booking a suspect violates the Fourth Amendment’s protection against unreasonable search and seizure.

But in a 5-4 decision, the court ruled that government has a legitimate interest in taking DNA from people who are arrested, just as it collects fingerprints and photographs.

Jay Stanley, an ACLU senior policy analyst, said just because the court has prevented challenges to similar laws on privacy grounds, “that’s not the same thing as saying it’s a good idea to pass such a law.”

Indiana’s conservative Legislature has turned away multiple efforts to expand DNA collection, including bills introduced after the court’s ruling, in 2014 and 2015.

State Sen. Mike Young, R-Indianapolis, chairman of the Senate Committee on Corrections and Criminal Law, said he fears that police will use trumped-up charges as a pretense to collect someone’s DNA.

“I don’t want to give any more incentive to police officers to arrest people,” Young said.

Posted by Marcia Oddi on Tuesday, August 18, 2015
Posted to Indiana Law

Monday, August 17, 2015

Ind. Decisions - 7th Circuit Upholds Former DOC Employee's Right to Marry Prisoner, Reversing Lower Court

From a news release issued this afternoon by the ACLU Indiana, re a ruling the ILB summarized earlier today, Rebecca Riker v. Bruce Lemmon:

Indianapolis - The fundamental right to marry cannot be unreasonably denied, even in the prison setting, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled last Friday.

The American Civil Liberties Union of Indiana brought the case on behalf of Rebecca Riker, a former employee of an Indiana Department of Corrections contractor at the Wabash Valley Correctional Facility in Carlisle, Ind., whose application to marry an inmate was denied by the DOC. Last September, the district court ruled in favor of the DOC, finding a "legitimate security risk" in allowing contact between a prisoner and former employee and saying the burden on Riker's right to marry was "at most moderate" because she had not been "absolutely prevented from marrying a large portion of the eligible population of spouses." The appeals court reversed that ruling and sent the case back to the district court.

Gavin M. Rose, ACLU of Indiana Senior Staff Attorney, said, "The prohibition of Ms. Riker's marriage was not rationally related to legitimate penological ends and violated our client's constitutional rights. We are happy with this ruling."

In its decision, the Court cited a 1987 U.S. Supreme Court ruling in a case that found a Missouri prison regulation that restricted inmates from marrying without permission violated constitutional protections of due process. The Court also referenced the recent Supreme Court ruling in the same-sex marriage case Obergefell v. Hodges, citing the "right to personal choice" and the dignity in an individuals' "autonomy to make such profound choices."

The ACLU of Indiana was assisted in this case by Lawrence M. Reuben of the Reuben Law Firm in Indianapolis. The decision in Rebecca Riker v. Bruce Lemmon, Case: 14-2910, was entered in the United States Court of Appeals for the Seventh Circuit on August 14, 2015.

Posted by Marcia Oddi on Monday, August 17, 2015
Posted to Ind. (7th Cir.) Decisions

Courts - "Ruling: Northwestern Football Players Can't Form Union, May or May Not Be Employees"

Here is the NLRB decision in Northwestern University and College Athletes Players Association (CAPA), Petitioner. Ben Mathis-Lilley of Slate has the story.

Posted by Marcia Oddi on Monday, August 17, 2015
Posted to Courts in general | Ind. Adm. Bd. Decisions

Ind. Decisions - More on "7th Circuit Invalidates Anti-Panhandling Ordinances After Reed v. Town of Gilbert"

Updating this ILB post from August 9th, it turns out the 7th Circuit opinion may have been, as they say, just the tip of the iceberg.

Adam Liptak's NYT Sidebar column today begins:

WASHINGTON — It is not too early to identify the sleeper case of the last Supreme Court term. In an otherwise minor decision about a municipal sign ordinance, the court in June transformed the First Amendment.

Robert Post, the dean of Yale Law School and an authority on free speech, said the decision was so bold and so sweeping that the Supreme Court could not have thought through its consequences. The decision’s logic, he said, endangered all sorts of laws, including ones that regulate misleading advertising and professional malpractice.

“Effectively,” he said, “this would roll consumer protection back to the 19th century.”

Floyd Abrams, the prominent constitutional lawyer, called the decision a blockbuster and welcomed its expansion of First Amendment rights. The ruling, he said, “provides significantly enhanced protection for free speech while requiring a second look at the constitutionality of aspects of federal and state securities laws, the federal Communications Act and many others.”

Whether viewed with disbelief, alarm or triumph, there is little question that the decision, Reed v. Town of Gilbert, marks an important shift toward treating countless laws that regulate speech with exceptional skepticism.

Though just two months old, the decision has already required lower courts to strike down laws barring panhandling, automated phone calls and “ballot selfies.”

About the 7th Circuit opinion:
A recent case illustrates the distinction between the old understanding of content neutrality and the new one.

Last year, the federal appeals court in Chicago upheld an ordinance barring panhandling in parts of Springfield, Ill. The ordinance was not content-based, Judge Frank H. Easterbrook wrote, because it was not concerned with the ideas panhandling conveys. “Springfield,” Judge Easterbrook wrote, “has not meddled with the marketplace of ideas.”

This month, after the Reed decision, the appeals court reversed course and struck down the ordinance.

“The majority opinion in Reed effectively abolishes any distinction between content regulation and subject-matter regulation,” Judge Easterbrook wrote. “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.”

Posted by Marcia Oddi on Monday, August 17, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - ESPN files its brief in its state court appeal to obtain access to the reports of the Notre Dame police

This ILB post from Jan. 21, 2015 is the first in a long series of posts detailing the court action in this case. It included this quote from a story from Margaret Fosmoe of the South Bend Tribune:

SOUTH BEND — ESPN has filed a lawsuit against the University of Notre Dame claiming the university violated Indiana's public records law by refusing to release campus police records.

The suit alleges that Notre Dame officials violated Indiana's Access to Public Records Act by refusing to release Notre Dame Security Police records requested by ESPN. The case was filed Jan. 15 in St. Joseph Superior Court.

The suit was filed on behalf of ESPN Inc., the sports media company based in Bristol, Conn., and ESPN reporter Paula Lavigne, who requested the records. Lavigne in September and November 2014 made formal requests to Notre Dame for police incident reports and logs related to student athletes, but was turned down both times.

As evidence in the lawsuit, ESPN submitted two written opinions by Indiana Public Access Counselor Luke Britt.

Also relevant is this Dec. 19, 2014 post headed "Public Access Counselor says Notre Dame police subject to public records law."

On April 20, 2015, St. Joseph County Superior Court Judge Steven Hostetler ruled in favor of Notre Dame. Here is the opinion.

ESPN appealed. Here is the dynamic link to the appellate docket in ESPN v. University of Notre Dame Security Police Department.

Here is appellant-plaintiff ESPN's 60-page brief, filed August 13, 2015.

Here is the 27-page amicus brief filed by the South Bend Tribune and the Hoosier State Press Association.

Here is the 25-page amicus brief filed by the State of Indiana, as noted in this post Friday.

The ILB will post the brief of the Notre Dame Security Police Dept. when it is filed next month.

[Updated 8/18/15]
See also this story today from Courthouse News.

Posted by Marcia Oddi on Monday, August 17, 2015
Posted to Indiana Courts

Environment - "Colorado Spill Heightens Debate Over Future of Old Mines"

This story today in the NY Times by Julie Turlewitz is really helpful in answering questions about the horrific mine spill last week. In addition, the discussion about Superfund has applicability beyond the western mining states:

The Animas River — the waterway affected by the mine spill and by the daily leakage of toxic waste — is deeply entrenched in the culture and economy of both places, used for fishing, rafting, irrigation, livestock and, in the case of Durango, drinking. But for years, the subject of mine cleanup has divided these communities.

Some have argued that the mines should become a Superfund site, a federal designation that could allow the E.P.A. to build a wastewater treatment plant at an estimated cost of $5 million.

Others, fearful of the stigma that sometimes comes with Superfund status and leery of federal involvement in local issues, are opposed.

The fault line in the debate often falls between newer arrivals, who tend to favor E.P.A. involvement, and longtime residents, who typically oppose it. The last mine in the county closed in 1991, but some Silverton mining families hold on to hope that the mines will reopen, something that would almost surely not happen if the region became a Superfund site.

Posted by Marcia Oddi on Monday, August 17, 2015
Posted to Environment

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

For publication opinions today (1):

In Angelique Lockett and Lanetra Lockett v. Planned Parenthood of Indiana, Inc., and Cathy McGee, a 33-page opinion, Judge Bailey writes:

Angelique Lockett (“Angelique”) and her mother Lanetra Lockett (“Lanetra”) (collectively, “the Locketts”) appeal the trial court’s grant of summary judgment in favor of Planned Parenthood of Indiana, Inc. (“Planned Parenthood”) after Angelique, then a seventeen-year-old minor, intentionally misrepresented herself to be eighteen-years-old and obtained an abortion at a Planned Parenthood clinic without Lanetra’s consent. We affirm the trial court’s conclusion that Indiana Code chapter 16-34-2 does not confer upon the Locketts a private cause of action to enforce the statutory provisions. As to the Locketts’ remaining common law claims against Planned Parenthood, we hold that Planned Parenthood did not owe Lanetra a duty at common law and Lanetra is not in the class of persons intended to be protected by Indiana Code section 16-34-2-4 (parental consent and judicial bypass provisions); therefore, Planned Parenthood is entitled to summary judgment on Lanetra’s claims for negligence and negligence per se. As to Angelique’s claims, we affirm the court’s grant of summary judgment on the grounds that (1) an immunity provision of the Health Care Consent Act (“HCCA”) relieves Planned Parenthood of civil liability under these facts, and (2) Angelique is equitably estopped from pursuing her claims due to her fraudulent acts. However, to the extent the trial court’s order appears to have dismissed all of the Locketts’ claims against defendant Cathy McGee (“McGee”) even though McGee may never have been served, we reverse and remand. * * *

Indiana Code chapter 16-34-2 does not confer on the Locketts a private cause of action to sue Planned Parenthood for violations of the statute; accordingly, the trial court did not err in entering summary judgment in favor of Planned Parenthood on the Locketts’ claims brought to enforce the statutory provisions. Because Planned Parenthood did not owe Lanetra a duty at common law to obtain her consent to the abortion and because Lanetra is not in the class of persons intended to be protected by the parental consent provisions, Lanetra may not maintain against Planned Parenthood actions for negligence or negligence per se. Under these facts and circumstances, the HCCA provides Planned Parenthood immunity from civil liability. In addition, Angelique is equitably estopped from bringing her claims against Planned Parenthood due to her fraudulent acts. However, because the court’s order was premature with respect to Angelique’s claims brought against defendant McGee, we remand for further proceedings consistent with this opinion.

NFP civil decisions today (2):

Uree Kincaid, Mark E. Kincaid, Denise Elaine Bryant, and the Unknown Heirs, Devisees, Legatees of Garland E. Kincaid v. Nationstar Mortgage, LLC. (mem. dec.)

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

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Monday, August 17, 2015
Posted to Ind. App.Ct. Decisions

Courts - Arson science on trial, this time in Texas

Slate has a lengthy August 16th article by Jeremy Stahl headed: "The Trials of Ed Graf: In 1988, he was convicted of killing his stepsons—based on arson science we now know is bunk. A quarter of a century later, Texas granted him a new trial, one that pitted modern forensics against old-fashioned Texas justice."

ILB readers may recall the Indiana case of Kristine Bunch, with posts going back to 2009. The earliest one, from Oct. 25, 2009, quotes a Chicago Tribune story headed "Arson science on trial in Indiana courtroom: Evidence challenged in 1995 conviction." The most recent one in the list is from Dec. 18, 2012, and quotes a Tim Evans IndyStar story:

The Decatur County prosecutor on Tuesday dismissed a murder charge against Bunch, 38, of Greensburg.

But the legal ordeal that has consumed nearly half of her life is likely to continue.

The charge was dismissed “without prejudice,” which means it can be refiled. And the prosecutor’s motion makes that possibility clear, saying the state may present evidence “to a grand jury at a later date.”

“We have not surrendered,” said Doug Brown, Decatur County’s chief deputy prosecutor. “We are still evaluating what (evidence) is available with the intention to go forward. Dismissing the case gives us the time we feel is appropriate to fully investigate what we need going forward.”

The latest legal maneuvers leave a cloud over Bunch nearly 17 years after her son died in a fire she was accused of setting, her attorney Ron Safer said. He said Bunch is not speaking publicly about the case at this time.

“She is relieved,” Safer said of her reaction to the dismissal of the murder charge. “But she also has to live with the Sword of Damocles over her head. Hopefully, the prosecutor will rectify that in short order.”

Here is the most recent news story the ILB has located after a quick search, from the April 7, 2015 Greensburg Daily News. Boris Ladwig reports in part:
GREENSBURG — A former Greensburg woman who spent 17 years in prison after being wrongfully convicted of setting a fire that killed her three-year-old son will try today to settle a lawsuit she has filed alleging Indiana State Fire Marshal investigators suppressed evidence that showed the fire was accidental.

In the early morning hours of June 20, 1995, a fire destroyed a mobile home at Lot 60 in the Crestwood Resort in Lake McCoy, about five miles east of Greensburg. The fire injured the home’s adult occupant, Kristine Bunch, and killed her three-year-old son, Anthony.

Three weeks later, Bunch, 21 at the time, was charged with arson and murder. She was convicted the following year and sentenced, on April 1, 1996, to 50 years for murder and 30 years for arson.

Nearly 17 years after the incident, on March 21, 2012, the Indiana Appeals Court ordered a new trial. The court said that advances in science provided for a new evidence analysis that was not available at the time of the trial. The court also said that the state withheld evidence from Bunch’s defense lawyers.

Bunch was released on bond on Aug. 22, 2012. Decatur County Prosecutor Jim Rosenberry asked the court to dismiss the case on Dec. 17, 2012.

In a lawsuit filed March 19, 2014 with the Indianapolis Division of the U.S. District Court for the Southern District of Indiana, Bunch alleges that Indiana State Fire Marshal Investigators Bryan Frank and James Skaggs “deliberately suppressed evidence which showed that the fire was not arson, but was in fact accidental.”

In February, Bunch filed a similar lawsuit in the same court against the United States of America, alleging that Frank and Skaggs, with the help of a now-deceased investigator of the Bureau of Alcohol, Tobacco, Firearms and Explosives, falsified a report that indicated that they found traces of an accelerant in the home’s living room and the boy’s bedroom. An accelerant is a substance that is used to accelerate the spread of a fire. The presence of such a substance would have supported the investigators’ claim that Bunch set the fire.

Bunch’s attorney, John L. Stainthorp, of Chicago, said in February that Bunch hopes her lawsuits bring her vindication and establish how she came to be wrongfully convicted and how it happened that evidence that would have helped her was withheld.

Posted by Marcia Oddi on Monday, August 17, 2015
Posted to Courts in general

Ind. Decisions - 7th Circuit decided two more Indiana cases on Friday, one a reversal in an inmate's constitutional right to marry case

Humberto Sanchez-Rengifo v. J. Caraway (SD Ind., Lawrence), a 15-page opinion, Judge Ripple writes:

Humberto Sanchez-Rengifo, imprisoned after a conviction in the District of Columbia, brought a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Southern District of Indiana, the district in which he is serving his sentence. The district court denied the petition and did not address the matter of a certificate of appealability. Mr. Sanchez-Rengifo then filed an appeal here. We conclude that, for purposes of habeas corpus relief, Mr. Sanchez-Rengifo’s petition must be deemed as seeking relief from a detention “aris[ing] out of process issued by a State court,” 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability is therefore required before he can pursue an appeal in this court. On review of Mr. Sanchez-Rengifo’s submissions, we conclude that a certificate of appealability cannot be granted. Accordingly, we dismiss Mr. Sanchez-Rengifo’s petition for lack of jurisdiction. * * *

Mr. Sanchez-Rengifo has not raised a substantial showing that his due process rights or his protections against double jeopardy were violated. Consequently, we deny Mr. Sanchez-Rengifo a certificate of appealability and dismiss his appeal for want of jurisdiction. APPEAL DISMISSED

In Rebecca Riker v. Bruce Lemmon (SD Ind., Pratt), a 24-page opinion, Judge Ripple writes:

While working as an employee of a contractor at the Wabash Valley Correctional Facility, Rebecca Riker engaged in a romantic relationship with inmate Paul Vest. When the relationship became known, her employment ended. She later requested that she be allowed to visit Vest, but prison officials denied those requests as forbidden by the institution’s inmate visitation policy. Ms. Riker and Vest later submitted an application to marry, which prison officials also denied.

Ms. Riker then brought this action against several individual officials of the Indiana Department of Corrections (“the Department” or “IDOC”), in their official and individual capacities, challenging the denials of her requests to visit and to marry Vest. She sought damages against the individual defendants as well as declarative and injunctive relief. The district court granted the defendants’ motion for summary judgment. It concluded that prohibiting Ms. Riker from visiting Vest was reasonable and that this restriction did not unconstitutionally burden her right to marry. The court also granted the individual defendants’ motion for summary judgment based on qualified immunity.

In this appeal, Ms. Riker limits her challenge to the district court’s determination that, based on the summary judgment record, the defendants’ refusal to permit the marriage does not violate Ms. Riker’s rights guaranteed by the Constitution. We respectfully disagree with the district court and conclude that, on this record, the defendants have failed to justify adequately the denial of Ms. Riker’s marriage request. We accordingly reverse the judgment of the district court and remand the case for further proceedings. * * *

The district court erred in granting the Department’s motion for summary judgment and concluding that the Department’s denial of Ms. Riker’s request for a brief, onetime visit in order to participate in a marriage ceremony did not violate her constitutional right to marry. The judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion. Ms. Riker may recover the costs of this appeal. REVERSED AND REMANDED

Posted by Marcia Oddi on Monday, August 17, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending August 14, 2015

Here is the Clerk's transfer list for the week ending Friday, August 14, 2015. It is two pages (and 28 cases) long.

No transfers were granted last week.

In 24 petitions, the votes were 5-0 to deny transfer. In the remaining 4 petitions, the vote was 3-2 to deny, with Chief Justice Rush in the minority in each vote, joined by Justice David in two cases, Justice Rucker in one, and Justice Dickson in one. Two of the four cases were civil, and two criminal.

Posted by Marcia Oddi on Monday, August 17, 2015
Posted to Indiana Transfer Lists

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

From Sunday, August 16, 2015:

From Saturday, August 15, 2015:

From Friday afternoon, August 14, 2015:

Posted by Marcia Oddi on Monday, August 17, 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 8/17/15):

Next week's oral arguments before the Supreme Court (week of 8/24/15):

Thursday, August 27

Webcasts of Supreme Court oral arguments are available here.


Next week's oral arguments before the Court of Appeals (week of 8/17/15):

Wednesday, August 12

Next week's oral arguments before the Court of Appeals (week of 8/24/15):

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, August 17, 2015
Posted to Upcoming Oral Arguments

Sunday, August 16, 2015

Courts - "Exclusion of Blacks From Juries Raises Renewed Scrutiny"

NY Times legal columnist Adam Liptak writes at length today excluding blacks from juries. The long column begins:

SHREVEPORT, La. — Here are some reasons prosecutors have offered for excluding blacks from juries: They were young or old, single or divorced, religious or not, failed to make eye contact, lived in a poor part of town, had served in the military, had a hyphenated last name, displayed bad posture, were sullen, disrespectful or talkative, had long hair, wore a beard.

The prosecutors had all used peremptory challenges, which generally allow lawyers to dismiss potential jurors without offering an explanation. But the Supreme Court makes an exception: If lawyers are accused of racial discrimination in picking jurors, they must offer a neutral justification.

“Stupid reasons are O.K.,” said Shari S. Diamond, an expert on juries at Northwestern University School of Law. Ones offered in bad faith are not.

In Louisiana’s Caddo Parish, where Shreveport is the parish seat, a study to be released Monday has found that prosecutors used peremptory challenges three times as often to strike black potential jurors as others during the last decade. That is consistent with patterns researchers found earlier in Alabama, Louisiana and North Carolina, where prosecutors struck black jurors at double or triple the rates of others. In Georgia, prosecutors excluded every black prospective juror in a death penalty case against a black defendant, which the Supreme Court has agreed to review this fall. * * *

Some legal experts said they hoped the Supreme Court would use the Georgia case to tighten the standards for peremptory challenges, which have existed for centuries and were, until a 1986 decision, Batson v. Kentucky, considered completely discretionary. (Judges can also dismiss potential jurors for cause, but that requires a determination that they are unfit to serve.)

But many prosecutors and defense lawyers said peremptory strikes allow them to use instinct and strategy to shape unbiased and receptive juries. “I’m looking for people who will be open, at least, to my arguments,” said Joshua Marquis, the district attorney in Astoria, Ore. * * *

When the Supreme Court hears the death-penalty case from Georgia, Foster v. Chatman, No. 14-8349, it could reshape the ways juries are selected.

The case arose from the 1987 trial of Timothy T. Foster, an African-American facing the death penalty for killing a white woman, Queen Madge White. Prosecutors worked hard to exclude blacks from the jury.

In notes that did not surface until decades later, they marked the names of black prospective jurors with a “B.” They highlighted those names in green. They circled the word “black” where potential jurors had noted their race on questionnaires.

They ranked the black prospective jurors in case “it comes down to having to pick one of the black jurors,” as the prosecution’s investigator put it in a draft affidavit at the time.

There was no need for that, though. Prosecutors struck all four black potential jurors.

When challenged, Stephen Lanier, the lead prosecutor, offered lots of reasons for the strikes. All the prospects were said to be some combination of confused, incoherent, hostile, disrespectful and nervous. Three did not make enough eye contact. A 34-year-old black woman was too close in age to the defendant, who was 19. (The prosecution did not challenge eight prospective white jurors age 35 or under.)

“All I have to do is have a race-neutral reason,” Mr. Lanier said, “and all of these reasons that I have given the court are racially neutral.” The judge rejected the defense’s objection.

After Mr. Foster was convicted, Mr. Lanier urged the all-white jury to impose a death sentence to “deter other people out there in the projects.” The jury did so. Mr. Foster, who has spent decades on death row, is seeking a new trial.

Troubling evidence of bias led the Supreme Court to adopt the race restriction in jury selection nearly three decades ago. In a concurrence in the Batson decision, Justice Thurgood Marshall said it was a necessary step to combat “common and flagrant” race discrimination, citing statistics from Louisiana, Missouri, South Carolina and Texas. But he called for “banning peremptories entirely.”

Posted by Marcia Oddi on Sunday, August 16, 2015
Posted to Courts in general

Ind. Decisions - "Jury should decide Spencer school bullying suit"

Reporting on a NFP Court of Appeals decision issued April 4th, Grant Johnson, Minor Child, by his Mother and Father, Don Johnson and Janice Johnson, Appellants-Plaintiffs v. South Spencer School Corporation and Cliff Hagan’s Boys’ Club of Owensboro, Kentucky, Inc., Mark Wilson wrote yesterday in the Louisville Courier Journal:

Rockport, Ind. - An Indiana Court of Appeals ruling says a judge erred by making a summary judgment in a lawsuit accusing a Southern Indiana school corporation of negligence in its handling of a student’s bullying.

The appeals court did not comment on the lawsuit’s merits. Instead, it said there were factual issues open to interpretation that should be decided by a jury.

Parents Don and Janice Johnson filed the lawsuit in May 2012 against the South Spencer School Corp. and the Cliff Hagan Boys & Girls Club in Owensboro, Ky.

They complained that their son was verbally and physically bullied during his second- and third-grade years at Rockport Elementary School and in an after-school care program run by the Boys & Girls Club.

The bullying became so bad that the Johnson’s transferred their son to private school halfway through third grade, according to the appeals court ruling.

In August 2014, Spencer County Circuit Court Judge Jonathan Dartt made summary judgments in favor of the school corporation and Boys & Girls Club.

However, the appeals ruling earlier this month reversed Dartt’s ruling, sending the lawsuit back to court. Attorney Stacy Newton, who represents the Johnsons, said the next step will be to seek a trial date.

“Part of what they want is to make sure the school itself is on notice that these things are happening and for them not to happen to other students,” Newton said. * * *

The lawsuit said only one teacher and teacher’s aide were assigned to monitor three classes at a time on the playground and neither the school nor the club did anything to improve the student-to-teacher ratio, according to the appeals ruling.

The Johnson’s son endured ongoing name calling, thefts of his belongings, and physical injuries from classmates, including several fifth-grade students, according to the ruling.

In one after-school incident, a Boys & Girls’ club employee saw a fifth-grade student “maliciously” put a jump rope around the neck of the Johnson’s son, the appeals ruling said. As a result, he received medical treatment for a rope burn around his neck.

Court records detailed other alleged bullying incidents, some of which caused their son injuries. Among these were a scratch by another student during a recess incident that left a scar on his face and an instance of after-school bullying that caused severe bruising on his legs.

The appeals court ruling noted that proving a negligence claim requires showing that a defendant — in this case the school corporation and Boys & Girls Club — owed but did not fulfill a duty to the person filing the lawsuit, causing an injury.

“Whether there has been a breach of duty in a negligence action is generally a question of fact that is inappropriate for resolution by summary judgment,” the appeals court wrote.

The court wrote: “We believe that the factfinder (jury) should resolve the question of whether the School and the Boys’ Club breached their duty of care to Grant by failing to take additional, remedial actions when it became apparent that there was an ongoing problem, and/or by failing to provide adequate supervision. We express no opinion about whether a breach actually occurred; instead, we merely find that issues of fact remain that render this case inappropriate for resolution by summary judgment.”

ILB: This opinion has been added to our "Why is this NFP?" category/

Posted by Marcia Oddi on Sunday, August 16, 2015
Posted to Ind. App.Ct. Decisions | Why is this NFP?

Ind. Courts - "Suspended attorney charged with 10 theft counts"

Richmond attorney and former law blogger E. Thomas Kemp was suspended from the practice of law by the Supreme Court in January.

Friday Kara Kenney of WRTV6 reported:

The Wayne County Prosecutor’s office has filed 10 felony theft counts against former Richmond attorney Edward Kemp, Call 6 Investigator Kara Kenney learned Friday.

Kemp is accused of bilking multiple clients, including taking assets and fees without authorization, between 2011 and 2013.

Posted by Marcia Oddi on Sunday, August 16, 2015
Posted to Indiana Courts

Friday, August 14, 2015

Ind. Gov't. - Attorney General Zoeller urges Court to make police report records public

Here is a long list of earlier ILB posts on the ESPN lawsuit to obtain access to the reports of the Notre Dame police. Headings include:

The case is on appeal to the Indiana Court of Appeals. This afternoon Attorney General Zoeller has posted a press release:
Attorney General urges Court to make police report records public: State files amicus brief in lawsuit between ESPN and Notre Dame Security Police

INDIANAPOLIS – Indiana Attorney General Greg Zoeller’s office argues in a legal brief that police incident reports of the University of Notre Dame’s security police department are a public record that the public and news media ought to be able to obtain and inspect.

The Attorney General’s Office on Thursday filed an amicus brief, also called a friend of the court brief, in the lawsuit ESPN Inc. v. Notre Dame Security Police Department. The State of Indiana is not a party to the lawsuit pending in the Indiana Court of Appeals, but the Attorney General’s Office is authorized to file amicus briefs in Indiana court cases to convey state government’s legal positions for courts to consider.

ESPN on three occasions in 2014 had made requests of the Notre Dame Security Police Department for police documents, including incident reports and police logs. But NDSPD denied the sports channel’s requests, contending that since Notre Dame is a private university, its police force was exempt from the Indiana Access to Public Records Act (APRA). Indiana’s Public Access Counselor, Luke Britt, considered ESPN’s complaints and issued two non-binding advisory opinions last fall finding the incident reports and logs, if any, are indeed public records the police should disclose.

After the police department declined to provide the requested records, ESPN filed suit in St. Joseph County Superior Court, but Judge Steven Hostetler ruled in April that the Notre Dame police could legally withhold the records. ESPN appealed that ruling to the Indiana Court of Appeals. Because of state government’s interest in transparency, the Attorney General’s Office filed an amicus brief with the appeals court largely concurring with the Public Access Counselor in arguing that such police records are public and must be provided when requested. The records in dispute here are the same type of police documents about crimes reported that police departments elsewhere routinely provide every day.

“The State takes the legal position that transparency is needed in the exercise of police power in order to maintain the public's trust. Disclosing that a possible crime occurred and conveying basic pertinent information helps inform and protect the public and creates more transparency and accountability within the criminal justice system. The University of Notre Dame should be commended for providing police department protection for its students and visitors to complement state and local law enforcement,” said Attorney General Zoeller, whose office defends opinions of the Public Access Counselor favoring open access. * * *

As lawyer for state government, Attorney General Zoeller’s Office previously has advocated for access to government records. Last year the Attorney General’s Office filed an amicus brief in the Indiana Supreme Court contending that certificates of death registration at county health departments are not exempt from public disclosure.

Here is a copy of the amicus brief.

Posted by Marcia Oddi on Friday, August 14, 2015
Posted to Indiana Government

Ind. Courts "Court E-Filing Rolls Out In First Indiana County"

Brandon Smith reports today for Indiana Public Media on the August 12th e-filing kickoff in Noblesville - the story begins:

Indiana’s judicial branch took its first step toward modernizing its filing system as Hamilton County begins the initial e-filing pilot program.

The judiciary wanted $5 million a year in the new state budget to begin rolling out e-filing to counties around the state without requiring a fee.

But Supreme Court Justice Steven David says the legislature instead opted to increase court filing fees to pay for the initiative.

“They made that determination, and we’re very grateful and that’s a long-term solution that enables us to bring e-filing to Indiana,” David says.

The ILB has been confused, thinking there was some general fund money involved in the judicial automation projects. But, as detailed at the end of a July 31st ILB post:
The General Assembly raised the automated record keeping fee (ARK) from $5 to $19. The ARK fee is one of the court fees assessed in most cases, and the bulk of the funds taken in come from traffic offenders and small claims filers.
The ARK fee funds, inter alia, the Odyssey system, which is the case management system (CMS) the Indiana Court has installed in many counties. As these fees come in from the counties they are deposited into the State User Fee Fund created by IC 33-37-9.

IC 33-37-9-4(a) details the distributions to be made from the fund by the treasurer. Then (b) provides that the amount remaining goes to "the judicial technology and automation project fund established by IC 33-24-6-12."

IC 33-24-6-12(c) provides that the judicial technology and automation project fund is a non-reverting dedicated fund.

The 2015 General Assembly appropriated $14.5 million for each year of the biennium to the Courts from that fund - here is the language from p. 11 of HEA 1001:

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.
To repeat: This is not general fund money, this is money accumulated in the Judicial Technology and Automation Project Fund via transfers from the State User Fee Fund.

Posted by Marcia Oddi on Friday, August 14, 2015
Posted to E-filing | Indiana Courts

Ind. Decisions - 7th Circuit decides two Indiana cases today, reversing one, and affirming the other (which involved the Lauren Spier case)

In Chontel Miller v. Polaris Laboratories LLC (SD Ind., Pratt), a 13-page opinion, Chief Judge Wood writes:

Chontel Miller began work as a sample processing technician at Polaris Laboratories in Indianapolis in August 2009. Judging from reports of her daily productivity, her performance left something to be desired. In April 2010, Miller was fired for repeated failures to meet an average daily quota of 260 samples processed per day. Yet that is not the whole story. Miller, who is African‐American, asserts that during her employment at Polaris she suffered from racial discrimination that had an effect on her work performance. She sued Polaris, contending that it violated Title VII as well as 42 U.S.C. § 1981 in several ways. The district court granted summary judgment to Polaris. There is no doubt that this is a close case. But construing the record in Miller’s favor, as we must do, we conclude that Miller has shown a genuine issue of material fact on both her discrimination and retaliation claims. We therefore return the case to the district court for further proceedings. * * *

We REVERSE the judgment of the district court and REMAND this case for proceedings consistent with this opinion.

In Robert Spierer v. Corey Rossman (SD Ind., Pratt). a 21-page opinion, Judge Manion writes:

After a night of heavy drinking, Lauren Spierer, a twenty-year-old Indiana University student, left the apartment of a classmate and disappeared. Four years later, she remains missing. Lauren’s parents brought suit against three students who were with Lauren in the hours before her disappearance, alleging negligence and violations of Indiana’s Dram Shop Act. After some claims were dismissed but before discovery was conducted, the defendants moved for summary judgment on the grounds that the plaintiffs could only speculate about whether the defendants were the proximate cause of any injury sustained. The district court agreed and granted summary judgment for the defendants. The plaintiffs have appealed, contesting both the dismissal of claims and the award of summary judgment for the defendants. We affirm. * * *

Because he was with Lauren the majority of the evening and bought drinks for her, Rossman was nearest to assuming a duty to care for her. But he also appears to have been intoxicated—so much so that it is questionable whether he could effectively take care of himself, still less another person. “Indiana courts have shown great reluctance to require an individual to take any action to control a third party when there is no special relationship between them.” Hawn, 598 N.E.2d at 633. We have found no decisions under Indiana law where persons were held liable for the actions of their social peers, absent additional factors not present here. To hold otherwise would be to extend the reach of negligence far beyond special relationships and into virtually all social relationships and situations where a risk of danger might be present.

For these reasons, we agree with the district court that the plaintiffs have failed to state a plausible claim under Indiana law for common law negligence. Because we affirm the dismissal, we need not consider the plaintiffs’ claim under Indiana’s Child Wrongful Death Statute as that type of claim is functionally identical to one for common law negligence and would fail for the same reasons. See Ed. Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind. Ct. App. 1994). Likewise, we need not review the district court’s ruling that Lauren’s age precluded relief for the loss of services of a child under Indiana law.

For the reasons stated above, the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Friday, August 14, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides two 4th Am. Indiana cases yesterday via a consolidated opinion

In the 30-page consolidated Aug. 13th opinion in Tyler Williams v. Indiana State Police Dept. and Nancy Brown v. Wayne Blanchard (SD Ind., Magnus-Stinson), Judge Rovner writes:

We have consolidated for decision these two appeals, heard on the same day, that present similar issues of law relating to the reasonableness of force under the Fourth Amendment. In both cases, family members called police officers to their home because a family member had locked himself in a room of his home and was threatening suicide. The officers responded to the distress call, but in both cases the situation tragically ended with the person’s death as a result of shots fired by the officers. Although we will discuss the facts in more detail later, the basic circumstances were as follows. In the case on behalf of the estate of Williams, the police officers were faced with a person, William E. Williams, who had locked himself in a bathroom, had taken all the Xanax left in a prescription bottle, and had cut himself and complained that it was taking longer than expected for him to bleed out. The officers had no good vantage point to see him in the second floor bathroom, and he repeatedly threatened to kill anyone who attempted to come into the bathroom. The officers unlocked the bathroom door and fired tasers at Williams, but those tasers had no effect. When Williams pursued the officers with a knife, the officers shot and killed him. In the case brought by Nancy Brown, John Brown had also cut himself, and was locked in his bedroom although his mother had a key and had come in and spoken with him. Officers could see him through the bedroom window. Shortly after arriving, an officer at the scene decided to kick the bedroom door in, and ultimately he fatally shot John Brown who also possessed a knife. On behalf of the deceased person, the plaintiffs in each case brought suit against the officers pursuant to 42 U.S.C. § 1983, alleging that the officers used excessive force in violation of the Fourth Amendment when they effected the seizure. * * * Affirmed.

Posted by Marcia Oddi on Friday, August 14, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decisions)

For publication opinions today (2):

In Wesley McDivitt v. Sue McDivitt , a 10-page opinion, Judge Baker writes:

Wesley McDivitt appeals the judgment of the trial court ordering him to pay one-half of his monthly pension benefits to his ex-wife, Sue McDivitt. Finding that the trial court based its judgment on an erroneous interpretation of Wesley’s employment severance agreement, we reverse. * * *

While we admit that Wesley’s severance agreement is not a model of precision, we are obliged to determine its meaning in accordance with the parties’ reasonable expectations. Here, neither the plain terms of the agreement nor extrinsic evidence in the record counsel in favor of adopting Sue’s interpretation. The terms unambiguously list Sue as a beneficiary rather than a co-annuitant, and evidence in the record indicates that the checks under the agreement have been made payable to Wesley alone. In light of this, we cannot conclude that when Wesley entered into the agreement, the parties reasonably believed that Sue had acquired an ownership interest in annuity payments made to Wesley during his lifetime. As we find that Wesley transferred no such ownership interest to Sue, the payments remain his sole property pursuant to the terms of the couple’s prenuptial agreement.

In Charles Gross v. State of Indiana , a 19-page opinion, Judge Robb writes:
Charles Gross was arrested on February 28, 2003, on charges of child molesting, a Class B felony, and dissemination of matter harmful to a minor, a Class D felony. He has never been tried on these charges, however, as he was found to be incompetent and has been either incarcerated in Johnson County or confined by the State Division of Mental Health and Addiction (“DMHA”) since his arrest. In August 2014, Gross filed a motion to dismiss the charges against him and a request for release from custody because he had been confined for a period of time equivalent to the maximum sentence he could have to serve if convicted. The trial court denied his motion, finding Gross was subject to the credit restricted felon statute and therefore had not yet been confined for the maximum time allowed by law.

Gross appeals the trial court’s denial of his motion to dismiss the charges pending against him and release him from custody. He raises two issues:
1) whether the trial court erred in finding he was subject to the credit restricted felon statute; and
2) whether the trial court abused its discretion in denying his motion because due process requires the charges to be dismissed.
The State concedes that Gross is not subject to the credit restricted felon statute and has been confined for the maximum time allowed by law but argues the charges should not be dismissed. We conclude the parties are correct that Gross is not subject to the credit restricted felon statute and has therefore been confined for the equivalent of the maximum sentence he could have been ordered to serve. In addition, because there has been a finding that it is unlikely Gross will ever be restored to competency, it is a violation of due process for the underlying criminal charges to continue to pend against him. The trial court abused its discretion in denying Gross’s motion to dismiss, and we therefore reverse. * * *

May, J., concurs.
Mathias, J., concurs in result with opinion. [which begins, at p. 16] I concur wholeheartedly in Judge Robb’s well-reasoned opinion. I write separately for two reasons.

First, I wish to emphasize that there is little reason to believe that dismissal of the criminal charges against Gross will lead to his release into society. Instead, Gross mostly likely faces a lifetime of civil commitment as a result of his mental illness. See supra, slip op. at 14 n.5.

Secondly, I wish to repeat what I wrote in concurring in Habibzadah v. State, 904 N.E.2d 367, 370 (Ind. Ct. App. 2009) ...

NFP civil decisions today (2):

Randy L. Thornton v. State of Indiana, Indiana Department of Corrections, Marion County, Indiana, Matthew Pietrzak, Stephanie Buttz, Eric Lee, Dianna Johnson (mem. dec.)

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

NFP criminal decisions today (4):

Lisa L. Baker v. State of Indiana (mem. dec.)

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

Dennis William Smith v. State of Indiana (mem. dec.)

Lawrence E. Kellems v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, August 14, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Mounds Lake dead if towns opt out?"

Updating earlier ILB posts on the potential Mounds Lake project, Keith Roysdon wrote yesterday in the Muncie StarPress, in a story that begins:

MUNCIE – What could kill the Mounds Lake reservoir proposal?

It’s a question that many opponents of the plan would like answered — and this week the man who is spearheading the plan answered it.

The proposal to build a miles-long, two-county reservoir stretching from Anderson to Yorktown would be sunk if town councils in Daleville or Yorktown fail to join their Chesterfield counterparts in joining a new Mounds Lake Commission, Rob Sparks told The Star Press.

Sparks, executive director of Anderson’s Corporation for Economic Development and the driving force behind the reservoir project, was asked by The Star Press at Tuesday night’s forum at Yorktown High School: If one of the three towns opts out, would the project be dead?

“The proposed ordinance needs all four units,” Sparks said, adding a clarification: “The commission as proposed needs Anderson, Chesterfield, Daleville, Yorktown.”

The phrase “as proposed” could give developers of the $400-million project the opportunity to change the makeup of the commission that would oversee the project. It’s happened before.

Posted by Marcia Oddi on Friday, August 14, 2015
Posted to Environment | Indiana Government

Law - More on: "‘Right to Be Forgotten’ Online Could Spread"

Updating this ILB post from August 9th, Chicago attorney Evan Brown, in his blog, InternetCases, posted yesterday under the heading "Is the Sixth Circuit willing to recognize a right to be forgotten under U.S. law?" Referencing Detroit Free Press v. U.S. Dept. of Justice, — F.3d —, 2015 WL 4745284 (August 12, 2015), he writes in part:

The general theory behind the current requirement that booking photos be released is that the suspects have already appeared publicly in court, and the release of the photos and their names conveys no further information to implicate a protectible privacy interest. But this panel of the court noted that “[s]uch images convey an ‘unmistakable badge of criminality’ and, therefore, provide more information to the public than a person’s mere appearance.”

Something like a right to be forgotten appears in the court’s discussion of how photos can linger online: “[B]ooking photographs often remain publicly available on the Internet long after a case ends, undermining the temporal limitations presumed” by Sixth Circuit case law that calls for the release of photos during ongoing proceedings.

Posted by Marcia Oddi on Friday, August 14, 2015
Posted to General Law Related

Courts - "Court Rules Baker Can’t Refuse to Make Wedding Cake for Gay Couple" What does this mean for Indiana?

That is the headline to this $$ story today in the WSJournal, reported by Jacob Gershman and Tamara Audi. Note this quote:

The couple then filed a complaint with the Colorado Civil Rights Commission, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act. After a commission judge ruled for the couple—a decision affirmed by the commission itself—Mr. Phillips took his case to the appellate court.
A post by reporter Gershman in the freely available WSJ Law Blog:
The couple then filed a complaint with the Colorado Civil Rights Commission, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act. After a commission judge ruled for the couple — a decision affirmed by the commission itself — Mr. Phillips took his case to the appellate court.
A story in Slate by Mark Joseph Stern begins:
On Thursday, the Colorado Court of Appeals issued a landmark decision holding that a bakery violated state nondiscrimination law by refusing to serve a gay couple. That ruling is no surprise: Courts and commissions in New Mexico, Oregon, Washington, and New York have found that sexual orientation nondiscrimination laws prevent businesses from turning away same-sex couples. Still, the Colorado ruling is notable for the lucidity and vehemence with which it rejects the feeble claims that bakers and florists often make to justify their discrimination. Here are the court’s three strongest and smartest conclusions.
ILB: So what does this mean for Indiana?

Likely nothing. Indiana's non-discrimination law does not include discrimination based on sexual orientation. That is a battle being fought right now in local ordinances and one that will continue in the coming session re revising the state nondiscrimination law. See this ILB post from August 5th, titled "State-wide civil rights protections for gay citizens far from a done deal," quoting a story by Maureen Hayden, and the follow-up post from August 10th.

Posted by Marcia Oddi on Friday, August 14, 2015
Posted to Courts in general

Thursday, August 13, 2015

Courts - More on "Federal judge orders Rowan County Kentucky Clerk to issue same-sex marriage licenses" [Updated]

Updating this ILB post from last evening, Prof. Dale Carpenter has a good overview/analysis of the case tonight in The Volokh Conspiracy.

[Updated 8/14/15]
Sheryl Gay Stolberg has a long story in today's NY Times, headed Kentucky Clerk Defies Court on Marriage Licenses for Gay Couples."

Posted by Marcia Oddi on Thursday, August 13, 2015
Posted to Courts in general

Ind. Gov't. - “We made this pledge to people who are from outside our state, who know nothing about us now”

That is a quote from a good story today, headed "No-tax pledge clouds Indiana's road funding debate," reported by Maureen Hayden of CNHI; the story appears in a number of papers including the Terre Haute Tribune-Star. Some quotes:

Back in 1998, then-candidate Bob Cherry made a promise never to raise taxes.

Seventeen years later, as the state needs billions of dollars to fix its crumbling roads and bridges, the Greenfield lawmaker wonders if it was a mistake.

“How can we make good public policy for the future if we’re tied to the past?” he said.

Cherry, a Republican, is one of 27 Indiana lawmakers who’ve signed the Americans for Tax Reform’s so-called taxpayer protection pledge. And he’s not the only one who now says the promise is putting them in a tight spot, especially in light of the indefinite shutdown of Interstate 65 near Lafayette due to a deteriorating bridge sinking into the ground. * * *

Cherry, a vice-chairman of the House’s Ways and Means Committee, said he fears the no-tax pledge will keep the General Assembly from acting on a long-delayed but needed solution.

“We made this pledge to people who are from outside our state, who know nothing about us now,” he said. “They don’t understand. Things change.”

The pledge, created in 1986 by anti-tax activist Grover Norquist, locks signatories into a promise never to create new taxes or raise existing ones as long the pledge-maker holds office. Nearly all 54 Republican U.S. Senators and 245 members of Congress have signed, according to the group, as have 13 governors and hundreds of state legislators.

Cherry and other Republicans happily signed on, too, he said, to demonstrate their commitment to fiscal conservatism.

Breaking the pledge may have consequences politically, especially for Republicans in tough primary races where a tax vote would likely be used against them.

The Americans for Tax Reform, which closely monitors votes in the Legislature, is especially influential in Indiana. Last summer, Norquist was invited by Republican Gov. Mike Pence to speak a tax conference in Indianapolis, where Pence declared his blanket opposition to tax increases.

But such anti-tax declarations may be increasingly harder to keep for legislators.

Indiana hasn’t raised its gas tax since 2002, when it was increased to 18 cents a gallon. A combination of factors since then, including inflation and more efficient cars, have pushed down revenues. The gas tax brought in $582 million in 2004. Last year it was down to $527 million.

A few options to make up that money have been floated in the Legislature. They include raising the gas tax by tying it to inflation; increasing the portion of the sales tax on gasoline that can be diverted into road and bridge repair while cutting other spending general fund spending; and creating a license registration fee for drivers of electric or natural gas powered vehicles who don’t currently pay the gas tax.

All were shot down by the Americans for Tax Reform. In a statement, John Karsch, a spokesman, said any increase in gas taxes or registration fees not balanced by a tax cut “would be considered a violation of their promise to their constituents to oppose any and all efforts to increase taxes.”

He added: “If lawmakers wanted to ensure adequate transportation funding, it would have been prioritized in the state budget.”

Ed Soliday, R-Valpraiso, chairman of the House Roads and Transportation Committee, has pushed lawmakers for three years to act boldly on road funding.

Last year, Karl Browning, then-head of the state Department of Transportation, told lawmakers it will cost $3 billion over the next decade just to curb existing damage to state-maintained roads and bridges. The state needs another $4 billion to bring roads and bridges up to current safety standards, he said.

The condition of almost 7 percent of the state’s 5,400 bridges is considered “poor” – structurally deficient by federal standards, Browning said in a budget presentation last year. That number will nearly double over the next decade, he said, without a dramatic increase in current spending on bridge repair, now about $274 million a year.

Those kind of numbers force lawmakers, especially those who’ve signed the no-tax pledge, into a difficult position, Soliday said.

“Conservatives like to talk about how terrible it would be to burden our children with debt,” he said. “But by not fixing this now, we’re going to be handing our children a very, very big and costly problem.”

Posted by Marcia Oddi on Thursday, August 13, 2015
Posted to Indiana Government

Ind. Decisions - Tax Court posts one today, filed Aug. 12

In Indiana Department of State Revenue, Inheritance Tax Division v. Steven B. McCombs, Executor of the Estate of Janic Hamblin, an 8-page opinion, Sr. Judge Fisher writes:

The Indiana Department of State Revenue, Inheritance Tax Division (Department) appeals the Fountain Circuit Court’s (Probate Court) order determining that the Estate of Janice Hamblin (Estate) was entitled to a refund of inheritance tax paid. The sole issue before the Court is whether the Probate Court erred when it held that through her Will, Janice Hamblin transferred interests in life estates, as opposed to annuities, to her beneficiaries Larry Hamblin and Misty Snuffer. The Court finds that the Probate Court did not err. * * *

The Court finds that the language of Janice’s Will as a whole demonstrates her intent to convey life estates to Larry and Misty. See In re Estate of Owen, 855 N.E.2d 603, 609 (Ind. Ct. App. 2006) (explaining that “[i]n both the will and trust contexts, substance trumps form”). As a result, the Probate Court did not err when it determined that for Indiana inheritance tax purposes, those interests were to be valued as life estates and not as annuities.

CONCLUSION. For the above stated reasons, the Court AFFIRMS the Probate Court’s entry of summary judgment in favor of the Estate and against the Department.

Posted by Marcia Oddi on Thursday, August 13, 2015
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (2):

In Andy Mohr West, Inc. d/b/a Andy Mohr Toyota, Butler Motors, Inc. d/b/a Butler Toyota, and TW Toy, Inc. d/b/a Tom Wood Toyota v. Office of the Ind. Sec. of State, Auto Dealer Services Div. et al, a 26-page, 2-1 opinion, Judge Najam writes:

This appeal presents a question of first impression regarding an interpretation of the Indiana Dealer Services statutes. See Ind. Code §§ 9-32.

As the Supreme Court of the United States has reminded us, “[a] fair reading of legislation demands a fair understanding of the legislative plan.” King v. Burwell, ___ U.S. ___, 2015 WL 2473449 at *15 (June 25, 2015). Here, the legislative plan as it relates to the proposed relocation of a new-motor-vehicle (NMV) dealer into a new market evinces our legislature’s intent that the Division review the effects of the proposed relocation on the marketplace before the relocation may be approved. We conclude, however, that the Division’s interpretation of the relevant statutes is inconsistent with the economic rationale of the legislative plan and is not, therefore, a reasonably correct interpretation of the statutes. Instead, the Division has misconstrued the relevant statutes to deny the Dealers standing and potential remedies. In its interpretation, the Division has either disregarded or overlooked the plain text of relevant statutory provisions and, in so doing, has rendered those provisions meaningless. We reverse the trial court’s judgment and remand to the Division for further proceedings on the Dealers’ claims against Toyota. * * *

In sum, the Division’s interpretation of Sections 9-32-2-20 and 9-32-13-24(e) is unreasonable and incorrect as a matter of law. The Division misunderstands the meaning of the word “proposed” within the legislative plan. A “proposed [NMV] dealer” cannot mean only a newly created business. The Division’s misinterpretation renders other relevant statutory provisions meaningless, contrary to the basic principles of statutory construction that every word and phrase be given meaning and be harmonized with other related provisions. The Division disregards the statutory scheme and fails to account for the fact that the relocation of an existing dealer into the relevant market is every bit as much a threat, if not a greater threat, to the existing dealers within that area as the establishment of a new dealership. An agency’s interpretation that is contrary to law is entitled to no deference. Accordingly, we reverse the trial court’s judgment and remand to the Division for further proceedings consistent with this opinion.

BAKER, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [that begins, at p. 20] I respectfully dissent. The Indiana Dealer Services statutes are undoubtedly inartful, but I am convinced that the Division’s interpretation is reasonable. Accordingly, I would defer to the Division’s interpretation of the statutes it is tasked with enforcing. See Chrysler Group, LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118, 124 (Ind. 2012) (“we defer to the agency’s reasonable interpretation of such a statute even over an equally reasonable interpretation by another party”); Ind. Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoholic Beverage Comm’n, 695 N.E.2d 99, 105 (Ind. 1998) (once the reviewing court determined that the agency interpretation was reasonable, the court “should have terminated its analysis” and not addressed the reasonableness of other proposed interpretations).

In David V. Taylor v. Sheryl Crowder Taylor , a 20-page, 2-1 opinion, Judge Najam writes:
David Taylor (“Father”) appeals the trial court’s retroactive modification of his child support payments. He presents one issue for our review, which we revise and restate as follows: whether the trial court erred when it modified his child support payments retroactively, based on his notice of intent to relocate, before either party had filed a petition to modify child support. The trial court held that when Father filed notice of intent to move and his petition to modify custody, the court was also authorized to modify support. We disagree and hold that the retroactive support order was contrary to law because the statute requires a party to file a petition to modify a child support order. * * *

On April 15, 2011, when Father filed his relocation notice, as required by statute he notified Mother that she could file a petition to modify child support. It was not until March 6, 2013, that Mother filed a motion that could be construed as a petition to modify child support. While Father anticipated a possible modification of his child support payments, anticipation is not equivalent to the petition and actual notice required before the issue can be litigated. There is no evidence in the record before us that Husband waived or acquiesced in a retroactive child support order. Thus, we reverse and remand with instructions to the trial court to recalculate Father’s arrearage from March 6, 2013.

FRIEDLANDER, J., concurs.
BAKER, J., dissents with separate opinion. [that begins, at p. 19] I respectfully dissent. In my view, the majority’s interpretation of the statutes at issue is overly technical.

NFP civil decisions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: A.B., Jr., (Child), and K.T. (Mother), v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (4):

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

Jaime Carr v. State of Indiana (mem. dec.)

Craig Leonard Strand v. State of Indiana (mem. dec.)

Lori L. Cobb v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, August 13, 2015
Posted to Ind. App.Ct. Decisions

Ind. Law - Bill to collect DNA of all arrestees to be considered by study committee

The Interim Study Committee on Corrections and Criminal Code will meet for the first time this year at 10 AM on Tuesday, August 18th. Here is the agenda.

Item #2 is "2. Retrieving DNA samples from anyone arrested for a felony."

In 2013, the SCOTUS, in the case of Maryland v. King, ruled, as reported in this June 3, 2013 story by the NYT's Adam Liptak:

WASHINGTON — The police may take DNA samples from people arrested in connection with serious crimes, the Supreme Court ruled on Monday in a 5-to-4 decision.

The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes. But the court said the testing was justified by a different reason: to identify the suspect in custody.

“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Justice Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement. He accused the majority of an unsuccessful sleight of hand, one that “taxes the credulity of the credulous.” The point of DNA testing as it is actually practiced, he said, is to solve cold cases, not to identify the suspect in custody.

But the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, he said, a point the majority did not dispute. “Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Justice Scalia said from the bench. * * *

All 50 states require the collection of DNA from people convicted of felonies. After Mr. King was convicted of assault, there would have been no Fourth Amendment violation had his DNA been collected and tested, Justice Scalia wrote.

“So the ironic result of the court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crimes of arrest.”

From the bench, Justice Scalia repeatedly invoked the generation that fought the Revolutionary War and framed the Constitution. “The proud men who wrote the charter of our liberties,” he said, “would not have been so eager to open their mouths for royal inspection.”

Some quotes from a June 4, 2013 CNN story by Bill Mears:
Law enforcement lauds genetic testing's potential as the "gold standard" of reliable evidence gathering, especially to solve "cold cases" involving violent offenders.

But privacy rights groups counter the state's "trust us" promise not to abuse the technology does not ease their concerns that someone's biological makeup could soon be applied for a variety of non-criminal purposes.

Twenty-six states and the federal government allow genetic swabs to be taken after a felony arrest and without a warrant.

Each has different procedures, but in all cases, only a profile is created. About 13 individual markers out of some 3 billion are isolated from a suspect's DNA. That selective information does not reveal the full genetic makeup of a person and, officials stress, nothing is shared with any other public or private party, including any medical diagnostics. * * *

A 1994 federal law created a national database in which local, state, and federal law enforcement agencies can compare and share information on DNA matches from convicted felons, but courts have been at odds on just when such samples can be collected and the information distributed.

In a brief filed by 49 states supporting Maryland, officials also said the information is secure, and retested when an initial "hit" is identified. After a warrant is issued for probable cause, another fresh DNA sample is taken and it is that test that is used to ultimately prosecute in court. Each initial test costs about $30. * * *

The number of offender profiles in federal Combined DNA Index System is now about 10 million, with more than a million arrestee profiles.

Congress in December passed the Katie Sepich Enhanced DNA Collection Act, a grant program to help states pay for the expanded system.

This June 4, 2013 ILB post quoted a story from the IndyStar's Tim Evans:
The ruling drew mostly positive reviews in Indiana, where DNA samples currently are collected only after a conviction for a felony offense against a person or for burglary. * * *

A bill that would have brought Indiana more in line with those other states died in a Senate committee earlier this year.

“I thought it was a good bill but some people had questions and we knew the Supreme Court was going to weigh in, so we decided to wait to see which way they ruled,” said Sen. Brent Steele, R-Bedford, who chairs the Senate Judiciary Committee.

Steele and State Rep. Greg Steuerwald, R-Danville, who chairs the House Judiciary Committee, said they are willing to give a similar bill consideration now that the constitutional question has been answered.

Posted by Marcia Oddi on Thursday, August 13, 2015
Posted to Indiana Law

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

In Wayne D. Kubsch v. Ron Neal (ND Ind., Simon), a 120-page contentious 2-1 opinion (the panel is Hamilton, Tinder, and CJ Wood) in a prisoner appeal, Judge Hamilton writes:

Kubsch appeals the denial of his habeas corpus petition. After being convicted of murdering his wife, her son, and her ex-husband, Kubsch was sentenced to death. Kubsch’s three principal arguments on appeal are that his conviction and sentence are unconstitutional because (a) the Indiana trial court excluded evidence of a witness’s exculpatory but hearsay statement to police, (b) he was denied effective assistance of counsel in seeking admission of the witness’s hearsay statement, and (c) his waiver of counsel and choice to represent himself at the sentencing phase of his trial were not knowing and voluntary.

We reject all three claims. Kubsch argues for a constitutional right to defend himself with otherwise inadmissible hearsay, at least if the hearsay seems sufficiently reliable and is sufficiently important to his defense. See Chambers v. Mississippi, 410 U.S. 284, 300–02 (1973). Kubsch’s evidence is not sufficiently reliable to fit that narrow constitutional exception and to have required Indiana courts to disregard long established rules against using ex parte witness interviews as substantive evidence at trial. His able trial counsel tried hard to have the statement admitted; they were not successful but also were not constitutionally ineffective.

As for the waiver of counsel claim, the Indiana Supreme Court rejected the claim in a careful discussion tailored to the facts of this case. Its rejection of the claim was not contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 102–03 (2011).

In addition to the exculpatory hearsay claim, the related ineffective assistance claim, and the waiver of counsel claim that we address in detail, Kubsch raises a number of other arguments on appeal, all of which are challenges to the effectiveness of his counsel. We have considered all of these additional arguments, and we reject them for the reasons Chief Judge Simon explained in his thorough opinion. See Kubsch v. Superintendent, No. 3:11CV42–PPS, 2013 WL 6229136 (N.D. Ind. Dec. 2, 2013). Accordingly, we affirm the denial of relief as to both Kubsch’s convictions and the death sentence. * * *

[p. 61] WOOD, Chief Judge, dissenting. My colleagues are prepared to send Wayne Kubsch to his death on the basis of a trial at which the jury never heard critical evidence that, if believed, would have shown that Kubsch was not the man responsible for the horrible murders of his wife Beth, her son, Aaron Milewski, and her ex‐husband, Rick Milewski. I am not. They concede that the evidence against Kubsch was entirely circumstantial. While there is nothing wrong with circumstantial evidence, it is impossible to have any confidence in a verdict rendered by a jury that heard only part of the story. In my view, the state courts have reached a result that is inconsistent with, and an unreasonable application of, the United States Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284 (1973). Had the contested evidence been admitted under the Chambers exception to the normal rules of evidence, a properly instructed jury may have acquitted Kubsch. It also may have convicted him: I do not argue that the state courts wrongly viewed the evidence as sufficient for conviction. But that is not the question before us. The question is whether Kubsch was able to present his entire case and obtain a reliable jury verdict. Because I believe that he was deprived of this essential protection, I would grant the writ and give the State of Indiana a new opportunity to try him.

The opinion includes an Appendix A Timeline beginning at p. 98, referred to by CJ Wood on p. 62, and a Transcript of Police Interview beginning at p. 102, referred to by CJ Wood at p. 68.

Posted by Marcia Oddi on Thursday, August 13, 2015
Posted to Ind. (7th Cir.) Decisions

Wednesday, August 12, 2015

Courts - "Federal judge orders Rowan County Kentucky Clerk to issue same-sex marriage licenses"

Updating earlier ILB posts, this evening the Lexington Herald Leader's John Cheves reports:

A federal judge on Wednesday ordered Rowan County Clerk Kim Davis to resume issuing marriage licenses despite her religious objection to same-sex marriage, but Davis quickly filed an appeal.

U.S. District Judge David Bunning granted a preliminary injunction against Davis sought by four Rowan County couples who applied for marriage licenses. Davis has refused to issue any marriage licenses in her county since June 26, when the U.S. Supreme Court legalized gay marriage and Gov. Steve Beshear instructed all 120 of Kentucky's county clerks to comply with the court's decision.

Davis "likely has violated the constitutional rights of her constituents" by promoting her Christian beliefs "at the expense of others," Bunning wrote in his order.

"The state is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities," the judge wrote. "She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County clerk."

But it's not clear that betrothed couples should visit the Rowan County courthouse just yet. Davis will ask Bunning to stay his injunction while she appeals it to the 6th U.S. Circuit Court of Appeals, said her attorney, Roger Gannam. She filed an appeal late Wednesday. * * *

In his 28-page order, Bunning considered and dismissed every argument that Davis has raised in her defense — and in a related lawsuit she filed last week against Beshear, alleging that Beshear violated her religious liberties by directing county clerks to comply with the Supreme Court decision.

On Davis' argument that she can't in good conscience "authorize" a same-sex marriage, given her beliefs as an Apostolic Christian, Bunning said she is not being asked to authorize marriages. Kentucky's marriage license paperwork only requires clerks to acknowledge that a couple has provided accurate biographical information and is legally permitted to wed, Bunning wrote. And whether or not Davis likes it, same-sex couples now are legally permitted to wed, he wrote.

On Davis' argument that same-sex couples could drive to another county where the clerk is willing to serve them, Bunning said she does not take into account the difficulty of travel for her poorer constituents or the likelihood that other clerks would seek the same religious exemption that she demands, so that "approximately half of the state" could declare itself off-limits to gay couples seeking a license.

Beyond all that, Bunning wrote, "she fails to address the one question that lingers in the court's mind. Even if plaintiffs are able to obtain licenses elsewhere, why should they be required to? ... They live, work, socialize, pay taxes and conduct other business in and around Morehead. Quite simply, Rowan County is their home."

Finally, on Davis' argument that Beshear violated her religious liberties by instructing her to comply with the Supreme Court decision, Bunning said the governor has "a compelling state interest" in government officials upholding the rule of law across Kentucky and respecting the First Amendment's separation of church and state.

"Davis has arguably (violated the First Amendment) by openly adopting a policy that promotes her own religious convictions at the expense of others," Bunning wrote.

"Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court's decisions, regardless of our personal opinions," Bunning wrote. "Davis is certainly free to disagree with the court's opinion, as many Americans likely do, but that does not excuse her from complying with it. To hold otherwise would set a dangerous precedent."

Here is Judge Bunning's 28-page order, via Equality Case Files.

Posted by Marcia Oddi on Wednesday, August 12, 2015
Posted to Courts in general

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

For publication opinions today (1):

In Fifty Six LLC, individually and, alternatively, in the name of the State of Indiana on relation of Fifty Six LLC v. The Metropolitan Development Commission of Marion County, a 20-page opinion, Judge Brown writes:

Landowner asserts that the MDC should be estopped from asserting that it lacks standing, that Landowner is the type of person the township advisory committee and notice provisions were intended to protect, that Landowner’s interests are affected and have suffered injury because the Millersville Plan is a factor that determines land use, and that there is a disputed issue of fact as to whether Landowner had more than ten days notice of the language describing the parcel before the hearing at which the Millersville Plan was approved and adopted. The MDC contends that Landowner cannot show that it was injured by the adoption of the Millersville Plan because none of its rights in the land have been altered, as the zoning remains the same as it was prior to the plan’s adoption, and that the MDC has not waived the lack of standing defense because Landowner had the opportunity to respond to the defense and responded to it at the April 24, 2014 oral argument on the parties’ cross-motions for summary judgment. * * *

Landowner has shown that Landowner’s Parcel is or would be directly impacted by the recommendations of the Millersville Plan. Accordingly, we conclude that Landowner has standing to challenge the Millersville Plan. See Foundations of East Chicago, 900 N.E. 2d at 903 (“The fact that Section 302 has the potential to set in motion events under which the Commission might eliminate that flow of money is sufficient to find standing under these circumstances.”). * * *

We conclude that the Millersville Plan did not comply with the requirement that the plan be published in its entirety ten days prior to a hearing pursuant to Ind. Code § 36-7-4-507. On this basis, we reverse the trial court’s order granting the MDC’s cross-motion for summary judgment and its order denying Landowner’s motion to correct error and remand for further proceedings.

In summary, we conclude that Landowner had standing to challenge the Millersville Plan, and that the MDC did not comply with the statutorily required notice and hearing provisions prior to the hearing on the Millersville Plan’s adoption. * * * Reversed and remanded.

NFP civil decisions today (1):

In the Matter of the Adoption of E.D., K.R. v. A.D.S. and A.S. (mem. dec.)

NFP criminal decisions today (4):

Cecil J. Black, Jr. v. State of Indiana (mem. dec.)

Maria Martha Caceres v. State of Indiana (mem. dec.)

David M. Jones v. State of Indiana (mem. dec.)

Sollie Nance v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, August 12, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Marion County judge dismisses House public records case [Updated]

Updating the previous post this morning, here is a copy of Judge Osborn's very brief Aug. 11, 2015 order dismissing plaintiff's claim in CAC v. Koch. A quote:

Having reviewed the briefing of parties and considered the arguments of counsel, the Court finds the Masariu case to be applicable and controlling and therefore GRANTS the Defendants' motion to dismiss for lack of justiciability.
The ILB wrote at the length on the 1993 Masariu opinion on in this June 2, 2015 post.

[Updated at 10:00 AM] Here is Ni8ki Kelly's preliminary story on the ruling, for the Fort Wayne Journal Gazette. A few quotes from the story:

Marion County Superior Judge James Osborn on Tuesday dismissed a case against Rep. Eric Koch, R-Bedford, and the Indiana House Republican caucus - saying he has no jurisdiction over House affairs due to separation of powers.

He heard about 90 minutes of arguments Tuesday morning and entered his finding later in the day.

Osborn issued a seven-line ruling relying on a 1993 Indiana Supreme Court case that said courts could not interfere with the operation of the state legislature. * * *

The groups can file an appeal but the Indiana Supreme Court in 2013 dismissed a case over legislative fines under the same legal reasoning.

Posted by Marcia Oddi on Wednesday, August 12, 2015
Posted to GA and APRA

Ind. Gov't. - More on: Marion County judge hears preliminary arguments in House public records case

Updating yesterday's ILB post Katie Heinz of WRTV6 tweeted late last evening:

Katie Heinz (@katieheinz6)
8/11/15, 11:35 PM
Per court records, judge has dismissed lawsuit filed against @INHouseGOP re: alleged violations of IN Access to Public Records Act. @rtv6
Earlier yesterday Chelsea Schneider, now of the Indianapolis Star, had a long story on yesterday's court hearing:
Should the public be entitled to see correspondence between a state lawmaker and companies that lobby him?

Lawyers for House Speaker Brian Bosma, the chamber’s most powerful Republican, are arguing they shouldn’t.

The debate — now in front of a Marion County Superior Court judge — began in January when the Washington, D.C.-based Energy and Policy Institute requested correspondence among state Rep. Eric Koch, a leading lawmaker on energy issues, Duke Energy and Indianapolis Power & Light over a piece of energy legislation. * * *

In April, the energy institute, joined by the Citizens Action Coalition of Indiana and Common Cause of Indiana, filed suit for access to emails, correspondence and documents pertaining to the legislation. Citizens Action Coalition opposed the complex proposal over concerns that it would hinder the expansion of solar energy.

House Republicans are arguing for the dismissal of the lawsuit.

At stake is transparency in government, said Kerwin Olson, executive director of the coalition that represents the interests of Hoosier consumers on energy issues at the Statehouse.

“First and foremost, it’s transparency and accountability and the public knowing what’s going on behind the doors,” Olson said. “Specifically with this request, we believe there’s undue influence from the utility lobby…the utility lobby is so entrenched in the process down there that the House Republican Caucus is trying to identify communications with the utility lobby as a work product and that’s absurd on its face.”

State law specifically exempts the “work product” of individual lawmakers and their staffs from the public records law. The House added a definition of “work product” into their staff handbook, essentially deciding that it encompassed all incoming and outgoing communications, Public Access Counselor Luke Britt said. Britt argues while the “work product” exemption exists, the public records law applies to other General Assembly documents.

Late in this year’s legislative session, lawmakers mounted a last-minute push to rewrite the law to specifically exempt their emails and other documents from being publicly released, but the proposal failed to move forward.

"Ultimately I thought it was inadvisable for us to put legislation together at the last second, despite the appropriateness of it and the need for it," Bosma told The Star in April.

House Republicans retained outside counsel at Taft Stettinius and Hollister to represent Rep. Koch and the caucus. According to an engagement letter, the principal lawyer in the case is charging a $440 hourly rate and a secondary lawyer is charging a $345 rate. Costs are being covered by the House’s budget, according to the letter.

Those lawyers argued at a Tuesday court hearing that a ruling in favor of releasing the records could have implications beyond the energy lobby and force the release of other communications sent by Hoosier constituents to their lawmakers. They want the case dismissed, arguing, in part, policies governing the disclosure of records is an internal function of the General Assembly and the court shouldn’t interfere.

Yet, lawyers for the environmental and citizen advocacy groups said the General Assembly has never successfully changed the public records law to exclude itself, nor do House rules offer a specific exemption.

One of the attorneys, William Groth, argued public disclosure laws don’t put a chill on participation in democracy.

“We can’t imagine lobbyists are going to be chilled from communication with individual members because some of those communications might be subject to disclosure under (the public records law,)” Groth said.

The story concludes:
Public records laws and how they apply to state legislatures vary across the country. In Illinois, records detailing the preparation of legislative documents are exempt if they are preliminary drafts or notes, according to the Reporters Committee for Freedom of the Press. In Kentucky, the legislature isn’t excluded from that state’s public records act.

In Indiana, the House Republican caucus noted a Supreme Court ruling from 1993 to show it wasn’t covered under the public records act. In that case, Britt said the state’s high court declined to insert itself into legislative operations but he argues the case did not address “substantive” public records issues.

“The court did not affirmatively state whether the (public records act) was applicable or not, only that the Supreme Court would not interfere with internal legislative operations,” according to an opinion authored by Britt in March.

The judge in the case, Marion Superior Court Judge James Osborn, said Tuesday he expects to rule quickly on the House Republicans’ request to dismiss the lawsuit.

ILB: Apparently the judge ruled the same evening.

BTW, from Wisconsin stories the ILB reported on earlier in this series, it appears that all communications on legislative drafts in Wisconsin are to be maintained in a drafting file by their legislative agency open to the public after the session.

Posted by Marcia Oddi on Wednesday, August 12, 2015
Posted to GA and APRA

Tuesday, August 11, 2015

Ind. Gov't. - Marion County judge hears preliminary arguments in House public records case

The ILB has been following closely this dispute concerning public access to state representatives' emails, and has created a special category for it, so that all the past posts may be quickly accessed.

The Fort Wayne Journal Gazette's Niki Kelly attended a hearing today before Marion County Superior Court Judge James Osborn and wrote this story. (Earier the ILB posted the briefs filed by the parties on the motion to dismiss):

A Marion County judge heard technical arguments Wednesday about whether a lawsuit against a House Republican and the caucus denying access to public records should proceed.

The result could mean Hoosiers never get an answer on the merits of the case - whether the Indiana House can hide legislative emails and other communications between lawmakers and lobbyists.

"It's not just lobbyists. It's the same with every citizen who writes in with a concern or view. That's fair game under the world view the plaintiffs espouse," said Attorney Geoffrey Slaughter. "The court should be loathe to interfere."

He argued on behalf of Rep. Eric Koch, R-Bedford, and the Indiana House Republican caucus that courts don't have the right to get involved in the internal workings of the legislature due to separation of powers.

Slaughter filed a motion to dismiss in the case.

But Attorney William Groth - representing three entities seeking records - said the state public records law specifically applies to the legislature. And there is no internal rule adopted by the full House making these communications private.

"The ultimate issue in this court is whether the defendants can escape the obligation of a statute the General Assembly imposed on itself without repealing or amending it," he said, noting the legislature can change the law at any time but hasn't.

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

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

A second request was drafted to more directly specify what records were sought. But the Indiana House still balked, now citing a work product exemption.

The law does have an exemption for the work product of individual legislators but there is no definition of what work product is.

Marion County Judge James Osborn asked what work product exactly means and Slaughter said that issue hasn't been briefed yet. But he said if the case moves forward that exemption will cover the denial.

In the past, House Speaker Brian Bosma and Senate President Pro Tem David Long have stressed that constituent communication has been shielded as a tradition in the legislature. They note that average Hoosiers regularly share personal information with lawmakers when they are having a problem with state government.

But Groth pointed out repeatedly the General Assembly has not amended the law to add such an exception, or addressed communications at all in their own rules.

A broad definition was added to an employee handbook after the session but that was not approved by the full House.

Slaughter is also arguing that Koch cannot be sued under the state public records law because he is an individual. He also said the Indiana House Republican caucus is not a proper defendant, though the Indiana House of Representatives would be.

Osborn asked only a few questions and said he would rule soon on the case. If he lets the case continue, the next issue will be a motion by Groth for a ruling in favor of the records.

Posted by Marcia Oddi on Tuesday, August 11, 2015
Posted to GA and APRA

21st Century Law - ILB creates new category for Indiana's legal future

The ILB has created a new category, for posts that deal with issues facing the legal profession, and those in need of legal assistance, in the 21st Century. Its short heading is "21st Century Law." Here are some recent posts that have been added to the category:

Posted by Marcia Oddi on Tuesday, August 11, 2015
Posted to 21st Century Law

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 13 NFP memorandum decisions)

For publication opinions today (3):

In In re the Marriage of: Christopher Neal Maddux v. Suzanne Marie Maddux , a 20-page opinion, Judge Crone writes:

Christopher Neal Maddux (“Father”) appeals an order denying his motion for modification of primary physical custody of his two sons. He claims that the trial court’s findings of fact do not support the judgment with respect to the best interests of the children.
We reverse and remand for proceedings consistent with this opinion. * * *

Simply put, time is running out. These children, ages one and three at the time of the divorce, are now eleven and thirteen. They not only have been deprived of their relationship with Father but also have been relentlessly subjected to Mother’s jaded opinions of him and her egregious and unsubstantiated accusations against him. The overwhelming evidence and extensive findings of fact show a mother who has jeopardized her children’s emotional health in attempting to settle a score with their father. * * *

Consequently, we reverse the denial of Father’s petition for custody modification and remand for entry of judgment in his favor on this issue and a new calculation of the parties’ child support obligations.

In LHO Indianapolis One Lessee, LLC v. Esther Bowman, Individually and on Behalf of Other Similarly Situated Individuals , a 26-page opinion, Judge Riley writes:
Appellant-Defendant, LHO Indianapolis One Lessee, LLC d/b/a Indianapolis Marriott Downtown (Marriott), appeals the trial court’s certification of a class defined by Appellee-Plaintiff, Ester Bowman (Bowman). * * *

Based on the foregoing, we conclude that the trial court entered a judgment in favor of Bowman solely with respect to her class certification request and did not enter a judgment on the merits. Furthermore, because we conclude that Bowman did not satisfy the predominance requirement of T.R. 23(B)(3), we reverse the trial court’s certification of the class and remand the cause for further proceedings consistent with this opinion. We reverse and remand.

In Bryan Gavin v. State of Indiana , a 10-page opinion, Chief Judge Vaidik writes:
Miranda warnings are subject to a public-safety exception. That is, Miranda warnings are not required when police officers ask questions reasonably prompted by a concern for the public safety. Bryan Gavin appeals his multiple convictions stemming from an apartment-complex shooting. Specifically, he argues that the trial court erred by admitting his statement to police about the location of the gun because he made the statement before being informed of his Miranda rights. Because the police officer’s question to Gavin about the location of the gun was reasonably prompted by a concern for Gavin’s three-year-old stepdaughter’s safety, we find that the trial court did not err in admitting Gavin’s statement. We therefore affirm Gavin’s convictions.
NFP civil decisions today (3):

Matthew R. Carie v. Jennifer Carie, f/k/a Jennifer Wade, n/k/a Jennifer Andrews (mem. dec.)

Kathryn Jo Gillette a/k/a, Kathy Gillette v. Belterra Resort Indiana, LLC, d/b/a Belterra Casino Resort, et al (mem. dec.)

Hanover Community School Corporation v. L.K. (mem. dec.)

NFP criminal decisions today (10):

Ishmell Neal Garrett v. State of Indiana (mem. dec.)

Major Loren Wilson v. State of Indiana (mem. dec.)

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

Tyrus D. Coleman v. State of Indiana (mem. dec.)

ILB: A reader sends this note re the Coleman opinion today: "Footnote 2 in today's Coleman decision should be a teaching point for young appellate lawyers (and apparently seasoned State public defenders!)" Here is the footnote from Judge Robb's opinion:

[2] We have counted seventeen allegations of ineffective assistance of counsel, which we have consolidated as appropriate. As the Ninth Circuit has said:
Like other mortals, appellate judges have a finite supply of time and trust; every weak issue in an appellate brief or argument detracts from the attention a judge can devote to the stronger issues, and reduces appellate counsel’s credibility before the court. For these reasons, a lawyer who throws in every arguable point – “just in case”—is likely to serve her client less effectively than one who concentrates solely on the strong arguments.
Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
Robert E. Eastwood v. State of Indiana (mem. dec.)

Darius Altgilbers v. State of Indiana (mem. dec.)

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

Levi E. Gross v. State of Indiana (mem. dec.)

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

Dexter Berry v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, August 11, 2015
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from July 31st, at mid-morning the ILB received this notice (prefaced with "sorry for the late notice") that tomorrow (Wednesday) at 9:30 AM there will be an "e-filing event" in Hamilton County:

Press or public interested in attending the August 12 kick-off from 9:30-10:00 a.m. in the Commissioner’s Court Room, Hamilton County Government and Judicial Center, One Hamilton County Square, 33 N. 9th Street, Noblesville, IN 46060 should contact Chief Public Information Officer Kathryn Dolan.
More from the notice:
Hamilton County is the leader in the statewide court e-filing project. Chief Justice Loretta Rush will travel to Hamilton County Wednesday, August 12 at 9:30 a.m. to meet with court and clerk staff as well as judges and attorneys to congratulate them on being the first county to implement e-filing as part of a statewide measure. “This is a major step toward all 92 counties accepting electronic filings rather than paper. We want to say thank you in person.”

In 2014 the Indiana Supreme Court announced the implementation of statewide e-filing which will reduce paper copies, postage and trips to the clerk's office. With strong support from the Legislative and Executive Branches, attorneys, clerks, judges and staff—the path to e-filing is underway with plans for statewide implementation by the end of 2018.

Supreme Court Justice Steven David and Court of Appeals Judge Paul Mathias (leaders of the project) will also be present to recognize Hamilton County. Justice David explained, “The Indiana Supreme Court is committed to the most effective use of technology to ensure that courts operate with efficiency and fairness—e-filing is a key component of our modernization plans.”

Hamilton County is now accepting e-filing of most civil cases.

Information about e-filing can be found at courts.in.gov/efile. The rules and implementation schedule, list of service providers and details about training sessions will be updated online. Those interested can also subscribe to receive email updates about e-filing.

Posted by Marcia Oddi on Tuesday, August 11, 2015
Posted to E-filing | Indiana Courts

Law - "Stingray-like phone spying machine used to blackmail and rig state tenders [bids]" in South Africa

The ILB has had a number of posts on the controversial "stringray tracking device" used by state and local police departments. This story today by Lisa Vaas of Naked Security reports on an instance of their misuse by private parties:

South African law enforcement agents arrested three men for allegedly getting their hands on a phone spying device and using it to bug and track members of the bid adjudication committee of the Airports Company South Africa, which decides on contracts worth hundreds of millions.

The device, nicknamed The Grabber according to The Star writing at Independent Online, appears similar to what's known generically in the US as a stingray.

(StingRay is the brand name of an International Mobile Subscriber Identity locator, also known as an IMSI catcher, that's targeted and sold to law enforcement. The term stingray has also come into use as a generic term for these devices.)

Like stingrays, The Grabber is reportedly used for tapping, tracking and locating mobile phones.

Later in the article is a discussion on how stringrays wrok.

Posted by Marcia Oddi on Tuesday, August 11, 2015
Posted to General Law Related

Monday, August 10, 2015

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

In USA v. Dennis Williams and Ind. Dept. Rev. and Clark Co., Ind.(SD Ind., Young), a 5-page opinion, Judge Easterbrook writes:

The first question in this appeal, as in HSBC Bank USA, N.A. v. Townsend, No. 13-­1017 (7th Cir. July 16, 2015), is whether an order of foreclosure is a “final decision” for the purpose of appellate jurisdiction. We deferred consideration of this appeal until HSBC Bank had been issued. HSBC Bank holds that a mortgage foreclosure governed by Illinois law is not final, and thus not appealable under 28 U.S.C. §1291 or Fed. R. Civ. P. 54(b), because the amount of a deficiency judgment (if any) depends on the reasonableness of the price realized at the sale, and the va lidity of the sale itself is contestable under an open‑ended state standard calling on the judge to determine whether the outcome is equitable. Moreover, HSBC Bank observes, Illi nois provides debtors with multiple opportunities to redeem before a transfer takes effect.

Our case is governed by federal rather than state law. * * *

On the merits, the appeal is feeble. * * *

Leslie maintains, however, that selling the parcel to col lect Dennis’s federal taxes impermissibly impinges on her property interest. The Supreme Court held in United States v. Rodgers, 461 U.S. 677 (1983), that a district court is entitled to order an entire parcel sold even though an innocent person may have an ownership interest. Before doing this, Rodgers states, the court must consider all equitable arguments the innocent owner offers. 461 U.S. at 709–11. The district judge did just that, observing that Leslie’s interest, saddled by three tax liens, probably would be worth less than the amount she is likely to receive after a sale. The judge added that neither Dennis nor Leslie lives on the parcel, so the sale will not disrupt their household. That decision is sensible and certainly not an abuse of discretion. AFFIRMED

Posted by Marcia Oddi on Monday, August 10, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Ex-teacher's award finalized: Diocese to pay $403,608, down from jury's $1.9 million"

Rebeccas S. Green of the Fort Wayne Journal Gazette, who has been covering the Emily Herx case from the beginning, reported this weekend:

With the stroke of a pen, a judge set the final amount of money awarded to a former Roman Catholic school teacher in a federal discrimination lawsuit.

On Thursday, U.S. District Judge Robert L. Miller reduced the total judgment given to Emily Herx from about $540,000 to $403,608. The $540,000 was less than half of what the jury awarded Herx when it decided in her favor in a discrimination lawsuit against the Roman Catholic Diocese of Fort Wayne-South Bend.

Just before Christmas, a jury found that the diocese had discriminated against Herx when it elected not to renew her teaching contract after officials found out she underwent in vitro fertilization. * * *

The jury originally awarded Herx $1.9 million: $1.75 million for physical, mental and emotional suffering; $125,000 in medical care; $75,000 in lost wages; and $1 in punitive damages.

Previously this year, Miller cut the total to $540,000, putting the damages for suffering under the statutory cap of $300,000.

In the months since, both sides have gone back and forth on the damages amount – arguing in documents over lost wages and medical expenses.

On July 7, Miller cut the amount of medical expenses in the judgment to about $35,000, asking Herx to accept that amount in lieu of having a new trial on the issue of her medical expenses, according to court documents.

Through her Indianapolis attorneys, Herx agreed on July 9, but she did not give up her right to appeal any judgment awarded to her, according to court documents.

On Thursday, Miller issued the new order, reducing the total amount for what appears to be the final time to $403,607.33 in compensatory damages and $1 in punitive damages, according to court documents.

Posted by Marcia Oddi on Monday, August 10, 2015
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (0):

NFP civil decisions today (1):

Keith Bullock, Jr. v. State of Indiana and Indiana Bureau of Motor Vehicles (mem. dec.), a pro se appeal, Judge Bradford writes:

Bullock maintains that he was prejudiced by the erroneous OWI conviction that appeared on his BMV driver record, arguing that it was used to support the imposition of the lifetime suspension that he can cannot now petition to overturn. Even if the erroneous OWI conviction was used in this fashion, however, Bullock’s argument fails to take into account the fact that his lifetime suspension was also based on, and fully supportable by, his 2004 conviction for operating a vehicle after being designated an HTV. * * *

We conclude that the trial court properly denied Bullock’s petition to reinstate driving privileges. We further conclude that Bullock waived any notice-based argument by failing to raise it in the trial court. Finally, any error that might have been caused at any point by Bullock’s erroneous OWI conviction can only be considered harmless. The judgment of the trial court is affirmed.

NFP criminal decisions today (1):

Paris V. Collins v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, August 10, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 7, 2015

There were no transfer dispositions last week, and hence, there is no transfer list.

Posted by Marcia Oddi on Monday, August 10, 2015
Posted to Indiana Transfer Lists

Ind. Courts - "7th Circuit Apologizes for Misplacing Case for Five Years"

Jacob Gershman has this item Aug. 6th in the WSJ Law Blog. Some quotes:

It was in 2010 when the U.S. Supreme Court asked a panel of judges on the Seventh U.S. Circuit Court of Appeals in Chicago to take another look at claims made by a group of investors against Harris Associates. The justices instructed the lower-court judges to apply a different standard for judging if fees are excessive.

After the parties filed position papers with the appeals court that year, the lawyers waited to hear back from the judges. And they waited and waited.

“After a couple of years, it seemed odd to us,” said James C. Bradley, the attorney representing the plaintiffs. “We didn’t know what was causing the delay.”

He said he would periodically check in with the clerk of the Seventh Circuit about the status. “I asked if it had fallen through the cracks and was told no, it hadn’t,” Mr. Bradley told Law Blog. The clerk wasn’t available for comment.

During that period, one of the three judges on the panel, Terence Evans, passed away.

But out of the blue, the case resurfaced Thursday with a ruling in favor of the defendants. The two remaining judges on the panel, Frank Easterbrook and Michael Kanne, concluded their opinion with an apology to the parties.

“[P]apers were placed in the wrong stack and forgotten,” the opinion said. “The court’s internal system for tracking cases under advisement does not include remands from the Supreme Court, so the normal process of alerts and ticklers failed. We will see to it that this is fixed. That may be small comfort to these litigants and their lawyers, but at least some good will come from the delay.”

Mr. Bradley said his clients would weigh their legal options and might ask the full Seventh Circuit to hear the case.

This reminded the ILB of incidents of delays in our Indiana Court of Appeals cases in 2008, discussed in several ILB posts, quoting footnotes from COA opinions:
[W]e have recently become aware of some difficulties in receiving the prompt transmission of fully-briefed appeals to our court. Indeed, the case herein was fully briefed on June 21, 2007, but was not transferred to our court until February 26, 2008—a delay of over eight months.
Nothing approaching five years, however!

Posted by Marcia Oddi on Monday, August 10, 2015
Posted to Indiana Courts

Ind. Gov't. - More on: State-wide civil rights protections for gay citizens far from a done deal

Updating this ILB entry from August 5th, the Lafayette Journal & Courier editorial board wrote August 8th under the heading: "A preview of a fight for rights."

No one said getting equal rights protections statewide for gays and lesbians was going to be easy in Indiana.

It should be.

But as leaders in the General Assembly hem and haw, and Gov. Mike Pence continues to step back from the question in the wake the Religious Freedom Restoration Act meltdown last spring, how the question played out in recent weeks in the northern Indiana city of Goshen shows that this is no easy bet.

In the the rush to add protection based on sexual orientation to local human relations ordinances in cities around Indiana, Goshen was a good test case for how well the notion of gay rights were going to fly in one of the state’s more conservative pockets.

Goshen Mayor Allen Kauffman and the city council tabled the idea in part because there was “much misinformation and confusion about what will be the consequences of amending the civil rights ordinance,” according to an account in The Indianapolis Star.

The town’s fight served as a laboratory for how this could play out.

Those fights happened in Lafayette, West Lafayette and Tippecanoe County two decades ago. They weren’t easy. But then again, it was two decades ago. And Greater Lafayette figured it out — for the better, too.

In Goshen, Eric Miller of Advance America — a group that has committed itself to turning back efforts to give equal rights to gays and lesbians — painted bleak, alarmist pictures of the proposal and told people that if they were able to stop it there, there would be a better shot at stopping it statewide.

That’s a picture that, in fact, will play out at the Statehouse, where too many legislators cling to the notion that equal rights for gays and lesbians somehow compromise their family values. Or something like that.

The editorial ends with a call for:
Greater Lafayette senators and representatives need to step up and provide some guiding light. They need to be leading voices in getting a civil rights measure going in the General Assembly.

They need to convey the truth: It really shouldn’t be that hard.

Posted by Marcia Oddi on Monday, August 10, 2015
Posted to Indiana Government

Courts - Still more on Kentucky clerk who refused to issue same-sex marriage licenses

Updating this ILB post from August 5th, the Huffington Post on Aug. 6th had this story by Curtis M. Wong, headed "County Clerk Sues Kentucky Governor Over Right To Refuse Gay Marriage Licenses."

Posted by Marcia Oddi on Monday, August 10, 2015
Posted to Courts in general

Indy Gov't. - "Monroe County's tax loss from 'big-box' store appeals may near $300,000"

Updating this July 7th post from the ILB, Megan Banta in the Bloomington Herald-Times on Friday had more of her continuing coverage of this issue. Some quotes from Friday's $$ H-T story:

In the midst of an ongoing debate about valuing retail property, five “big-box” stores in Monroe County have appealed the assessments that will determine their property tax bills next year.

Tax representatives for Target, Best Buy, Lowe’s, Menards and the Kmart store on East Third Street all sent letters to Monroe County Assessor Judy Sharp’s office before the July 31 deadline, requesting an appeal.

That’s fewer than Sharp expected, but that’s about the only good news, she said.

So far, the county only knows what two of those stores — Lowe’s and Best Buy — would like to see as their new assessment, but Sharp’s office estimates the potential total refund to the national chains could total about $300,000, which would mean a similar reduction in future property tax revenue should they be granted their appeals. * * *

County assessors value real estate based on the current condition of the building (generally based on the cost of land and construction, less depreciation), 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.

Sharp and other county assessors call it a corporate decision that saves the national chains money while negatively affecting local communities, which don’t see the money flow back through discounts, workers’ wages or in other ways.

“This is a game,” Sharp said. “This is how they all make their money.”

Others, though, say the chains’ arguments make sense, especially since they’re now backed up by decisions in tax courts and by the Indiana Board of Tax Review. * * *

The Indiana General Assembly passed a law earlier this year that applies to nonincome-producing property of at least 50,000 square feet that’s occupied by the original owner or tenant. It doesn’t apply to strip malls or malls.

The law says that appraisals of buildings less than 10 years old must use the “cost approach,” which considers construction costs, consistent with the current method of assessment.

Comparable sales must include properties that have been on the market for less than a year, that are used for a similar purpose and that were sold at arm’s length (that is, the buyer and seller have no relationship to each other). Comparisons cannot include property with substantial deed restrictions.

The law also calls for the topic to be taken up in the Legislature’s summer study session, which begins soon.

Posted by Marcia Oddi on Monday, August 10, 2015
Posted to Indiana Government

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

From Sunday, August 9, 2015:

From Saturday, August 8, 2015: From Friday afternoon, August 7, 2015:

Posted by Marcia Oddi on Monday, August 10, 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 8/10/15):

Next week's oral arguments before the Supreme Court (week of 8/17/15):

Webcasts of Supreme Court oral arguments are available here.


Next week's oral arguments before the Court of Appeals (week of 8/10/15):

Wednesday, August 12

Next week's oral arguments before the Court of Appeals (week of 8/17/15):

Wednesday, August 19

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, August 10, 2015
Posted to Upcoming Oral Arguments

Sunday, August 09, 2015

Ind. Gov't. - "Univ. of Illinois officials used personal email to hide discussions"; More

Jodi S. Cohen and Christy Gutowski reported August 7th in the Chicago Tribune:

University of Illinois senior administrators used personal email accounts to discuss sensitive and controversial issues, and then failed to disclose the records when they were requested by the public.

U. of I. released 1,100 pages of emails Friday on three hot-button issues, some of which would have been responsive to previous open records requests. The documents are related to Steven Salaita, the professor whose job offer was withdrawn last year; the hiring of felon James Kilgore; and the proposal to open a new engineering-based medical school on the Urbana-Champaign campus.

Many of the emails are from the personal account of U. of I. Chancellor Phyllis Wise, who abruptly resigned Thursday.

"A desire to maintain confidentiality on certain sensitive University-related topics was one reason personal email accounts were used to communicate about these topics," according to a U. of I. news release. "Some emails suggested that individuals were encouraged to use personal email accounts for communicating on such topics."

The employees' use of personal email accounts to conduct university business raises questions about transparency and secrecy at the state's flagship public institution. What's more, U. of I. employees had been previously instructed that using private devices would not be a way to avoid public records laws and would be subject to disclosure, according to a 2012 employee newsletter from the university's ethics office.

"If you are conducting University business (including teaching) through a personal email account (e.g., gmail, hotmail, yahoo), then the University-related communications are subject to (the Freedom of Information Act), regardless of whether they are generated on private equipment or in personal accounts," the newsletter stated.

According to the U. of I., school officials learned in late April that campus administrators and faculty were using personal email accounts and that those emails had not been produced in response to 10 FOIA requests. The university launched an ethics inquiry with the help of outside legal counsel from Jones Day. The review covered 2014 and 2015.

Later in the long story:
To be sure, Wise is hardly the first public official to use a personal email account to conduct official business. Most notably, Hillary Clinton earlier this year was criticized for exclusively using a personal email account to conduct government business while she was secretary of state.

The Illinois FOIA law does not specify whether emails sent through personal accounts are subject to open records law. In 2013, however, a state appellate court upheld an attorney general opinion that found emails and text messages stored on public officials' private computers and devices are subject to FOIA when the subject matter is official business.

Legal experts say the use of private email accounts for public business is widespread.

"It's an endemic issue," said Adam Marshall, a legal fellow for the Reporters Committee for Freedom of the Press. "I think the public reaction often is that something is being deliberately withheld from them.

For more on this topic, see this ILB post from Jan. 16, 2014, headed "Private e-mail accounts: State and federal officials, regardless of political party, have sidestepped public records laws meant to keep government activities transparent," and this follow-up from July 31, 2014.

Posted by Marcia Oddi on Sunday, August 09, 2015
Posted to Indiana Government

Ind. Decisions - "7th Circuit Invalidates Anti-Panhandling Ordinances After Reed v. Town of Gilbert"

The ILB over time has had a number of posts on panhandling ordinances.

Last year, as summarized in this Sept. 26, 2014 ILB post, the 7th Circuit, in the case of Norton v. City of Springfield, Ill., by a 2-1 vote upheld "an ordinance (§131.06 of the Municipal Code) that prohibits panhandling in its 'downtown historic district.'”

On Friday, Aug. 7, the 7th Circuit issued another opinion in Norton v. City of Springfield, on petition for rehearing, reversing its earlier opinion. In the 6-page opinion Judge Easterbrook writes:

Our first decision in this appeal concluded that Springfield’s anti-­panhandling ordi nance does not draw lines based on the content of anyone’s speech. Because the litigants agreed that the ordinance’s va lidity depends on this issue, we affirmed the district court’s decision. 768 F.3d 713 (7th Cir. 2014). We deferred considera tion of the petition for rehearing until the Supreme Court decided Reed v. Gilbert, 135 S. Ct. 2218 (2015). Shortly after deciding Reed, the Court remanded Thayer v. Worcester, 755 F.3d 60 (1st Cir. 2014), a panhandling-­ordinance decision on which our first opinion had relied, for further consideration in light of Reed. 135 S. Ct. 2887 (2015). At our request, the parties filed supplemental memoranda discussing Reed. We now grant the petition for rehearing and apply Reed to Springfield’s ordinance. * * *

As we said at the outset, the parties have agreed that the ordinance stands or falls on the answer to the question whether it is a form of content discrimination. Reed requires a positive answer.

The judgment of the district court is reversed, and the case is remanded for the entry of an injunction consistent with Reed and this opinion.

MANION, Circuit Judge, concurring.

I join the opinion of the court in full, but write separately to underscore the significance of the Supreme Court’s recent decision in Reed v. Town of Gilbert, which held that a speech regulation targeted at specific subject matter is content-based even if it does not discriminate among viewpoints within that subject matter. 135 S. Ct. 2218, 2230 (2015).

Here is the SCOTUSblog case page on Reed.

Re Thayer v. City of Worcester (1st Cir), referenced in the 7th Circuit opinion Friday, see this ILB post from Dec. 8, 2014.

Thanks to this August 7th post from Josh Blackman's Blog, both for the heading, and for the analysis, which concludes by pointing out that (Indiana's) Judge Manion, who "wrote a 20-page dissent to the original panel decision * * * was vindicated."

Posted by Marcia Oddi on Sunday, August 09, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides two Indiana cases

In USA v. Jeffrey P. Taylor (ND Ind., Lozano), a 23-page, 3-opinion ruling issued Aug. 6th, Judge WILLIAMS writes for the majority (with Judge Easterbrook concurring in a separate opinion, and Judge Hamilton concurring and dissenting):

Jeffrey Taylor appeals several special conditions of the probation he received after his sexually explicit displays on a web camera and conversations in an internet chatroom with what he thought to be a thirteenyear- old girl. We agree with him that the record does not support a ban on viewing legal adult pornography. Adult pornography did not facilitate or lead to Taylor’s offense here, and there is no evidence or finding that viewing otherwise legal pornography would increase the likelihood he would recidivate. In light of his use of his computer to attempt to contact a young teenage girl, however, we affirm the imposition of a condition that requires Taylor to make his internet-capable devices available for inspection, even without any reasonable suspicion that he has committed a new crime. Finally, we agree with Taylor that the special conditions as currently worded contain an overly broad complete ban on knowing contact with minors. * * *

Taylor’s sentence is VACATED and his case is REMANDED for further proceedings consistent with this opinion.

[p. 18] EASTERBROOK, Circuit Judge, concurring. I join my colleagues’ opinion but add a few words about jurisdiction. * * *

So although I am content to follow Ramer today, I do not view the issue as closed. We appear to have an intra-circuit conflict that needs a fresh look with the benefit of briefs.

[p. 22] HAMILTON, Circuit Judge, concurring in part and dissenting in part. I agree with my colleagues: (a) that the district court had jurisdiction to decide whether to modify Taylor’s conditions of probation, at least under 18 U.S.C. § 3563(c) and United States v. Ramer, 787 F.3d 837 (7th Cir. 2015); (b) that the condition of probation for inspection of internetcapable devices is appropriate; and (c) that the condition on contact with minors needs correction. I respectfully dissent, however, from Part II-B-1 of the majority opinion vacating the condition restricting Taylor’s access to otherwise legal adult pornography.

In State of Indiana v. EPA, a 24-page opinion issued August 7th denying Indiana's petition for review (of EPA's approval of an Illinois SIP revision), Chief Judge Wood writes:

Pursuant to the Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq., the Environmental Protection Agency sets standards that specify the maximum permissible atmospheric concentrations for certain harmful air pollutants, including ozone. Geographic areas (which do not necessarily respect state borders) are classified by EPA as “attainment” or “nonattainment” depending on whether they meet the standard for a given pollutant. All states are required to draft a State Implementation Plan (“SIP”) for each pollutant, which outlines the state’s plan for how it seeks to achieve or maintain attainment, and which must be approved by EPA. All SIPs are subject to certain statutory and regulatory requirements; the requirements are more stringent for states with areas in nonattainment. States cannot revise their SIPs without EPA approval.

If an area within a state is in nonattainment for ozone, the state’s SIP must include an automobile emissions testing program. States have some leeway in designing their programs, as long as they meet certain performance standards. Prior to 2005, Illinois used an emissions testing program that tested the emissions of vehicles from all model years; that program was included in the state’s SIP. In 2005, though, Illinois passed a law which relaxed its emissions testing program by exempting pre-1996 model-year vehicles that met certain standards. That change went into effect in 2007, but Illinois did not seek EPA approval at the time. Finally, in late 2012, Illinois submitted a proposed SIP revision to EPA seeking approval of the changes to its emissions testing program.

After the requisite notice-and-comment period, during which the state of Indiana objected to the proposed change, EPA approved Illinois’s SIP revision in 2014. Indiana then filed this petition for review, challenging the EPA approval. Indiana argues, essentially, that the relaxation of Illinois’s emissions testing program will decrease the likelihood that the “Chicago area”—which includes two Indiana counties— will achieve attainment with regard to ozone in the near future. As evidence, Indiana points to its own scientific analysis, which suggests that Illinois’s (unauthorized) use of a relaxed testing procedure was a but-for cause of a single measured Chicago-area violation of the national ozone standard in 2011. That single violation, in turn, resulted in the Chicago area being classified as nonattainment. In other words, Indiana argues that, if Illinois had not relaxed its testing program, Chicago’s ozone levels would have met the national standard, and the area would now be in attainment. According to Indiana, this evidence demonstrates that the change in Illinois’s testing program will impermissibly “interfere with … attainment,” and therefore that the SIP revision should have been disallowed by EPA pursuant to Section 110(l) of the CAA. 42 U.S.C. § 7410(l).

On the preliminary question of whether a justiciable controversy exists, we conclude that Indiana has standing to bring this petition for review. However, because EPA did not act arbitrarily and capriciously in approving the SIP revision, we deny Indiana’s petition.

Posted by Marcia Oddi on Sunday, August 09, 2015
Posted to Ind. (7th Cir.) Decisions

Friday, August 07, 2015

Ind. Decisions - More on ‘0INK’ license plate case" scheduled for oral argument before the Supreme Court

Updating this ILB post from earlier this morning, via the Appellate Court Docket the ILB has learned that on July 7th the Supreme Court issued an order that reads in part:

The parties request permission to file supplemental briefs addressing the recent decision of the Supreme Court in Walker v. Texas Div., Sons of Confederate Veterans, Inc., No. 14-1444 (U.S. June 18, 2015).

Being duly advised, the Court GRANTS the “Joint Motion To Permit Supplemental Briefing” and each side may file a supplemental brief. * * * The briefs must be filed no later than July 31, 2015. Oral argument remains scheduled on August 27, 2015.

This June 19th ILB post, quoting an IndyStar story, was headed "How will yesterday's Texas speciality plates ruling impact the Indiana 'OINK lawsuit?"

Here is the SCOTUSlaw case page for Walker v. Texas.

Posted by Marcia Oddi on Friday, August 07, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Tax Court posts one today, filed Aug. 6

In Hamilton Southeastern Utilities, Inc. v. Indiana Department of State Revenue, a 12-page opinion, Judge Wentworth writes:

Hamilton Southeastern Utilities, Inc. challenges the Indiana Department of State Revenue’s assessment of Indiana’s utility receipts tax (URT) on system development charges and connection fees it collected during the 2006, 2007, and 2008 tax years (the years at issue). This matter is currently before the Court on the parties’ cross-motions for summary judgment, which present one issue: whether Hamilton Southeastern’s system development charges and connection fees are gross receipts subject to the URT. * * *

On appeal, the Department claims that pursuant to Indiana Code §§ 6-2.3-1-4 and 6-2.3-3-10, Hamilton Southeastern’s system development charges and connection fees are gross receipts subject to URT. (See Resp’t Br. Supp. Mot. Summ. J. (“Resp’t Br.”) at 6-8.) Alternatively, the Department contends that the connection fees are subject to URT because Hamilton Southeastern did not separate them from other taxable receipts on its records or returns as required by Indiana Code § 6-2.3-3-2. (See Resp’t Reply Pet’r Responsive Br. (“Resp’t Reply Br.”) at 3.) * * *

For the foregoing reasons, the Court GRANTS summary judgment in favor of Hamilton Southeastern and against the Department on the first two issues. With respect to the third issue, there is a genuine issue of material fact. Accordingly, the Court will schedule a case management conference by separate order.

Posted by Marcia Oddi on Friday, August 07, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 14 NFP memorandum decisions)

For publication opinions today (4):

In Keron D. Rodgers v. State of Indiana, a 5-page opinion, Judge May writes:

Keron D. Rodgers appeals the order that he participate in the Victim-Offender Reconciliation Program (“VORP”) in lieu of the court conducting a restitution hearing. We reverse and remand. * * *

The legislature has provided, through VORP, a mechanism whereby an offender and victim can meet to negotiate a restitution agreement that is then submitted to the sentencing court. However, the plain language of the statute provides such a meeting can occur “if the accused person or the offender agrees” to do so. Id. Finding no ambiguity in that phrase, we may not interpret it; we instead apply the plain language. In re M.W., 913 N.E.2d at 786. Thus, without the agreement of the offender, VORP cannot be ordered.

[9] Rodgers did not agree to participate in VORP negotiations. We therefore reverse the order that he participate in VORP and remand to the trial court for a restitution hearing. See Iltzsch v. State, 981 N.E.2d 55, 57 (Ind. 2013) (finding proper a remand for restitution hearing).

In Timothy H. Bryant v. State of Indiana , a 13-page opinion, Judge Bradford writes:
In 2013, Appellant-Defendant Timothy Bryant owned and operated Summit City North West All Products (“Summit City”), a pawnshop in Fort Wayne, Allen County. Bryant was required by local ordinance to upload records of every item purchased by him or pawned at Summit City to LEADS, an online database established to facilitate the recovery of stolen goods. In September of 2013, authorities received a tip regarding a series of thefts, which led to Isaiah Burnau, who was found to have pawned a stolen chainsaw at another Fort Wayne pawnshop. The investigation soon led to Kristy Coverdale and Tony Haney. As it turned out, several items had been stolen in Wells County and pawned at Summit City and other pawnshops. It was also discovered that none of the items purchased from Isaiah, Coverdale, or Haney had been uploaded to LEADS. Appellee-Plaintiff the State of Indiana charged Bryant in Wells County with several crimes, and he was ultimately convicted of two counts of Class D felony aiding, inducing, or causing receiving stolen property and Class C felony corrupt business influence. Bryant contends that the trial court abused its discretion in denying his mistrial motion based on alleged prosecutorial misconduct and that the State failed to establish venue in Wells County. We affirm. * * *

The upshot of all of this is that, even if we assume that Bryant was unaware that the goods were stolen in Wells County, his ignorance does not shield him from prosecution there. We conclude that the State adequately established proper venue in Wells County.

In Willie D. Williams v. State of Indiana, a 13-page opinion, Chief Judge Vaidik writes:
Willie D. Williams pled guilty to a Class C felony, a Class D felony, a Class A misdemeanor, and being a habitual substance offender; in exchange, the State dismissed a Class B felony and a Class D felony. Although sentencing was left to the discretion of the trial court, the maximum sentence Williams faced under the plea agreement was twenty years; in contrast, he faced a maximum sentence of thirty-two years under the original charges. The trial court ultimately sentenced Williams to an aggregate term of sixteen years.

Williams later filed a petition for post-conviction relief alleging that his plea was not knowing, voluntary, and intelligent because defense counsel misadvised him about whether he was actually eligible for the habitual-substance-offender enhancement. But even assuming that Williams was ineligible for the habitual-substance-offender enhancement, because Williams benefited from his plea agreement and the specific facts do not establish an objective reasonable probability that competent representation would have caused him not to enter a plea, we conclude that Williams is not entitled to relief on his claim that his guilty plea was not knowing, voluntary, and intelligent. We therefore affirm the post-conviction court.

In Newland McElfresh v. State of Indiana , a 9-page opinion, Judge Baker writes:
Newland McElfresh appeals his convictions for Class D Felony Attempted Obstruction of Justice and Class A Misdemeanor Invasion of Privacy, arguing that there is insufficient evidence to support the convictions and that the trial court erred in sentencing him. We find insufficient evidence supporting the attempted obstruction of justice conviction and reverse that conviction. We find insufficient evidence supporting the invasion of privacy conviction and reverse, but find sufficient evidence supporting the lesser-included offense of attempted invasion of privacy. We therefore remand to the trial court with directions to enter judgment against McElfresh on one count of attempted invasion of privacy and to sentence him accordingly.
NFP civil decisions today (5):

In Re the Involuntary Commitment of R.R. v. Indiana University Health Bloomington Hospital (mem. dec.)

Danny A. Lucas v. Morgan County Memorial Hospital, Dr. Claire L. Scheele, M.D., and Dr. Murat Polar, M.D. (mem. dec.)

In re the Paternity of William D. Anderson, III; Gierly Perrigo Ingco v. William D. Anderson, Jr. (mem. dec.)

Dena Alfayyad v. U.S. Bank National Assocation as Trustee for RESC2007K3 (mem. dec.)

A.R. v. Review Board of the Indiana Department of Workforce Development and Housing Authority of the City of Kokomo (mem. dec.)

NFP criminal decisions today (9):

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

E.C. Brown v. State of Indiana (mem. dec.)

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

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

Mahouton Dassi v. State of Indiana (mem. dec.)

Delvante Jones v. State of Indiana (mem. dec.)

Jeffery J. Hunt v. State of Indiana (mem. dec.)

Lamar Allen Colley v. State of Indiana (mem. dec.)

Fabian Cruz v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, August 07, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - ‘0INK’ license plate case" scheduled for oral argument before the Supreme Court

Here are the earlier ILB entries on the "oink" license plate case (using "Rodney Vawter"). Here is a second, different ILB list (using "oink"). The Indianapolis Star reported May 8, 2014:

A Marion County judge issued a summary judgment Wednesday in favor of a Greenfield police officer who sued the Bureau of Motor Vehicles after the agency revoked his personal vanity license plate that said "0ink."

The ILB does not have a copy of Marion Superior Judge James Osborn's May, 2014 opinion to post right now, but would be pleased to receive a copy.

Today the Supreme Court has announced that on August 27, 2015 it will hear oral argument in this case. Because a statute was declared unconstitutional, the appeal comes directly to this Court in accordance with Appellate Rule 4(A)(1)(b). Here is the Court's official summary:

Thursday, August 27, 2015, 9:00 a.m.

Comm’r of the Ind. Bureau of Motor Vehicles v. Rodney Vawter, et al.
Case No. 49S00-1407-PL-494

Indiana Code 9-18-15-4 lists reasons the Bureau of Motor Vehicles (“the Bureau”) may refuse to issue a personalized license plate. The Marion Superior Court ruled in part that the statute violates certain rights of free speech in the U.S. Constitution’s First Amendment. A related administrative regulation and “policy statement” were also ruled invalid. The Bureau appealed. Enforcement of the trial court’s order, including its direction that the Bureau resume issuing personalized license plates, has been stayed during this appeal. "Because a statute was declared unconstitutional, the appeal comes directly to this Court in accordance with Appellate Rule 4(A)(1)(b)."

Posted by Marcia Oddi on Friday, August 07, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "No public access at hearing for Elkhart girl accused in stabbing"

A story today in the South Bend Tribune, reported by Christian Sheckler, begins:

A 12-year-old girl accused of stabbing and killing her stepmother at an Elkhart apartment complex last month was scheduled to appear before a magistrate today for a hearing that was set to be closed to the public amid safety concerns.

Authorities have said the girl stabbed to death 50-year-old Maria Torres at the family’s Prairie Street apartment after an argument July 23. The girl is charged with the juvenile equivalent of murder, an accusation that would normally open her court proceedings to the public and media under Indiana law.

Citing “mental health concerns and safety concerns,” Elkhart Circuit Court Juvenile Magistrate Deborah Domine ordered the girl’s initial hearing to be held at the county’s Juvenile Detention Center in Goshen, instead of in a courtroom, so that the girl would not have to be transported to Elkhart and back.

Because the detention center is restricted to the public, the hearing would be closed, Domine said Thursday. She acknowledged that provisions in state law call for court proceedings in juvenile murder cases to be open, but pointed to Indiana Supreme Court opinions that give juvenile courts wide latitude.

“The code says one thing, but the Supreme Court has interpreted the code generally to allow flexibility to protect the best interests of the child,” Domine told The Tribune. “In this instance, when it is a five-minute hearing, I believe safety is paramount to any other obligation.”

More from the story:
Not everyone agreed that Domine was correct in excluding the public from the hearing. Steve Key, executive director and general counsel for the Hoosier State Press Association, said the law was clear.

“The intent of the General Assembly when they changed the statute years ago is the public has the right to know what’s going on in juvenile proceedings when an offense, such as murder, would be a felony if committed by an adult,” Key said. “The legislature specifically has made changes to open to public view how juvenile courts are operating.”

The fact that the court decided to conduct the hearing in a facility that isn’t typically open to the public does not change the public status of a hearing, Key said. For example, he said, a judge could conduct a hearing outside because the courthouse air conditioning is broken, and such a hearing would be just as public as if it were conducted in the courtroom.

For juveniles accused of murder or other offenses that would be felonies for adults, the state law requires open court proceedings except in a few circumstances, such as during sensitive testimony by child witnesses, child victims, doctors, therapists and counselors.

Posted by Marcia Oddi on Friday, August 07, 2015
Posted to Indiana Courts

Thursday, August 06, 2015

Law - Jim Bopp law firm is hiring; looking for two associates for Terre Haute office

The ILB just spotted this ad, sounds like two great jobs for the right people:

THE BOPP LAW FIRM, PC, is seeking 2 associates for its Terre Haute office. The firm has a national litigation and appellate practice specializing in campaign finance and election law and regularly appears in the U.S. Supreme Court where it has won 9 of 13 cases. The firm is led by James Bopp Jr., who is one of the country’s leading conservative attorneys and currently serves as special counsel to the Republican National Committee. He has been named as one of the 100 Most Influential Lawyers in America by the National Law Journal. Ideal candidates will have strong legal research and writing skills, demonstrated leadership ability, and a strong academic record. Please send résumé and cover letter to jgallant@bopplaw.com.
The ILB has had many posts, dating back to 2004, featuring or mentioning Terre Haute attorney Jim Bopp.

Posted by Marcia Oddi on Thursday, August 06, 2015
Posted to General Law Related

Ind. Decisions - 7th Circuit apology for 5-year delay

A 4-page nonprecedential disposition today, Jerry Jones v. Harris Associates, ends with this apology:

We close with an apology to the parties. After the Rule 54 statements were received, the papers were placed in the wrong stack and forgotten. The court’s internal system for tracking cases under advisement does not include remands from the Supreme Court, so the normal process of alerts and ticklers failed. We will see to it that this is fixed. That may be small comfort to these litigants and their lawyers, but at least some good will come from the delay. AFFIRMED
Thanks for this heads-up to @adamliptak of the NY Times, who tweeted:
7th Cir. apologizes for 5-year delay after #Scotus remand: papers were“placed in the wrong stack and forgotten”

Posted by Marcia Oddi on Thursday, August 06, 2015
Posted to Ind. (7th Cir.) Decisions

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

In USA v. Sandra McGuire (ND Ind., Moody), a 10-page opinion, Judge Kanne writes:

Defendant-Appellant Sandra McGuire entered into a plea agreement that contained a provision waiving her appellate rights. After the district court accepted her guilty plea, but before McGuire was sentenced, she filed a motion to withdraw her plea. The district court denied the motion, and McGuire appeals that denial. We dismiss the appeal, because we conclude that McGuire’s waiver of appellate rights encompasses her appeal of the denial of the plea-withdrawal motion.

Posted by Marcia Oddi on Thursday, August 06, 2015
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In David Smith v. M&M Pump & Supply, Inc., a 9-page opinion, Judge Robb writes:

David Smith appeals the trial court’s award of summary judgment in favor of M & M Pump & Supply, Inc. Smith raises several issues concerning the court’s summary judgment: (1) whether Smith’s status as a guarantor is invalid; (2) whether the trial court erred by granting summary judgment to M & M when it is listed as a creditor of Smith’s co-debtor in bankruptcy; (3) whether a failure by M & M to perfect a security interest in collateral limits Smith’s contractual liability; and (4) whether the trial court erred by concluding that Smith was liable for attorney fees and prejudgment interest. Concluding the trial court did not err by awarding summary judgment to M & M, we affirm.
NFP civil decisions today (1):

Greater New Jerusalem Temple of Truth, Inc. v. Sentinel Insurance Company, Ltd. (mem. dec.)

NFP criminal decisions today (1):

Nathan A. Slabach v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, August 06, 2015
Posted to Ind. App.Ct. Decisions

Law - "‘Right to Be Forgotten’ Online Could Spread"

Farhad Manjoo, who writes a column, "State of the Art,' for the NY Times, begins a long story today:

More than a year ago, in a decision that stunned many American Internet companies, Europe’s highest court ruled that search engines were required to grant an unusual right — the “right to be forgotten.” Privacy advocates cheered the decision by the European Court of Justice, which seemed to offer citizens some recourse to what had become a growing menace of modern life: The Internet never forgets, and, in its robotic zeal to collect and organize every scrap of data about everyone, it was beginning to wreak havoc on personal privacy.

Under the ruling, Europeans who felt they were being misrepresented by search results that were no longer accurate or relevant — for instance, information about old financial matters, or misdeeds committed as a minor — could ask search engines like Google to delink the material. If the request was approved, the information would remain online at the original site, but would no longer come up under certain search engine queries.

Search engines and free speech advocates [ILB emphasis], calling the ruling vague and overbroad, warned of dire consequences for free expression and the historical record if the right to be forgotten was widely enacted. Now, they say, their fears are being realized.

Recent developments — including a French regulator’s order that all of Google’s sites, including American versions, should grant the right to be forgotten — suggest the new right may not end with Europe. Under the banner of privacy, some free-speech watchdogs say, a huge and unwieldy eraser is coming for Google results across the globe — even the ones in the United States.

If this is the first in-detail article you've read about this new "right," chances are you are saying "wow" right now. Read on, that was just the beginning.

Posted by Marcia Oddi on Thursday, August 06, 2015
Posted to General Law Related

Ind. Law - More on "Indiana Teenager’s Jailing Brings a National Call to Fix Sex Offender Registries"

Updating this ILB post from July 6th, which quoted a NY Times story, including:

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.
Today the Chicago Tribune, along with other papers, is reporting that "Indiana teen who has to register as sex offender may get new sentence." The story begins:
A judge told a 19-year-old from Indiana that he would consider a request for a new sentence, months after ordering the teen to register as a sex offender in both states and refrain from having a computer or smartphone because he had consensual sex with a 14-year-old Michigan girl he met online who said she was 17.

Zach Anderson, who spent 75 days in jail after pleading guilty to a misdemeanor, went before Berrien County District Judge Dennis Wiley on Wednesday in Niles. Wiley did not give a date when he would rule. * * *

Zach Anderson and his attorney, Scott Grabel, want a new judge for a resentencing. Wiley imposed the strict requirements in Anderson's original sentence for misdemeanor criminal sexual conduct, despite the girl's mother asking then that the case be dropped and arguing for leniency.

Anderson has to keep at least 1,000 feet from schools and cannot live in a place with Internet access. The computer science classes he wants to take at community college are also out of reach. But he said getting his name removed from the sex offender registries, where it would stay for decades, is "the most important part."

"If I don't get it off, it's going to completely ruin my life," he said Tuesday.

Wiley had admonished Anderson at his original sentencing for how he met the girl on a dating app and what transpired.

"That seems to be part of our culture now," Wiley said, according to a transcript of that hearing. "Meet, have sex, hook up, sayonara. Totally inappropriate behavior. There is no excuse for this whatsoever."

Grabel said Tuesday that if the motion is not granted, he would file an appeal quickly with the Michigan Court of Appeals.

"He has no criminal history," Grabel said. "The victim doesn't claim to be a victim, and neither does the mother. My goal is to make sure we change this position and get him off the sex offender lists."

Here is the CNN coverage.

Posted by Marcia Oddi on Thursday, August 06, 2015
Posted to Indiana Law

Ind. Gov't. - "Lake County city, town courts dispense civility, take in $33.8 million"

Lake County city and town courts are the focus of this story today by Bill Dolan of the NWI Times. Some quotes:

Indiana had 44 city and 25 town courts dealing primarily with traffic and local ordinance violations, infractions and misdemeanors, such as drunken driving.

The 2013 Indiana Judicial Service report indicates the municipal courts cost a combined $14.4 million to operate and generated nearly $33.8 million in revenue from court-ordered fees. The state kept 53 percent of the revenue, the county 18 percent and the local communities nearly 29 percent.

Those in Lake County include Crown Point, East Chicago, Gary, Hammond, Hobart, Lake Station, Lowell, Merrillville, Schererville and Whiting.

Their judicial salaries and benefits added up to nearly $600,000 last year with judges in Hammond, Gary and East Chicago earning the top compensation, set by town and city councils.

Lake County's municipal judges were among the best paid in the state last year, according to a Times survey of state and local records.

City judges were paid an average salary of $51,471. That includes Hammond City Judge Jeffrey A. Harkin, fourth in the state, receiving $80,377; Gary's Deidre L. Monroe, fifth, receiving $70,000; and East Chicago City Judge Sonya A. Morris, eighth, at $60,962.

Town judges were paid an average salary of $33,128, including Merrillville Town Judge Gina L. Jones, who was 13th statewide at $45,500, and Schererville Town Judge Kenneth Anderson, who was 18th at $37,492.

The municipal judicial salary across the state ranged from $108,766 in Carmel down to $2,500 in Delphi. The average salary for a Hoosier city judge was $35,000; the average town judge was paid about $26,000.

All city courts can hear civil disputes that don't exceed $500; in Lake County's four largest cities, however, the city courts' civil jurisdiction extends to disputes involving up to $3,000. Town courts have exclusive jurisdiction over all violations of town ordinances.

The voters of the city or town elect these city and town municipal judges to four-year terms. Candidates for municipal judge in Lake County all must be attorneys.

"When you look around countywide there may be some financial irresponsibility in terms of some courts ... spending too much," said Christopher A. Anderson, who was Lake Station city judge until he resigned this spring for his campaign to become mayor. "There have been issues here in Lake Station and a political agenda to abolish our court, but a lot of residents voiced their concerns to support us. There are a lot of intangible benefits. It's worth it."

Schererville Town Judge Kenneth Anderson said other local officials and the public want courts "to be financially productive," but the results are hard to measure, he said.

Sometimes, it includes requiring offenders to do community service.

"Like helping set up the corn roast; that benefits the park department, but what is its value?"

He said many small claims courts do "a fantastic job" for communities.

Those courts also "provide the opportunity for neighbors to square off and tell their stories and blow off steam, and (prevent) physical fights and police involvement over a boundary dispute or someone's tree."

"How do you put a price on the benefit of neighbors not punching neighbors? Those are simply ignored when you go to the financial value of a court. We provide a service that makes the community more civil," he said.

The story is "Part of a six-day series that began Sunday looking at how salaries and benefits of the mayors, managers, judges, clerks, controllers and council members in Lake's 19 cities and towns affect the cost of local government."

Another story in the series, on municipal paychecks in Lake County, reports:

Many Lake County communities supplement elected officials' salaries with drinking water, stormwater, sewer, refuse and utility fees they collect, and award longevity pay or stipends for attending community board meetings. The public must piece together all of an official's salary stream to arrive at their full compensation.

Local taxpayers also are tapped for the expense of providing medical, dental and life insurance, their public pensions, and Social Security and Medicare benefits, which in the cases of full-time elected officials can push their total compensation 25 percent or more above their salary.

A Times Media Co. survey of local and state records of mayors around the state indicates seven of this county's mayors and town managers are among the top-income earners.

Gary Mayor Karen Freeman-Wilson is at the top of the pay scale at $142,096.

Just below her, former Munster Town Manager Tom DeGuilio was on track to receive an annual salary of $135,966 before the town council declined to renew his contract last summer. East Chicago's Mayor Anthony Copeland was paid $129,408, and Hammond Mayor Thomas McDermott Jr. $104,807 the same year.

Lake's mayors and town managers make an average salary of just more than $91,500 — three times the average per capita income of their 12 communities and higher than 63 of 68 mayors and city and town managers around the state, as reported to the Indiana Association of Cities and Towns' annual salary survey.

Posted by Marcia Oddi on Thursday, August 06, 2015
Posted to Indiana Courts | Indiana Government

Wednesday, August 05, 2015

Environment - Two new takes on the EPA's Clean Power Plan

Who could resist a title like this: "Hidden in Obama’s new climate plan, a whack at red states: Though weaker than both supporters and critics say, the new rules do pack one big punch." The report today is by Michael Grunwald of Politico. He writes about the changes between the draft rule and the final version of the Clean Power Plan for fighting climate change. Here are some quotes, but it would be best to read the whole story to see them in context:

What matters are the changes to binding state targets, and those changes are not modest. They also have serious political implications. The original draft took it easiest on states with the heaviest reliance on dirty fossil fuels—states that nevertheless complained the most about Obama’s supposedly draconian plan. The final rule cracks down much harder on those states, while taking it much easier on states that are already moving toward cleaner sources of electricity.

* * * North Dakota would have been required to cut emissions just 10.6 percent to comply with the draft rule, the least of any state; it will have to cut emissions 44.9 percent to comply with the final rule, the most of any state except for similarly fossil-fueled Montana and South Dakota. Coal-rich Wyoming, Kentucky, West Virginia and Indiana were also among the biggest losers in the revised plan. Meanwhile, the states that are already greening their grid—led by Washington, Oregon and New York—were the biggest winners in the final rule.

That is a radical change. The EPA acknowledged in the plan that it “rectifies what would have been an inefficient, unintended outcome of putting the greater reduction burden on lower-emitting sources and states.” As EPA air quality chief Janet McCabe explained to me in an interview: “We got a lot of comments making the same point you did.” But it hasn’t gotten attention, perhaps because coal-state politicians cried wolf so loudly about the draft. It’s the result of a decision to calculate emissions according to a uniform measurement for every power plant rather than a weirdly calibrated analysis of what’s reasonable for individual states. * * *

The draft did not require any action to control carbon emissions until 2020. The final rule postpones that initial deadline until 2022. And in a footnote I found on page 642, the EPA pointed out that “in fact, most states could allow their sources to remain uncontrolled in 2022 and 2023, and require controls beginning in 2024, and still be able to meet their interim goal.”

That’s right: States can do nothing for nine years, and still comply with a rule that’s supposed to be the strongest action ever taken to combat climate change.

The Kokomo Tribune yesterday had a letter to the editor from two former IDEM commissioners under democratic governors, Kathy Prosser Bovard and John Hamilton. A few quotes:

Gov. Mike Pence recently wrote a letter to President Obama in which he said Indiana would “refuse to comply” with the Clean Power Plan as currently drafted by the U.S. Environmental Protection Agency.

As former commissioners of the Indiana Department of Environmental Management, we write to warn Indiana citizens that Gov. Pence’s stance is irresponsible, unprecedented and potentially harmful to the citizens of the great Hoosier State. Here’s why: * * *

The bottom line is this: If Indiana refuses to write its own plan, one will be written for us by EPA staff in Chicago or Washington, D.C. In our experience, EPA will not understand Indiana’s needs better than the dedicated staff at IDEM, with whom we were proud to serve.

Federal environmental law is built upon a long-standing partnership between the state and federal governments. Since the Clean Air Act of 1970 established this partnership, the states and EPA have worked successfully, time and again, to reduce dangerous air pollution like smog, soot, acid rain, lead and mercury pollution.

We know that writing state plans to clean up our air is not an easy task. But Indiana has always done its part to write a state clean air plan that makes sense for Hoosier families and businesses. To refuse to try is irresponsible and disloyal to the interests of our state.

ILB: Interestingly, in 1993, when Prosser was IDEM commissioner under Gov. Bayh, the agency and administration moved to give back to U.S. EPA responsibility for several permitting programs which Indiana administered. See this August 3, 1993 NWI Times story, headed "IDEM seeks permit fee system to fill budget hole," for details. See also this Temple Law Journal article from 2005, "Tremors in the Cooperative Environmental Federalism Arena: What Happens When a State Wants to Assume Only Portions of a Primacy Program or Return a Primacy Program?"

Posted by Marcia Oddi on Wednesday, August 05, 2015
Posted to Environment

Courts - More on Kentucky clerk who refused to issue same-sex marriage licenses

Last we heard, in this July 21st ILB post, Rowan County Kentucky clerk Kim Davis was being sued in federal court by the ACLU for "refus[ing] to grant licenses to any couples in order to avoid handing them out to gays and lesbians."

Today Andrew Wolfson reports in the Louisville Courier Journal that:

Rowan County Clerk Kim Davis has sued Gov. Steve Beshear for trying to force her and other clerks to issue marriage licenses to same-sex couples over their religious objections.

“In no uncertain terms, Governor Beshear’s policies and directives are intended to suppress religion” and “even worse, a particular religious belief,” Davis said in the complaint, which was filed late Tuesday in federal court.

Beshear ordered Kentucky’s 120 county clerks on June 26 to comply with the Supreme Court’s 5-4 ruling that day requiring states to allow and recognize gay and lesbian marriages.

Davis stopped issuing licenses to any couples to avoid complying with the order.

Her complaint was filed in the lawsuit filed last month on behalf of four couples — two gay and two straight — who sued her for refusing to issue a license in Rowan.

Davis asks in the complaint to have Beshear held liable to provide a means of issuing marriage licenses if U.S. District Judge David Bunning rules the plaintiffs are entitled to a license in Rowan.

From a story today in the Lexington Herald-Leader, reported by John Cheves:
Beshear's stance left dissenting county clerks vulnerable to lawsuits, including two that she currently faces, filed by groups of her constituents, Davis said. U.S. District Judge David Bunning is expected to rule in these cases in coming days.

"The Commonwealth of Kentucky, acting through Governor Beshear, has deprived Davis of her religious-conscience rights guaranteed by the United States and Kentucky constitutions and laws, by insisting that Davis issue marriage licenses to same-sex couples contrary to her conscience, based on her sincerely held religious beliefs," Davis' lawsuit says.

Davis seeks protection from "Kentucky's marriage policies" given her rights under the state's religious-freedom law, passed in 2013 over Beshear's veto. The law protects "sincerely held religious beliefs" from infringement unless there is "a compelling governmental interest."

She also asks that Beshear be forced to pay any damages she faces from the lawsuits filed against her by her constituents.

Davis also names as a defendant Wayne Onkst, the state librarian and commissioner of the Kentucky Department for Libraries and Archives. Onkst's agency is responsible for updating the state's marriage license forms to make them gender-neutral.

Equality Case Files has posted some of the Davis documents.

Posted by Marcia Oddi on Wednesday, August 05, 2015
Posted to Courts in general

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

Defendants in the case involving requests for access, under the state access to public records act (APRA), to e-mails between a lobbyist and a member of the Indiana House Republican caucus, Citizens Energy Coalition v. [Representative] Eric Koch and Indiana House Republican Caucus, have today filed their 26-page reply, Reply Brief in Support of Rule 12(B) Motion to Dismiss.

Because of the interest in this case, the ILB earlier assigned it a category of its own, GA and APRA, so that all the relevant posts may be quickly accessed.

Posted by Marcia Oddi on Wednesday, August 05, 2015
Posted to GA and APRA

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

For publication opinions today (1):

In BGC Entertainment, Inc. d/b/a Brad's Gold Club and 3551 Lafayette Road Corp. d/b/a Brad's Gold Club v. Jerry Coleman Buchanan, by His Father and Guardian, Odell Buchanan , a 22-page opinion, Judge Riley writes:

Appellants-Defendants, BGC Entertainment, Inc. d/b/a Brad’s Gold Club and 3551 Lafayette Road Corp. d/b/a Brad’s Gold Club (collectively, BGC), appeal the trial court’s denial of summary judgment in a negligence action brought by Appellee-Plaintiff, Jerry Coleman Buchanan (Buchanan), by his father and guardian, Odell Buchanan. * * *

Although Vowell did not fail any sobriety tests or exhibit any other indicia of visible intoxication, we find that whether it may be inferred from the BAC and the odor of alcohol that BGC had actual knowledge that Vowell was visibly intoxicated at the time she was furnished alcoholic beverages is a matter best left for the trier of fact. Therefore, we affirm the trial court’s denial of summary judgment. * * *

[A]t the time she was last furnished a drink, a question of fact remains regarding the knowledge of intoxication to be imputed to BGC. Therefore, Buchanan’s partial motion for summary judgment was properly denied. * * *

Based on the foregoing, we conclude that the trial court properly denied BGC’s motion for summary judgment under the Dram Shop Act because there is a genuine issue of fact concerning whether BGC furnished alcohol to Vowell with actual knowledge that she was visibly intoxicated. The trial court also properly denied BGC’s summary judgment motion as it pertains to the common law because there is a genuine issue of material fact as to whether BGC breached its duty to supervise Vowell’s conduct during her shift. We further conclude that the trial court appropriately denied Buchanan’s cross-motion for summary judgment because, even assuming the imputed knowledge doctrine applies, the designated evidence establishes that Vowell had no knowledge of her own level of intoxication to be imputed to BGC. Affirmed.

NFP civil decisions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: K.H. (Minor Child), and P.V. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (1):

Charles S. Tink v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, August 05, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - State-wide civil rights protections for gay citizens far from a done deal

With the amendment of RFRA at the end of the 2015 session of the General Assembly to insure that local human rights ordinances that include sexual orientation and gender identity protection were not adversely affected by the new law, there was much talk that the next step would be to change the state human rights law to encompass such protection. Efforts to pass such legislation at the end of the session failed. Efforts to create a summer committee to work on the issue failed. But meanwhile a number of local communities without such protection successfully amended their human rights ordinances. Until Goshen and Elkhart ...

Today Maureen Hayden of CNHI reports in the Goshen News:

INDIANAPOLIS — As cities around Indiana take up measures to guarantee civil rights protections for gay citizens, conservatives are marshaling forces to stop them.

The group Advance America is taking credit for killing such a measure in Goshen, the latest community to consider adding sexual orientation and gender identity to its local human rights ordinance.

Eric Miller, who heads the Indiana-based organization, said blocking the Goshen measure was essential to stopping a “pro-homosexual agenda” that is sweeping the state and disrupting groundwork for a state law to protect gay rights.

“They knew they had to have Goshen to continue the momentum moving toward a statewide law,” he said. “We’ve put a stop to that.”

Miller is a longtime lobbyist who vehemently opposed same-sex marriage. He pushed the General Assembly to adopt a controversial Religious Freedom Restoration Act, which critics said was a license for businesses to discriminate against gay, lesbian, bisexual and transgender citizens.

Before the religious freedom law was signed, a dozen communities already had human rights ordinances. Nine of them covered sexual orientation or gender identity, though local rules varied.

Once the law passed, local leaders across Indiana started re-examining their ordinances.

Several cities, such as Terre Haute and Martinsville, passed measures in recent months with little debate or controversy. But Miller and other social conservatives decided to draw the line in Goshen and neighboring Elkhart.

Mayors of both cities canceled votes on LGBT ordinances after Miller orchestrated vehement opposition. In Goshen, a city of 32,000, the vote was scheduled for Tuesday’s city council agenda.

Miller’s argument is that local rules protecting sexual orientation and gender identity will force businesses to serve gay couples. And, in tones that his critics call fear-mongering, he said the ordinances will allow cross-dressing men to access women’s bathrooms where they can prey on children.

The American Family Association of Indiana echoes his concerns and urged members across the state to oppose the Goshen ordinance, describing it as “an extension of the moral decay” of the sexual revolution of the late 1960s. * * *

Chris Paulsen of Indiana Equality has supported the local ordinances, arguing that they signal to lawmakers the support among voters for expanded LGBT protections.

“We’ve had a number of wins,” Paulsen said, discounting Miller’s contention that developments in Goshen will kill efforts elsewhere.

But she does believe Miller when he promises massive pressure on elected officials who are considering similar measures.

That includes state lawmakers who were expected to take up the issue of adding sexual orientation and gender identity to the state’s civil rights law next year.

Posted by Marcia Oddi on Wednesday, August 05, 2015
Posted to Indiana Government

Tuesday, August 04, 2015

Courts - The rise in pro se litigants, the futility of pro bono efforts, and new approaches

On June 10th the Supreme Court announced the creation of an ad hoc assessment to review the three Supreme Court entities that predominantly focus on issues involving unrepresented litigation in Indiana:

The announcement concluded "The assessment team will provide a written report, with findings and recommendations, to the Indiana Supreme Court by September 1, 2015." This report will be eagerly awaited.

Some readers may recall this ILB post from May 26th, headed "'The fall and rise of lawyers' - A cold-eyed examination," quoting a commentary on CNN by Benjamin H. Barton, a law professor at the University of Tennessee, on the futility of mandatory pro bono efforts.

Today the ABA Journal has a must-read story on a series of talks on how "to address the problems created by the rise in pro se litigants, the ongoing lack of court funding and the rise of technology to fill some of those gaps." A few examples:

Avvo founder and CEO Mark Britton, ... urged the audience to start “looking at this through the lens of innovation” The legal profession is concerned about the unauthorized practice of law [ULPL], he said, but that keeps innovators out. Meanwhile, he said, four out of five low-income litigants are unrepresented; 7.5 million people have asked questions on Avvo; and 34 percent in a survey said lawyers have nothing to offer society. Britton said the solution is for lawyers to “get rid of UPL” and partner with experts in other fields.

“As lawyers, we contribute to society, but it’s not about us; it’s about the legal consumer,” he said. “We need to understand what they need and innovate for them.” * * *

Presiding Judge Carolyn Kuhl of the Los Angeles Superior Court illustrated the high pro se load in Los Angeles with photos of long lines in hallways, at help desks and even wrapped around the outside of the building. Her court has the largest caseload in the country, she said, and about half of all cases have at least one unrepresented litigant. In family law, it’s 80 percent. She suggested getting rid of procedural rules that lengthen and complicate the process, and having litigants use a TurboTax-like form to guide them through basic filings. The court has already implemented a version of the latter, with an avatar to guide people through online traffic-ticket filings.

Gregory Coleman, immediate past president of the State Bar of Florida, said his state bar was initially scared of organizations like Avvo and LegalZoom. But the two million hours of pro bono work donated in Florida last year “barely made a dent,” he said. And after studying the issue, he realized that Avvo sends work lawyers’ way. The trouble in Florida is partly the slowness of changing the rules, he said: the state’s lawyer advertisement rules were written in the time of rotary phones, and change is a slow process.

The final speaker was Chief Judge Barbara Madsen of the Supreme Court of Washington. Starting in the mid-1990s, she said, Washington state “tried everything” to address a flood of pro se litigants and a rise in unauthorized practice of law. It was not enough, she said, so the state bar association decided that “maybe not every single problem needs to be solved by a lawyer.” That’s how Washington’s limited license legal technician program was born, she said, and the state bar has moved from grudging acceptance to embracing it.

“Innovation will continue with or without us, so we need to get in the driver’s seat,” she said. “We need to get on that bandwagon to change the profession before it runs us over. And I believe that, given the statistics I’ve heard, maybe we’ve already been run over.”

Posted by Marcia Oddi on Tuesday, August 04, 2015
Posted to 21st Century Law | Courts in general

About this Blog - Update: Without substantial new front-page contributors, the ILB will close down on September 30th

The ILB has had some inquiries about whether there have been any positive changes since this post from July 14 (more than 2 weeks ago). Regretfully, the answer at this point is no, although there have been some encouraging communications.

Again: What can you do?

Posted by Marcia Oddi on Tuesday, August 04, 2015
Posted to About the Indiana Law Blog

Ind. Decisions - 7th Circuit issues significant opinion today

In Benjamin Price v. USA , an 8-page opinion involving an original proceeding "On Motion for an Order Authorizing the District Court to Entertain a Second or Successive Motion for Collateral Review", Chief Judge Wood writes:

In 2006, a jury convicted Benjamin Price, a convicted felon, of possessing a gun in violation of 18 U.S.C. § 922(g)(1). Turning to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), the court concluded that Price had three qualifying convictions and imposed a sentence of 250 months in prison. This court affirmed. United States v. Price, 520 F.3d 753 (7th Cir. 2008).

In 2009, Price filed his first collateral attack pursuant to 28 U.S.C. § 2255. In his motion, he challenged the sentencing court’s determination that he qualified under ACCA as an armed career criminal. The Supreme Court’s decision in Begay v. United States, 553 U.S. 137 (2008), he argued, demonstrated that the sentencing court improperly relied on his prior convictions for criminal recklessness to enhance his sentence under ACCA’s residual clause because his prior crimes fell outside the scope of that clause. The district court denied relief, and we affirmed. Price v. United States, 434 F. App’x 550 (7th Cir. 2011).

Price now asks this court to authorize the district court to entertain a successive collateral attack, 28 U.S.C. § 2244(b)(3), in which he proposes to assert a claim under Johnson v. United States, 135 S. Ct. 2551 (2015). Johnson holds that the imposition of an enhanced sentence under the residual clause of ACCA violates due process because the clause is too vague to provide adequate notice. Id. at 2557. We invited the government to respond, and it has done so. We now conclude, consistently with the government’s position, that Johnson announces a new substantive rule of constitutional law that the Supreme Court has categorically made retroactive to final convictions.

Posted by Marcia Oddi on Tuesday, August 04, 2015
Posted to Ind. (7th Cir.) Decisions

Courts - "Ag-gag" in Idaho law found to violate First Amendment and Equal Protection

ShadowProof.com's Kevin Gosztola reported yesterday in a story headed "Federal judge strikes down Idaho 'ag-gag' law, defends undercover investigations of food industry."

The opinion from the Idaho U.S. district court, is Animal Legal Defense Fund v. C.L. Butch Otter, in his official capacity as Gov. of Idaho. Here is a copy, via the plaintiffs' website. A few quotes from the long story:

The law was an industry response to an undercover operation in Bettencourt Dairy, which led to the recording animals abused and sexually molested. Dairy employees were charged and convicted of animal abuse.

The Animal Legal Defense Fund (ALDF), People for the Ethical Treatment of Animals (PETA), American Civil Liberties Union of Idaho and the Center for Food Safety, along with CounterPunch and journalist Will Potter of GreenistheNewRed.com, filed a lawsuit against the state about a month later.

Judge B. Lynn Winmill, of the United States District Court for the District of Idaho, found the law violated the First Amendment and rights to equal protection.

“The state may not agree with the message certain groups seek to convey about Idaho’s agricultural production facilities, such as releasing secretly recorded videos of animal abuse to the Internet and calling for boycotts,” Winmill wrote. But, “it cannot deny such groups equal protection of the laws in their exercise of their right to free speech.”

The judge contended ALDF had “come forward with abundant evidence that the law was enacted with the discriminatory purpose of silencing animal rights activists who conduct undercover investigations in the agricultural industry.” * * *

[Plaintiff] Will Potter described the ruling as a “strongly-worded defense of the First Amendment and investigators, and a harsh attack on attempts by corporations to carve out special protections under their law, solely to protect their profits.”

“The ruling sets the stage for ag-gag laws to be challenged in other states on similar grounds. The ALDF, PETA and others are currently fighting ag-gag in Utah,” Potter added. “The recent passage of North Carolina’s sweeping ag-gag laws, which is so broad it includes those who expose abuse at daycares and nursing homes, clearly cannot withstand scrutiny, either.”

ILB: Two things:

Posted by Marcia Oddi on Tuesday, August 04, 2015
Posted to Courts in general | Environment | Indiana Government | Indiana Law

Ind. Decisions - Supreme Court issues one opinion today, re definition of "claim" in the Probate Code

In David J. Markey v. Estate of Frances S. Markey, Deceased; Stephen L. Routson, Personal Representative Under the Last Will and Testament of Frances S. Markey, Deceased et al, a 10-page, 5-0 opinion, Justice Massa writes:

“Man sees but a short way into futurity; a single event, unforeseen, deranges all his plans; and teaches us that man with all his wisdom, toils for heirs he knows not who.”

—Chief Justice Andrew Kirkpatrick, Nevison v. Taylor, 8 N.J.L. 43, 46 (1824) (emphasis in original).

When he died, John Markey thought half of his assets would eventually pass to his son, David, pursuant to a contract to make and not revoke a mutual will John executed with his second wife, David’s stepmother. Sometime after John was gone, however, David’s stepmother breached that contract, instead leaving everything to her own children. David brought suit to enforce the contract, but the defendants prevailed on summary judgment: the trial court found that even though David’s suit was not a “claim” in probate, it was still subject to the three-month statute of limitations for a claim, relying on Keenan v. Butler, 869 N.E.2d 1284, 1290 n.6 (Ind. Ct. App. 2007), trans. not sought. We find this was error, as our General Assembly added a statutory definition of “claim” when it enacted our Probate Code in 1953, Ind. Code § 29-1-1-3(a)(2), and we interpret the plain language of that definition as including an action for breach of a contract to make and not revoke a will. We thus reverse, and we remand on the question of the timeliness of David’s claim, considered under the Probate Code. * * *

Of course, David’s having a claim in probate does not answer the question of whether that claim was timely filed. The general limit for such claims is three months, and he concedes he filed outside of that window. For his claim to survive, David must not only be a claimant but also a “creditor” who is “known or reasonably ascertainable.” Ind. Code § 29-1-7-7(e). This issue, however, was not fully adjudicated below: because the trial court found David’s claim untimely under Keenan—which applied the wrong definition of “claims”—it did not reach the question of whether David fits the exception to the Non-claim Statute under Indiana Code section 29-1-7-7. And we find the record on appeal inadequate for us to reach a resolution today, as the parties have not fully briefed whether David is a creditor of the estate or whether he was reasonably ascertainable. Moreover, answering this question may very well require that the parties engage in further discovery, which the trial court had initially limited based on its review of Keenan that we reject. We thus remand to the trial court to determine whether David’s claim in probate should proceed as timely filed.

Posted by Marcia Oddi on Tuesday, August 04, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (4):

In Richard Zeller, Jr. v. AAA Insurance Company, an 8-page opinion, Judge Crone writes:

Richard Zeller, Jr., purchased a homeowners insurance policy from AAA Insurance Company (“AAA”) that provided for reinstatement of the policy if the policyholder paid a premium installment after the cancellation date. Pursuant to the policy, the reinstatement would be void and the policy would remain cancelled if (1) the premium payment was not honored for any reason or (2) a claim under the policy arose from an event that occurred between the cancellation date and the date that AAA received the payment. Zeller failed to pay a premium installment by the cancellation date but mailed a payment that AAA later accepted. Two days after AAA accepted payment, Zeller’s garage was damaged by fire. He submitted a claim to AAA, which denied coverage on the basis that the policy was “not in force” on the day of the fire. Appellant’s App. at 82. Zeller filed a complaint against AAA alleging breach of contract and bad faith and requesting compensatory and punitive damages. After a bench trial, the trial court ruled against Zeller on the basis that there was no evidence that AAA reinstated the policy.

On appeal, Zeller argues that the trial court’s ruling is erroneous because the policy was reinstated when AAA accepted his payment. We agree. Therefore, we reverse and remand for further proceedings.

In Brian Young, Dave Wells, Steve Richmond, and Tim Corbett v. Henry Davis, Jr., an 11-page opinion, Judge Baker writes:
Brian Young, Dave Wells, Steve Richmond, and Tim Corbett (collectively, the Officers) appeal the trial court’s order dismissing their complaint against Henry Davis. The Officers filed a lawsuit against Davis, a government employee, and two governmental agencies for actions he took while a government employee. After the Officers voluntarily dismissed the governmental entities from the complaint, the trial court granted Davis’s motion to dismiss based on the Indiana Tort Claims Act (ITCA). Finding that the dismissal was erroneous, we reverse and remand for further proceedings. * * *

The Officers are South Bend Police officers, and Davis is a member of the South Bend Common Council (Common Council). On August 9, 2012, Davis sent the United States Department of Justice a letter accusing the Officers of racially-based misconduct. In January 2014, the Officers learned that Davis had allegedly either listened to tapes of the officers’ illegally-recorded private telephone conversations or that he had talked to someone who had listened to those tapes. Subsequently, Davis allegedly posted comments on his Facebook page regarding what he had heard.

In Dylan R. Smart v. State of Indiana, a 10-page opinion, Judge Barnes writes:
Dylan Smart appeals his convictions for Class D felony possession of methamphetamine and Class D felony unlawful possession of a syringe. We affirm in part and reverse in part. * * *

Following Bookwalter, the State was required to demonstrate that methamphetamine, which Smart admitted to injecting, was covered by the Legend Drug Act. Smart concedes that “methamphetamine hydrochloride” is a legend drug but argues that “methamphetamine” is not listed as a legend drug. According to Smart, the State failed to present any evidence that the methamphetamine that he admitted to injecting is the same substance as methamphetamine hydrochloride. * * *

We cannot say that whether the methamphetamine injected by Smart qualifies as methamphetamine hydrochloride is a fact “not subject to reasonable dispute” or a fact that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”1 Evid. R. 201(a). On appeal, without citing any authority, the State merely argues that “it is apparent that ‘methamphetamine hydrochloride’ is simply the formal name for the drug.” Appellee’s Br. p. 15. We simply cannot make that connection based on the evidence presented. Consequently, we conclude that the State failed to present evidence that Smart possessed a syringe with the intent to violate the Legend Drug Act. The evidence is not sufficient to sustain this conviction.

Any error in the admission of the field test results was harmless. We conclude that the evidence is sufficient to sustain Smart’s conviction for Class D felony possession of methamphetamine, but the evidence is insufficient to sustain his conviction for Class D felony unlawful possession of a syringe. We affirm in part and reverse in part.

In Stephen Ferguson v. State of Indiana, a 9-page opinion, Sr. Judge Sharpnack writes:
Stephen Ferguson appeals from his conviction of two counts of Class A felony child molesting, contending that the trial court committed errors which individually and cumulatively amounted to reversible error denying Ferguson a fair trial. We affirm.

Ferguson presents the following issues for our review:
I. Whether the trial court abused its discretion by failing to inform the jury that certain testimony had been struck from the record;
II. Whether the trial court acted as a witness during trial in violation of Indiana Rule of Evidence 605; and
III. Whether the errors cumulatively amount to fundamental error.

NFP civil decisions today (4):

Bethany Koorsen v. Benjamin Koorsen (mem. dec.)

In the Matter of the Paternity of A.D., State of Indiana Ex. Rel., E.M.W. v. J.M.D. (mem. dec.)

Sharla C. Williams v. TradeWinds Services, Inc., Board of Directors of TradeWinds Services, Inc., Jon Gold in his individual capacity and official capacity (mem. dec.)

Grant Johnson, Minor Child, by his Mother and Father, Don Johnson and Janice Johnson v. South Spencer School Corp. and Cliff Hagan's Boys' Club of Owensboro, Kentucky, Inc. (mem. dec.)

NFP criminal decisions today (4):

Dustin E. McGuire v. State of Indiana (mem. dec.)

Kobe Blake v. State of Indiana (mem. dec.)

Tony E. Rice v. State of Indiana (mem. dec.)

Kimtai Wilkerson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, August 04, 2015
Posted to Ind. App.Ct. Decisions

Law - More on the differences between the Georgia Code and the Indiana Code; plus the Indiana Courts' agreements with private publishers

Yesterday, in a post titled "'Georgia Becomes the First State to Mount a Direct Challenge Against Unauthorized Publishing of Annotated Code'; What About Indiana?" the ILB looked at the Georgia's arrangement with LexisNexis, and asked whether any similar arrangements exist with the Indiana statutes and private publishers. The conclusion was Indiana has avoided Georgia's issues.

Reinforcing that is the answer the ILB received late yesterday from George Angelone, Executive Director of Indiana's Legislative Services Agency:

The Indiana General Assembly does not have the same publishing relationship to a private publisher of annotated material that Georgia has. The Indiana General Assembly self-publishes the Indiana Code, creating all headings, tables of content, credit/source lines, notes, and indexes. The annotations are limited but self-created. The Indiana General Assembly does not have an exclusive arrangement for publishing the Indiana Code with any third party and does not designate the works of any third party as the official code. IC 2-5-1.1-13 does not apply to the Indiana Code.

Neither the LSA nor the Legislative Council, in practice, restricts reuse of the text ... The last person who asked for formal permission to copy the statutes was given a letter authorizing reuse without restrictions and without paying any sort of compensation. In addition, the Indiana General Assembly has created an API which permits electronic download of the Indiana Code. The text is not in the easiest form for machine manipulation. Creating an easier machine readable file of the Indiana Code is a goal but I cannot specify a target date for completion of the project.

But what about the Indiana Courts?

Yesterday the ILB received this note from South Bend attorney Kent Hull:

And what about the Indiana Jury Instructions being available only through Lexis, apparently as a result of an arrangement with the Indiana Judges Association? Why would officially sanctioned documents be unavailable as public records?

Kent Hull
Indiana Legal Services

In further correspondence Mr. Hull added: "I am a Westlaw devotee who has Lexis for one reason only: the jury instructions."

As it turns out, the ILB wrote about the inaccessibility of the then-new Indiana Model Civil Jury Instructions at length in this July 23, 2010 post. The 2010 post concluded:

Available only "to those with a Lexis.com subscription." That excludes many of us. A reader wrote:
We want the language to be accessible to all--but not the actual instructions apparently. What next: having the Indiana Code exclusively on Lexis?
Surely not. But, as the ILB has reported before, Indiana appellate briefs are available online, but only to Westlaw subscribers -- see this lengthy ILB entry from Nov. 3, 2009, discussing Indiana's arrangement to provide appellate briefs to Westlaw so that it may then sell them to subscribers.

And there is the longtime arrangement, which I believe began with the abolition of the office of Reporter of the Courts several decades ago, whereby "Official copies of opinions are available from West (Thomson/Reuters)." Those posted online are not official (although at least they are available).

I had hoped that we were moving away from such arrangements that put the control of public documents exclusively in private hands.

Correct me if I'm wrong, but nothing seems to have changed in the 5-6 years since the ILB posted this.

There may be hope in the future, over the long-term, with the institution of e-filing in Indiana. If the Court avoids entanglement with private publishers ...

Posted by Marcia Oddi on Tuesday, August 04, 2015
Posted to General Law Related

Ind. Courts - "Sex offenders sue under RFRA to attend worship services"

Rebecca S. Green had a long story Sunday in the Fort Wayne Journal Gazette, reporting:

As soon as the new law took effect, John Doe 1 and John Doe 2 took aim at Indiana’s prohibition on “serious” sex offenders entering any school property.

Identified only as John Does, the two sued the Allen County and Elkhart County prosecutors in Elkhart Superior Court in early July, asking for class-action status for the plaintiffs, as well as the defendants, asking all Indiana prosecutors be included, according to court documents.

The new law, passed in April and signed by Gov. Mike Pence in May, prohibits all those who are identified as “serious sex offenders” from entering school property. Doing so results in a Level 6 felony.

The law defines “serious sex offenders” as those convicted of child molesting, possession of child pornography, child seduction and sexual misconduct with a minor, among other charges.

In many instances, that effectively prohibits registered sex offenders from attending church, since many churches meet the state’s definition of school.

It is the church angle specifically attacked by the plaintiffs, using the state’s newly enacted and controversial Religious Freedom Restoration Act.

In their lawsuit, the plaintiffs argue that the law creates a burden on their exercise of religion in that by keeping them from schools, it is keeping them from their faith.

Change in law

For years, Indiana’s sex offender registry law prohibited convicted sex offenders from living within so many feet of where children congregate, such as parks or schools.

But this year, the law was changed to further limit where sex offenders can go. It now prohibits them from entering any school property, which is defined as not just public school buildings, but private schools and any federal, state, local or nonprofit program that benefits children older than 3.

“School property” includes Head Start programs, special education preschool programs or developmental child care programs, according to state law. It also includes ground adjacent to the schools that is owned or rented in common with the building.

The law does not limit these restrictions just to times when schools are in session or children are present.

Because many polling places are in schools or churches with schools in or near them, the changes to the law also provide that sex offenders be given absentee ballots to allow them to vote, according to state documents.

That is just the beginning of this informative story.

For background, see this ILB post from July 2nd, which includes the complaint and the text of the new law.

Posted by Marcia Oddi on Tuesday, August 04, 2015
Posted to Indiana Courts

Ind. Law - GA to study issued related to police body cameras

From an editorial today in the Fort Wayne Journal Gazette:

The technology will inevitably raise some thorny issues. As The Journal Gazette’s Niki Kelly reported Monday, the Indiana legislature’s Interim Study Committee on Government will soon be looking at key questions concerning requests for and release of body-cam videos.

The scenes and sounds captured by body cams will not always be limited to public places and the kind of information that appears on official crime reports.

The committee will consider whether body-cam video should be exempt from the state’s open-records law to protect the privacy of private homes, juveniles, witnesses and victims. These are legitimate questions, and it’s probably better to deal with them before the day-to-day use of body cams becomes a reality in Indiana. * * *

The problem is that body cams are expensive to acquire and expensive to operate, and police departments, like most other areas of local government, are finding it difficult to add big, new expense lines to their budgets.

The Indianapolis Metropolitan Police Department recently announced that after testing body cams for the past seven months, it’s returning the equipment to the vendor. During the testing, the value of body cams was illustrated when a police officer fatally shot a suspect who was wrestling with another officer for his gun. Marion County prosecutors released the video to the public when they announced that they’d determined the shooting was justified.

But though the department wants to continue using the technology, a spokesman said, there’s no obvious source for the estimated $2 million to equip all its officers.

Last fall, leaders of both the Fort Wayne Police Department and the Allen County Sheriff’s Department said they are strongly in favor of giving their officers body cams. But monetary concerns have slowed the process here, too. * * *

Someday, the officers of every sizable police force may be wearing body cams. But for departments here, the question isn’t how to deal with privacy issues, but how to get these pieces of law-enforcement equipment onto the streets.

Posted by Marcia Oddi on Tuesday, August 04, 2015
Posted to Indiana Law

Monday, August 03, 2015

Ind. Gov't. - Dunes project: "Emails show Pavilion Partners had head start with DNR"

Here is the ILB's now lengthy list of posts on the Indiana Dunes pavilion project.

In our most recent report, the State Alcohol and Tobacco Commission had sent the liquor license request back to the county body for a new hearing.

Today Amy Lavalley of the Gary Post-Tribune has long story, headed "Emails show Pavilion Partners had head start with DNR." Some quotes:

[E]mails provided to the Post-Tribune show Chuck Williams, the principal investor in Pavilion Partners and a Valparaiso businessman, and Scott Virtue, the project's architect, who is based in Porter, were in contact with officials from the DNR as early as 2010, more than a year before the state asked for RFPs to renovate the pavilion. * * *

The emails, which are public record, show that Virtue contacted Gary Miller, assistant director of state parks with the DNR, on Sept. 21, 2010, and included a booklet, confidential at the time, detailing renovations at the pavilion. Miller died in June 2013.

In the email, Virtue writes, "Our understanding of the process is for you to first, share this information with those in your division of the DNR. Then, you will share our ideas with those members of the Indiana Historic Preservation Review Board. Once all the appropriate state employees have provided their input, you will prepare a prospectus for the project. It is that prospectus that will be publicly advertised."

That prospectus, the RFP, was first advertised on Nov. 18, 2011. Proposals were due at the DNR by March 1, 2012.

According to the emails, Williams met with David Duvall, historic architect with the Indiana Division of Historic Preservation and Archaeology, at the pavilion on March 4, 2011. A meeting for a week earlier was scratched because of inclement weather. Duvall recalled meeting with Virtue.

"I remember going out and meeting with Scott Virtue and walking the property several years ago," Duvall said, adding it was in the winter but he couldn't remember the date. "I looked at the building and pointed out what was more important and what was less important."

He said he doesn't remember seeing any documents for renovating the pavilion before the RFP was accepted, and "if there were planned documents, they would have been very preliminary."

Virtue said he couldn't recall the dates but knew DNR wanted to renovate the pavilion when Pavilion Partners offered its plan. He couldn't speak to whether his group had an advantage in the selection process because of its prior contact with the state, adding Williams hired him to do the drawings and it was Williams' prerogative to do what he wanted with them.

Informal discussion about renovating the pavilion began in mid-2010, Williams said.

As can be seen from the long list of earlier ILB posts linked above, the question of an inn (as opposed to a banquet center) at the Indiana Dunes was first broached during the Daniels administration.

Posted by Marcia Oddi on Monday, August 03, 2015
Posted to Indiana Government

Law - "Georgia Becomes the First State to Mount a Direct Challenge Against Unauthorized Publishing of Annotated Code"; What About Indiana? [Updated]

The ILB has seen a number of stories on this topic; several of them didn't appear to understand the issues involved.

This story from The National Law Review, written by attorney Preston H. Heard, dated July 31, seems to have a good grasp of the facts:

The complaint was filed by the Code Revision Commission, on behalf of the General Assembly of Georgia and the State of Georgia, on July 21, 2015 in the Northern District of Georgia, alleging that Public.Resource.org's act of publishing and making available on the internet over 140 volumes/supplements of the Official Code of Georgia Annotated (O.C.G.A.) violated U.S. copyright law.

According to the complaint, Georgia contracts with LexisNexis to publish an annotated version of Georgia's state laws. Under the contract, LexisNexis is required to make an unannotated version of the code available to the public for free. In order to recoup its publishing costs, however, LexisNexis is responsible for drafting and making "additions to the statutory text," such as summaries of significant judicial decisions relating to various parts of the code. The complaint, which acknowledges that the laws themselves are uncopyrightable, refers to these additions as the "Copyrighted Annotations." The State of Georgia asserts that these Copyrighted Annotations are prepared as "works for hire" by LexisNexis and thus claims exclusive copyright ownership on that basis.

The State asserts that Public.Resource.org illegally copied the O.C.G.A. containing the Copyrighted Annotations and then uploaded copies to various websites, including its own sites and archive.org, even going so far as to post a notice that members of the public "can copy, modify, distribute and perform the work, even for commercial purposes, all without asking permission."

In other words, Public.Resource.org appears to have scanned or otherwise copied all the volumes of the printed Georgia Code Annotated, published by LexisNexis, and posted it online.

Here is a copy of the State of Georgia's 21-page, July 21st complaint, it is interesting reading.

Here is the Georgia General Assembly's website. If you click on Georgia Code in the left column, you go next to a "Terms & Conditions" page, which includes:

This website is maintained by LexisNexis®, the publisher of the Official Code of Georgia Annotated, to provide free public access to the law. * * *

Your use of this service is subject to Terms and Conditions. These Terms and Conditions do not apply to the Statutory Text and Numbering contained in the Content of the site. However, the State of Georgia reserves the right to claim and defend the copyright in any copyrightable portions of the site. Please indicate your agreement to the Terms and Conditions by clicking "I Agree" below."

The "Terms & Conditions" link goes directly to the private publisher, Lexis-Nexis.

This Official Code of Georgia Annotated that is provided via the Georgia General Assembly's website is slow and clunky to use, as compared to the Indiana General Assembly's online Indiana Code. It also does not appear to the ILB that a reader has a choice of simply accessing the Georgia Code, in print or online, without the LexisNexis annotations and restrictions. This even though the State of Georgia acknowledges in its complaint [ILB emphasis]:

Plaintiff does not assert copyright in the O.C.G.A. statutory text itself since the laws of Georgia are and should be free to the public. The Code Publishing Contract between LexisNexis and the State of Georgia requires that LexisNexis publish on the internet, free of charge, the statutory text of the O.C.G.A. These free Code publications are available 24 hours each day, 7 days a week, and include all statutory text and numbering; numbers of titles, chapters, articles, parts, and subparts; captions and headings; and history lines. The free Code publications are fully searchable, and the catchlines, captions and headings are accessible by links from the table of contents. The free Code publication of the State of Georgia is accessible via a website link found on the State of Georgia website www.legis.ga.gov.
However, the link provided leads to the LexisNexis annotated version.

Two other good commentaries are:

Back to the National Review article quoted from earlier; it concludes:
On its face, the State of Georgia appears to have an open-and-shut case, but it does raise the question of whether the "Copyrighted Annotations," which are heavily-relied upon by legal practitioners and the public alike, are "officially" part and parcel of the law such that they should also be deemed uncopyrightable works. The complaint acknowledges that the "succinctness and accuracy of the judicial summaries are in large part what make them valuable to attorneys and others researching the Code." This recognition by the State along with the "official" blessing highlights the crux of the controversy: if the annotations are part of the "official" law of the state, can (or should) those annotations be protected by copyright law from free public dissemination? It may well require Congressional action to preclude states from obtaining copyright protection on works made for hire pursuant to contract.
The ILB wonders what weight these "official annotations" might have in a court of law? The Georgia legislature has contracted with a private publisher to write annotations ... But it has not delegated its legislative authority to write laws. And the annotations may digest what the editors believe are significant court references, but the annotators are not judges.

What About Indiana?

Fortunately, Indiana has not fallen into this quagmire, although, for a period of time years back, the LSA permitted West Publishing or Banks-Baldwin to copyright section headnotes, as can be seen in these examples from the printed publication of the Indiana Code.

Perhaps Indiana learned its lesson early: Until the completion of the Indiana Code project in the early 1970s, the only source for the statutes of Indiana was either though the uncompiled volumes of the Acts of Indiana, going back to 1852 and before, or via the unofficial compilation privately published by Bobbs-Merrill -- Burns Indiana Statutes Annotated.

[Updated 8/5/15]
See also this August 5th article by EVA FEDDERLY of Courthouse News, with some useful links to correspondence.

Posted by Marcia Oddi on Monday, August 03, 2015
Posted to General Law Related

Ind. Decisions - Transfer list for week ending July 31, 2015

Here is the Clerk's transfer list for the week ending Friday, July 31, 2015. It is one page (and 1 case) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, August 03, 2015
Posted to Indiana Transfer Lists

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

From Sunday, August 2, 2015:

From Saturday, August 1, 2015:

From Friday afternoon, July 31, 2015:

Posted by Marcia Oddi on Monday, August 03, 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 8/3/15):

Next week's oral arguments before the Supreme Court (week of 8/10/15):

Webcasts of Supreme Court oral arguments are available here.


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

Next week's oral arguments before the Court of Appeals (week of 8/10/15):

Wednesday, August 12

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

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


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

Posted by Marcia Oddi on Monday, August 03, 2015
Posted to Upcoming Oral Arguments

Sunday, August 02, 2015

Ind. Courts - Probation funds may be at issue again in SE Indiana

Some readers may recall Sept. 2007 Supreme Court decision in Clark County Council and Clark County Auditor v. Daniel F. Donahue, Cecile A. Blau, Vicki Carmichael, and Steven M. Fleece, the probation fees case about which the ILB had many posts. As explained in the Louisville Courier Journal on March 1, 2007:

In 2003, the [Clark Co.] council decided to start using about $500,000 in probation fees collected each year by the four county courts to pay court expenses previously covered by the county's general fund.

The judges filed suit against the council in 2005, arguing that state law gives them -- and not the county council -- the authority to determine how to spend probation user fees.

The council argued that it was forced to take control of the probation funds because of the fiscal crisis and that state law allowing local courts to collect and use probation fees can be interpreted to give the council authority over the funds.

The council has continued to exert its control over the fees by using them in the county budget for this year.

On Sept. 27, 2007, the LCJ wrote of the Supreme Court's decision the date before:
In a case watched closely by judges statewide, the Indiana Supreme Court said yesterday that Clark County's judges -- not the County Council -- have the authority to determine how to use about $500,000 in probation fees collected annually.

But the court also upheld the council's appropriation authority, saying the council can determine how much of the fees are spent from year to year.

Today Daniel Suddeath of the New Albany News and Tribune has a long story about neighboring Floyd County, headed "Millions in funds can't be touched by Floyd County Council." Some quotes:
NEW ALBANY — Though some officials cautioned utilizing the money would only be a temporary solution to budget shortfalls, Floyd County departments have more than $2.6 million in non-reverting funds that could be spent on expenses like salaries and operations. * * *

In June, Floyd County's four judges joined Floyd County Prosecutor Keith Henderson and Sheriff Frank Loop in threatening to not cut their budgets as ordered by the county council.

Floyd County Superior Court No. 1 Judge Susan Orth suggested the county liquidate assets or borrow money to keep from cutting budgets, which was to include a $136,795 deduction from the public safety and legal departments.
What was not suggested, as the county council cannot mandate how departments spend non-reverting funds, was that the judges and prosecutor tap into money they can spend at their discretion.

Chris Lane, the attorney for the county council, said Friday he's finalizing his opinion on whether four probation administrative service accounts and a diversion fund that are under the realm of the judges are non-reverting funds.
Those accounts had more than $590,000 in existing funds as of June 30, and about $365,000 had been spent out of the pot prior to July 1.

"I would say it makes it really difficult for a taxpayer to understand how we have $600,000 in non-reverting funds in probation, but we're not able to make an $80,000 cut in that department," Floyd County Council President Matt Oakley said Friday.

Posted by Marcia Oddi on Sunday, August 02, 2015
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - "Peru's fight against the floodplain designation: Peru officials hope new study will lift floodplain restrictions that are hurting the city"

Carson Gerber has a very long, comprehensive story today in the Kokomo Tribune which, along with a sidebar, exhaustively covers flood designations and Peru's problems of changing the same.

See also these Nov. 15 and Nov. 20th, 2004, ILB posts quoting the Indianapolis Star: "Old flood plain maps can lead to trouble." And this Jan. 21, 2007 ILB post quoting the Fort Wayne Journal Gazette on how new flood maps will impact insurance rates.

Posted by Marcia Oddi on Sunday, August 02, 2015
Posted to Indiana Government

Ind. Gov't. - More on: "A boom in foreign undergrads is shoring up the finances of America’s flagship universities, but at a price" [Updated]

Updating this ILB post from June 1st, this lengthy, absolutely fascinating story today by Joesph Paul, in the Lafayette Journal & Courier, is headed "Purdue tuition freezes squeeze out IN students." Just a few quotes:

Since tuition rates were frozen at 2012 levels, 1,228 fewer undergraduates from Indiana attend the West Lafayette research institution, while 336 more non-residents attend the campus, according to the university’s data digest.

Over the past decade, the land grant university has transformed from a majority-resident campus to one that now enrolls more out-of-state and international students. * * *

It’s no secret that out-of-state and international students pay much more to attend Purdue — think the equivalent of private university or Ivy League tuition. And as those applications grow, Purdue can select from the wealthiest, most talented students across the globe. Meanwhile, in-state students have ended up competing for fewer spaces on the prestigious West Lafayette campus. * * *

In the past seven years, Purdue slashed 4,614 spots for resident undergraduates and added 2,108 spots for non-resident undergraduates. At the same time, Indiana University increased the number of residents and non-residents seeking undergraduate degrees by nearly 200 and 1,000, respectively, according to the university’s enrollment reports from 2008 and 2014.

During that time frame, Purdue reduced its share of in-state undergraduates by 10 percentage points, from 65 to 55 percent. IU’s share fell 1.7 points, from 63.2 to 61.5 percent, said David Johnson, IU’s vice provost of enrollment management.

In June, IU’s Board of Trustees voted to freeze undergraduate tuition for the next two years, according to the Associated Press. Johnson said in an email that he doesn’t anticipate the tuition freeze to significantly affect enrollment.

“At IU Bloomington, we are looking to hold relatively flat the number of non-residents we are seeking to enroll this fall,” Johnson said in an email.

Public universities are increasingly becoming “bastions of privilege,” Stephen Burd, a senior policy analyst for the New America Foundation, said in a report titled “The Out-of-State Student Arms Race.”

In a study of 424 public four-year colleges and universities, Burd found nearly half — including Purdue — provided merit aid to at least 10 percent of freshmen who had no financial need. He also found the institutions most entrenched in the practice tend to enroll more non-resident students than residents.

In other words, universities are using money that traditionally went to those with a financial need, Burd said, to entice their highest paying prospects to attend their school. The practice is becoming more and more pervasive nationwide, he noted.

“The search for additional money and the search for more prestige has led to schools looking for more out-of-state, for more affluent students,” Burd said in a phone interview. “And so my big worry with all of this is that you’re not only disadvantaging in-state students but probably the most vulnerable of them with fewer seats left over for lower-income, working-class students. ... (Universities are) spending huge amounts of merit aid on these affluent students so there’s less money for students from lower-income backgrounds.” * * *

Non-resident students comprise the majority on Purdue’s campus as a whole, accounting for 52 percent of the combined undergraduate, graduate and professional student population. In fact, Purdue enrolls more international students than any other public university in the country, according to a report by the U.S. Department of Homeland Security. * * *

“Purdue is becoming an institution of first choice for a lot of non-resident and international students,” said Teresa Lubbers, Indiana commissioner for higher education.

Purdue’s trend is one Lubbers has watched closely as Indiana attempts to build a highly skilled state labor force. Although about 65 percent to 70 percent of Indiana students who apply to Purdue are admitted to the West Lafayette campus, they have had more trouble getting into some of the university’s most selective, sought-after programs, such as engineering.

[Updated 8/4/15] See the chart in this summary from the Indiana Economic Digest.

Posted by Marcia Oddi on Sunday, August 02, 2015
Posted to Indiana Government

Saturday, August 01, 2015

Ind. Decisions - "Appeals Court: Evansville PD not shielded from liability in SWAT raid lawsuit"

Yesterday's 7th Circuit decision in Louise Milan v. Billy Bolin (ILB summary here, tweeted as - "J. Posner references Keystone Kops in Evansville opinion") (see also this June 3 ILB post, including links to video of the police raid) is the subject of this long story today (with video) posted mid-afternoon by Mark Wilson of the Evansville Courier & Press. Some quotes:

EVANSVILLE - A federal appeals court said the Evansville Police Department “committed too many mistakes” to be shielded from liability in a woman’s lawsuit over a 2012 SWAT raid on her home.

The ruling, released Friday, compared Evansville police to the comical Keystone Kops of silent film and suggested that broadcast video of the failed SWAT raid on the wrong house may have hurt race relations in the city.

The panel of three appeals court judges upheld a ruling by United States District Court Judge William Lawrence that said Louise Milan’s claim that police used excessive force can receive a jury trial.

“That really was the whole main focus, excessive force. We think the court saw it the way we do and not as police do, and we think the jury is going to see that way too,” said Kyle Biesecker, Milan’s attorney.

Milan’s lawsuit is asking for unspecified damages as a result of the raid, during which police threw two “flash-bang” grenades into the house while attempting to serve a search warrant.

“It’s mostly emotional distress, damages and attorneys fees — and hopefully a policy and procedure change will come out of this so it doesn’t happen again,” Biesecker said.

Milan says police violated her Fourth Amendment Constitutional rights when the SWAT team tossed flash grenades into her home at 616 E. Powell Ave., and forced their way inside to serve a search warrant on June 21, 2012.

Police officers were looking for evidence of anonymous Internet posts to a message board threatening the police department and Chief Billy Bolin. The officers did not find any evidence in the home.

However, police damaged Milan’s house, handcuffed her and her daughter and seized their computers, according to the lawsuit.

Officers were only able to glean while there was an open wireless Internet connection in the home and the threatening posts were not made from inside the house, according to court records.

The following day police arrested Derrick Murray for the threats. He pleaded guilty to a federal charge of transmitting threats in interstate commerce and was sentenced to spend 16 months in prison and then three years on supervised release. * * *

The judges noted that the search of Milan’s home was video recorded by an accompanying television news crew and by a camera on the helmet of a SWAT team member.

In the appeal ruling Posner wrote:

“The handcuffing of the daughter, looking indeed much younger than her 18 years, is shown on the helmet video along with the rest of the search, and she is so small, frail, utterly harmless looking, and completely unresisting that the sight of her being led away in handcuffs is disturbing...there was no conceivable reason to handcuff her.”

He went on to say that, “From what we can observe on the videos, all the members of the SWAT team were white, Mrs. Milan and her daughter black; the broadcasting of the videotape cannot have helped race relations in Evansville.”

Posted by Marcia Oddi on Saturday, August 01, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "State Alcohol and Tobacco Commission offers direction on pavilion liquor license bid"

Updating this ILB post from July 22nd, quoting from a story headed "State recommends local public hearing on pavilion alcohol license," this story July 31st in the Gary Post-Tribune, written by Amy Lavalley, reports:

While the state Alcohol and Tobacco Commission sent a controversial liquor license request back to Porter County, it has formally offered directives for the local board to proceed.

A July 27 letter from the chair of the state's Alcohol and Tobacco Commission directs the Porter County Alcoholic Beverage Commission when the local board gives a second look at a liquor license application from Pavilion Partners LLC. * * *

The local meeting is tentatively scheduled for 10 a.m. Sept. 10 in the commissioners chambers of the Porter County Administration Building in Valparaiso, but David Cook, chair of the state board, said in the letter the county board may want "to find a more suitable location which would facilitate handling of larger crowds or reschedule the meeting… to a time and/or location more suitable for the anticipated crowds." * * *

Cook, who provided the letter to the Post-Tribune, noted "inaccuracies and/or inconsistencies in the permit application," including clarification of whether Chuck Williams, a Valparaiso businessman who is the principle in Pavilion Partners, is the sole owner, and what interest other parties involved have in the entity.

Cook also said that at the initial local board meeting, four people signed in as remonstrators but since then, the state has received 268 letters and emails opposing the permit application and three supporting it.

"They should be made a part of the local board record and considered by the local board in determining the need for those services at the proposed location, the desire for these services in the local neighborhood and community, and whether the proposed services would have a negative impact on other businesses in the neighborhood" according to state statute, the letter states.

Local board member Ralph Levi, who voted in favor of the license with Excise Officer Jamie Patrick in June, said the board would address the state's concerns and see what happens.

"I had nothing at the meeting (in June) other than that people didn't want it. There was nothing precluding giving them a license at the time," he said.

Cook's letter states that "one local board member qualified his no vote because he wanted additional time to have questions answered but that request was denied. The commission believes additional time should have been allowed so all board members are in a position to make an informed vote."

That board member was Rudolf Sutton, who said he had questions about how a new state law allowing alcohol 100 feet from the pavilion would be handled, and who would be in charge of enforcement.

"I thought it was premature to make that decision," he said, adding he's already received around 12 emails and six calls both for and against the license.

"We're going to have to weigh all that out," he said, adding he couldn't recall a license application being returned to the local board from the state. "I'll have a little more information than I had before."

In the NWI Times yesterday Deborah Laverty reported in a story headed "Dunes pavilion group seeking South Shore support":
CHESTERTON | Investors behind the Indiana Dunes State Park pavilion restoration and expansion project came to the Northern Indiana Commuter Transportation District seeking a partnership.

Pavilion Partners LLC spokeswoman Deb Butterfield and member Chuck Williams made a presentation to the NICTD board on Friday.

The two outlined proposed plans for the restoration and expansion and extended a request for a partnership between the two factions.

"We're excited about our plans. We will be neighbors and we want to talk about the synergy that can be created between the two. We hope we will be in communication as plans unfold," Butterfield said.

Williams said a 35-year lease, with two extensions, has been approved between Pavilion Partners and Indiana Department of Natural Resources.

The lease agreement that has been agreed upon is $8,000 per year with 2 percent of sales paid to the state. * * *

Elevators will take visitors to the pavilion roof where events for up to 200 people can take place year-round.

The pavilion roof will include outdoor seating during warm weather months for open air dining and fireplaces to be used during cold weather months.

Work on the banquet center will start in the spring of 2016 and be completed by the spring of 2017.

"We're just starting the design process," Butterfield said.

The economic impact should be a very positive one since it's expected the pavilion banquet facility will bring in some 63,000 guests per year, she said.

Many of the guests will be staying overnight so the banquet facility will bring in some $9 million to the area by those spending money at other businesses such as hotels and restaurants, Butterfield said.

Posted by Marcia Oddi on Saturday, August 01, 2015
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided two Indiana cases yesterday

In Louise Milan v. Billy Bolin (SD Ind., Lawrence), an 8-page opinion, Judge Posner writes:

The plaintiff brought suit against the City of Evansville, Indiana, and several of the City’s police officers, contending that the police had used excessive force in the search of her home. The district judge granted summary judgment in favor of the defendants on related claims by the plaintiff, but all that is before us is the defend ants’ appeal from the district judge’s denial of their motion for summary judgment on the excessive-force claim. They argue that qualified immunity insulates them from liability—that is, that there was no established legal principle that would have informed them that they were using excessive force. * * *

But, to repeat for emphasis, the police acted unreasonably and precipitately in flash banging the house without a minimally responsible investigation of the threats. The open network expanded the number of possible threateners and just one extra day of surveillance, coupled with a brief investigation of Murray and the three male Milans, should have been sufficient to reassure the police that there were no dangerous men lurking in the house.

Precipitate use of flash bangs to launch a search has troubled us before, leading us to declare that “the use of a flash bang grenade is reasonable only when there is a dangerous suspect and a dangerous entry point for the police, when the police have checked to see if innocent individuals are around before deploying the device, when the police have visually inspected the area where the device will be used and when the police carry a fire extinguisher.” Estate of Escobedo v. Bender, supra, 600 F.3d at 784–85. The police in this case flunked the test just quoted. True, they’d brought a fire extinguisher with them—but, as if in tribute to Mack Sennett’s Keystone Kops, they left it in their armored SWAT vehicle.

So while the defendants are correct to point out that a reasonable mistake committed by police in the execution of a search is shielded from liability by the doctrine of qualified immunity, Anderson v. Creighton, 483 U.S. 635, 641 (1987), in this case the Evansville police committed too many mistakes to pass the test of reasonableness.

In Shelia B. Stepp v. Carolyn Colvin, Acting Comm., Social Sec. (SD Ind., Hussman, M.J.), a 29-pga eopinion, Judge Flaum writes:

Appellant Sheila Stepp, who suffers from degenerative disc disease and a variety of other impairments, seeks disability insurance benefits under Title II of the Social Security Act. Following a hearing, an Administrative Law Judge (“ALJ”) issued a decision denying Stepp’s claim. While acknowledging that Stepp suffered from chronic pain, the ALJ concluded that surgery, medication, and therapy had resulted in an improvement in Stepp’s condition such that she retained the capacity to engage in sedentary work. Stepp sought review of the ALJ’s decision by the Social Security Administration’s Appeals Council, and submitted additional evidence in the form of medical records created just prior to the ALJ’s denial of her disability claim. This evidence—specifically, the treatment notes of pain management specialist Dr. Allan MacKay—tends to suggest that Stepp’s condition did not improve over the course of the adjudicative period to the extent that the ALJ estimated. The Appeals Council summarily declined to engage in plenary review of the ALJ’s decision and, in so doing, did not expressly ad-dress Dr. MacKay’s notes. The United States District Court for the Southern District of Indiana affirmed the ALJ’s final decision.

Stepp appeals the district court’s determination on two grounds: first, she contends that the ALJ’s denial of her benefits request was not supported by substantial evidence; second, she argues that a remand for further proceedings is necessary in light of the “new and material” evidence presented by Dr. MacKay’s medical records. We believe that the ALJ properly analyzed a range of conflicting testimony and medical opinions and reached a conclusion adequately sup-ported by the record before her. However, we agree with Stepp that the denial notice from the Appeals Council indicates that the Council did not accept Dr. MacKay’s treatment notes as new and material evidence, and we conclude that the Council made that determination in error. We therefore remand the case to the agency so that it may re-evaluate Stepp’s condition in light of the information presented in Dr. MacKay’s notes.

Posted by Marcia Oddi on Saturday, August 01, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Law - ILB Legislative Research Shortcuts Updated for 2015

The ILB has updated its simplified research ("shortcuts") page, "The Indiana Law Blog's Legislative Research Shortcuts."

Here is a list of earlier ILB entries on the Legislative Research Shortcuts page.

Posted by Marcia Oddi on Saturday, August 01, 2015
Posted to Indiana Law