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Wednesday, September 30, 2015

Ind, Decisions - Judge Barker rules in Monarch Beverage 3-tier challenge [Updated]

In Monarch Beverage v. Grubb, a 21-page opinion, Judge Barker writes:

On October 21, 2013, Plaintiff Monarch Beverage Co., Inc. (“Monarch”) brought this action against Defendants in their official capacities, pursuant to 42 U.S.C. § 1983, alleging that certain provisions of the Indiana Code regulating the wholesale distribution of alcohol violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. On November 7, 2014, Defendants moved for summary judgment [Docket No. 79] and on December 9, 2014, Monarch filed a cross motion for summary judgment [Docket No. 93]. The motions are fully briefed. For the reasons detailed in this entry, we GRANT Defendants’ motion for summary judgment and DENY Plaintiff’s cross motion for summary judgment. * * *

Following passage of the 21st Amendment to the Constitution, Indiana, like most other States, adopted a three-tiered system for regulating the production, distribution, and sale of alcohol. See FTC, Possible Anticompetitive Barriers to E–Commerce: Wine 5–7 (July 2003), available at http:// www.ftc.gov/os/2003/07/winereport2.pdf. (visited September 29, 2015). The first tier consists of brewers, vintners, and distillers who manufacture alcoholic products. The second tier is composed of wholesalers who purchase alcoholic products from the manufacturers and sell them to the retailers and dealers. The third tier is comprised of retailers and dealers who sell alcoholic products directly to the consumers.3 Except in certain limited circumstances, no business may operate within more than one tier, see Ind. Code §§ 7.1-5-9-9, 10(a), and a state-issued permit is required for every business at any tier—whether as a manufacturer, wholesaler, or retailer of alcohol. Id. § 7.1-3 et seq.

The focus of this litigation centers on the second tier: the wholesalers. Plaintiff is a wholesaler. Wholesale suppliers are central to the alcohol regulatory system by creating a buffer between manufacturers and retailers, serving as a port of entry for out-of-state alcohol coming to Indiana, facilitating the collection of excise taxes on alcohol, and ensuring that alcohol products are sold only to licensed retailers and dealers.

[Updated 10/1/15 at 8:51 AM] Here now is an IBJ story about the decision, headed "Beer distributor Monarch loses legal battle to also sell liquor." The story concludes:
The court setback isn't likely to end the Monarch's fight to sell liquor products. The company has been lobbying for changes to Indiana's laws for years and also tried to obtain a liquor wholesaler’s permit for a related entity.

Monarch tried unsuccessfully during the prior four state legislative sessions to advance a bill supporting its position before resorting to federal court.

Posted by Marcia Oddi on Wednesday, September 30, 2015
Posted to Ind Fed D.Ct. Decisions

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

Additional for publication opinions today (3):

In Michael W. Troyan and MT Management, LLC v. The Commissioner of the Indiana Department of Revenue et al., an 8-page opinion, Sr. Judge Shepard writes:

Appellant Michael W. Troyan has contended that the Department of Revenue was wrong to assess withholding tax against his limited liability company. A trial court denied his request for injunctive relief against the Department. On appeal, he contends this denial was an abuse of discretion. We remand with instructions to dismiss, inasmuch as exclusive jurisdiction rests with the Tax Court. * * *

To be sure, when an unpaid tax assessment is reduced to judgment, a circuit or superior court acquires jurisdiction for the limited purpose of enforcing the judgment, id., but Troyan and MT Management asked the Marion Superior Court for relief in excess of that limited power.

The trial court may well have been right as a matter of injunction law, but we remand this matter for dismissal on jurisdictional grounds.

In Thomas L. Hale v. State of Indiana, an 11-page, 2-1 opinion, Judge Bailey writes:
Thomas E. Hale (“Hale”) was convicted of one count of Dealing in Methamphetamine, as a Class A felony, and was sentenced to forty years imprisonment. He now appeals, raising for our review the sole issue of whether the trial court abused its discretion when it did not, before trial, permit him to depose two of the State’s witnesses against him. We affirm. * * *

Here, Hale did not seek a ruling in limine excluding the testimonies of Fisher and Casto after the pre-trial denial of his motion for payment of deposition expenses. The trial date was continued after the court’s denial of the motion, but Hale did not renew his efforts to obtain payment of deposition expenses.

At trial, when Fisher and Casto were called as witnesses, Hale did not seek to exclude their testimony, renew a request to depose them, or seek a continuance. He instead proceeded on to generally well-conducted cross-examinations. Thus, we conclude that Hale’s contention as to the propriety of the trial court’s denial of his motion for payment of deposition costs is waived for appellate review. We accordingly affirm his conviction.

Baker, J., concurs
Mathias, J., dissents with separate opinion.[which begins, at p. 9] I believe that the trial court’s denial of Hale’s request to depose Casto and Fisher was improper. I therefore respectfully dissent. * * *

In the present case, however, Hale did not request to depose the witnesses during trial. He requested to depose certain witnesses prior to trial, and the trial court denied these requests. As such, I do not believe that O’Conner is controlling. Instead, I believe that Murphy suggests that denying a defendant the right to depose a witness before trial is a violation of due process, i.e., fundamental error, which need not be preserved. Pursuant to Murphy, I would hold that depriving the defendant the ability to depose the State’s witnesses was an abuse of discretion and reversible error.

In Jason A. Henderson v. State of Indiana, a 7-page opinion, Judge Mathias concludes:
The trial court did not abuse its discretion when it ordered Henderson to serve
consecutive terms of 365 days for his misdemeanor convictions. However,
before imposing a $5,000 fine for each conviction, the trial court should have
held an indigency hearing as required by Indiana Code section 35-38-1-18. We
therefore remand this case to the trial court for proceedings consistent with this opinion.
Additional NFP criminal decisions today (1):

Patrick C. Garvey v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, September 30, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Tax Court posts second opinion today

In Marion County Assessor v. Gateway Arthur, Inc., a 10-page opinion, Sr. Judge Fisher writes:

This case examines whether the Indiana Board of Tax Review erred in reducing Gateway Arthur, Inc.’s real property assessments for the 2007, 2008, 2009, and 2010 tax years (the years at issue). The Court finds that the Indiana Board did not err. * * *

The Indiana Board’s final determination, therefore, indicates that it found the Assessor’s position persuasive with respect to this issue, not that it corrected the Appraisal. Accordingly, the Meijer and Meridian Towers cases do not apply here because the Indiana Board’s actions were based on, and supported by, the record evidence. See Meijer Stores, 926 N.E.2d at 1138-39; Meridian Towers, 805 N.E.2d at 480. Consequently, the Indiana Board did not exceed its authority by increasing Gateway Arthur’s requested valuations by $1 million for each of the years at issue.

Posted by Marcia Oddi on Wednesday, September 30, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Tax Court decides one today

In Indiana Department of State Revenue, Inheritance Tax Division v. James F. Keenan and Wells Fargo Bank, N.A., as Co-Personal Representatives of the Estate of Judd Leighton, a 13-page opinion, Sr. Judge Fisher writes:

The Indiana Department of State Revenue, Inheritance Tax Division appeals the St. Joseph Probate Court’s order that determined that the Estate of Judd Leighton timely filed with the Department its claim for refund of inheritance tax paid. The sole issue before the Court is whether the Probate Court erred in making that determination. The Court finds that the Probate Court did indeed err.

Posted by Marcia Oddi on Wednesday, September 30, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Courts - Judge Altice files first Court of Appeals opinion today

Judge Robert Altice, who took the oath for the Court of Appeals earlier this month, today filed his first opinion as a COA judge, Christopher A. Lothamer v. State of Indiana. See summary here, third case.

Posted by Marcia Oddi on Wednesday, September 30, 2015
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (5):

In In Re: The Matter of the Petition to Expunge Conviction Records of James D. Borel v. State of Indiana , a 7-page opinion, Sr. Judge Barteau writes:

James D. Borel1[1] appeals the trial court’s denial of his Petition to Expunge Conviction Records and his motion to correct error. We reverse and remand.

The dispositive issue is whether the trial court erred by denying Borel’s motion to correct error. * * *

The trial court denied Borel’s petition for expungement and motion to correct error pursuant to Indiana Code section 35-38-9-8(b)(11) (2014). At the time Borel filed his petition, that statute stated: “The petitioner shall provide evidence that the petitioner has paid all fines, fees, and court costs, and satisfied any restitution obligation imposed on the person as part of the sentence.”[3]

In denying Borel’s motion to correct error, the trial court determined the “Docket Sheet submitted by the petitioner shows that judgment was entered for costs and that the court costs of $37.00 was entered in” the judgment docket. The typed entries in the docket sheet do not indicate that any court costs were imposed. There is a handwritten note next to one of the entries that consists of the following: “[illegible word, perhaps ‘costs’] 37.00 J.D. 29 pg 123.” Appellant’s App. p. 96. The note is not signed or initialed. There is no indication as to who wrote the note or when it was added to the docket over the last thirty years. * * *

There is insufficient evidence that the trial court imposed court costs or that such court costs remain unpaid, and the trial court’s denial of Borel’s motion to correct error is clearly against the logic, facts, and circumstances presented.

There is insufficient evidence that the trial court imposed court costs or that such court costs remain unpaid, and the trial court’s denial of Borel’s motion to correct error is clearly against the logic, facts, and circumstances presented.
______________
[1] Both parties identify Borel by initials in their briefs. They do not cite any authority for using initials rather than Borel’s full name. The chapter of the Indiana Code that governs expungement petitions, Indiana Code section 35-38-9-1 et seq., does not mandate the use of initials on appeal. To the contrary, a 2015 amendment to Indiana Code section 35-38-9-10 provides that documents filed in expungement cases are not confidential until and unless the court grants the petition for expungement. 2015 Ind. Acts. 1279-80. In addition, Indiana Administrative Rule 9(G) does not include expungement proceedings among those types of cases in which a party’s identity must be withheld from public access. Finally, recent decisions by the Court in appeals involving the denial of petitions for expungement do not refer to petitioners by their initials. See, e.g., Trout v. State, 28 N.E.3d 267 (Ind. Ct. App. 2015); Mallory v. State, 15 N.E.3d 112 (Ind. Ct. App. 2014); Taylor v. State, 7 N.E.3d 362 (Ind. Ct. App. 2014). For these reasons, we use Borel’s full name in this opinion.

[3] A later amendment to the statute eliminated the provision requiring proof of payment of fines, fees, and court costs. See 2015 Ind. Acts 1275-76. Pursuant to other statutes governing petitions for expungement, the trial court is still required to determine whether all fines, fees, and court costs have been paid. See id. at 1267-70.

In Joan E. Gochenour and James E. Gochenour v. CSX Transportation, Inc. Gerald Konz, Cody Cooper, et al., a 31-page opinion, Judge Robb writes:
Defendants CSX Transportation, Inc., Gerald Konz, and Cody Cooper (collectively, “CSXT”); the Boone County Commissioners and Boone County Highway Department (collectively, “Boone County”); and the State of Indiana and Indiana Department of Transportation (collectively, “the State”), moved for summary judgment on Joan and James Gochenour’s complaint for damages for injuries Joan sustained in a car versus train accident. The trial court ultimately granted summary judgment on all claims to all defendants, and the Gochenours appeal, raising the sole issue of whether summary judgment was proper. We conclude the Gochenours’ inadequate warning device claims, in all their iterations, are preempted by federal law. We also conclude that a genuine issue of material fact exists regarding whether CSXT failed to provide an unobstructed view at the crossing as required by law due to lack of vegetation control. Therefore, we affirm the trial court’s grant of summary judgment to Boone County and the State in full. We affirm the trial court’s grant of summary judgment to CSXT in part, and reverse and remand for further proceedings in part.
In Christopher A. Lothamer v. State of Indiana, a 7-page opinion, Judge Altice, in his first opinion on the COA, writes:
Following a jury trial, Christopher Lothamer was convicted of Dealing in Methamphetamine by Manufacturing,1 a class B felony, along with numerous other drug offenses. On appeal, Lothamer presents one issue for our review: Whether the evidence is sufficient to sustain his conviction for dealing in methamphetamine by manufacturing. * * *

The totality of the evidence supports a reasonable inference that Lothamer knowingly and intentionally aided Jensen in the manufacture of methamphetamine. We therefore affirm Lothamer’s conviction for dealing in methamphetamine by manufacturing.

In Logan M. Dull v. State of Indiana, a 20-page opinion, Judge Pyle writes:
On appeal, Dull challenges only the amount of restitution ordered. Specifically, he argues that the trial court abused its discretion by ordering him to pay $145,633.40 in restitution because part of that amount was based on uncharged acts to which he neither pled guilty nor agreed to pay restitution. We agree with Dull’s assertion. Absent an agreement to pay restitution, a defendant may not be ordered to pay restitution for an act that did not result in a conviction. Because the trial court ordered restitution for amounts that related to dates outside Dull’s indictment for which he did not plead guilty and for which he did not agree to pay, we reverse the trial court’s order of restitution. However, because Dull did agree to a specific amount of restitution that fell within the dates contained in the indictment, we remand to the trial court to enter an order for that specific amount. Reversed and remanded.
In John Larkin v. State of Indiana , a 12-page opinion, Judge Barnes writes:
Larkin raises one issue, which we restate as whether the trial court properly denied his petition to disqualify the LaPorte County Prosecutor’s Office with respect to his pending voluntary manslaughter charge. * * *

We agree with the State that the appointment of a special prosecutor is moot here because Szilagyi is no longer the prosecutor. The new prosecutor Espar was not involved in listening to Larkin’s confidential conversation with his attorney. Because there is no basis to disqualify Espar, there is no basis to disqualify the entire LaPorte County Prosecutor’s Office as Larkin is requesting. We also conclude that the public interest exception is not applicable here. Although the issues involve a question of great public importance, i.e., improper interference with an attorney-client relationship by at least one deputy prosecutor, the circumstances here are unusual enough that they are not likely to recur or continue to evade review. Larkin’s request to disqualify the entire LaPorte County Prosecutor’s Office is moot. Consequently, we dismiss the appeal of the trial court’s denial of Larkin’s motion to disqualify the Prosecutor’s Office and appoint a special prosecutor. * * *

Whether the trial court erred by denying Larkin’s motion to disqualify the LaPorte County Prosecutor’s Office from this case is moot. Consequently, we dismiss.

NFP civil decisions today (3):

Matthew Longest, Deceased, by Robert Longest, et al. v. Lisa M. Sledge, a minor and Roger Brown and Donna Sledge, a/k/a Donna Seldge Brown (mem. dec.)

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

David Moss v. Indianapolis Dept. of Natural Resources (mem. dec.)

NFP criminal decisions today (6):

Denny Brock v. State of Indiana (mem. dec.)

Danean Childress v. State of Indiana (mem. dec.)

James H. Gosnell v. State of Indiana (mem. dec.)

Wenston Watson v. State of Indiana (mem. dec.)

Gerald Binfet v. State of Indiana (mem. dec.)

Wilbert T. Sturgis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, September 30, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Committee yesterday hears testimony on potential legislation related to the use of police body cameras

Yesterday's Interim Study Committee on Government heard testimony on potential legislation related to the use of police body cameras.

Claire McInerny reported for Indiana Public Media:

West Lafayette’s police force has been using body cameras for about a year. Chief Jason Dombkowski says he used resources from, among others, the Department of Justice and the International Association of Chiefs of Police when developing a policy for those body cams. But he says, particularly on privacy concerns and redacting video, he’d like guidance from the legislature.

“You have interviews of victims and you have a public records request for that, there’s a balance that needs to be struck there.”

But Steuben County Sheriff Tim Troyer told a panel of lawmakers studying body cams that he opposes them altogether. Troyer says just the presence of the body cams creates what he calls “fear in our citizens.”

“They’re less apt to talk to that deputy about that incident in their neighborhood if they believe that that recording is going to somehow make its way to an unprotected environment or in the hands of other people.”

Brian Slodysko of the AP reported:
An urban versus rural split emerged among law enforcement groups Tuesday as a state legislative committee explored potential guidelines governing the use of police body cameras by Indiana’s police agencies.

Steuben County Sheriff Tim Troyer said he fears that mandatory cameras could trample on privacy protections and destroy the trust built up between his deputies and residents in the rural northeastern Indiana county.

“I had genuine fear of how that’s going to affect trust in my community,” said Troyer, who has banned his deputies from carrying their own body cameras. “Just the presence of those cameras creates fear in our people, in our citizens.”

Meanwhile, West Lafayette Police Chief Jason Dombkowski was an avowed supporter of their use. Dombkowski said the number of excessive-orce complaints against his department plummeted from 29 to seven since officers started using the cameras over a year ago.

“Everybody behaves different when they know they are being recorded,” Dombkowski said.

The use of body cameras has been debated across the country following several high-profile cases in which people have died at the hands of police, leading long-simmering tensions with law enforcement to boil over, especially in some urban communities. * * *

Key issues lawmakers are reviewing include when police should have their cameras recording, what footage needs to be retained for the long term and how quickly agencies should be required to release footage to the public.

Not all rural agencies in the state are against using the cameras. Last year, the Gibson County Sheriff’s Office equipped deputies with body cameras.

But Troyer’s stance against body cameras bolstered skepticism raised before the Interim Study Committee on Government by the Indiana Sheriff’s Association, which argues that the cameras would be costly, time-consuming to use and burdensome for smaller departments. Cameras could also record footage that violates people’s constitutional privacy rights, the agency said.

But lawmakers on the committee from urban areas said police body cameras could actually increase trust.

“Why are we even here talking about this?” said Sen. Greg Taylor, D-Indianapolis. “We’ve seen how they’ve exonerated police officers and how they’ve really shed light on the truth.”

Jill Disis reported for the Indianapolis Star:
The use of body-worn cameras has been widely embraced by many midsize and major metropolitan police departments, who laud the technology as a way to protect officers from false accusations and record evidence that could become instrumental in court proceedings.

But not everyone is a fan.

During a legislative committee hearing Tuesday, Steuben County Sheriff Tim Troyer, secretary of the Indiana Sheriffs' Association, said the use of body cameras could prove disastrous to his department's ability to conduct investigations.

"You're talking about, unlike a dash camera, a device that can be carried into constitutionally protected environments," he said.

Troyer argued that body cameras could end up shattering public trust instead of building it.

"We've gone to great lengths to gain trust in our communities," he said. "I think the fear in my agency and with my deputies is that the presence of those cameras ... in those areas creates fear in our people, in our citizens."

Troyer, whose department operates in a county of about 34,000 people, said he has sent a written directive to his agency prohibiting the use of body cameras. * * *

Other departments in the state have expressed support for the use of body cameras, including Indianapolis. Indianapolis public safety officials have asked the City-County Council for $250,000 to help pay for body cameras in 2016. Discussion on that topic is expected to continue Wednesday night.

Speaking to The Indianapolis Star last week, Deputy Director of Public Safety Bryan Roach said he thinks cameras can be an "effective tool." Earlier this month, Indianapolis Fraternal Order of Police President Rick Snyder said several officers "reported positive experiences with the equipment" during a pilot program earlier this year.

Posted by Marcia Oddi on Wednesday, September 30, 2015
Posted to Indiana Government

Tuesday, September 29, 2015

Courts - "New York Judges’ Elections Get New Scrutiny" [Updated]

New York's local judges (called supreme court judges) appear to be selected by a process similar to that used in Marion County. The $$$ Wall Street Journal has a story today by Rebecca Davis O'Brien reporting:

For years, the state’s judicial-selection process has been criticized as opaque and undemocratic, a system in which delegates—often party loyalists, including elected officials and their family members—rubber-stamp candidates handpicked by county party leaders. * * *

The system’s defenders say it is preferable to direct appointments by elected officials or direct election by voters, and generally produces quality judges who understand their communities.

Judicial delegates are elected by state Assembly district in partisan primaries in September, though their names don’t appear on ballots if they run unopposed. In the Bronx, which has 11 Assembly districts, just one had a contested judicial election this year, according to the city’s Board of Elections.

In late September, the delegates for each party hold borough-wide conventions to vote on judicial candidates whose names are typically put forward by party leaders. The Democratic nominees, except in Republican-leaning Staten Island, usually cruise to election in November. * * *

[A 2004 civil suit in Brooklyn federal ended up before the SCOTUS in 2008, where] the U.S. Supreme Court reversed the appellate court ruling, determining that the system was constitutional, even if it was an “unwise” policy, as then-Justice John Paul Stevens wrote in a concurring opinion.

The 2008 SCOTUS decision was NY State Bd. of Elections v. Lopez Torres.

Lopez Torrey is distinguished in the Sept. 9, 2015 7th Circuit opinion, Common Cause Indiana v. Ind. Election Commission, finding unconstitutional the procedure established by Indiana statute for electing judges to the Marion Superior Court in Marion County. The opinion makes three points, beginning at p. 15:

First, the statute in Lopez-Torres allowed for each party to nominate one candidate for every available seat in the general election, whereas here the Statute prohibits the major parties from nominating candidates for more than half of the available seats. Second, although the plaintiffs in Lopez- Torres were unsuccessful in securing their party’s nomination in the convention, they could still get on the general election ballot by providing the requisite number of signatures of voters residing in the district. Here, any candidate who fails to secure the party’s nomination in the primary is restricted from access to the general election ballot.

Third, although many races in the general election went uncontested in Lopez-Torres, this was the result of private decisions in electoral politics, where, for example, the Republican party chose not to run a candidate in a heavily Democratic district, or vice versa, after assessing its chance for victory. See id. (noting that one-party entrenchment was the result of voter approval of the positions and candidates of that party within a voting district and the opposing party’s choice not to run a challenger). Each party still enjoyed the opportunity to field a candidate for each available position. Here, the Statute structurally guarantees that there will be no competition between the two major parties in the general election. Unlike Lopez- Torres, the parties are restricted from access to the ballot as to half of the seats. “The States can, within limits, … discourage party monopoly[, but] [t]he First Amendment creates an open marketplace where ideas … may compete without government interference.” Lopez-Torres, 552 U.S. at 208 (citation omitted). Critically, the uncontested elections in Lopez-Torres—and the lack of electoral choice for voters—was the result of electoral politics within the market. Here, the State interferes with the market by restricting each major party’s access to only half of the ballot, an act that “impinge[s] upon the rights of individuals to associate for political purposes, as well as the right of qualified voters to cast their votes effectively.” Munro, 479 U.S. at 193.

[Updated at 1:41 PM] An attorney-reader comments:
Not sure I would use the word “distinguished”…seemed much more like acknowledged and then ignored…but, that is but one opinion.

Posted by Marcia Oddi on Tuesday, September 29, 2015
Posted to Courts in general

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

In Defender Security v. First Mercury Insurance (SD Ind., Barker), a 14-page opinion, Judge Kanne writes:

Appellant Defender Security Com-pany (“Defender”) purchased a commercial general liability insurance policy from Appellee First Mercury Insurance Company (“First Mercury”). Defender timely tendered a claim to First Mercury, based on a lawsuit filed against Defender in California state court. First Mercury denied cover-age and refused to defend Defender in that lawsuit. Defend-er filed the instant suit in the Southern District of Indiana, alleging breach of contract and bad faith, and seeking a declaratory judgment that First Mercury owed it a duty to defend. First Mercury filed a motion to dismiss, which the district court granted. We affirm. * * *

[Much reference is made to Indiana decisions in the body of the opinion]

Defender’s argument here is in essence an attempt to “argue in the alternative” on appeal without having present-ed the alternative argument below. In the district court, De-fender put all of its eggs in the “publication-means-recording” basket. It did not raise the alternative argument that even if First Mercury’s narrower definition of “publication” prevailed, Defender satisfied the narrower definition because it communicated the recordings to third parties. De-fender could have alleged that fact in its pleadings—after all, if Defender did communicate the recordings to others, then it knew or should have known that fact. But Defender did not allege it. Nor did it make the argument in its opposition to the motion to dismiss, or move to amend the complaint. The district court committed no error by not considering an argument Defender never made, based on facts it did not allege.

III. CONCLUSION. For the foregoing reasons, we AFFIRM the district court’s grant of First Mercury’s motion to dismiss the Defender complaint.

Posted by Marcia Oddi on Tuesday, September 29, 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 In the Matter of the Term. of the Parent-Child Relationship of: N.G., L.C., and M.C. (Minor Children), and A.C. (Mother) v. The Ind. Dept. of Child Services, a 2-1, 40-page opinion, Judge Baker writes:

A.C. (Mother) appeals the judgment of the trial court terminating her parental rights as to her children N.G., L.C., and M.C. We reverse the trial court’s judgment insofar as it relates to L.C. and M.C. as we find insufficient evidence to support it. However, we find that the trial court’s judgment as to N.G. is supported by sufficient evidence and we affirm that portion of the judgment. * * *

The evidence presented in regard to L.C. and M.C. falls far short of meeting this standard. At the end of the day, we cannot say with any confidence that the conditions that led to L.C. and M.C.’s removal will not be remedied—in part because we cannot determine what those conditions were—nor can we be at all certain that termination is in the children’s best interests. Given the gravity and permanence of the sanction, such certainty is required in termination cases.

We reach a different conclusion in regard to N.G. in light of the evidence in the record regarding his special needs and instances of physical abuse.

The judgment of the trial court is affirmed in part and reversed in part.

Bailey, J., concurs, and
Mathias, J., concurs in part and dissents in part with a separate opinion. [that begins, at p. 34] I concur in the majority’s decision affirming termination of Mother’s parental rights to N.G., but I respectfully dissent from my colleagues’ conclusion that the trial court’s judgment terminating Mother’s parental rights to L.C., and M.C. is not supported by sufficient evidence. Although termination of Mother’s parental rights to L.C. and M.C. might be a close call, given the well-established deference our court is required to give to trial courts in these matters, I would affirm the trial court in all respects.

NFP civil decisions today (1):

In the Matter of the Term. of the Parent-Child Relationship of S.R., and D.R., and H.A.R., H.G.R., H.O.R., and N.R., Children: S.R. and D.R. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (6):

James A. Lynn v. State of Indiana (mem. dec.)

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

Joseph Merriman, III v. State of Indiana (mem. dec.)

Elsor Matthews v. State of Indiana (mem. dec.)

William A. Russell v. State of Indiana (mem. dec.)

Jerell Owens v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, September 29, 2015
Posted to Ind. App.Ct. Decisions

Law - "Covert Electronic Surveillance Prompts Calls for Transparency"

The heading is from a story today from Timothy Williams of the NY Times, just the most recent of a long string of stories from across the country. Some quotes from today's long story:

Law enforcement officials across the United States have become enamored of the StingRay, an electronic surveillance device that can covertly track criminal suspects and is being used with little public disclosure and often under uncertain legal authority. Now, though, some states are pushing back, and are requiring the police to get a court order and local consent before turning to the high-tech tool.

Washington, Utah and Virginia recently approved laws requiring court orders for the use of such cell-site simulators by state and local police officers. California lawmakers this month approved such legislation by a wide margin. The California law would also require police agencies to get City Council approval before employing the devices, and to disclose on an agency website that they use the technology. Similar bills have been introduced in Texas and in Congress.

In Maryland, defense lawyers are re-examining thousands of cases to determine if the police have been deploying the technology legally.

The Kansas City Star had this lengthy story Sept. 5th, by Glenn E. Rice. Some quotes:
On Thursday, the Department of Justice released a cellphone tracker policy that appeared to have been drafted, at least in part, to answer some of the nationwide criticisms. The policy included background on how the devices work — to clear up confusion and incorrect perceptions, the document said.

Probable-cause search warrants now are required in all but “exigent circumstance,” or emergency cases, where use of the device could save lives or prevent serious injury, the policy said.

By the ACLU’s count, at least 54 nonfederal law enforcement agencies in 21 states have the devices.

Other law enforcement agencies borrow the equipment from state police, neighboring local jurisdictions or federal agencies, which began using the device in the mid-1990s, said Nathan Wessler, a lawyer for the ACLU.

Wired's Kim Zetter reported on the new DOJ policy (with links) on Sept. 3; some quotes:
The government’s use of controversial stingray devices just got a little more stringent and transparent—at least at the federal level. * * *

Although the new policy is something civil liberties groups have been seeking for years, the new federal policy does not cover local and regional law enforcement, who also use stingrays to track suspects. Also, although the policy means that the Justice Department will now be more carefully tracking the number of times federal agents use stingrays, there is currently no law requiring the agency provide an annual report to Congress about their use—which the agency is currently required to do with regard to wiretapping and the use of national security letters.

Cyrus Farivar of ArsTechnia had this link-studded story on Sept. 3rd on the new federal policy. The day before, Farivar had a long story headed "Indiana State Police won’t give up stingray records due to 'terrorism” risk.'" The long, fascinating story begins:
A California-based privacy activist who has filed hundreds of public records requests to learn about how cell-site simulators are used nationwide had a request denied earlier this week by the Indiana State Police.

However, the reason for the denial is a bit strange—the department seems to claim that releasing the requested information constitutes a possible risk to terrorism or even "agricultural terrorism."

More from the must-read story:
At least some legal experts in Indiana don’t believe that this blanket exemption to the state public records law is justified.

"The FBI can write these [non-disclosure agreements] all they want, but there's no enforcement mechanism, not unless they have some kind of US Code or Code of Federal Regulation to back that up," Luke Britt, the Indiana Public Access Counselor (PAC), told Ars.

"They can't really make their own executive orders," he said. "They have to have a statute to back that up. And if they do, they can put it in the agreements."

Britt previously authored a response to a 2013 public records request made by a fellow resident to the Indiana State Police regarding purchase orders and contracts of stingrays. That request was also denied, and Britt upheld the denial.

However, he acknowledged that Katz-Lacabe’s request was much more tailored and that the NDA was not previously requested. Britt suggested that Katz-Lacabe appeal and then file a complaint with his office if necessary—Katz-Lacabe told Ars he planned on appealing soon.

This denial may still stand unless Katz-Lacabe or someone else challenges it in court.

"I've never seen this cited before in a denial and there doesn't appear to be any case law interpreting its scope or applicability to certain fact scenarios," Bill Groth, an Indianapolis lawyer, told Ars. "I also can't say if it mirrors similar exceptions in other states' public records laws."

Tyler Helmond, another Indianapolis attorney, concurred.

"The question is whether disclosing that information about an investigation or prevention capability ‘would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.’ Ind. Code 5-14-3-14(b)(19). I think the word ‘vulnerability’ would be important to a court resolving this question," he said. "At least colloquially, that would seem to suggest that a non-disclosure agreement about a specific technology used for investigation may very well not be subject to invoking the non-disclosure provision. But again, I think in light of the PAC’s advisory opinion, this is a difficult question that is largely unresolved."

When Ars pointed out that such NDAs had already been released in other states, he agreed that this could put a damper on such secrecy: "That’s a great point—the capability at this point has been exposed, so I think it is harder to make the case for non-disclosure on that basis."

The ILB has a lengthy list of earlier posts on the stringray cell-phone tracker, dated back to Dec. 8, 2013 ("Indiana State Police tracking cellphones — but won’t say how or why"), where the post links back to even earlier entries.

Posted by Marcia Oddi on Tuesday, September 29, 2015
Posted to General Law Related

Ind. Gov't. - "Indy increasingly turns to nuisance law to force crime-ridden apartments, hotels and even Wal-Mart to clean up their act"

Jeff Swiatek and Justin L. Mack of the Indianapolis Star report. A few quotes from the long story:

When businesses become insufferable crime magnets, Marion County officials charged with keeping the peace bring out their big gun.

The nuisance lawsuit.

More than 18 times over the past five years, nuisance lawsuits have been the weapon of choice against the worst of the worst problem properties in Marion County.

A public nuisance declaration may sound like something proclaimed from the pulpits by 18th century puritans. But it seems to be increasingly working as a crime-fighting tool in these YouTube times.

The Beech Grove Wal-Mart, site of a now-infamous videotaped fight in June between two women and a young boy, is a case in point. * * *

News reports show the city's legal department, at the behest of code enforcement and police, has filed nuisance lawsuits since 2011 against at least eight apartment complexes, nine hotels and a handful of bars and rental-home landlords

The problem properties typically had racked up hundreds of police runs each over a year or two. They tended to be rife with prostitution, drug-dealing and violent crime. And management seemed unable to get control.

A nuisance lawsuit "garners the attention of lackadaisical property owners. They serve as a wakeup call," said city prosecutor Mark Pizur. "The city has really increased the use of public nuisance lawsuits the last several years. It has become clear it is a viable and successful way to assist public safety." * * *

Property owners hit by a nuisance complaint aren't exactly fans.

To be deemed a public nuisance can be a reputation-killer for a commercial business.

A Wal-Mart spokesman makes a point of noting that Beech Grove's demand letter to reduce crime reports at the Beech Grove store never uses the term "public nuisance." (Even though Beech Grove's action was done under its nuisance ordinance.)

Businesses also don't like that a nuisance complaint can be painfully expensive. It often requires hiring an attorney to fight the city in court battles that can drag on for months.

Posted by Marcia Oddi on Tuesday, September 29, 2015
Posted to Indiana Government

Ind. Gov't. - "The lessons of the proposed Mounds Lake reservoir"

The ILB has had a number of posts on the proposal for a Mounds Lake Reservoir. Here, from The Indiana Economic Digest, is a worth-reading column from Michael J. Hicks, professor of economics at Ball State. Some quotes:

Two town council votes this month ended any realistic chances that Mounds Lake would ever be built. The very timely demise of this proposed 2,100 acre reservoir in Madison and Delaware County offers some useful lessons.

The lake, which would submerge portions of the City of Anderson and extend up the White River to Yorktown was first proposed as an economic development panacea. Without any supporting analysis (or apparent legal advice), the supporters of the project approached the U.S. Army Corps of Engineers and the EPA with the plan. They also requested state funds to perform the first round of a feasibility study. Funding analysis of regional economic development efforts is a wise and appropriate use of state dollars. Without that support, many problems would not have surfaced.

The preliminary feasibility study was underway when the Corps of Engineers and EPA walloped the initial plans. As any novice environmental lawyer can attest, it is illegal to dam the waters of the United States for local economic development. So, upon release of the feasibility study the purpose of the dam miraculously changed from economic development to water supply.

A singular problem with this approach is that the potential buyers of water in central Indiana publicly stated they neither needed nor wanted the water. A second problem was that the preliminary feasibility study either omitted or assumed away key features that would have hurt their effort. So, this study didn't tell residents whether they’d have lakefront or swamp front property. The study neither conducted any core drilling of a known landfill nor provided a realistic assessment of the costs of wetland reclamation. Now, I don't fault the consultants for not doing these things. Consultants are paid to answer questions. The problem was that the reservoir proponents wanted the study for reasons similar to why a drunk wants a lamppost—for support, not illumination. These questions could've been addressed for less money than was spent on marketing the reservoir.

The myriad problems with the proposal came to light in a democratic process that spanned several months. Experts on hydrology, geology, archeology, biology, environmental law, economics and others weighed in on the project. In the end, analysis and fact—much of it uncovered in this study—doomed the project. But it was concerned citizens, including many prominent local business leaders, who led the opposition. This is a great lesson in civics, but it isn't the most important lesson from the project.

Posted by Marcia Oddi on Tuesday, September 29, 2015
Posted to Environment | Indiana Government

Ind. Decisions - Judge Posner and the use of information gathered from the Internet

On August 20, 2015 the ILB had a post headed "Ind. Decisions - 7th Circuit decided one Indiana case yesterday, a must read on independent research by judges." At the time, Debra Cassens Weiss of the ABJ had a good post headed "Dissenter blasts Posner’s Internet research in inmate’s suit over acid reflux treatment." The dissenter was Judge Hamilton.

Now Aaron S. Bayer has a Sept. 14th article in The National Law Journal (h/t How Appealing) titled "When Judges Rely on Their Own Online Research: A recent Seventh Circuit ruling tests the use of information gathered from the Internet." Some quotes:

But Posner also cited his own extensive research on medical and pharmaceutical websites about reflux and the dosing and effectiveness of Zantac. And it’s clear from his opinion that his independent research influenced his evaluation of the State’s claims.

It’s also clear that Posner seeks to expand the envelope of permissible fact-finding by appellate judges. He devoted much of his decision (and a detailed appendix) to defending his use of “highly reputable medical websites” that were outside of the record. As Posner recognized, under current law the court could not take judicial notice of the research he cited. That research did not involve judicially noticeable “legislative” facts—because it directly related to core factual issues in the suit. * * * Judge David Hamilton’s dissent took Posner to task on every point, calling his opinion an “unprecedented departure from the proper role of an appellate court.” The factual conclusions in the majority opinion about the timing and effectiveness of a patient’s doses of Zantac were neither determined through the adversarial process, nor were they properly subject to judicial notice.

Hamilton rejected the notion that there is some kind of in-between category in which an appellate court can make its own factual findings. He noted that the Seventh Circuit would reverse a district court for basing a decision on its own research, would order a new trial if jurors conducted their own research and would criticize a party for trying to supplement the factual record on appeal. He urged the court to adhere to the same standards.

Hamilton also recited a host of practical problems with allowing independent judicial fact-finding.

In an opinion yesterday, Sept. 28, 2015 written by Judge Posner, Discount Inn v. City of Chicago, the plainitff sought to invalid the City's weed ordinance, which provided that “any person who owns or controls property within the city must cut or otherwise control all weeds on such property so that the average height of such weeds does not exceed ten inches," as unconstitutional, claiming the fines were excessive under the 8th amendment, and that
...the weed ordinance is vague and forbids expressive activity protected by the First Amendment. The concern is that native plants, while sharing with weeds the property of not having to be planted, are, unlike weeds, beautiful and nondestructive when properly managed.
Posner's opinion includes color photos of several plants, it is unclear whether they are taken from the record. Additional, Judge Posner writes, beginning on p. 3:
An oddity of this case is that nowhere in the briefs, or in the district court’s opinion, or elsewhere in the record is there any information about Discount Inn except that it is incorporated in Illinois and its address is in Skokie—a city separate from Chicago. Virtually all that we’ve been able to learn about the company is that it owns real estate in Chicago. Discount Inn does not have a website, or a Dun & Bradstreet report, or more than a tiny handful of Internet references, none of which describes its business. The address in Skokie is a private home in a suburban subdivision. The home is owned by a person named Baba Abdul Jubbar, who also has no website, and the property apparently is the headquarters not only of Discount Inn but also of the Solo Land Corp. and SNS General Corp., which also do not have websites. And it seems that a “Suzie Baba” is president of at least four other corporations at that address. See Entity Source, “Sns General Corp.,” www.entitysource.com/details/ entity/il_56915826/sns‐general‐corp. (visited September 28, 2015, as were the other websites cited in this opinion). An article in the East St. Louis Monitor of September 20, 2012, “Nightclubs and Convenience Marts Charged,” www. estlmonitor.com, reports that Discount Inn owned “derelict properties” in that city. We can discover nothing about Discount Inn’s properties in Chicago or the specifics of its violations of the weed and fence ordinances.

Although the factual vacuum does not prevent our deciding the case, we take this opportunity to advise counsel for future litigants to provide judges with some minimal background information about their clients—some sense of context— to help the judges make sense of their case.

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

Ind. Gov't. - More on "States Grapple With Public Disclosure of Police Body-Camera Footage"

The Interim Study Committee on Government will meet today,Tuesday, Sept. 29th, continuing discussion on "Public records requests for police body camera video." Here is the agenda. The meeting begins at 10 AM in Rm. 431 of the Statehouse. You may watch it live here.

For background, see this Sept. 25th ILB post.

Posted by Marcia Oddi on Tuesday, September 29, 2015
Posted to Indiana Government

Environment - “Economy-wide Implications of President Obama’s Air Agenda.”

EPA Acting Assistant Administrator Janet McCabe will testify before the Senate Environment and Public Works Committee on EPA clean air regulations. Committee members, especially Republicans, are expected to push her on forthcoming ozone rules and the Clean Power Plan rule for power plants. The meeting begins at 10:00 AM. More info here.

Posted by Marcia Oddi on Tuesday, September 29, 2015
Posted to Environment

Monday, September 28, 2015

Ind. Gov't. - "Top 10 tips for getting public records"

Kelly Hinchcliffe writes on Indiana University journalism professor Gerry Lanosga's top ten tips, via Poynter. This contains really good advice.

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Indiana Government

Ind. Gov't. - Study finds "significant commercial underassessments, most notably within franchise restaurants" in Howard County

"Study claims commercial, industrial properties are severely under-assessed" was the headline of this Sunday story by George Myers in the Kokomo Tribune (here via Indiana Economic Digest).

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Indiana Government

Ind. Courts - "Man declares house a church, denies access to investigators"

Intriguing headine from the $$$ Martinsville Reporter-Times today: "Town taking 'church' to court: Man declares house a church, denies access to investigators."

[More] Google provides this snippet: "Dennis Payne Jr. has denied officials access, saying he is the CEO and medicine man of the Oklevueha Native American Church of Indiana Apache ..."

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Indiana Courts

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

For publication opinions today (1):

In Michael R. Pike, and Chassidy L. Pike v. Conestoga Title Insurance Co., a 9-page opinion, Judge Brown writes:

Generally the interpretation of an insurance policy presents a question of law and is thus appropriate for summary judgment. * * *

The trial court explained that it granted summary judgment in favor of Conestoga because the Pikes failed to provide Conestoga with notice of their claim as required by the insurance policy and Conestoga did not act in bad faith in denying it. The notice requirement is material and of the essence in insurance contracts. * * *

Despite these two notices which were given directly to the Pikes and advised them of interests adverse to the title of their estate which might cause loss for the insurance company, the Pikes failed to promptly notify Conestoga. The Pikes clearly failed to comply with the notice provision of their Conestoga policy. * * *

[T]he contract requires only notice of an adverse claim that might cause the insurance company to be liable. The Pikes had such knowledge as early as June 2006 and then again in November 2006. Under the terms of the policy, the Pikes were required to notify Conestoga at those times.

We further note that to the extent the Pikes argue that they did not have knowledge of their claim because they are unsophisticated, we note that insureds have a duty to read and to know the contents of their insurance policies. See Safe Auto, 889 N.E.2d at 397.

Conclusion. For the foregoing reasons, we affirm the trial court’s order entering summary judgment in favor of Conestoga.

NFP civil decisions today (1):

Jon A. Zima v. Eric A. Kazmierzak (mem. dec.)

NFP criminal decisions today (1):

Brandon Eubank v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Official: No stay issued for Singleton quarry yet"

Updating earlier posts, the Gary Post-Tribune on Friday had a comprehensive story by Carrie Napoleon on the current status of the Lake County Singleton Quarry permit challenges before the Indiana Departmental of Environmental Adjudication.

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Environment | Indiana Government

Ind. Law - 2014 law and regulations on locally sourced meat and poultry hinder some farmers

Maureen Hayden of CNHI had an interesting story Friday in the Kokomo Tribune. Some quotes:

Now in its sixth generation of ownership, the J.L. Hawkins Family Farm has been featured in national publications as a foodie’s dream destination.

In rural Wabash County, it’s a place where gourmands enamored of local food go on Friday nights to dine in the farm restaurant on pizza topped with sausage from the farm’s pigs, which is laid out on crust seasoned with honey from the farm's bees and covered with sauce made from the farm’s heirloom tomatoes.

Owner Jeff Hawkins, an ordained Lutheran minister who has opened the 99-acre farm as a retreat for weary ministers to tend soil and soul, said the business is supported by sales of produce and livestock.

He now finds himself dealing with less bucolic matters - specifically a complicated, bureaucratic fight over food safety.

Earlier this month, the state Department of Health issued a cease-and-desist order to Hawkins, telling him to stop selling his farm-raised, grass-fed, organic chickens to area restaurants that specialize in locally sourced foods.

The department contends his sale of farm-butchered chickens to restaurants is violating a 2014 state law that cleared way for small poultry farmers to process their own birds for sale directly to consumers.

The law was hailed as reducing burdensome regulation on local producers, but it only went so far.

Under the law Hawkins – and poultry farms with less than 20,000 birds - can sell farm-raised, farm-butchered poultry at farm stands and farmers markets and even on the farm to “end consumers.” But it doesn’t cover restaurant sales.

Hawkins isn’t an intentional violator. Working with the national Farm-to-Consumer Legal Defense Fund, which helped write that 2014 law, he's now turning to federal rules that favor small farmers.

Under those rules, he earned an exemption from the meat-inspection regulations that cover big poultry plants after his farm was inspected and approved by the state Board of Animal Health.

“I was trying to follow the rules,” he said. “I thought we’d done everything right.”

Hawkins’ poultry and his farm are widely recognized - including on the state's tourism website. His food has been served at the annual Dig IN Taste of Indiana food festival, which features the state’s top chefs.

Pete Sullivan, a lawyer with the Farm-to-Consumer Legal Defense Fund, says Hawkins is caught in a classic bureaucratic nightmare of regulators interpreting potentially conflicting rules.

Later in the story:
Farm-to-fork supporters are watching closely. Indianapolis chef Thom England, a pioneer in the local food movement, said restaurants throughout the state buy and serve poultry from farms just like Hawkins’. He sees the matter as a test case for state regulators.

Meanwhile, the conflict could become even more contentious. State Sen. Jean Leising, R-Oldenburg, predicts the poultry rules will come under scrutiny in the 2016 session.

Leising, a farm owner and retired nurse, advocates tougher food safety rules. She’d like to see an end to the 2014 law loosening poultry sales at farmer’s markets, arguing that it opens the door for public health to be compromised by tainted food.

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Indiana Law

Ind. Courts - Libertarian files federal suit challenging Indiana election laws

Page Gable of the Shelby News had a very long story this weekend that began:

A man who has run numerous times for political office now finds himself in arguably the greatest political battle of his career.

Andrew Horning, who has run for office both on state and federal levels in the past as a Libertarian and Republican, recently filed a lawsuit in United States District Court Southern District of Indiana Terre Haute Division against the State of Indiana, including the secretary of state, Indiana Election Commission, the members of the Indiana General Assembly and the governor.

Horning alleges there are violations of both the Indiana and federal constitutions that are harming him and others.

"I'm not sure why nobody brought this up decades ago when the worst infractions became code. But I'm bringing suit now only because it's not only apparent that both major political parties have sold out, but also that most people now know it. While I know that most people don't know that the 'two-party system' is actually an illegal contrivance, I do know that most people are pretty sick of it," Horning told The Shelbyville News.

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Indiana Courts

Courts - Podcast: "Americus - 2015 Term Preview"

Listen here. The preview:

With just a couple weeks left before the beginning of the 2015–16 Supreme Court term, Dahlia sits down with the Los Angeles Times’ David Savage to preview some of the big cases already on the docket. They include Fisher v. University of Texas, which takes on affirmative action in higher education; Friedrichs v. California Teachers Association, which challenges the right of public unions to collect mandatory fees from workers; and Evenwel v. Abbott, a case that could transform the meaning of “one person, one vote.”

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Courts in general

Courts - Two lawyer disciplinary stories from Wisconsin

"Estate planning lawyer facing prison in fraud plea deal," a story by Bruce Vielmetti in the Sept. 27th Milwaukee Journal Sentinel crime section, begins:

A Mequon estate planning lawyer whose practice derailed amid fraud lawsuits, ethics complaints and a 33-count federal indictment has reached a plea agreement that could land the mother of four in prison for years.

Sarah E.K. Laux, 36, whose office was in Greenfield, targeted older clients with estate planning and trust services, often through free luncheon seminars.

She also had a related insurance company she at times claimed was a nonprofit organization, according to former clients, most of whom paid at least $4,000 for estate plans of varied effectiveness.

But it was the more than $3 million in thefts from two wealthy clients that finally got federal investigators involved.

Laux's growing troubles were first reported by the Journal Sentinel in 2013, when her most prominent clients, the heirs of early 20th-century Milwaukee industrial leader Charles Pfister Vogel, claimed she had converted more than $1.5 million — money they claimed Laux used, in part, to purchase real estate in Mequon and pay personal expenses.

More lawsuits and investigations by lawyer and insurance regulators followed, and in December 2014, Laux was indicted on nearly three dozen criminal charges.

According to the plea agreement filed Thursday, Laux will plead guilty to five of the 33 counts in the indictment, one each of bank fraud, mail fraud, wire fraud, money laundering and filing a false tax return. The fraud charges carry maximum penalties of 30 and 20 years in prison, while the money laundering has a 10-year maximum, and the tax count a possible five-year sentence.

The second, a story today from the J-S, also by reporter Vielmetti, is headed "Attorney flagged for Facebook selfie with client after winning murder acquittal." The photo is included. The story begins [ILB emphasis]:
Perhaps understandably, Waukesha criminal defense attorney Anthony Cotton said he was excited to hear a Milwaukee jury declare his client not guilty of first degree intentional homicide after a re-trial on Sept. 18.

The acquittal meant Brandon Burnside would be released from prison, where he had been serving a life sentence until winning the right to a new trial on appeal last year.

In the emotion of the moment, soon after court had adjourned, but while there were still staff and others in Circuit Judge Thomas McAdams' courtroom, Cotton pulled out his phone and took a selfie with his client.

What happened next illustrates the generational disconnect about social media's role in professional life. * * *

The judge and Cotton said he apologized, took the Facebook post down, and promised it wouldn't happen again.

But by then, it had already been copied and shared all around the Milwaukee courthouse.

Theoretically, McAdams could have ordered Cotton into custody for direct contempt of court, that is, showing disrespect for the court, if he had personally witnessed the photo being taken.

So, in the social media age, was the photo, and its posting worthy of contempt? Professional sanction? Or no big deal? McAdams said he has heard all three reactions, but as far as he's concerned it's over.

"To me it's undignified," said McAdams, 53. "But I know that a younger generation sees that social media stuff differently."

It's unclear if it would be interpreted as a violation of Wisconsin lawyers' rules of professional responsibility, given it occured after the trial.

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Courts in general

Ind. Courts - "Sleeping judges rare but not unheard of, experts say"

Updating this ILB post from Sept. 23rd, quoting news stories on a challenge to a federal conviction on the basis that the presiding federal judge allegedly fell asleep during the trial, Teresa Auch Schultz of the Gary Post-Tribune reported Sept. 25:

An attorney for former Lake Station Mayor Keith Soderquist has argued that a federal judge violated the mayor's right to due process by allegedly falling asleep during his trial.

But other legal experts disagreed about just how serious it is for a judge to nod off during a trial.

"There is no question if a judge fell asleep, that is very serious," Minneapolis Judge Kevin Burke, a past president of the American Judges Association, said. * * *

Scott King and Lakeisha Murdaugh, filed a motion Tuesday for both a new trial and to disqualify U.S. District Judge Rudy Lozano, claiming that Lozano fell asleep at least twice during the trial. * * *

Lozano, who is 73, was appointed to his current position in 1987 by President Ronald Reagan and became a senior judge, a type of semi-retirement status, in 2007, although he said at the time he planned on keeping a full workload. In a 2013 poll by the Lake County Bar Association, lawyers gave Lozano the second-lowest marks among all federal judges in the District of Northern Indiana. His lowest mark was for temperament, where attorneys rated him a 5.83 out of 10. [ILB-see below] * * *

Burke said there's not a lot of case history as far as appeals based on a sleeping judge; appeals based on sleeping jurors or attorneys are more common. He said, however, that there are some famous cases, including U.S. District Judge Julius Hoffman, who oversaw the 1969 Chicago Seven trial of protesters during the 1968 Democratic Convention. Burke said Hoffman was later forced to retire partly because he was caught sleeping during hearings.

"That ended his career," Burke said.

[Indiana University Law School professor Charles Geyh] Geyh said he has heard of judges falling asleep but the ones he could think of were state capital punishment cases, where the defendant faced the death penalty.

King cited one case in his motion, U.S. vs. White, in which a judge fell asleep during the defense's opening statements. The 5th Circuit U.S. Court of Appeals ruled that the defendant's due process had not been violated because it wasn't during presentation of evidence, which King argues was the case during Soderquist's trial.

King has moved that security video from the trial be secured, which Lozano granted, but Geyh said it can be difficult to determine whether a judge truly was sleeping. King also has requested to view the videos; Lozano said Friday he was taking it under advisement and required federal attorneys to respond by Monday.

He has also often talked about how he suffers from diabetes.

The judge could not be reached for comment. The motion to disqualify Lozano also said that he had already denied sleeping during the trial.

ILB: Here is the poll,via "Lake County Bar Association rates federal judges, magistrates," a March 18, 2013 still-available story in the NWI Times, reported by Marisa Kwiatkowski.

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Transfer list for week ending September 25, 2015

Here is the Clerk's transfer list for the week ending Friday, September 25, 2015. It is two pages (and 19 cases) long.

No transfers were granted last week. In one case, LaQuantis Johnson v. State of Indiana, the vote was split 3-2, with Rush, C.J., and Rucker, J., voting to grant the petition to transfer.

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - "Indiana redistricting panel on Thursday starts important task"

The Indianapolis Star in its Sunday edition ran this letter from Julia Vaughn, Common Cause Indiana and Deborah Asberry, League of Women Voters of Indiana:


On Thursday, an important process will begin that could usher in a new era for government of, by and for the people of Indiana.

The newly formed Special Interim Committee on Redistricting will have its first meeting and begin the task of considering alternatives to the current redistricting process, which allows politicians to choose their voters instead of the other way around.

When legislative districts are drawn by politicians, a primary motive is to protect incumbents as well as to ensure political victories for the party in power. When lines are drawn to favor a political party, the process is called gerrymandering. Gerrymandered districts contribute to uncontested or uncompetitive elections and voters becoming increasingly cynical and apathetic. It’s a major reason for the dysfunction we see in both Washington, D.C., and our state Capitol.

The study committee was created by legislation passed this year and includes both legislators, laymen and laywomen. The Indiana Coalition for Independent Redistricting is pleased that the legislative leadership listened to redistricting reform advocates and appointed reform-friendly citizens to the committee.

It is notable that Republican House Speaker Brian Bosma of Indianapolis reached across party lines and chose former Indiana Supreme Court Justice Ted Boehm, a Democrat, for his layman appointment. Boehm is a great pick; his experience with redistricting goes back five decades and includes firsthand experience as both an attorney and a judge. There are important constitutional questions at hand, so his background and expertise will be invaluable.

By choosing to appoint the best person for the study committee job, regardless of political affiliation, the speaker has shown he is serious about redistricting reform and wants the committee to prioritize the interests of voters, not the two major political parties. It’s a tremendously encouraging sign and the speaker deserves our thanks for his bold move.

But this process won’t be complete without citizen involvement. All study committee meetings will be public and the first one will be at 9 a.m. Thursday in Room 404 of the Statehouse. It’s important for people to show up to send a clear message to the committee that its work is important and highly anticipated. If you can’t be there in person, the meeting will also be webcast on the General Assembly’s website.

The committee will spend more than a year on its task, with a recommendation due by Jan. 1, 2017. With enough citizen support and strong leadership from the committee members, it could be the dawn of a new day for democratic elections in our state.

ILB: The Special Interim Study Committee on Redistricting was created by HEA 1003.

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/28/15):

Next week's oral arguments before the Supreme Court (week of 10/5/15):

Monday, October 5

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/28/15):

Monday, September 28

Thursday, October 1 Next week's oral arguments before the Court of Appeals (week of 10/6/15):

Tuesday, October 6

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

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


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

Posted by Marcia Oddi on Monday, September 28, 2015
Posted to Upcoming Oral Arguments

Friday, September 25, 2015

Ind. Gov't. - More on: Notice of appeal filed today in House public records case

Updating this ILB post from Sept. 10, which reported that, in the House public records case:

... the plaintiffs have now filed a notice of appeal, and a Rule 56(A) motion, with the Indiana Supreme Court. (The latter is a request for an expedited appeal, bypassing the Court of Appeals.)
Today the defendants (Rep. Eric Koch and the Indiana House Republican Caucus) have filed a 6-page response in opposition to the plaintiff's motion for emergency transfer, arguing:
A. The issue presented here is not a substantial question of law of great public importance.

B. No emergency exists requiring a speedy determination of the underlying questions presented.

All the ILB posts re this lawsuit, CAC, et al. v. Koch, re the question of application of the governmental transparency policies embodied in APRA to legislative emails, here specifically those between a member of the House republican caucus and a lobbyist re a piece of legislation, are grouped under the ILB category "GA and APRA."

Posted by Marcia Oddi on Friday, September 25, 2015
Posted to GA and APRA

Ind. Decisions - Supreme Court issues rare disciplinary order conditionally directing imprisonment [Updated]

Here is something you don't see every day, involving a Lafayette attorney.

The Supreme Court has now posted this order filed, yesterday, headed "Published order finding respondent in contempt of court, imposing fine, extending suspension, and conditionally directing imprisonment."

In In the Matter of: Diane R. HURTT, a 2-page order, 4 justices (CJ Rush not participating) conclude:

If Respondent fails to comply with the above requirements by the deadline set forth above, Respondent will be ordered to serve a term of imprisonment for a period of ten (10) days, without the benefit of good time, and the Sheriff of the Supreme Court of Indiana will be directed to take Respondent into custody and turn her over to the Indiana Department of Correction. Respondent may avoid said imprisonment only upon payment in full of the $1,500 assessed against her within the deadline set forth above. In the event Respondent fails to timely pay her $1,500 fines in full and serves the resulting term of imprisonment, Respondent thereafter shall be released from the obligation to pay the assessed fines.

Finally, for her continued violations of this Court’s orders, the Court ORDERS that the minimum length of Respondent’s current suspension without automatic reinstatement be increased, from 90 days to one year, effective beginning June 25, 2015.

[Updated at 1:27 PM] Per my question, the Supreme Court press office responds that the Sheriff of the Supreme Court, appointed under the authority of IC 33-24-5, is Gary Miller. (He is not one of the three attorneys named "Gary Miller" listed in the Roll of Attorneys.)

Posted by Marcia Oddi on Friday, September 25, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 5 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (3):

M.L. v. M.F. and M.Fu. (mem. dec.)

Angel Schoettle v. Chad Schoettle (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: N.K., and B.J. v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (2):

Bill McClain, Jr. v. State of Indiana (mem. dec.)

Ronal Zelaya Hernandez v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, September 25, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "States Grapple With Public Disclosure of Police Body-Camera Footage" [Updated]

From Stateline, this report Sept. 22 by Sarah Breitenbach that surveys the approaches being taken by various states - a quote:

As police departments across the country equip their officers with body cameras, many are struggling to strike a balance between the public’s right to know and privacy protections. This year 10 states—Arizona, Florida, Georgia, Maryland, Nevada, North Dakota, Oklahoma, Oregon, South Carolina and Texas—have passed laws concerning public access to the footage, according to the Reporters Committee for Freedom of the Press, a nonprofit group that assists journalists.

The South Carolina law exempts footage recorded by the cameras from public disclosure under the state’s Freedom of Information Act. A Georgia law that took effect in July limits who can request the videos and pending legislation would deem the videos “records of law enforcement” and not subject to disclosure under that state’s public records law.

In South Carolina, the goal was to protect the privacy of people recorded by police, according to Democratic state Sen. Gerald Malloy, who sponsored the legislation. Malloy noted that the measure allows people with a direct interest in a body-camera video, including the state attorney general, law enforcement agencies and subjects of recordings, to watch it.

In addition, the Reporters Committee for Freedom of the Press has launched an interactive online map of police body camera laws and policies.

Late last month "Indiana awmakers heard testimony regarding whether the public should have access to police body camera video," per this long Indianapolis Star story by Jill Disis.

Niki Kelly of the Fort Wayne Journasl Gazette had this Aug. 26th story.

Here is the agenda of the Aug. 26th meeting of the Interim Study Committee on Government.

The documents made available from that meeting include this Surveillance Recording Retention Policy, which is identified as "County/Local Government Retention Policy, Adopted by the Oversight Committee on Public Records, May 20, 2015."

Another valuable document from that meeting was this 6-page list of "public record exemptions." As noted in the introduction to the list:

The primary list of these exemptions is in IC 5-14-3-4. However, there are many exemptions throughout the Indiana Code, both mandatory and discretionary, that deal with specific types of records and information.
ILB Comment. It has appeared to the ILB that every session of the General Assembly enacts additional exemptions to the public records law.

The video of the Aug. 26th meeting has been archived and may be accessed here.

[Updated at 11:11 AM] The Interim Study Committee on Government will meet again on Tuesday, Sept. 29th, continuing discussion on "Public records requests for police body camera video." Here is the agenda.

Posted by Marcia Oddi on Friday, September 25, 2015
Posted to Indiana Government

Ind. Courts - No word yet on who Gov. Pence will appoint to Marion Co. Court; some adjustments made

On Aug. 21st the ILB posted the names of the applicants for the then-upcoming Marion County Superior Court vacancy, caused by the Governor's naming of Judge Robert T. Altice to fill the vacancy caused by Judge Friedlander's retirement from the Court of Appeals, the end of August.

There has been no word yet of who Gov. Pence will name to the Marion County Superior Court vacancy.

Judge Altice took the oath of office for the Court of Appeals on Sept. 2.

With the Altice vacancy, several adjustments have been made at the Marion County superior court. Judge John Chavis has moved from Civil Ct 12 to Civil Ct 5. Judge P.J. Dietrick has moved from Ct 21 to Civil Ct. 12. No other changes were made.

Ct 21 currently handles protective orders and environmental ordinance violations. The ILB has learned they are operating on a skeleton staff and with the help of senior judges at the moment.

Posted by Marcia Oddi on Friday, September 25, 2015
Posted to Indiana Courts

Thursday, September 24, 2015

Courts - "The SCOTUS’s Secret Power - choosing the cases it will hear (without disclosing the vote)" What about Indiana?

Stanford law professor Jeffrey Fisher has an op-ed today in the NY Times that asks for some transparency on how the various judges vote in deciding whether to take a case. A few quotes:

ON Monday, the Supreme Court will meet in private to perform one of its most consequential — yet least appreciated — functions: choosing the cases it will hear. The court’s nine justices hold regular conferences from late September to late June to perform this task. From the roughly 8,000 petitions that arrive at the court each year, the justices select about 75 cases. If four or more justices vote to take a case, it is added to the docket; otherwise, review is denied. Either way, an explanation for the court’s decision is almost never given, nor is it customary to indicate how the individual justices voted.

It is hard to think of a more significant power in the machinery of our democracy that is exercised more secretly. * * *

The justices should lift the veil of secrecy that shrouds this power.

I am not suggesting that the justices should have to explain their votes. They are already busy enough, and there are good reasons for allowing judicial deliberations to remain private. But the Supreme Court, which has always decided for itself how to transmit its work to the public, could easily do what many other federal and state appellate courts already do: Simply announce the vote tallies — that is, how each justice voted for each petition for review — when accepting or turning away cases. [ILB emphasis]

ILB: What about Indiana? The Indiana Supreme Court gives the vote tallies in each case where it denies a transfer petition. Most often the vote to deny is 5-0 ("All justices concur"), so the names are self-evident. When transfer is denied, but the vote to deny is 4-1 or 3-2, the justices' votes are indicated. See, for example, p. 2 of the 8/24/15 transfer list. The ILB wrote on Aug. 14:
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.
It also gives the tally, by name, when the Court is split. For example, from the 3/6/15 transfer list:
Because the Court is evenly divided on whether to grant or deny transfer, the petition to transfer is deemed Denied - David and Massa, JJ. Vote to grant transfer. Rush, C.J., and Rucker, J., vote to deny transfer. Dickson, J. is not participating
The Court does not give the vote tally at all when transfer is granted. Instead, it simply states: "Transfer granted" with no indication of whether the vote to grant was 5-0 or 4-1 or 3-2.

I've been told that to do otherwise would "telegraph" the justices' positions. Thoughts?

Posted by Marcia Oddi on Thursday, September 24, 2015
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 11 NFP memorandum decisions)

For publication opinions today (4):

In Douglas L. Krasnoff v. The Education Resources Institute, an 11-page opinion, Judge Bailey writes:

The Education Resources Institute (“TERI”) filed suit against Douglas L. Krasnoff (“Krasnoff”), alleging that Krasnoff had defaulted on a promissory note to pay a student loan from 1994 (“the Note”). During the pendency of the litigation, TERI and Krasnoff entered into an agreement (“the Agreement”) for repayment of the debt.

At bench trials, TERI pursued two theories against Krasnoff: failure to pay the underlying debt, and failure to comply with the Agreement. The first trial resulted in judgment for Krasnoff; in an unpublished memorandum decision, this Court reversed the judgment and remanded for a new trial. TERI v. Krasnoff, No. 49A02-1007-CC-899, slip op. at 1-2 (Ind. Ct. App. Aug. 15, 2011) [hereinafter TERI I], trans. denied. At the second bench trial, judgment was entered for TERI and against Krasnoff. Krasnoff now appeals. We affirm.

Krasnoff presents two issues for our review, which we consolidate and restate as a single issue: whether, after filing for bankruptcy and conveying the Note to a successor entity, TERI was a proper plaintiff under Indiana’s standing doctrine and true party in interest rules. * * *

In light of the Trust’s ratification of TERI’s status as the named plaintiff, and in the absence of any argument by Krasnoff challenging the trial court’s conclusion as to the question of his breach of either the Note or the Agreement, we find no error and accordingly affirm the trial court.

In Boyer Construction Group Corp. v. Walker Construction Company, Inc. and Muller Realty, LLC, a 20-page opinion, Judge Riley concludes:
[W]e conclude that the trial court erroneously concluded that Boyer had waived its claim for attorney’s fees. Nevertheless, we further conclude that Walker—not Boyer—is the substantially prevailing party pursuant to the Subcontract Agreements and is therefore entitled to recover its reasonable attorney’s fees. We remand with instructions.
In Kastin E. Slaybaugh v. State of Indiana , a 17-page opinion, Judge Pyle writes:
In this case, we are called to review a novel issue in Indiana—whether a juror, who was apparently not asked about her Facebook usage or friendships, engaged in juror misconduct when she did not disclose during voir dire that a witness’s relative was among her expansive list of Facebook friends.

After trial, but before sentencing, Slaybaugh filed a motion for mistrial based on alleged juror misconduct. Specifically, Slaybaugh alleged that one of the jurors may have lied during voir dire about not knowing the victim, and he based his allegation on the fact that the victim’s sister was one of the juror’s Facebook friends. Upon the trial court’s order, the parties conducted a deposition of the juror, who testified that she did not recognize the victim’s name during voir dire, did not recognize her when she testified, and did not know the victim. The juror also testified that she had more than 1,000 Facebook friends and that she did not personally know all of her Facebook friends. * * *

After holding a hearing and considering the juror’s deposition as well as Facebook materials and affidavits submitted, the trial court determined that the juror was truthful in her assertion that she had no knowledge of the victim or her family and denied Slaybaugh’s motion for mistrial.

On appeal, Slaybaugh challenges the trial court’s denial of his post-trial motion for mistrial, claiming that the trial court erred by determining that the juror truthfully stated that she did not know the victim. Concluding that Slaybaugh failed to show that the juror engaged in misconduct (let alone gross misconduct that likely harmed him) and that his challenge on appeal is nothing more than a request to reweigh the trial court’s credibility determination, we affirm the trial court’s denial of Slaybaugh’s motion for mistrial. We affirm.

In Kristy Burnell v. State of Indiana, a 19-page 2-1 ruling with 3 opinions, Judge Pyle writes:
Kristy Burnell (“Burnell”) appeals the trial court’s determination that she refused a certified chemical test during a traffic stop, which resulted in the suspension of her driving privileges pursuant to Indiana’s Implied Consent Law. On appeal, she argues that she consented to take the test and that her conduct was not tantamount to a refusal. We affirm the trial court’s order, holding, as a matter of first impression, that any answer short of an unqualified, unequivocal assent to a properly offered certified chemical test constitutes a refusal. Affirmed. * * *

Based upon this evidence, the trial court found that Burnell’s answers and conduct did not equate to an “answer indicative of one meaning” and concluded that she had refused the chemical test. Burnell’s claim that she agreed to the test when she said, “yeah I guess I gotta take it” is a request that we reweigh the evidence, which we will not do. See Upchurch, 839 N.E.2d at 1220. Accordingly, we affirm the trial court’s order upholding her license suspension under Indiana’s Implied Consent Law.

Crone, J., concurs in result with opinion.
Brown, J., dissents with opinion.

[Judge Crone's concurring opinion begins on p. 12] I agree with Judge Pyle’s affirmance of the trial court’s determination that Burnell refused a chemical test, but I do not believe that we need go so far as to categorically hold that “anything short of an unqualified, unequivocal assent to a properly offered chemical test constitutes a refusal.” Supra at 11. Each case should be judged on its specific facts, and in my view the facts most favorable to the trial court’s determination in this case are sufficient to affirm it.

I also write separately because this case raises some questions left unanswered by our supreme court’s opinion in Robinson v. State, 5 N.E.3d 362 (Ind. 2014), regarding the proper standard for reviewing video evidence on appeal. * * *

In other words, given that the relevant facts are essentially undisputed, are we in as good a position as the trial court to watch the video of the traffic stop and make our own determination regarding whether Burnell refused to take the chemical test? That remains an open question after Robinson, and I, for one, would welcome further clarification of the law in this area.

[Judge Brown's dissent begins on p. 16, and concludes] Faced with the question from Officer Kinyon, an intoxicated Burnell weighed her choices (and in doing so admitted that she was intoxicated) and, resigned to her fate, told him “I guess I gotta take it.” Transcript at 24. I would find that Burnell’s statement was not “substantially short of an unqualified, unequivocal assent,” Pandoli, 262 A.2d at 42 (emphasis added), and that accordingly the evidence presented did not establish as a matter of law that she refused to submit to the chemical test under Ind. Code § 9-30-6-9(b). I would reverse the court’s order on Burnell’s petition for judicial review and reinstate her driving privileges.2

NFP civil decisions today (6):

Jennifer G. Ansari v. Bank of New York Mellon (mem. dec.)

A.D. v. K.D. (mem. dec.)

A.C. v. H.C. (mem. dec.)

Robert A. Hutchens v. BAC Home Loans Servicing, LP (mem. dec.)

Matter of the Termination of the Parent-Child Relationship of R.H., Minor Child, M.H. v. Ind. Dept. of Child Services (mem. dec.)

Rachel Ann Nelson and Corey Joe Dennison v. Tammy Sue Nelson and Pamela Nelson (mem. dec.)

NFP criminal decisions today (5):

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

Henry Gibson v. State of Indiana (mem. dec.)

Char'Dae Avery v. State of Indiana (mem. dec.)

Keith Rich v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Thursday, September 24, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Lake officials debate if courtrooms are safe enough"

From a Sept. 21st story in the NWI Times by Bill Dolan:

CROWN POINT | A Lake Criminal judge said people rarely enter or leave his courtroom in a good mood.

Senior Judge Salvador Vasquez asked the Lake County Council on Monday to hire two full-time bailiffs to bring security to his and Criminal Court Judge Diane Boswell's venues up to full strength.

The County Council, holding a workshop for a balanced 2016 budget, didn't vote on the request.

"We often have packed courtrooms. It can go south very fast. I have a part-time bailiff, but I could lose him tomorrow. We need a bailiff who can take someone down," Vasquez said.

Ray Szarmach, an attorney for the County Council whose law practice takes him into criminal court, noted "this is not traffic court."

"These are really bad people, the most violent," Szarmach said.

"But where are we going to get the money?" asked Councilman Eldon Strong, R-Crown Point.

The county's four Lake Superior, Criminal Division judges preside over dozens of murder and hundreds of other violent felony cases annually. Vasquez has held more than 7,000 hearings in recent months, according to court statistics.

Until five years ago, each judge employed three bailiffs to move criminal defendants from jail to the courtroom and keep order in a room often crowded with defendants free on bond, crime victims and their friends and family.

Councilman David Hamm, D-Hammond, said the judge and and Boswell agreed five years ago to reduce their staff to to two full-time and one part-time bailiff when county government was in a financial crisis.

Tax revenues have recovered and Vasquez wants to restore both of the part-time bailiffs to full-time.

Hamm, who estimates this would cost the county as much as $50,000 a year, said it is a necessity "that I hope this isn't forced on us by a mandate or an unfortunate occurrence in the courtroom."

Posted by Marcia Oddi on Thursday, September 24, 2015
Posted to Indiana Government

Ind. Decisions - Supreme Court issues two opinions today

In William Clyde Gibson III v. State of Indiana, a 14-page, 5-0 opinion, Justice Massa writes:

A jury found William Clyde Gibson III guilty in the murder of his late mother’s elderly friend and recommended the death penalty, which the trial court imposed. In this direct appeal Gibson raises six issues, which we rephrase as whether the trial court abused its discretion in denying: his request for a fourth continuance, his request to dismiss an entire venire panel, his request to ask a case-specific question during voir dire, his request to dismiss several jurors for cause, and his request to instruct the jury on voluntary manslaughter; the final issue he raises is whether his sentence of death is appropriate. Finding no errors and no reason to revise his sentence, we affirm.
In Christopher Helsley v. State of Indiana, an 8-page opinion, Justice Dickson writes:
Defendant Christopher Helsley was convicted for the April 2001 murders of Brad Max-well and Marsha Rainey in Pike County and sentenced to life imprisonment without parole. In this direct appeal following a second guilt phase trial, he challenges his sentence. We affirm.

The defendant's sentence of life imprisonment without parole gives this Court mandatory and exclusive jurisdiction over this appeal. Ind. Appellate Rule 4(A)(1)(a). Seeking a reduction of his sentence to a term of years, the defendant makes two appellate claims. First, he requests this Court to exercise its right to review and revise his sentence under Indiana Appellate Rule 7(B). Second, he argues that the jury's weighing of aggravating and mitigating factors was an abuse of discretion. * * *

Finding that (a) the nature of the offense and the defendant's character do not warrant a revision of his sentence under Indiana Appellate Rule 7(B) and (b) the jury's weighing and bal-ancing of aggravating and mitigating circumstances is not subject to appellate review, we affirm the sentence of life imprisonment without parole.

Posted by Marcia Oddi on Thursday, September 24, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Indiana high court weighs fair stage collapse case"

Yesterday's oral argument in the state fair stage collapse case, Mid-America Sound, et al. v. Indiana State Fair Commission, et al, is reported today by Rick Callahan of the AP. Some quotes:

INDIANAPOLIS — The state of Indiana is responsible by contract for the legal defense and any judgments against a company which provided the rigging that collapsed and killed seven people during the 2011 state fair, a company attorney told the state’s highest court.

Mid-America Sound Corp. attorney Robert MacGill told the justices of the Indiana Supreme Court on Wednesday that Indiana’s State Fair Commission signed lease forms with the company for nine years that included an “indemnification” provision releasing Mid-America from any claims arising from the use of its equipment.

Mid-America inserted that provision in its invoice claim form after the company tried to halt a 2002 state fair concert as severe weather threatened but was rebuffed by state fair officials, who said only they had such authority, he said.

“The 2002 event changed the contract and the contract was negotiated, agreed to and executed year after year,” MacGill said.

Fair officials signed the revised forms starting in 2003 and for eight subsequent years, including in 2011 after high winds in August of that year toppled stage rigging Mid-America had provided onto fans awaiting the start of a concert by country duo Sugarland. Seven people were killed and more than 100 were injured.

Indiana has paid out $11 million to victims of the collapse, including $5 million under the state’s liability cap and $6 million in public funds freed up by the General Assembly.

The state contends that the State Fair Commission is a state entity that cannot be required to pay the liability faced by a private company such as Mid-America, and that doing so would violate state law.

Indiana Solicitor General Thomas Fisher told the court the indemnification provision in the invoice claim forms Mid-America submitted are “a gotcha claim” that could potentially transfer “limitless liability” to the state.

Fisher said the voucher form provision was never part of the state’s contracting and negotiation processes. “The only reason we’re here is because this was on the back of an invoice,” he said.

The amount of damages Mid-America faces in lawsuits filed following the 2011 stage collapse remains under court seal.

Jill Disis' post-argument story for the Indianapolis Star includes:
Mid-America Sound Corp., says the indemnification contract it entered into with the commission was clear and valid. And in the wake of the tragedy, which killed seven people and injured dozens of others, Mid-America Sound attorneys say the commission is now obligated to help pay liability costs. * * *

In a statement released shortly after arguments concluded, Indiana Attorney General Greg Zoeller said: “This company’s assertion that it can shift its responsibility for money damages and legal fees onto the taxpayers of Indiana violates the clear principle of sovereign immunity behind the Tort Claims Act and other statutes the Legislature passed, which limit the financial liability that taxpayers and state government face."

[Robert MacGill, who represents Mid-America Sound] disagreed. "The state is not a party to this dispute. The Indiana State Fair Commission is a party to this dispute," he said, adding that there is a "fundamental distinction" between the commission and state entities that the state says are entitled to immunity from indemnification.

"The State Fair Commission is largely a commercial enterprise," MacGill said, adding that it sells food and entertainment and is paid by consumers in return. As for the contract, MacGill said it was a legitimate one that had been signed into for years before the 2011 collapse. "They call it boilerplate" language, he said. "We call it a negotiated contract."

Posted by Marcia Oddi on Thursday, September 24, 2015
Posted to Stage Collapse

Courts - "Johnson v. United States and the Future of the Void-for-Vagueness Doctrine"

Sentencing Law Blog today points to this "notable new paper by Carissa Byrne Hessick now available on SSRN." The abstract begins:

Last Term, in Johnson v. United States, the U.S. Supreme Court struck down a portion of the Armed Career Criminal Act as unconstitutionally vague. The Johnson opinion is certain to have a large impact on federal criminal defendants charged with unlawfully possessing a firearm. But it is also likely to have other important consequences. The language deemed vague in Johnson is similar or identical to language in the Federal Sentencing Guidelines and other statutes. What is more, the Johnson opinion elaborates on the void-for-vagueness doctrine in important ways. Those elaborations ought to make vagueness challenges easier to win in the future.

Posted by Marcia Oddi on Thursday, September 24, 2015
Posted to Courts in general

Wednesday, September 23, 2015

Law - "France tells Google to remove search results globally, or face big fines"

Another addition to our "right to be forgotten" list. Glyn Moody(UK) has the story in Ars Technica. It begins:

Google's informal appeal against a French order to apply the so-called "right to be forgotten" to all of its global Internet services and domains, not just those in Europe, has been rejected. The president of the Commission Nationale de l’Informatique et des Libertés (CNIL), France's data protection authority, gave a number of reasons for the rejection, including the fact that European orders to de-list information from search results could be easily circumvented if links were still available on Google's other domains.

Posted by Marcia Oddi on Wednesday, September 23, 2015
Posted to General Law Related

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

Updating this ILB post from June 17, 2015, Crain's Chicago Business reports today in a story that begins:

The proposed Illiana Expressway has suffered another body blow, and this one could be fatal.

The Federal Highway Administration moved late today to drop its appeal of a ruling by U.S. District Court Judge Jorge Alonso's June ruling tossing out the controversial road's environmental impact statement and record of decision and ordering road advocates to start over. That action came as a bit of a surprise.

The agency didn't explain its action, which came in a brief "unopposed motion to voluntarily dismiss appeal" that was filed with the 7th Circuit U.S. Court of Appeals. But environmentalists who have opposed the road as a financial and ecological waste were ecstatic.

The story includes a copy of the unopposed motion.

Posted by Marcia Oddi on Wednesday, September 23, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Former Lake Station Mayor Keith Soderquist asking for a new trial; claims the federal judge fell asleep at least twice during his recent public corruption trial" [Updated]

Teresa Auch Schultz reports today in the Gary Post-Tribune:

A federal jury in Hammond convicted both Soderquist and his wife, Deborah Soderquist, on Sept. 11 on public corruption charges after an eight-day trial at the U.S. District Court.

Scott King and Lakeisha Murdaugh, attorneys for the Soderquists, filed three motions Tuesday, including a motion for a new trial and a motion for a new judge.

They say in the motions that U.S. District Judge Rudy Lozano appeared to fall asleep several times during the trial.

"(There were) several times with my clients when my associate Lakeisha Murdaugh said 'he's asleep, he's asleep,'" King said Tuesday evening.

The attorney added that he heard people in the audience talk during breaks about seeing the judge nod off.

King said it's important for a judge to be aware of everything that's going on during a trial so that he can properly rule on any objections, requests to submit evidence, jury instructions and more.

"This is not pleasant for me to bring up, and I've known Judge Lozano since before he was a judge," he said. "But I have to represent my clients, and I think that due process requires a judge that's fully alert and engaged during the entire process."

He added that although the parties can go back and look at the transcript, that doesn't catch how a witness sounded or looked, for instance.

King said the most egregious moment happened toward the end of the case. The government had made an objection, King responded and the judge, who was looking down, did not appear to hear. King called for a sealed hearing at that point.

The attorneys also argued that Lozano should be removed because he cannot make an impartial ruling on the motion for a new trial, noting that he denied during the trial to have been asleep.

The third motion asks that security video feed from the trial be preserved as evidence of whether the judge slept during the trial and, if so, how much.

King said because he was focused on the case during the trial, he doesn't know how often the judge slept, which is part of the problem because he doesn't know just how much Lozano missed.

[Updated Sept. 25] Here is coverage from Ed Bierschenk of the NWI Times, who reports:
"The 'interest of justice' requires a new trial because there were a number of occasions when during the trial of this case where the presiding District Judge was observed to have been asleep," said the motion for a new trial. "The defendants submit that these incidents prejudiced their right to a fair trial and to Due Process of Law."

The motion, signed by attorneys Scott King and Lakeisha Murdaugh, was filed Tuesday. U.S. District Senior Judge Rudy Lozano presided over the Soderquist's case.

On Wednesday, Lozano signed an order taking under advisement the defense attorneys' motion for a new trial and a change of judge. The government has until Sept. 28th to respond to the motions.

According to a memorandum of law contained within the filing, the attorneys said "the defendants made a record of two (2) occasions during their trial that the District Judge appeared to be asleep during the presentation of the evidence. The defendants have simultaneously with the filing of this Motion, filed a Motion to Preserve video security surveillance evidence of the courtroom that the trial was conducted in in order to determine if said evidence provides visual proof of the presiding District Judge sleeping at other points in the trial."

The memorandum said the defendants are prepared to present additional evidence regarding observations of Lozano sleeping at various times during the trial. The attorneys also filed a change of judge motion stating that on two occasions during the trial they informed the judge he appeared to be asleep and the judge stated he was not asleep.

Lozano Wednesday granted the defense motion to preserve evidence and ordered the U.S. Marshals Service to preserve surveillance recordings made of the courtroom during the trial.

Posted by Marcia Oddi on Wednesday, September 23, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Polls: Accurate analysis requires understanding their utility - and limits"

From the Sept. 13th Fort Wayne Journal Gazette, a "Sunday Centerpiece" article by Andrew Downs, director of the Mike Downs Center for Indiana Politics at IPFW. Some quotes from the long, worth studying, article:

“Unless mass views have some place in the shaping of policy, all talk about democracy is nonsense.”

– V.O. Key, “Public Opinion and American Democracy”

Public opinion should, and does, matter. The political world is littered with candidates and elected officials who have forgotten this. Polls are one of the most widely recognized ways to find out what the public is thinking. In fact, polls have become so pervasive that there are entire websites and publications devoted to them (see www.pollingreport.com for an example).

In the past, polls produced data that was used in campaigns, to predict the outcome of elections, and to understand voter behavior. More recently, polls appear to be taking on a more influential role, especially in presidential elections. This is causing some concerns. One of the main concerns is that polls may be keeping discussions about campaigns and policies at a superficial level because polling data is rarely used in the broader sense to provided finely nuanced information and articles about campaigns and issues.

No matter what limits there are to polls, they are serving at least two valuable purposes. They help to narrow the field of candidates to a manageable number, and they help to identify which issues from an endless list of issues will be discussed. * * *

No matter what method is used to narrow the field, it should consider what the public thinks if we are going to have a conversation that assumes we are operating in a democracy. Polls do that.

It may be difficult to gain finely nuanced understanding of what the public is thinking from a poll, but it is relatively easy to determine which issues the public thinks are important and even to gain some idea of how the public thinks those issues should be addressed. Even short polls can gather enough information from, and about, the respondents to allow analysts to provide insight into a number of perspectives for each issue.

We are lucky that, conceptually, gathering public opinion through a poll is not that complicated. * * *

While polls may be useful in narrowing the field of candidates and focusing discussions, they are far from perfect.

First, who is doing the poll matters. Is a campaign doing it? Is it a university or news outlet? Is it an interest group or political group? The sponsor of the poll is likely to influence the methodology, the questions and the purpose of the poll.

Second, polls are a snapshot in time, and public opinion changes. Chasing public opinion may not be the best way to determine what is important to discuss or identify which policies will benefit the common good.

Third, when respondents lack information, poll results can be more of a popularity contest than a real measure of support. This can be especially true this far out from an election or when new candidates enter the race.

Fourth, there are growing technical challenges to polling. The National Center for Health Statistics estimated in 2013 that 41 percent of households do not have land lines. The portability of mobile numbers has increased the chances that respondents do not live in the area being surveyed, and that can throw off the accuracy of the poll. It certainly has increased the cost of doing a good poll.

Two realities of polls are that they are easy to present in a news story and they are easy for voters to understand. The utility of polls and these realities make it easy to understand why they have become more influential in presidential elections. We have to be careful not to exaggerate what polls are and how they can be used.

Posted by Marcia Oddi on Wednesday, September 23, 2015
Posted to Indiana Government

Law - "Kathleen Kane, Pennsylvania Attorney General, Is Suspended From Practicing Law"

Jon Hurdle and Erik Eckholm of the NY Times reported Sept. 21st in a story that begins:

PHILADELPHIA — The ability of Pennsylvania’s embattled attorney general to carry out her job was thrown into question Monday as the State Supreme Court issued a temporary suspension of her law license.

The attorney general, Kathleen G. Kane, 49, is facing a battery of criminal charges, accused of leaking grand jury information to embarrass political enemies and then committing perjury, obstruction and other crimes in a cover-up.

Ms. Kane, a Democrat, has denied the charges and said on Monday that she would not step down. But some Democratic politicians have joined Republican leaders in calling on her to do so.

Ms. Kane was seen as a rising Democratic star when she was elected in 2012, after a campaign in which she accused her predecessor of moving too slowly to indict and arrest Jerry Sandusky, the Pennsylvania State University assistant football coach who was convicted that year on dozens of counts of child abuse.

She was both the first woman and the first Democrat to be elected attorney general in Pennsylvania since the office became elective in 1980.

But she quickly became mired in vicious disputes with some former top prosecutors, with charges flying back and forth about cases mishandled or improperly dropped. As she re-examined the handling of the Sandusky case, her investigators also discovered that numerous officials in the attorney general’s office and other state agencies had shared pornographic and racially offensive emails; a Supreme Court justice was forced to resign as a result.

But in August, the Montgomery County district attorney charged Ms. Kane with illegally leaking information to the news media about grand jury proceedings in a 2014 case, then lying about it. That case had involved former state prosecutors with whom she was feuding.

See also this story today in The Atlantic.

Posted by Marcia Oddi on Wednesday, September 23, 2015
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 5 NFP memorandum decisions)

For publication opinions today (4):

In Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, Inc., and Valley Watch, Inc. v. Duke Energy Indiana, Inc., Indiana Utility Regulatory Commission, a 25-page opinion, Sr.Judge Barteau writes:

In Citizens Action Coalition of Indiana, Inc. v. Duke Energy Indiana, Inc., 16 N.E.3d 449 (Ind. Ct. App. 2014) (Citizens Action I), the Court remanded the case to the Indiana Utility Regulatory Commission (the Commission) for findings on two issues related to Duke Energy Indiana, Inc.’s petition to recover costs incurred while building its new power plant in Edwardsport, Indiana. On remand, the Commission issued an order with additional findings. Citizen’s Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, Inc., and Valley Watch, Inc. (collectively, the Intervenors), appeal the Commission’s order. We affirm in part, reverse in part, and remand.

The Intervenors raise two issues, which we restate as:

I. Whether the Commission’s findings on remand are sufficient and supported by the evidence.
II. Whether the Commission erred in issuing an order on remand without reopening the record for the presentation of additional evidence.

In In the Matter of Term. of the Parent-Child Relationship of: B.H. and S.H., and B.H. and M.B. v. The Ind. Dept. of Child Services, a 13-page opinion, Judge Baker writes:
B.H. (Father) and M.B. (Mother) appeal the juvenile court’s order terminating their relationship with their two children. Mother argues that the juvenile court should have granted her motions to continue the termination hearing, and both parents argue that there is insufficient evidence supporting the termination order. Finding no error and sufficient evidence, we affirm.
In In re the Paternity of Makayla Lauren Pickett, Gregg Roberts v. Shonda Pickett, a 26-page opinion, Judge Crone writes:
Gregg Roberts (“Father”) appeals the trial court’s order finding him in contempt for failing to pay child support to his child, Makayla Lauren Pickett (“Child”), and ordering him to contribute to her college expenses based on a motion filed by Shonda Pickett (“Mother”). As an initial matter, Father contends that the trial court’s findings of facts and conclusions thereon are inadequate for appellate review. He also argues that the trial court erred by failing to find that Child repudiated him, requiring him to contribute half the balance remaining after Child’s contribution toward college expenses is applied, basing his contribution toward college expenses on the cost of a private university rather than a public university, and ordering him to pay for college expenses incurred before Mother’s motion for college expenses was filed. Finally, he asserts that the trial court erred by ordering him to pay part of the attorney’s fees incurred by Mother as a sanction for being in contempt of court.

We conclude that the trial court’s findings and conclusions are adequate for our review. We also conclude the Father waived his argument that Child repudiated him and that the trial court did not err by ordering Father to pay half the remaining balance of Child’s college expenses and part of Mother’s attorney’s fees. However, we conclude that the trial court erred by basing Father’s contribution toward Child’s college expenses on the costs of a private university rather than a public university and by ordering him to pay for college expenses incurred before Mother’s motion was filed. Therefore, we affirm in part, reverse in part, and remand.

In Shaun Pierce v. State of Indiana, a 6-page opinion, Judge May writes:
Shaun Pierce appeals the revocation of his probation after the trial court found he had committed new crimes of Class A misdemeanor trespass and Class A misdemeanor theft. As there was sufficient evidence to support the revocation of his probation, we affirm.
NFP civil decisions today (1):

In the Matter of the Term. of the Parent-Child Relationship of: G.W.L. IV: G.W.L. III v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (4):

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

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

Larry T. Bass v. State of Indiana (mem. dec.)

James Jay Green III v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, September 23, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "How local LGBT anti-discrimination laws vary in Indiana" [Updated]

Stephanie Wang of the Indianapolis Star has done a valuable survey of local government efforts to protect lesbian, gay, bisexual and transgender people. Some quotes from the long story:

Since the backlash over Indiana’s Religious Freedom Restoration Act, several Indiana cities and towns have taken actions to protect lesbian, gay, bisexual and transgender people.

That brings the tally to 15 Indiana communities with anti-discrimination ordinances that include sexual orientation or gender identity as protected classes — up from 10 before the controversy.

Since RFRA, Muncie, Hammond, Whitestown, Zionsville and Columbus have passed LGBT anti-discrimination ordinances.

Terre Haute, which had already listed sexual orientation as a protected class, added protections for gender identity.

Mayors of Martinsville and Goshen have pursued executive orders.

And a proposal is pending in Carmel.

Most of Indiana’s largest cities — Gary and Fishers are notable exceptions — have LGBT anti-discrimination ordinances in place. Communities as small as Whitestown (population 3,950) and Martinsville (11,855) have taken steps. But without a statewide law addressing the rights of lesbian, gay, bisexual and transgender Hoosiers, gaps still exist in most of Indiana’s midsize and smaller cities.

The strength of the ordinances varies from place to place, too.

For some communities, adding protections for gay and transgender Hoosiers only required updating existing ordinances. Others wrote new ordinances from scratch to enforce a message of diversity and inclusion. * * *

But anti-discrimination ordinances have caused uproar and tension in communities — and not all places have been successful in passing them. Anti-discrimination ordinances failed to even make it to council votes in Elkhart and Goshen after a concerted push from opponents, who said such measures would discriminate against the religious and cause public safety threats in public restrooms. * * *

In Carmel, an anti-discrimination effort — once expected to easily garner support — stalled this month after conservative lobbyist Eric Miller questioned the legal wording of the ordinance.

Among the concerns: the lack of definitions for terms such as sexual orientation, gender identity and religious worship, and the lack of a more defined process for adjudicating complaints.

In Indianapolis, for example, the Office of Equal Opportunity and an oversight board handle all discrimination complaints. The ordinance, which covers the city and Marion County, defines sexual orientation as “an individual’s actual or perceived identity or practice as a lesbian woman, gay male, bisexual person or heterosexual person.”

It defines gender identity as “an individual having or being perceived as having a gender-related self-identity, self-image, appearance, expression or behavior different from those characteristics traditionally associated with the individual’s assigned sex at birth.”

In Carmel, City Councilwoman Luci Snyder compared the suburb’s proposed three-page ordinance with Columbus’ 22-page anti-discrimination ordinance.

But in Columbus, putting LGBT protections in place this summer was a simple addition to an existing ordinance.

“The only changes being made now are the addition of ‘sexual orientation, gender identity, age or veteran status,’ ” Columbus City Councilman Frank Miller wrote in an email to The Indianapolis Star during the debate over the ordinance change, which unanimously passed earlier this month. “No other wording has changed except to define those classes.”

But every ordinance looks a little different.

Some are less powerful than others. In some places, anti-discrimination ordinances can only be voluntarily enforced — that is, if the person or business accused of a violation agrees to cooperate with an investigation.

Some carry fines. In Lafayette, which in 1993 became one of the first cities in the state to have an anti-discrimination ordinance, the human relations commission can fine people $300 if they don’t show up for formal hearings on complaints.

In Zionsville, the nondiscriminatory practices review committee can fine either the complainant or the subject of the complaint $1,250 for each violation.

It’s common for the ordinances to include religious exemptions for churches or religious schools. But in Carmel, officials briefly explored other exemptions intended to allow some wedding services businesses to decline gay customers for religious reasons.

The story includes a graphic showing the status of various cities and counties that have enacted various types of anti-discrimination ordinances that protect sexual orientation, gender identity.

The story also includes this table:

LGBT protections in Indiana

Communities with sexual orientation and gender identity protections: Indianapolis/Marion County, Bloomington/Monroe County, Evansville, West Lafayette, South Bend, New Albany. Added since RFRA: Muncie, Hammond, Zionsville, Terre Haute, Columbus.

Communities with sexual orientation protections: Lafayette/Tippecanoe County, Fort Wayne, Michigan City. Added since RFRA: Whitestown.

Communities with executive orders addressing LGBT protections: Martinsville, Goshen (pending final wording).

ILB: All that is missing are links to a dynamic Star database of the ordinances of each of these communities, and those that follow.

[Updated at 10:13 AM] Stephanie Wang tweets:


Posted by Marcia Oddi on Wednesday, September 23, 2015
Posted to Indiana Government

Ind. Gov't. - "Immigration battle could flare up at Indiana Statehouse"

Dan Carden of the NWI Times reported Sept. 22:

INDIANAPOLIS | The debates over immigration and public policy that have roiled the Republican presidential contest may similarly divide lawmakers and provoke controversy next year at the Indiana General Assembly.

Senate Democratic Leader Tim Lanane, D-Anderson, vowed Monday to push for action by the Republican-controlled institution on a package of education, driver's license and health care legislation endorsed by Latino leaders. * * *

Among the measures set to be filed by Senate Democrats is a plan to permit undocumented immigrants who arrived in the United States as children and graduated from an Indiana high school, after attending for at least three years, to pay resident tuition at public universities. * * *

Also on the Democrats' Latino agenda is authorizing the Bureau of Motor Vehicles to ignore citizenship and legal status in issuing driver's licenses, to ensure only qualified and insured motorists are operating vehicles on Indiana roads — an idea long-championed by state Sen. Frank Mrvan, D-Hammond.

Ten states, including Illinois, already permit residents to obtain a driver's license without regard to their immigration status. More than 85,000 Illinois temporary visitor driver's licenses have been issued since 2013.

Democrats additionally will propose providing undocumented immigrants with diabetes access to kidney dialysis care through Medicaid, instead of waiting for end-stage renal disease to take hold before providing assistance.

"It would be much cheaper for us as a state to actually provide ongoing treatment for those individuals without them having to demonstrate that they are at death's door," Lanane said. "It also, of course, would be the humane things to do."

Democrats face an uphill climb to enact these proposals since they control just 10 of the 50 seats in the Indiana Senate.

The Republican supermajority generally has resisted immigration-related measures after adopting a harsh, Arizona-style illegal immigration law in 2011 that mostly was struck down by federal courts.

Republican Gov. Mike Pence last year also sued the federal government seeking to end President Barack Obama's deferred action program for undocumented child immigrants.

Posted by Marcia Oddi on Wednesday, September 23, 2015
Posted to Indiana Government

Courts - "Justices chosen by voters reverse death penalties at less than half the rate of those who are appointed"

That is the pull quote to this long, Sept. 22 story by Reuters investigative reporters Dan Levine and Kristina Cooke.

Posted by Marcia Oddi on Wednesday, September 23, 2015
Posted to Courts in general

Ind. Courts - State Fair stage collapse appeal before Supreme Court this morning; also annexation case

Mid-America Sound, et al. v. Indiana State Fair Commission, et al is being heard this morning by the Supreme Court at 9 AM. You may watch the live videocast here. Jill Disis has a story headed "Does Indiana still owe victims of 2011 State Fair stage collapse?" in this morning's Indianapolis Star. Some quotes:

[O]fficials from the Indiana State Fair Commission will argue that it should be excused from damage claims against a sound company being sued for the collapse.

That production company, Mid-America Sound Corp., says the commission is obligated to help pay liability costs based on the terms of its contract with the company.

The State Fair Commission “is not a governmental body, and that’s what we’ll argue to the court,” said Robert MacGill, an attorney for Mid-America Sound.

Mid-America Sound supplied the stage materials for the fatal Aug. 13, 2011, production, in which seven people were killed and dozens of others were injured.

State officials, however, say the company’s expectation is unfair and claim that officials never willingly entered such an agreement with Mid-America Sound.

Today's Star story also tracks through and links earlier Star stories on stage collapse litigation.

The ILB has also followed these issues closely, with an entire category, "State Collapse," assigned to collect relevant ILB posts. Today's post will be the 130th.

[More] Another notable oral argument this morning will take place at 10:30 AM, Town of Zionsville, Indiana v. Town of Whitestown, Indiana, et al., re annexation. Watch it here. Here is a Sept. 15th IndyStar story by Kristine Guerra, headed "Rural Boone County landowners fighting annexation."

[Updated at 3:44 PM] Reporter Guerra has this new, post-argument story, "Zionsville-Whitestown land feud continues before Indiana Supreme Court."

Posted by Marcia Oddi on Wednesday, September 23, 2015
Posted to Stage Collapse

Tuesday, September 22, 2015

About this Blog - Some good news

The Indianapolis Bar Association has agreed to help support the ILB in the coming quarter, so we will be continuing past Sept. 30th.

If you too are interested in supporting the ILB, see this form or contact me.

Posted by Marcia Oddi on Tuesday, September 22, 2015
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (5):

In U.S. Bank, et al. v. R. Glenn Miller, Jr. et al.; German American Bankcorp v. R. Glenn Miller, Jr., et al., a 30-page opinion involving a case that began over 7 years with "a simple foreclosure of NCM’s mortgage against the Millers’ Newburgh, Indiana property", Judge Kirsch concludes:

We affirm the trial court’s decision to set aside German American’s default judgment, we reverse the trial court’s grant of summary judgment in favor of German American, and we remand to the trial court to decide this case pursuant to I.C. § 32-29-8-4.
Connie Scott-Larosa v. Frank Lewis, a 16-page opinion, Judge Bailey writes:
Constance Scott-LaRosa (“Scott-LaRosa”) filed a small-claims suit against Frank Lewis (“Lewis”) for breach of contract after Lewis moved out of a leased residence the two shared. The trial court entered judgment in favor of Scott-LaRosa and assessed damages against Lewis. Scott-LaRosa filed a motion to correct error, challenging the judgment and seeking an award of additional damages. The trial court denied the motion. * * *

Scott-LaRosa identifies several issues for our review. We restate these as:

I. Whether the trial court clearly erred when it concluded that Scott-LaRosa failed to mitigate her damages; and
II. Whether the trial court clearly erred when it did not grant Scott-LaRosa’s request for payment of her attorney fees by Lewis.

We also address sua sponte a matter related to the power of our trial courts to resolve disputes related to the endorsement and delivery of negotiable instruments. * * *

We address sua sponte an issue that remains outstanding in the trial court’s order: the question of negotiation of the check representing repayment of the security deposit. The trial court concluded that the funds from the security deposit rightfully belonged to Scott-LaRosa, and Lewis does not dispute this on appeal. However, the court observed that the parties could not agree on how to negotiate the instrument and found, “The Court cannot order either party to endorse the check.” * * *

Conclusion. The trial court’s finding of liability as to Lewis, its finding that Scott-LaRosa failed to mitigate her damages, and its conclusion that Scott-LaRosa was not entitled to attorney’s fees were not clearly erroneous. We take the opportunity in this case to remind trial courts of their powers to address certain impasses with respect to the endorsement, delivery, and negotiation of checks and other forms of commercial paper. Affirmed.

In Timothy Kendrick v. Angela Kendrick, a 20-page, 2-1 opinion, Judge Brown writes:
Timothy Kendrick (“Husband”) appeals from the trial court’s decree of dissolution of marriage. He raises one issue, which we revise and restate as whether the court abused its discretion in ordering him to make monthly equalization payments to Angela Kendrick (“Wife”) prior to the distribution of his pension benefits. Wife raises one issue on cross-appeal, which we revise and restate as whether the court abused its discretion in determining and distributing the marital estate. We affirm in part, reverse in part, and remand. * * *

Riley, J., concurs.
Friedlander, Sr. J., concurs in part and dissents in part with separate opinion. [that begins, at p. 19] I would affirm the trial court in every respect, including most notably its division of Husband’s pension, and therefore respectfully dissent in part from the portion of the Majority’s option that remands for further proceedings with respect to that issue. * * *

Although I understand the point the Majority is making in remanding on the stated rationale, it needlessly prolongs this litigation and ultimately serves no purpose. The trial court obviously employed a well-established and well-accepted method in distributing Husband’s pension, and I would let that be the end of the matter.

In Kile Richard Stockert v. State of Indiana, an 11-page opinion, Judge Brown writes:
Kile Richard Stockert (“Stockert”) appeals the trial court’s denial of his petition for declaratory judgment seeking to overturn the Department of Correction (“DOC”) designation that he is a sexually violent predator and offender against children (“SVP”). He raises one issue which we revise and restate as whether the court erred in denying his petition for declaratory judgment. We affirm.
In Jerry A. Smith v. State of Indiana, a 13-page opinion, Judge Barnes writes:
Jerry Smith appeals his forty-year sentence and order of restitution following his convictions for five counts of Class C felony conducting business as a broker-dealer without registering with the Indiana Secretary of State. We reverse and remand.

The issues we address are:
I. whether the trial court properly ordered Smith to pay $410,189.16 in restitution to the five victims; and
II. whether Smith’s forty-year sentence violates statutory limits on sentences for a single episode of criminal conduct. * * *

The State fails to analyze or even mention our earlier opinion in this case. That opinion clearly held that Smith could face prosecution on state charges of failing to register as a broker-dealer because they were entirely different in nature than the federal convictions related to defrauding investors. Our first opinion is the law of the case on that question. Also, the federal charges led to restitution orders with respect to Smith’s Indiana victims. It was Smith’s conduct as charged in federal court that led to the victim’s losses, not his failure to register as a broker-dealer. The State fails to adequately demonstrate that there was anything about Smith’s failure to register as a broker-dealer that caused financial loss to the victims. Smith also did not explicitly agree to pay restitution with respect to these charges. As such, we conclude there is an inadequate legal and factual basis for awarding restitution under Smith’s failure to register as a broker-dealer charges.

We reverse the award of restitution in this case. Furthermore, this is not an instance in which there simply was a failure of proof regarding the amount of restitution, in which case we might remand for the State to have another opportunity to submit proof. See Iltzsch, 981 N.E.2d at 57. Rather, there is no legally tenable basis for awarding restitution in this case, and we will not remand for another hearing. * * *

Next, we address Smith’s argument that his five convictions for failing to register as a broker-dealer constituted a single episode of criminal conduct subject to statutory limitations on sentencing for such crimes. * * *

In light of Study’s language and our holding in Smith’s first appeal, we conclude that Smith committed one single episode of criminal conduct by failing to register as a broker-dealer with the Secretary of State and then knowingly proceeding to transact business without having done so. The precise number of times that Smith transacted business is not the gravamen of the offense; rather, it is his initial failure to register. That failure is a grievance against the Secretary of State and the State as a whole, which by itself did not result in direct harm to the victims. * * *

Therefore, regardless of Smith’s subsequent acts of transacting business without having first registered as a broker-dealer, such acts constitute a single episode of criminal conduct for purposes of Indiana Code Section 35-50-1-2(c). As such, the total sentence Smith may receive is ten years, the advisory sentence for a Class B felony. We reverse the imposition of the forty-year sentence and remand for the trial court to craft a sentence that complies with this opinion, including recalculation of suspended time Smith may receive, if any. Also, by reducing Smith’s total sentence from forty to ten years, we believe it is unnecessary to address his additional argument that his forty-year sentence was inappropriate.

Conclusion. We reverse the restitution order against Smith in this case; of course, the federal court restitution order for these victims is still in place. We also conclude that Smith’s five offenses for failing to register as a broker-dealer constitute a single episode of criminal conduct. We reverse Smith’s sentence and remand for resentencing consistent with this opinion.

NFP civil decisions today (4):

P.J.K. v. L.M.K. (mem. dec.)

Don Campbell v. Anonymous Hospital A, Anonymous Hospital B, and Anonymous Physical Therapist (mem. dec.)

Nick Gandin v. Elina Lefand (mem. dec.)

Wrecks, Inc. v. Amy D. Martin (formerly Amy D. Maurer), and Lawrence A. Maurer (mem. dec.)

NFP criminal decisions today (4):

Joaquin Starks v. State of Indiana (mem. dec.)

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

Aaron G. Bradley, Jr. v. State of Indiana (mem. dec.)

Dequincy Clay v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, September 22, 2015
Posted to Ind. App.Ct. Decisions

Environment - The Kankakee: "Indiana's drainage ditch and Illinois' river"

Updating earlier ILB entries on the Indiana/Illinois controversy over IDEM issuance of a water quality certification permit for Singleton Stone Quarry, the Champaign Illinois News-Gazette had this long Sunday editorial column by Dan Corkery - some quotes:

There's no lack of conflict between Illinois and Indiana, whether it's over businesses and jobs or Big Ten sports.

People in Kankakee County have added water, silt and sand to that list.

For the last 100 years, since Indiana straightened the meandering Kankakee River and drained the Grand Kankakee Marsh with a network of ditches, Illinois has been the recipient of the Hoosier State's sediment-borne river water. * * *

The Rieth-Riley Construction Co., based in Goshen, Ind., is developing a 600-acre operation east of Interstate 65 near Lowell, Ind. A large road construction firm, Rieth-Riley wants the limestone that lies beneath the fertile farmland — apparently for future highway projects.

A company spokesman last week declined to answer questions about the quarry and its business plans.

Digging a big hole in the ground means encountering water.

As Rieth-Riley removes the soil-and-sand overburden and mines the limestone, the surrounding groundwater will flow into the quarry. As it extracts more limestone, the company has to pump that water somewhere.

And that somewhere is the Singleton Ditch, which runs parallel to the Kankakee River in Indiana and discharges into the river 2 miles upstream from Momence.

According to various news reports, the quarry is expected to discharge up to 12 million gallons of a water a day. Its permits allow it to pump more than four times that amount, but that may not happen. The quarry can only pump as much water as the Singleton Ditch can hold.

Eugene Yarkie, vice president of Reith-Riley Construction Co., told the Kankakee Journal last month that 2 million to 3 million gallons a day will be more typical.

But that assurance is not sitting well in Illinois.

"The Singleton Ditch has been one of the most horrible things that has ever happened to the Kankakee River," said Bob Siwick, brother and business partner to Mark Siwicki.

The Siwickis, whose residences and business adjoin the mouth of the Singleton, cite the muddy brown, sediment-laden water that flows into the river.

"In the springtime when we get rains, it's like chocolate milk coming out of there," Bob Siwicki said.

Wildlife scientists and elected officials share the Siwickis' concerns that the additional discharge from the quarry may further harm the river's habitat and contribute to flooding.

Elizabeth McCloskey, a biologist with the U.S. Fish and Wildlife Service, sent a letter last month to the Indiana Department of Environmental Management, asking that the quarry not be given a permit to discharge water into the Singleton Ditch.

McCloskey's letter — citing research by the U.S. Geological and the Illinois State Natural History, Water and Geological surveys — said the quarry's water would likely stir up additional sand and other sediments in the Singleton and deposit them in the river.

"The additional sediments and the redisposition of existing sediments are likely to affect the aquatic resources of the river, with fish and mussels being of particular concern," the letter stated.

Indiana's environmental department, however, granted the permit earlier this month. The department's statement did acknowledge Illinois' environmental concerns but said its jurisdiction is limited to Indiana. * * *

Illinois Congresswoman Robin Kelly, D-Matteson, whose 2nd District includes Kankakee County, asked the Indiana Office of Environmental Adjudication last week to place a stay on the quarry's operation. She wants a public discussion on the quarry's potential impact on the Kankakee River in both states.

Jim Wieser — an attorney in Schererville, Ind., who has represented the Singleton Quarry as it sought permits from the county and the state — is incredulous that people are now trying to halt the quarry.

"From my perspective, where was everybody six years ago?"

Late Friday, Rieth-Riley CEO A. Keith Rose issued a statement:

"For over five years, we have diligently followed the appropriate process to obtain proper approvals from local, state and federal agencies to proceed with the quarry project. Throughout this time, the opposition has had multiple opportunities to share its views, which have appeared repeatedly in press accounts in recent days. We appreciate the thorough review by all involved, and we look forward to continuing work on a project that will benefit the Lake County community, the northwest Indiana region and the state of Indiana."

There is also this interesting section on the river's history:
For a century, the two states have exploited the Kankakee River in dramatically different ways: drainage for farmland in Indiana, and drinking water and recreation in Illinois.

But through most of the 19th century, the Kankakee River was a remarkable natural resource.

The river's headwaters lie in South Bend, Ind., a short distance from the St. Joseph River, which flows northwest to Lake Michigan. For centuries, the two rivers — via the South Bend portage — connected the Great Lakes to the Illinois and Mississippi rivers and to the Gulf of Mexico. Native people and French fur traders used this as one of their canoe routes.

The Kankakee River flows over a nearly level land, falling just a few inches each mile. The slow, meandering stream created the Grand Kankakee Marsh, once one of the largest wetlands in the northern United States. The marsh, compared with the Everglades for its size (400,000 acres or more) and thriving wildlife habitat, provided waterfowl and timber for fast-growing Chicago.

But the 19th century brought the steel plow and an increasing demand for farmland. The first drainage ditches were dug in 1850s. After the Civil War and with the aid of steam shovels, more ditches were dug. All the muck that was dug up became levees. Water was pumped out of the surrounding land — leaving dry, tillable ground.

From 1917 to 1922, the river itself was dredged, and its crooked channel was made straight.

That Illinois has treated the river differently is due to geology. At Momence in eastern Kankakee County, the river meets the limestone bedrock and picks up speed. The river doesn't meander as much as it makes its way to the Illinois River. Cutting a straight channel didn't make sense.

In her letter to Indiana officials, Rep. Kelly calls for a comprehensive treatment of the Kankakee River.

"The time has come for more bistate (and federal) cooperation and coordination to better identify the needs and address the concerns of residents on both sides of the state line who live near, work near, depend on or simply enjoy life along the Kankakee River basin."

Posted by Marcia Oddi on Tuesday, September 22, 2015
Posted to Environment

Ind. Law - "Indiana Wineries Winning with New Shipping Law"

Topping the long, long list of ILB posts on the topic of wine shipping is this Sept. 17th story (with video) from the TriState Homepage, that begins:

When you think of crops grown in Indiana, corn and soybeans are usually the first to come to mind. But grapes are also growing in importance. And with a new law, some vineyards are finding reasons to expand.

In the rolling hills of Southern Indiana, just an eyeshot of I-64, are the sounds of passion. Winzerwald in Bristow is one of about 10 wineries in our region of the Hoosier State. And thanks to a change in state law, more out-of-towners are getting beyond a taste.

"It used to be so disheartening to get a call from somebody, 'I would like to get your swiser spice or whatever. My friend was down there they bought it and brought it over we just loved it and want to get some of our own.' 'Well have you ever been the winery, signed the direct shipping forms?' And of course if the answer was no, we could not ship to them. So now folks are able to do that and it's made life a lot easier," says Winzerwald Winery owner Dan Adams.

Those direct shipping forms are no longer required. Neither are visits to the winery first. As of July 1, Indiana wineries can ship across the country.

"We will at least have a 25% increase in shipping based on experience so far," says Adams.

Adams says he ships about 450 bottles a year, many through his 'Wein Club.' Customers are often introduced to Winzerwald's 30-plus varieties at off-site events like festivals. The company participates in about 45 each year.

"The more Indiana wineries there are, the more opportunities for people to experience wine and I think the more familiar they get, the more they enjoy it.," says Adams.

Posted by Marcia Oddi on Tuesday, September 22, 2015
Posted to Indiana Law

Ind. Decisions - Supreme Court to hear Michigan City police eavesdropping case

The Supreme Court's grant of transfer in the case of State of Indiana v. Brian J. Taylor, announced yesterday, is the subject of a story today by Dan Carden in the NWI Times. Some quotes:

The Indiana Supreme Court will try to sort out the legal mess caused by several Michigan City police officers who listened in on a private conversation between a murder suspect and his attorney.

At issue is whether LaPorte Superior Judge Kathleen Lang exceeded her authority by barring all trial testimony from the officers after they invoked their Fifth Amendment right against self-incrimination in connection with the eavesdropping.

In June, the Indiana Court of Appeals ruled 2-1 that Lang properly excluded the gun police discovered after listening in, but said she went too far in prohibiting the officers from testifying about aspects of their investigation that uncovered other allegedly incriminating evidence.

The high court's decision to hear the case, announced Monday, automatically vacates the appellate court ruling. The five Supreme Court justices likely will hear oral arguments in a few months and issue their decision next year. * * *

According to court records, Taylor and his attorney, David Payne, discussed "all aspects of both the case and his defense" following Taylor's arrest in what they were told was a private room at the Michigan City police department.

Unbeknownst to them, several police officers and LaPorte County Chief Deputy Prosecutor Robert Neary were able to hear parts of the conversation from a nearby room, where "crucial information regarding Taylor's guilt was heard by law enforcement personnel," the appeals court noted.

A special prosecutor cleared Neary and the officers of criminal wrongdoing on Dec. 24 because she found there was no evidence proving an intent to eavesdrop.

The Times story today includes links to four earlier Times stories with these headlines:

Posted by Marcia Oddi on Tuesday, September 22, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - "Carmel delays action on anti-discrimination ordinance"

Updating this ILB post from Sept. 18th, the Indianapolis Star (Chris Sikich, Stephanie Wang and Chelsea Schneider) reports this morning:

Concerned that an anti-discrimination ordinance needed more work, the Carmel City Council delayed action for at least two more weeks.

Council President Rick Sharp tried to discuss and vote on the ordinance Monday but was blocked by several council members who are concerned about its legal wording.

Social conservatives raised those concerns at a committee meeting Thursday.

“I think there really needs to be work on this,” Councilwoman Luci Snyder said. “When you make a law, you have to make sure the words are what we want them to be.” * * *

Sharp and council members Sue Finkam and Ron Carter had been pushing for a vote on the ordinance Monday. Sharp tried to use a procedural move as the council president to lift it out of Snyder’s committee, where it had stalled. However, Snyder, Carol Schleif, Eric Seidensticker and Kevin Rider overruled his decision.

Sharp said the committee should have made more progress on the ordinance in the past month.

He said he hoped Snyder would work with the mayor and his staff to address any concerns she had in the next two weeks. He said he would be disappointed if council members still had questions in two weeks.

Regardless of whether they pass it out of committee, Sharp said, he can and will raise it for debate in front of the full council Oct. 5.

“This is too important of business to leave stranded in a committee,” Sharp said.

Posted by Marcia Oddi on Tuesday, September 22, 2015
Posted to Indiana Government

Monday, September 21, 2015

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

For publication opinions today (3):

In D & D NAPA, Inc. v. Unemployment Insurance Appeals of the Indiana Department of Workforce Development, a 23-page opinion, Judge Brown concludes:

Based upon the record and the considerations discussed above, we conclude that the ALJ did not err in concluding that D & D acquired Chaffins’s NAPA retail auto parts sales business and did not acquire the service center portion of Chaffins’s business and thus that D & D made a partial acquisition of Chaffins’s business.
In James Whittaker v. Wilma Sharlene Whittaker , a 9-page opinion, Judge Bailey writes:
James Whittaker (“Husband”) filed a petition seeking to have his ex-wife, Wilma Whittaker (“Wife”) held in contempt of court for her failure to pay sums designated as maintenance in a settlement incorporated into a dissolution decree. The trial court concluded that Wife owed Husband a fixed sum of $76,173.44, as of June 25, 2013, enforceable by execution but not contempt. Husband presents the sole, consolidated issue of whether the trial court reached an erroneous legal conclusion as to enforcement remedies. We reverse and remand with instructions to the trial court to address the merits of Husband’s petition for contempt.
In Carlos I. Nunez v. State of Indiana, a 9-page opinion, Sr. Judge Shepard writes:
By both law and practice, American courts have long been especially concerned that criminal defendants not give up various rights by virtue of being misled or uninformed or threatened. Here, the question is whether a conviction must be set aside because the defendant who was asking to waive trial by jury did not tell the trial judge that his request was voluntary. * * *

Nunez presents the issue on appeal this way: whether the trial court wrongly accepted his waiver because it was not voluntary and intelligent. * * *

In this case, the straightforward claim is that Nunez did not affirmatively tell the trial court that his decision to waive was voluntary and intelligent. Like the Sixth Circuit, we conclude that an appellant unable to point to actual evidence of some miscarriage like ignorance or coercion cannot prevail on direct appeal. See U.S. v. Sammons, 918 F.2d 592, 597 (6th Cir. 1990). * * *

If there is actually any evidence that Nunez’s waiver was the product of coercion or improper inducements, Indiana courts are open to receive it.

For the reasons stated, we affirm the trial court.

NFP civil decisions today (1):

Constantine D. Mills, Jr. v. Brandy Fisher (mem. dec.)

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Monday, September 21, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court post one today, filed Sept. 18, reversing Tax Board [Updated]

In a 7-page opinion, RJK/ Robert J. Kuchler, Trustee v. LaPorte County Assessor, Judge Wentworth writes:

RJK Trust, Robert J. Kuchler, Trustee, appeals the final determination of the Indiana Board of Tax Review that increased its 2006 real property assessment from $630,500 to $800,000 based on an independent appraisal the Assessor provided to RJK Trust for the first time at the administrative hearing. The Court reverses the Indiana Board’s final determination. * * *

Here, however, a trial by ambush is exactly what happened. RJK Trust never received a copy of the appraisal report until the day of the hearing. (See Cert. Admin. R. at 180.) As a result, RJK Trust had no opportunity to adequately prepare any rebuttal to the evidence in the appraisal report in advance of the hearing or in the twenty minutes it had to present its case. Moreover, in its closing remarks, RJK Trust asked the Indiana Board not to “follow” the appraisal report because, among other things, it did not receive a copy before the hearing. * * *

Here, however, a trial by ambush is exactly what happened. RJK Trust never received a copy of the appraisal report until the day of the hearing. (See Cert. Admin. R. at 180.) As a result, RJK Trust had no opportunity to adequately prepare any rebuttal to the evidence in the appraisal report in advance of the hearing or in the twenty minutes it had to present its case. Moreover, in its closing remarks, RJK Trust asked the Indiana Board not to “follow” the appraisal report because, among other things, it did not receive a copy before the hearing.

[Updated at 4:33 PM] A reader writes to point out on p. 5:
“(T)he Indiana Board’s small claims regulations require, upon request, pre-hearing disclosure to uphold the fundamental tenant of our judicial system that neither party by subjected to a trial by ambush,”

Posted by Marcia Oddi on Monday, September 21, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re bystander rule

In Ray Clifton v. Ruby McCammack, a 14-page, 5-0 opinion, Chief Justice Rush writes:

In Indiana, there are two rules under which a person can recover for negligent infliction of emotional distress. One of these—the bystander rule—requires, in part, that the person claiming emotional trauma meet certain “circumstantial” factors, which this Court has previously held are questions of law. Specifically, under our precedent, the claimant must demonstrate that the scene viewed was essentially as it was at the time of the incident, that the victim was in essentially the same condition as immediately following the incident, and that the claimant was not informed of the incident before coming upon the scene. Meeting these factors ensures that the claimant can establish sufficient “direct involvement” with the incident to permit emotional distress recovery.

Here, after watching a news story about a fatal car crash, a father drove to the scene of the accident, fearing his son was involved. By the time he arrived, the unsuccessful resuscitation efforts had ended, and the son’s body had been moved and covered with a white sheet so that no signs of injury were visible. Given these undisputed facts, we hold, in accordance with Smith v. Toney, 862 N.E.2d 656 (Ind. 2007), that as a matter of law, the father cannot recover for negligent infliction of emotional distress—despite his undoubtedly genuine grief and shock—because none of the three circumstantial factors were met. Accordingly, we affirm summary judgment in favor of the negligent driver. * * *

After a hearing, the trial court granted summary judgment to McCammack, finding that “the undisputed facts established [that Clifton] fails to meet the temporal and circumstantial requirements to permit recovery for negligent infliction of emotion[al] distress as set forth in Smith v. Toney, 862 N.E.2d 656 (Ind. 2007).”

Clifton appealed, and the Court of Appeals reversed the trial court, entering summary judgment for Clifton and remanding for a trial on the question of damages. Clifton v. McCammack, 20 N.E.3d 589, 602 (Ind. Ct. App. 2014). We granted transfer, thereby vacating the Court of Appeals decision. Ind. Appellate Rule 58(A). * * *

The undisputed facts demonstrate that Clifton did not meet the circumstantial factors under the bystander test—both the scene and victim were significantly changed before he arrived at the accident, and he had also been informed of the incident indirectly before coming upon it. Accordingly, as a matter of law, Clifton is unable to recover emotional distress damages, and McCammack is entitled to summary judgment.

We affirm the trial court.

ILB: See the policy discussion and footnote on p. 13:
Again, we must stress that major public policy concerns dictate that we draw bright lines, especially in terms of this particular tort. To allow a claimant to recover under a bystander theory when his or her emotional distress begins as a result of seeing a news story or the like would result in virtually limitless litigation. Our quickly evolving state of social media and instantaneous news coverage further underscores the importance of setting parameters for this tort. We are at a point in time when people are often subjected to seeing live, streaming footage—on high-definition televisions, smart phones, or other devices—of emergencies possibly involving their immediate beloved relatives. There must be a point at which a defendant’s exposure to liability for negligent infliction of emotional distress ends—not to diminish real anguish, but simply because pragmatism demands that the line be drawn somewhere. And our precedent has drawn that line by setting out straightforward limits for recovery under this tort.

Posted by Marcia Oddi on Monday, September 21, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending September 18, 2015

Here is the Clerk's transfer list for the week ending Friday, September 18, 2015. It is two pages (and 24 cases) long.

Four transfers were granted last week:

The transfer list also includes the Zollman Farms case, where the Court on Friday vacated its earlier grant of transfer - see ILB post.

Posted by Marcia Oddi on Monday, September 21, 2015
Posted to Indiana Transfer Lists

Courts - Does federal Drivers Privacy Protection Act preempt Wis. public records law?

That issue was argued before the Wisconsin Supreme Court on Friday, Sept. 18th, per this very lengthy story by Bruce Vielmetti, of the Milwaukee Journal-Sentinel.

Posted by Marcia Oddi on Monday, September 21, 2015
Posted to Courts in general

Ind. Decisions - Supreme Court vacates transfer grant in Zollman Farms case

On Sept. 17 the Supreme Court heard oral argument in Timothy McNamara, et al. v. Zollman Farms Inc, et al.

In an order filed Sept. 18th and posted today, the Court, by a vote of 3-2, vacates its transfer grant and reinstates the Jan. 13, 2015 NFP Court of Appeals opinion:

By order dated June 11, 2015, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including consideration of the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals decision, McNamara v. Zollman Farms, Inc., No. 36A05-1404-PL-180 (Ind. Ct. App. Jan. 13, 2015), should be reinstated as a memorandum decision.

Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

Rucker, David, and Massa, JJ., concur.
Rush, C.J., and Dickson, J., dissent from the denial of transfer.

Posted by Marcia Oddi on Monday, September 21, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Elkhart Four felony murder convictions overturned by Indiana Supreme Court"

On Friday the Indiana Supreme Court issued opinions in the two "Elkhart 4" appeals before it - see the opinions here.

The headline above is from the Sept. 18th Indianapolis Star story, reported by Kristine Guerra. Some quotes from the lengthy story:

The Indiana Supreme Court threw out the felony murder convictions of inmates connected to the Elkhart Four, a group of four young men who gained international attention after they were convicted for the shooting death of their friend even though none of them pulled the trigger.

Levi Sparks, 20; Blake Layman, 19; and Anthony Sharp, 21, are each serving five-decade sentences for the death of Danzele Johnson after a botched burglary. While the state's highest court overturned the felony murder convictions, the justices ruled that they're guilty of burglary, a Class B felony punishable by six to 20 years in prison. * * *

The case of the Elkhart Four brought attention to a controversial and highly criticized doctrine of criminal law. Critics say the felony murder statute goes against a basic principle of criminal law: culpability. Supporters of the statute say it's a crime deterrent that holds people accountable for committing dangerous acts that result in deaths.

Sparks, Layman and Sharp appealed their convictions, arguing they shouldn't be charged with murder because they didn't intend to kill and didn't foresee someone's death. The fourth defendant, Jose Quiroz, 19, pleaded guilty to a felony murder charge and did not file an appeal. * * *

The rulings, however, fall short of changing Indiana's felony murder statute.

The Supreme Court justices denied a request in the appeal to overturn a felony murder conviction in a 1999 case wherein a police officer shot and killed one of the perpetrators. In that case, a man named Jesse Palmer pointed a loaded and cocked handgun at a police officer while trying to help an arrestee escape. Palmer shot the officer's hand, while another officer shot and killed the arrestee.

The justices say they “perceive no urgent reason to revisit a long-standing precedent” and they do not believe the felony murder statute was misapplied in the 1999 case, as well as in two other previous cases with similar sets of facts.

"The Supreme Court went to great lengths to say that they were not going to change the Palmer decision," said Greencastle lawyer Joel Wieneke, who represents Layman in his appeal. "However, it creates a legal precedent to compare other fact scenarios in the future to decide whether or not the Palmer case should apply in (other) cases."

South Bend lawyer Vincent Campiti, who represents Sparks, said the Supreme Court rulings basically distinguished the Elkhart Four cases from the other felony murder cases.

"The past (cases) had to deal with defendants who were outwardly violent in their intentions, outwardly threatening in their behavior," Campiti said.

The justices said the Palmer case is different from the Elkhart Four case, which involved unarmed defendants whose intentions were not to enter a confrontation with the homeowner, but to burglarize the house. The young men, according to the justices' opinions, did not engage in “dangerously violent and threatening conduct."

"There was simply nothing about the appellants' conduct or the conduct of their cohorts that was 'clearly the mediate or immediate cause' of their friend's death," the justices wrote in their opinions. * * *

In response to the Supreme Court's decision, Indiana Attorney General Greg Zoeller issued a statement, saying the "Legislature — and not the courts — is the proper forum for changing our statutes."

"The Attorney General's Office also respects the decision of the Indiana Supreme Court to bring this tragic case to an end by amending the convictions while holding these young men responsible for their very serious and dangerous acts," Zoeller said in the statement.

Now, the cases will be sent back to Elkhart Circuit Court Judge Terry Shewmaker, who will re-sentence Layman, Sparks and Sharp for burglary. As their cases stand, they will be re-sentenced as adults. That includes Layman and Sparks, who were both juveniles when the crime occurred.

Wieneke said he will see if his client, Layman, is eligible for juvenile sanctions. Campiti, Sparks' attorney, said he plans to make an argument that his client should be sentenced as a juvenile.

Whether that can happen is unclear. Larry Landis, executive director for the Indiana Public Defender Council, said Indiana does not have a reverse waiver statute, which would allow adult courts to transfer cases to juvenile courts.

As for Quiroz, who pleaded guilty to a felony murder charge, he could file a petition for post-conviction relief, arguing that he could not have been convicted of felony murder based on the Supreme Court ruling on his co-defendants' appeals, Landis said.

"If he pled guilty to an offense for which he could not have been convicted, due process requires that it be vacated," Landis said.

No date for a re-sentencing hearing has been set. The state has 30 days to decide if it wants to seek a rehearing in the Supreme Court.

From a Sept. 19th story by Jeff Parrott of the South Bend Tribune:
The Supreme Court ordered the Elkhart Circuit Court to enter convictions of Class B felony burglary against Sparks, Sharp and Layman, who have been in prison for about two years. A Class B felony, under the state's sentencing guidelines that were in effect when they were convicted, was punishable by six to 20 years.

It was unclear Friday when the three will be re-sentenced.

Danville attorney Joel Wieneke, who represents Layman, said Layman has served the equivalent of about three and a half years, factoring in pre-conviction jail time, day-for-day good behavior prison time credits, and a 6-month credit he's earned for completing a rehabilitation program, through which he's earned a GED. If Shewmaker gives him the maximum 20 years, he could serve another six and a half years, assuming he keeps earning good behavior credits, Wieneke said.
But Wieneke said he could get out sooner if he decides to petition the Supreme Court for a re-hearing on the constitutionality of charging Layman as an adult. Felony murder automatically waived him to adult court, but now that the Supreme Court has thrown out that charge, Layman might be able to argue that he should be sentenced for burglary as a juvenile, which could allow his release on his 21st birthday in about two years, Wieneke said.

South Bend attorney Vince Campiti, representing Sparks, said he spoke with both Sparks and his mother Friday, and they were both "elated and emotional." He hopes his client, who had no prior criminal record, will be released soon because he sees no aggravating factors that would warrant the maximum 20 years. But he noted that will be up to Shewmaker, who will consider any arguments that Elkhart County prosecutor Curtis Hill will make.

"To me it's pretty unclear right now if the court can consider the death of an accomplice as an aggravating factor," Campiti said. "I think it would be unfair to sentence any of the boys to the maximum."

Sharon Hernandez of The Elkhart Truth had this story on Sept. 18 - a quote:
Vincent Campiti, Sparks’ attorney, said the Supreme Court made its ruling based on common sense, adding that the teens should have been charged with burglary from the beginning.

“The kids have suffered enough,” he said. “They lost an acquaintance, they were unarmed and they believed they entered a home that was empty. The Supreme Court made that same analysis.”

Posted by Marcia Oddi on Monday, September 21, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Sellersburg ordinance changed after resident lawsuit"

Elizabeth Beilman reports today in the New Albany News & Tribune. Some quotes:

The Sellersburg Town Council amended a 20-year-old ordinance in response to a lawsuit from a resident claiming a town official violated his Fourth Amendment protections against illegal search and seizure.

The ordinance’s chapter on nuisances states that town employees “shall be permitted, upon a five-day notice given to the person in possession of the real estate, to enter into or upon any building, lot, grounds or premises, within the limits of this town” to check for any nuisances.

“Obviously we all know you can’t do that,” Town Attorney Jake Elder said. “It’s in violation of the Fourth Amendment.”

The ordinance’s amendment, which passed 4-0 last week with council President Paul Rhodes absent, changes the language to state that a town official must have a court order or written permission of the owner to enter private premises.

The American Civil Liberties Union of Indiana, on behalf of Sellersburg resident William Schuler, sued the town in mid-August because Sellersburg Building Commissioner Greg Dietz allegedly entering Schuler’s property in 2013 and in 2015 when he was not there and threatened to do so again.

An Aug. 19th ILB post headed "ACLU of Indiana challenges Sellersburg ordinance allowing warrantless searches of private property" includes quotes from an ACLU Indiana news release, plus a copy of the complaint.

Posted by Marcia Oddi on Monday, September 21, 2015
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/21/15):

Wednesday, September 23

Next week's oral arguments before the Supreme Court (week of 9/28/15):

Webcasts of Supreme Court oral arguments are available here.


Next week's oral arguments before the Court of Appeals (week of 9/21/15):

Wednesday, September 23

This week's oral arguments before the Court of Appeals (week of 9/28/15):

Momday, September 28

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, September 21, 2015
Posted to Upcoming Oral Arguments

Friday, September 18, 2015

Ind. Gov't. - "Public access counselor discusses current challenges to transparency"

Jared Jernagan, Assistant Editor, Greencastle Banner-Graphic, reports on a Monday, Sept. 14 appearance by Luke Britt, Public Access Counselor, at Greencastle City Hall. Some quotes:

Britt opened the talk, co-sponsored by the Greencastle League of Women Voters and the Banner Graphic, by saying he starts each day by reading the preambles to the two main public access statutes, as idealistic as it may sound.

In reading the APRA preamble to his audience, Britt mentioned something he believes some in government have lost sight of.

"A fundamental philosophy of the American constitutional form of representative government is that government is these servant of the people and not their master," Britt read from the statute. "Accordingly, it is 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."

That law was passed in 1983, yet Britt said the attitude of being a "servant of the people" has eroded in recent years.

"There is a bit of an assault on government transparency and that epitomizes that we are moving away from that philosophy," he said, adding that the movement has been to run government like a business. "You can't treat (government) like a well-oiled business machine. It's not for-profit. Our currency is generally information. I think government needs to go back to that attitude."

Instead, Britt said, governments have gotten territorial and protective of how they spend money and how they reach decisions.

That's where the Indiana Public Access Counselor's Office comes in. While admitting that his position doesn't "have a lot of teeth," Britt said he was tasked by Gov. Mike Pence with raising the profile of the PAC office upon his appointment in August 2013.

Pence also emphasized that the position was to be independent of the governor's influence.

The PAC has found this to be the case, saying he's never received negative feedback from the governor, even when his opinions have not favored Pence's decisions and positions.

Britt uses his advisory position to give non-partisan opinions when citizens make open door or public records complaints. He does so by listening to the complaint as well as the response from the government, before issuing an opinion.

"I like to flavor my opinions with some editorial comments," Britt said.

Even so, he reiterated that his opinions are simply advisory.

"I'm not public access cop. I'm not public access enforcer," he said. "I'm public access counselor."

This distinction generally matters little, as Britt said even those officials who run afoul of ODL or APRA have not done so intentionally, and are usually willing to fix the problem.

The story continues:
If the problem persists, Britt said, it has to go to court, as only judges have the power to enforce the Open Door Law or Access to Public Records Act. [ILB: Note "it" is the party seeking information, not the PAC, who would have to go to court.]

"I rarely find that it's the case that someone is trying to subvert the law. That is very, very rare," Britt said. "I find that it's usually an education gap."

Bridging that gap was precisely the goal of Britt's presence in Greencastle on Monday. While open to all residents, public officials were particularly encouraged to attend. * * *

Perhaps most importantly, Britt said citizens have the access to his office and directly to him. As a two-person department, it doesn't take much to get straight to the top.

"When you do call up or you send an email, chances are you'll get me directly," Britt said.

Posted by Marcia Oddi on Friday, September 18, 2015
Posted to Indiana Government

Ind. Gov't. - Secrecy and the Indiana Economic Development Corp. (IEDC)

Niki Kelly wrote in the Fort Wayne Journal Gazette "Political Notebook" blog last Sunday:

The letter of the law can differ wildly from its spirit. That truism was proved yet again last week at a meeting of the Indiana Economic Development Corp.

Board members gathered at our own Parkview Field for their quarterly meeting. The venue was the Tuthill 400 Club, a suite built on the ballpark’s concourse, offering a stunning view of center field.

What it didn’t offer Tuesday was much of a view of the IEDC.

Although board members were technically meeting in public, as they are required to do, their chairs were pulled up to three tables arranged in a U-shape with the open end facing a wall. Staff, local officials, reporters and members of the public had full view … of board members’ backs.

Granted, a portable screen was set up at the open end of the table arrangement, but little time was spent referring to information projected there. And TV screens located throughout the room displayed the same information. In fact, some board members were seen looking at the TVs instead of the white, pull-down screen during that part of the discussion.

To make matters worse, board members didn’t use microphones, instead speaking to one another at conversational volume that might not have been loud enough for some to hear. Officials made no effort to ask whether everyone could hear them conducting state business.

Tom Lewandowski, president of the Northeast Indiana Central Labor Council, AFL-CIO, was among those seated in the audience. It was his fourth IEDC meeting.

Before seeing board members in action, he’d assumed they would welcome interaction with taxpayers during meetings. But the setup quickly sent another message.

“This is not intended for public participation,” said Lewandowski, who was a New Haven city councilman for 16 years. “This public is being excluded from the process. That’s the message you get. It’s the way they set up the room.”

Bob Segal, WTHR13 reporter, today reports in a story with video:
INDIANAPOLIS -

It was a brutal spring for Indiana's image.

Earlier this year, people across the world saw protests, boycotts and negative headlines after state leaders passed Senate Bill 101, better known as the Religious Freedom Restoration Act.

While the new law triggered a public outcry of potential discrimination and intolerance, behind the scenes, there was disappointment and frustration.

For the first time, the state of Indiana has released some of the e-mails it received from businesses during the controversy.

13 Investigates obtained several e-mails from the Indiana Economic Development Corporation, and they provide new insight into just how damaging RFRA was for some companies looking to do business in Indiana. Among the correspondence released by the IEDC:

This is followed by a lengthy quote, but its source is unclear to the ILB. Is it from an email, or a report from the IEDC, or what?

Posted by Marcia Oddi on Friday, September 18, 2015
Posted to General News

Courts - "Appeals courts now split on birth control mandate" [Updated]

That is the headline to a piece today by Lyle Denniston at SCOTUSblog. It begins:

Enhancing the likelihood that the Supreme Court will soon take up the legality of the Affordable Care Act’s birth control mandate, a federal appeals court on Thursday differed with six others and temporarily barred the government from enforcing the mandate. That outcome came in two decisions by the U.S. Court of Appeals for the Eighth Circuit.

These cases, and seven others already pending at the Supreme Court, are sequels to the Supreme Court’s ruling last year in Burwell v. Hobby Lobby Stores. That case involved a for-profit business, but this new round of cases involves charities and non-profit operators of businesses, colleges, and schools. All have religious objections to some of the contraceptives mandated by the ACA.

When the Obama administration filed its first response in the Supreme Court to the new group of non-profit cases, in mid-August, it relied upon the unanimous views of appeals courts up to then as an argument against Supreme Court review. That situation has now changed.

The Eighth Circuit became the first appeals court to accept the non-profits’ argument that it would violate their religious beliefs if they had a role in the process of making birth-control pills and devices available, free of charge, to their employees or students.

Merely notifying the government of their objection through a government document or a formal letter to the government, they contended and the Eighth Circuit agreed, would trigger the coverage in their health insurance plans. Because they oppose abortion, and consider some of the mandated coverage to be the same as “abortion on demand,” they believe it would violate their faith to trigger the coverage.

[Updated at 1:57 PM] Here is a WAPO story today from Robert Barnes, headed "Ruling sets up new review of religious objections to contraceptive mandate."

Posted by Marcia Oddi on Friday, September 18, 2015
Posted to Courts in general

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

For publication opinions today (1):

In Founders Insurance Company v. Mark May, Pamela Coomer, and Roger W. Hoke as the Personal Representative of the Estate of Brian Hoke, deceased, a 21-page, 2-1 opinion, Judge Robb writes:

Pamela Coomer, driving a vehicle owned by Mark May and insured by Founders Insurance Company (“Founders”), was involved in an accident that ultimately resulted in the death of Brian Hoke. Coomer did not have a valid driver’s license nor May’s permission to drive the vehicle. Founders filed a complaint seeking a declaratory judgment that it had no duty to defend or provide coverage for the accident pursuant to the terms of the insurance contract and sought summary judgment. The trial court granted summary judgment to Founders as to May and Coomer, but denied summary judgment as to Roger Hoke as the Personal Representative of the Estate of Brian Hoke, Deceased (“Hoke’s Estate”). Founders now appeals, raising the sole issue of whether the trial court erred in denying summary judgment as to Hoke’s Estate. We conclude the exclusions in the insurance contract relevant to this situation are clear and unambiguous and do not violate public policy; therefore, the exclusions are enforceable. Founders is entitled to summary judgment as to all parties, and the trial court’s order denying summary judgment as to Hoke’s Estate is reversed. * * *

The particular facts of this case present an issue of first impression in Indiana: Does an insurer which has no duty to provide coverage benefits to its insured pursuant to the plain terms of the insurance contract nonetheless have to pay damages to an injured third party who has no independent source of insurance? Founders contends that it does not have to pay those damages because it reasonably limited its liability by the terms of its insurance contract to exclude coverage in these circumstances. Hoke’s Estate argues that permitting Founders to deny coverage in this instance would contravene the public policy underlying Indiana’s Financial Responsibility Act to provide “persons who suffer loss due to the tragedy of automobile accidents . . . a source and means of recovery.” Brief of Appellee at 3. Hoke’s Estate contends that the result it seeks is “consistent with the result reached by appellate courts in other compulsory insurance law jurisdictions,” id. at 6, and is supported by the reasoning of Indiana decisions on similar issues. * * *

We have great sympathy for the Hokes and their loss. However, “a third party’s right to recover through liability insurance is not absolute.” Guzorek, 690 N.E.2d at 672. The dissent would base its decision on the public policy “that persons who suffer loss due to the tragedy of automobile accidents shall have a source and means of recovery,” see slip op. at 19-20 (quoting Williamson, 496 N.E.2d at 810), and require Founders to be that source for Hoke’s Estate. However, the source and means of recovery is grounded in the insurance contract itself. The general policy of making insurance available to compensate for losses arising from motor vehicle collisions does not trump the long-standing precedent allowing an insurer to reasonably limit its liability, nor should the recompense of one victim take precedence over the importance of providing affordable insurance to all motorists. Founders limited its risk to permissive, licensed drivers of this vehicle and fixed its premiums on that basis. There is no public policy against such limitations, there is simply the unfortunate reality that this injured party has no access to insurance proceeds under these circumstances. * * * We cannot say this is a case in which we should refuse to enforce the insurance contract on public policy grounds. Though recovery may be more difficult, Hoke is not without a remedy as he may still seek damages from May and Coomer. * * * Reversed.

Mathias, J., concurs.
May, J., dissents with opinion. [that begins, at p. 18] Summary judgment as to Hoke was properly denied. I acknowledge the majority’s concern that “[d]etermining an insurer’s liability only after an accident occurs and the status of the victim is ascertained creates the possibility of disparate treatment of similarly situated insurers.” (Slip op. at 14.) But the result the majority reaches in its effort to avoid “disparate treatment of similarly situated insurers” gives rise to a far greater concern – disparate treatment of innocent persons who are accident victims. As the majority result has the effect of depriving pedestrians, bicyclists, and other non-drivers of recovery that would remain available to motorists involved in traffic accidents, I must respectfully dissent.

I agree with the majority that the particular facts of this case present an issue of first impression in Indiana. But the majority’s narrow characterization of Indiana’s public policy is not required by our Indiana Supreme Court’s precedent and would lead to harsh and unfair outcomes, because it would result in protection for drivers injured in motor vehicle accidents but would leave no remedy for pedestrians, bicyclists, or other persons who need not or cannot prove financial responsibility.

NFP civil decisions today (4):

U.S. Bank Trust National Association, as Trustee of American Homeowener Preservation Trust Series 2014A, Rex A. Wells v. Tera Klutz and Susan Orth (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: Br. H. & Be.H. and C.H. v. The Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of M.C. and K.P. and C.C. v. The Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Term. of the Parent-child Relationship of: M.R.H. and M.M.E. and V.L.E. v. The Ind Dept. of Child Services (mem. dec.)

NFP criminal decisions today (5):

CaNon Harper v. State of Indiana (mem. dec.)

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

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

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

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

Posted by Marcia Oddi on Friday, September 18, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court today issues opinions in Elkhart 4 cases

In Blake Layman & Levi Sparks v. State of Indiana, a 13-page, 5-0 opinion, Justice Rucker writes:

In this consolidated appeal juvenile cohorts Blake Layman and Levi Sparks challenge their convictions for felony murder in the perpetration of a burglary. We remand this cause to the trial court for further proceedings. * * *

On transfer Layman and Sparks advance many of the same constitutional claims raised before the Court of Appeals. We decline to address them for two reasons. First, neither party raised these claims at trial. They are thus waived for appellate review. It is certainly the case that “appellate courts are not prohibited from considering the constitutionality of a statute even though the issue otherwise has been waived.” * * * Setting aside that such sweeping revisions are best left to the Legislature, we are of the view that judicial intervention to address constitutional claims for the first time at the appellate level is not appropriate, especially here where for the most part Appellants’ claims are dependent on potentially disputed facts. * * *

Second, and more importantly, it is long established that “a constitutional question unnecessary to a determination of the merits should not be decided.” * * * As discussed in more detail below the propriety of the Appellants’ convictions may be resolved on non-constitutional grounds. * * *

Appellants invite us to revisit and overrule Palmer and instead adopt the view expressed by the dissenting Justices in that case, namely, that a plain reading of the felony murder statute does not authorize the imposition of liability for murder where the defendant’s fellow perpetrator was the person killed. * * *

We decline the invitation to overrule Palmer. First, it has been the law in this jurisdiction now for over a decade and a half. And we have since affirmed its validity on two occasions. * * * Although Layman and Sparks disagree with Palmer and direct our attention to jurisdictions that take a different view on the proper application of the felony murder rule, we perceive no urgent reason to revisit our long-standing precedent nor are we convinced that Palmer is clearly erroneous.

Further, Appellants’ contention that the dissenting view in Palmer more accurately reflects the correct reading of Indiana’s felony murder statute is at odds with the fact that in the years since Palmer was decided the Indiana Legislature has amended the felony murder statute on at least four occasions,3 but has not done so in a way that undermines this Court’s consistent interpretation of the statute. “It is well-established that a judicial interpretation of a statute, particularly by the Indiana Supreme Court, accompanied by substantial legislative inaction for a considerable time, may be understood to signify the General Assembly’s acquiescence and agreement with the judicial interpretation.” DePuy, Inc. v. Farmer, 847 N.E.2d 160, 168 (Ind. 2006) * * * Thus, both the doctrines of stare decisis as well as legislative acquiescence counsel against overruling our existing precedent in this area of the law. * * *

Layman and Sparks also contend the felony murder statute was not properly applied in this case. * * *

In any event, although we affirm the continued validity of Palmer and its progeny, the facts in those cases are significantly different from the facts here. * * *

Aside from the fact that in each case a co-perpetrator was fatally injured by someone other than the defendant, the common thread uniting Palmer, Jenkins, and Forney was that an armed defendant engaged in violent and threatening conduct, either as a principle or an accessory, that resulted in the “mediate or immediate cause” of a co-perpetrator’s death. By contrast the record here shows that when the group broke and entered the residence of the homeowner intending to commit a theft—a burglary—not only were they unarmed, but also neither the Appellants nor their cohorts engaged in any “dangerously violent and threatening conduct.” Jenkins, 726 N.E.2d at 271. There was simply nothing about the Appellants’ conduct or the conduct of their cohorts that was “clearly the mediate or immediate cause” of their friend’s death. Palmer, 704 N.E.2d at 126. Thus, while the evidence is sufficient to sustain a conviction for the underlying burglary, it is not sufficient to sustain a conviction for felony murder in the perpetration of a burglary. Accordingly, we reverse Layman’s and Sparks’ convictions for felony murder.

But what next? For reasons that are unclear from the record before us the State did not follow common practice and file an additional count of burglary against the defendants. It chose instead to file a single count of felony murder in the perpetration of a burglary. Nonetheless, “the completed or attempted underlying felony is always a lesser included offense of felony murder. Therefore, charging a person with felony murder also, in effect, necessarily charges him with the underlying felony.” Douglass v. State, 466 N.E.2d 721, 722-23 (Ind. 1984) (quotation and citation omitted). * * *

In fact the verdict form given to the jury provided three choices: “Guilty of Felony Murder,” “Guilty of Burglary, a Class B felony, a lesser-included offense,” and “Not Guilty.” App. at 94. Essentially all parties understood and agreed that the un-charged lesser-included offense in this case was burglary as a class B felony. We thus remand this cause with instructions to enter verdicts of guilty to burglary as a class B felony and resentence the Appellants accordingly.

Conclusion. We reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion. [ILB emphasis]

In Anthony P. Sharp, Jr. v. State of Indiana, an 8-page, 5-0 opinion, Justice Rucker writes:
In a companion case today we remanded to the trial court for further proceedings the sentences imposed on felony murder convictions of two teenage co-defendants—sixteen-year-old Blake Layman and seventeen-year-old Levi Sparks. See Layman v. State, No. 20S04-1509-CR-548, ___ N.E.3d ___ (Ind. 2015). For the same reasons explored in that consolidated appeal we also remand for further proceedings the sentence imposed on a third co-defendant—eighteen-year-old Anthony Sharp. * * *

[W]e reversed the felony murder convictions of both Blake Layman and Levi Sparks. Because Anthony Sharp is identically situated we reverse his felony murder conviction as well and remand this cause for further proceedings. For reasons we explained in Layman, Id. at 11-13, on remand the trial court is instructed to enter a verdict of guilty against Sharp for burglary as a class B felony and resentence him accordingly.

Posted by Marcia Oddi on Friday, September 18, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Vote delayed on Carmel anti-discrimination ordinance

Chris Sikick reports this morning in the Indianapolis Star:

CARMEL – Social conservatives' victory Thursday in stalling an anti-discrimination ordinance that would add legal protections for gender identity and sexual orientation in Carmel may be short-lived.

Advance America Executive Director Eric Miller spoke at length during a Carmel finance committee meeting Thursday about issues he has with the legal wording of the ordinance, including the legal definitions of terms such as gender identity, sexual orientation and religious worship. * * *

"In my opinion, the ordinance raises a number of serious legal questions and concerns that need to be addressed," Miller told the Carmel committee.

Some of his arguments resonated with committee Chairwoman Luci Snyder, who had her own concerns with some of the legal framework in the ordinance. She tabled it. She said she would work with the city's legal staff beginning next week to address issues.

Snyder said the ordinance appears to have holes in it that would leave the city open to lawsuits. But she also said it appeared to be an ordinance in search of a problem. She said she had not heard of discriminatory acts in Carmel.

"No one on this council or in this city is in favor of discrimination," Snyder said. "That is absurd."

Her decision might not stand long, though. City Council President Rick Sharp told The Indianapolis Star after Thursday's meeting that he would lift the ordinance from the committee Monday. Sharp supports passing the ordinance.

"This has been sitting out there for a month," Sharp said. "If there were grave concerns, we could have scheduled a special meeting."

Sharp said he would hold a vote at the council meeting Monday if council members were prepared to pass the ordinance. Otherwise, he said he would work through their concerns and hoped to find a resolution to pass a strong ordinance.

Sharp, though, said he's not buying the concerns that have been raised so far. He said the majority seem to be similar to those raised during the Civil Rights era of the 1950s and 1960s. And he didn't think the ordinance needed to have the legal definitions of the terms cited by Miller. He said the terms are adequately defined in the dictionary.

See also the end of this post from Sept. 16, where the ILB calls for creation of a resource, a data bank, containing all the newly amended municipal ordinances expanding local human rights.

Posted by Marcia Oddi on Friday, September 18, 2015
Posted to Indiana Government

Ind. Gov't. - South Bend Tribune calls for more openness in child abuse cases before a “fatality or near fatality”

In an article Sept. 7th in the South Bend Tribune, reporter Virginia Black listed three recent stories of child abuse ending in death and then wrote:

Because all three have now been charged with crimes, we now know a little about the tragic near deaths of these children in our community.

What we still don’t know is whether anyone in Indiana’s child protection system had earlier clues that might have prevented these children from what will undoubtedly be lasting trauma.

We have some hints that trouble might have been spotted sooner in at least two of these cases * * *

Indiana law decrees that Department of Child Services and other records involving a child’s “fatality or near fatality” should be made public. The trouble is, although it’s clear what “fatality” means, “near fatality” is undefined in state statute and open to interpretation.

DCS, in fact, wrote its own interpretation. Judges trying to determine what state law would allow have ruled against attempts to examine the documents relating to children who by most definitions certainly suffered a “near fatality” — including little Josiah Kinder.

Under CAPTA — Child Abuse Prewwvention and Treatment Act — the federal definition of a near fatality is “an act that, as certified by a physician, places the child in serious or critical condition.”

The problem is, doctors don’t issue “near-death certificates” the way they do death certificates. And it does not define what constitutes “an act.”

In the 2014 General Assembly session, state Sen. John Broden, D-South Bend and a former DCS attorney, submitted a bill that offered a definition of near fatality: a “severe childhood injury or condition that results in the child receiving critical care for at least 24 hours following a child’s admission to a critical care unit.”

Broden explained that the attorneys who make up the Legislative Services Agency, which crafts the language in bills, researched other states’ definitions before settling on that one.

But when the bill was heard in the Senate’s Committee on Family and Children’s Services, a DCS attorney raised concerns about the definition, worried that it if violated CAPTA and its confidentiality requirements, federal funding might be lost. So lawmakers tabled the issue.

“Nobody wanted to move something forward — even if it was crying wolf — if it was going to jeopardize federal funding,” Broden said. * * *

Broden says attorneys for DCS, LSA and the caucus attorney have met once since the last session ended and continue to research other states’ policies.

Whatever that group’s recommendation, the senator said he “absolutely” intends to resubmit the bill for the General Assembly session that will begin in January.

Indiana’s child protection system compromises not only DCS, but also courts, law enforcement, schools, doctors and more. More openness when Indiana children are seriously injured is crucial — not to assign blame, but to pinpoint policies or areas where we can do better.

Confidentiality meant to protect children and families does more harm than good when it is allowed to undermine the public’s confidence that we’re doing all that we can for our most vulnerable.

Last Sunday, Sept. 13, the Tribune had an ediorial calling for "More openness for Indiana's most vulnerable."
When a child dies as a result of abuse, the public recoils in horror and wonders what might have been done to stop the unthinkable.

There are no easy answers, but in the state of Indiana, a more open system when Hoosier children are seriously injured would be a major step toward preventing future tragedies.

A Tribune column last week by Virginia Black pointed out the roadblocks to such transparency. Although Indiana law dictates that Department of Child Services and other records involving a child’s “fatality or near fatality” should be made public, “near fatality” is undefined in state statute and is open to interpretation.

Under the Child Abuse Prevention and Treatment Act, the federal definition of a near fatality is “an act that, as certified by a physician, places a child in serious or critical condition.” But this doesn’t define precisely what “an act” is.

A bill submitted during the 2014 session by state Sen. John Broden, D-South Bend, attempted to more clearly define a near fatality. But concerns about whether the definition violated CAPTA’s confidentiality requirements led lawmakers to table the issue.

Broden, a former DCS attorney, plans to resubmit the bill for the upcoming legislative session. We appreciate his vigilance on this issue, and hope other legislators will demonstrate a similar commitment. A more open system could help ensure that those entrusted with the welfare of Indiana’s children are being held accountable. And that lessons are learned so that mistakes aren’t repeated. It’s the least the state can do for its youngest and most vulnerable residents.

ILB: This is not the first time the Tribune has urged action - see this Nov. 10, 2014 ILB post, also quoting reporter Black, before last year's session.

Posted by Marcia Oddi on Friday, September 18, 2015
Posted to Indiana Government

Thursday, September 17, 2015

Ind. Decisions - Reader comments on a COA opinion today [Updated]

A reader has sent this note:

I just read the COA opinion today in Carter v. State. Very interesting combination of an enlightened judiciary regarding the lack of prejudice towards a prostitute who was raped. It appears that the police, prosecutor and judge all must have had good character in that regard. Also, interesting discussion about personal responsibility and the refusal to mitigate the sentence based on the perp’s upbringing and bad childhood.
ILB: From the opinion:
Carter’s only argument regarding the nature of the offenses concerns the character of the victim. Carter contends that he is less culpable because A.M. was engaging in prostitution and is therefore not a “typical victim” of rape. First, we seriously question whether there is such a thing as a “typical victim” of rape. See, e.g., Torrey M. Ford et al., Perceptions of Rape Based on Sex and Sexual Orientation of Victim, 13 J. Soc. Behav. & Personality 253, 253 (1998) (“Reactions to rape are largely based on stereotypes of rape such as stereotypes about who the typical rape victim is and stereotypes blaming the victim.”).

Second, we note that women who engage in prostitution are more likely to be raped than non-prostituted women. Tr. at 196 (testimony of IMPD Sex Crimes Detective David Miller); see also, e.g., Martin A. Monto et al., Predictors of Rape Myth Acceptance Among Male Clients of Female Street Prostitutes, 7 Violence Against Women 275, 275-78 (2001) (stating that approximately seventy percent of prostitutes are victims of rape and discussing the prejudicial stereotypes about rape victims “that serve to justify or support sexual violence against women”).

Third, we believe the relevant inquiry concerns Carter’s own actions. A.M. repeatedly told Carter she did not want to have sex with him, but Carter did not stop. She physically resisted until Carter threatened her with a gun. Although A.M. had no serious physical injuries, this was “probably because of the use of the weapon.” A.M. was afraid that Carter would shoot her if she continued to resist, so she chose to submit rather than risk further injury. Carter has shown no remorse and has never taken responsibility for his actions. As the trial court noted at sentencing, Carter’s description of “this incident not as being a violent offense or a violation of the victim’s body, but a period of prolonged great sex” is a reflection of Carter’s “narcissism.”

[Updated at 4:26 PM] A second reader has just sent this note:
I enjoyed the reader’s comments about the Carter v. State opinion. Last week, Judge Robb also authored an opinion with other interesting comments. Footnote 1 [at p. 5] in the Sprunger v. Egli decision remarked on the inappropriate defense of contributory negligence in the case of a mother who voluntarily left her children with a family member and found that it was “tantamount to victim blaming.” It appears to be a welcome pattern of socially responsible legal reasoning.

Posted by Marcia Oddi on Thursday, September 17, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Altice dons Court of Appeals robe at Sept. 21 ceremony"

From a news release:

INDIANAPOLIS – The Court of Appeals of Indiana will conduct a public robing ceremony for its newest member, the Honorable Robert R. Altice, Jr., at 2 p.m. Monday, Sept. 21 in the Indiana Supreme Court Courtroom. Chief Judge Nancy H. Vaidik will preside and Chief Justice of Indiana Loretta H. Rush will administer the oath of office.

Judge Altice is the first appellate-level judicial appointment of Gov. Mike Pence, who will offer remarks before Judge Altice is robed by his parents, Robert and Louise Altice.

Indiana Supreme Court Justice Mark S. Massa and Court of Appeals Judge Cale J. Bradford will present Judge Altice to the 15-member Court of Appeals and assembled audience.

Judge Altice served on the Marion Superior Court from his election in 2000 until his Appeals Court appointment. * * *

Judge Altice took the oath of office during a private Statehouse ceremony on Sept. 2. He will repeat that oath during Monday’s public ceremony. A live webcast of the ceremony will be available here, and archived for later viewing.

Posted by Marcia Oddi on Thursday, September 17, 2015
Posted to Indiana Courts

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

For publication opinions today (2):

In Donald Richardson v. Town of Worthington, Indiana , a 10-page opinion, Judge Robb writes:

Donald Richardson sued the Town of Worthington (“Worthington”), seeking the payment of overtime wages pursuant to Indiana’s Minimum Wage Law (“MWL”). Worthington moved for summary judgment, which the trial court granted. Richardson presents one issue for our review, namely, whether the trial court erred when it concluded that the MWL did not apply to Worthington. Concluding that the MWL explicitly excludes from its purview employers such as Worthington who are subject to the minimum wage provisions of the Fair Labor Standards Act of 1938 (“FLSA”), we affirm. * * *

This is a case of first impression in Indiana. * * *

The FLSA’s maximum hours provisions are distinct from its minimum wage provisions. MWL’s reference to the “minimum wage provisions” of the FLSA is to FLSA section 206, not sections 206 and 207. Worthington is an employer subject to the minimum wage provisions but not the maximum hours provisions of the FLSA. The MWL, therefore, excludes Worthington from its purview. The trial court’s grant of summary judgment is affirmed.

In Tywaun Carter v. State of Indiana, a 16-page opinion, Judge Robb writes:
Following a bench trial, Tywaun Carter was convicted of two counts of Level 1 felony rape. The trial court sentenced Carter to thirty-two years on each count, to be served concurrently in the Indiana Department of Correction. Carter appeals his convictions and sentence, raising two issues for our review: (1) whether the evidence presented at trial was sufficient to support his convictions; and (2) whether his sentence was inappropriate in light of the nature of the offenses and his character. * * *

The evidence presented at trial was sufficient to support Carter’s convictions for Level 1 felony rape, and we are not persuaded Carter’s sentence is inappropriate. Carter’s convictions and sentence are therefore affirmed.

NFP civil decisions today (0):

NFP criminal decisions today (3):

Jon Donovan v. State of Indiana (mem. dec.)

Marvin Hester v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Thursday, September 17, 2015
Posted to Ind. App.Ct. Decisions

Ind. Law - Former Indiana law prof, dismissed here, fired from West Point a decade later, after only one month

Here is something I've been saving for a slow news day. A decade ago the ILB had a post titled "Ind. Law - Controversial IU Law prof resigns; Indy Star columnist apologizes."

Late last month the same name popped up again. An Aug. 31, 2015 story in The Atlantic is titled "The West Point Professor Who Contemplated a Coup." The subhead: "After calling his intellectual opponents treasonous, and allegedly exaggerating his credentials, a controversial law professor resigns from the United States Military Academy."

The Guardian's story of the same day is headed: "West Point law professor who called for attacks on 'Islamic holy sites' resigns." It begins:

A law professor who published an inflammatory article urging attacks on law professors and “Islamic holy sites” and who has been dogged by accusations of misrepresenting his academic and military credentials has resigned from the US Military Academy at West Point, the Guardian has confirmed.

Although West Point hired William C Bradford on 1 August, a spokesman said the prestigious undergraduate institution where the US army educates its future officers parted ways with the controversial academic on Sunday, the day after the Guardian published an article highlighting Bradford’s proposals to treat US scholars as “enemy combatants”.

Posted by Marcia Oddi on Thursday, September 17, 2015
Posted to Indiana Law

Wednesday, September 16, 2015

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

For publication opinions today (2):

In R.L. Turner Corporation v. William Wressell, a 28-page opinion, Judge Bradford writes:

Appellee-Plaintiff William Wressell brought a claim against his employer Appellant-Defendant R.L. Turner Corporation (“RLTC”) alleging that he did not receive wages he was entitled to under the Indiana Common Construction Wage Act (“CCWA”). The trial court found that RLTC provided insufficient fringe benefits to meet the minimum wage requirements of the CCWA and awarded Wressell compensatory damages for the unpaid fringe benefits as well as statutory treble damages. The trial court also awarded attorney’s fees to Wressell pursuant to the fee shifting provision of the Indiana Wage Payment Statute.

On appeal, RLTC raises several issues which we consolidate and restate as follows: (1) whether the CCWA can form the basis for a private cause of action;
(2) whether the trial court erred in finding that RLTC provided insufficient fringe benefits to meet the minimum requirements of the CCWA; and (3) whether the trial court erred in awarding attorney’s fees to Wressell. Wressell argues on appeal that the trial court erred in failing to consider his overtime hours in calculating the amount of wages he was entitled to. We affirm the judgment of the trial court; however, we remand with instructions that the trial court award Wressell additional damages for overtime compensation.

In Timmie Bradley v. State of Indiana, a 32-page opinion, Judge Bradford concludes:
In sum, we conclude (1) that the Detectives entry into the home did not violate the Fourth Amendment or Article I, Section 11; (2) that the Detective’s protective sweep of the kitchen did not violate the Fourth Amendment or Article I, Section 11; (3) that Bradley’s convictions for Class C felony possession of cocaine and a handgun and Class C felony possession of cocaine violated the prohibitions against double jeopardy and therefore must be vacated; (4) that the evidence is sufficient to sustain Bradley’s conviction for Class A felony possession of cocaine; and (5) that the evidence is insufficient to sustain Bradley’s conviction for Class A misdemeanor possession of marijuana.

We therefore (1) affirm Bradley’s conviction for Class A felony possession of cocaine; (2) vacate Bradley’s convictions for Class C felony possession of cocaine and a handgun, Class C felony possession of cocaine, and Class A misdemeanor possession of marijuana; and (3) remand the matter to the trial court with instructions for the trial court to enter a new judgment of conviction that is consistent with this opinion.

NFP civil decisions today (0):

NFP criminal decisions today (1):

Jermaine Munn, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, September 16, 2015
Posted to Ind. App.Ct. Decisions

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

In this Sept. 8th post, the ILB quoted a WRTV6 report that "Attorney General Greg Zoeller has declined to issue an opinion in a battle over access to legislative emails, saying it would require his office to take a legal position in opposition to their own client: state government." The post linked to the AG's Sept. 2nd letter to Common Cause.

WRTV's Kara Kenney had a follow-up story Sept. 11, headed "Indiana attorney general clarifies stance over public records requests." A quote:

“I do want to clear up a misunderstanding that I think the lobbyists at Common Cause intentionally created,” said Zoeller on Thursday. “They asked me to file an amicus brief on an issue that was not before the Court of Appeals. No lawyer, not just my office, but no lawyer can go into the Court of Appeals and argue a case that’s not presented.”

Zoeller said issuing an opinion on the email flap would require his office to take a legal position in opposition to their own client: state government.

“I represent the legislature almost every day, when there are challenges to the acts of the legislature,” said Zoeller. “These are my clients, and the separation of powers issue is one that is very important to the defense of the legislature. It’s part of our constitutional protections.” * * *

Julia Vaughn, Policy Director for Common Cause Indiana, expressed frustration about Zoeller's decision not to issue a brief on the legislative email issue.

"We're disappointed the AG is using the separation of powers principle to avoid taking a firm stand against legislative secrecy," Vaughn said. "He is assuming that the Access to Public Records Act's application to the General Assembly violates that doctrine, which isn't warranted in this case.

The Fort Wayne Journal Gazette has editorialized on the issue. From a Sept. 9 editorial headed "Precedent setting: Zoeller inconsistent in public-access support":
Attorney General Greg Zoeller stepped up last month in support of public access. He filed a friend-of-the-court brief in support of ESPN in the TV network’s bid to obtain police records from the University of Notre Dame – an effort rejected by a St. Joseph County judge.

“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,” the attorney general wrote in the amicus brief.

But Zoeller’s support for public access apparently stops at the General Assembly’s doors. When Common Cause Indiana – acknowledging his strong record on transparency and public access – asked that he support its position in a lawsuit alleging open records law violations, the attorney general pointed to separation of powers. To side with Common Cause and consumer groups in a challenge to the Indiana House Republican Caucus, his office would have to oppose state government – its own law client, he argued.

“The court’s decision in the (public access lawsuit) was solely based upon the separation of powers that rightly precludes the judiciary from interfering with internal matters of the legislative branch,” Zoeller wrote in response to Common Cause’s hand-delivered appeal.

“We’re disappointed the (attorney general) is using the separation of powers principle to avoid taking a stand against legislative secrecy,” responded Julia Vaughn, policy director for Common Cause. “He is assuming that applying the Access to Public Records Act to the General Assembly violates that doctrine, which isn’t warranted in this case.”

Vaughn also notes that Zoeller’s clients should be Indiana residents, not the “extremely self-interested House Republican caucus and their private law firm, which is one of the lobbyists from whom legislative emails are sought.”

Indeed, the public seems to fall to second-class status behind ESPN in Zoeller’s response. If separation of powers precludes any challenge to the political caucus, who then ensures that the public is entitled to “full and complete information regarding the affairs of government and official acts of those who represent them”? Are legislators exempt from the laws they write?

In response to the lawsuit over email correspondence between energy company lobbyists and Rep. Eric Koch, R-Bedford, attorneys for the caucus have argued that public record laws do not apply to them, contrary to a ruling from the Indiana public access counselor.

“Essentially, the curtains are drawn tight around the legislative process,” Vaughn wrote in her original letter to the attorney general, “depriving Hoosiers of their right to government that is transparent and ultimately accountable.”

The attorney general cites judicial precedent for opting out of his challenge to lawmakers. Too bad he’s not following his own precedent in supporting transparency in Indiana government.

A few days later (Sept. 13) the FWJG had an opinion column from the editorial page editor, Karen Francisco. It begins:
The Indiana attorney general dropped by the newsroom to plead his case that very day, offering a strong argument as to why he couldn’t file a friend-of-the-court brief on behalf of Common Cause and others seeking access to correspondence between a legislator and utility lobbyists. The groups want to know why the chairman of the House Utilities and Energy Committee, Republican Eric Koch, attempted to block solar-friendly bills opposed by utility companies.

Zoeller patiently described the concepts of separation of power, obligation to clients and non-sequitur arguments to explain why a judge would “laugh him out of the courtroom” if he submitted an amicus brief arguing that Hoosiers have the right to know what their elected representatives are doing.

Today the South Bend Tribune has a long editorial, headed: "Our Opinion: A disappointment, for the record." It reads [ILB emphasis added]:
Attorney General Greg Zoeller’s recent decision not to support a legal challenge to Indiana lawmakers’ secrecy is all the more disappointing because it is a departure from an otherwise solid record on matters of public access.

Zoeller declined to issue an opinion, saying it would require his office to take a legal position in opposition to its own client — state government. He had been asked to weigh in on the matter by the government watchdog group Common Cause Indiana, which along with the Citizens Action Coalition and the Energy and Policy Institute filed a lawsuit against the Indiana House Republican Caucus and Rep. Eric Koch, R-Bedford, alleging they violated the Indiana Access to Public Records Act by not providing access to lawmaker emails.

The House has said the public records laws do not apply to it, despite an opinion from the Indiana Public Access Counselor that says the General Assembly should follow the state’s APRA.

Given the attorney general’s record on the issue of transparency in public records, Common Cause’s request isn’t surprising.

Just last month, Zoeller filed an amicus brief supporting ESPN’s argument that the University of Notre Dame should be required to release specific information from its campus police reports. The sports network sued Notre Dame after the university denied access to police reports related to student athletes.

Indiana statute allows but doesn’t require the attorney general to file such briefs. It seems clear that Zoeller added the weight of his office to this legal battle to support, in his words, the concept that “all persons are entitled to full and complete information regarding the affairs of government.”

It was hardly the first time we took note of Zoeller’s defense of the public’s right to know. In 2012, he intervened when lawyers at the Department of Child Services tried to restrain The Tribune from publishing an article, transcript and tape recording detailing a desperate call the DCS hotline received from a neighbor of 10-year-old Tramelle Sturgis’ family six months before the South Bend boy was tortured and murdered by his father.

The DCS appeal led to The Tribune being temporarily forbidden from publishing its story. Zoeller stepped in, overruled DCS lawyers and moved to dismiss the appeal, allowing this newspaper to post and publish the information. He later publicly apologized to The Tribune for the matter — even though it wasn’t Zoeller’s office that precipitated the situation.

Earlier this month, in explaining his position not to take a legal position on the issue of legislative secrecy, Zoeller pointed to the separation of powers. Positioning his office with Common Cause would mean opposing its client, state government. The fact that the legislature has hired outside counsel — at taxpayer expense — in its fight to keep out the public doesn’t end his office’s obligation “to not act in our law client’s legal interest,” he wrote.

By declining to support the legal challenge to legislative opacity, Zoeller is definitely providing excellent service to lawmakers who wish to keep the public’s business private. Less certain is who will step forward to defend the public’s right to the “full and complete information regarding affairs of the government.”

Posted by Marcia Oddi on Wednesday, September 16, 2015
Posted to Indiana Government

Ind. Gov't. - "Central Indiana reservoir project (Mounds Lake) sidelined by town's vote (Daleville)"

Updating a long list of earlier ILB posts, the Kokomko Tribune today has an AP story that reports:

DALEVILLE, Ind. (AP) — The proposal for a $450 million reservoir on the White River in central Indiana has been derailed by a town council's vote against joining a commission that would oversee its development.

The leader of efforts to build Mounds Lake between Anderson and Muncie said steps to possibly keep the project alive will be considered following Monday night's vote by the Daleville Town Council.

Project opponents who packed a meeting room and listened from outside through windows cheered after the council's 5-0 vote to not join the Mounds Lake Commission.

"After two years of time we had questions that needed answers, and those questions didn't get answers," Councilman Bill Walters said.

Plans are for the reservoir to be created by damming the White River in Anderson for a lake stretching for 7 miles in Madison and Delaware counties. Project supporters say the reservoir could help the state's long-term water needs and attract additional investment and residents to the area.

Project advocate Rob Sparks, executive director of the Corporation for Economic Development of Anderson and Madison County, said the commission as proposed can't be formed without Daleville, which is just a few miles east of Anderson and would border the reservoir.

Officials for Madison County, Anderson and Chesterfield had already voted to join the commission that would oversee a feasibility study expected to cost $28 million. But the town councils in the Delaware County communities of Daleville and Yorktown had previously put off making a decision, The (Anderson) Herald Bulletin and The (Muncie) Star Press reported.

"We think we still have a viable project; that's what the studies have demonstrated," Sparks said after Monday's Daleville vote. "I think it's early to say what the next steps are. The structure of the commission as it is written obviously has to change at this point. We'll continue to do what we can."

Many of the about 100 project opponents chanted, "Mounds Lake, big mistake," outside the Daleville Town Hall before the council meeting.

Posted by Marcia Oddi on Wednesday, September 16, 2015
Posted to Environment | Indiana Government

Ind. Gov't. - Interim Corrections and Criminal Code committee meeting all-day

The legislative Committee on Corrections and Criminal Code is meeting today, beginning at 10 AM, in Room 2 (watch live here). It has an all-day agenda covering adult protective services, human trafficking, rape and child custody, and more.

Posted by Marcia Oddi on Wednesday, September 16, 2015
Posted to Indiana Government

Ind. Gov't. - "Freedom Indiana faces tough challenge over LGBT rights" Plus some ILB thoughts

Good, and long, story today by Stephanie Wang in the Lafayette Journal & Courier. Some quotes:

For the third time in as many years, Freedom Indiana will call upon its groundswell of supporters to fight for gay rights.

This time could prove to be a tougher fight.

In championing the case for civil rights protections for gay, lesbian, bisexual and transgender Hoosiers, the grassroots advocacy organization is hoping for a repeat of its previous successes: the defeat of a constitutional amendment banning gay marriage in the 2014 session, and last session’s “fix” of Indiana’s Religious Freedom Restoration Act.

But this time, the group is dealing with a volatile issue that has been baking under the public pressure of the RFRA controversy. This time, the group is dealing with a messy issue, one with many moving parts.

Consider that as Indiana cities have debated their own local human rights ordinances, they have each written their own different versions of varying strength. In Fort Wayne, for example, sexual orientation is protected but gender identity is not. In Evansville, both are covered but compliance with the law is voluntary. In Indianapolis, preventing discrimination based on sexual orientation and gender identity is treated no differently than race or religion. In Carmel, officials are examining possible legal exemptions to allow businesses to decline to cater same-sex weddings.

ILB: And according to this AP story today:
COLUMBUS, Ind. – The Columbus City Council has approved amendments to the Indiana city’s human rights ordinance, adding gender identity, sexual orientation, age and veteran status as protected classes.

The vote Tuesday by the all-Republican body was unanimous. The ordinance now goes to Mayor Kristen Brown for her signature.

More from the story by reporter Wang:
Unlike with stopping the same-sex marriage ban, political scientist Andy Downs said it could be harder to keep Freedom Indiana’s coalition together behind this current issue, with so many possible ways the legislation could be written.

“It’s easier to rally people around stopping something than starting something,” said Downs, who works at Indiana University-Purdue University Fort Wayne, “in part because the details end up mattering more.”

He explained: “Collectively, we all hate x. But collectively, we can’t agree what we like.”

Freedom Indiana and many others discussing the issue, including state lawmakers, remain guarded on specifics, saying little now about details of campaign plans or possible legislative language.

Businesses such as Eli Lilly and Cummins — both of which helped fund the start of Freedom Indiana in 2013 — have committed to supporting expanded civil rights protections. * * *

In the legislature, opponents of sexual orientation and gender identity protections may benefit from the same dynamic that could work against Freedom Indiana, said Downs, the political scientist: It may be easier for those groups to defeat legislation than create it.

“However,” he added, “the challenge is that they have to come up with a reason that is palatable to defeat it. And there, they can disagree.”

Those groups could focus their arguments on contesting legal details, pushing moral issues or protesting too much government intrusion, Downs said: “If they all start talking about their own reasons for being opposed to it, that could cause some splintering.” * * *

For now, interested parties are closely watching how cities grapple with the issue: What kind of exemptions will they build into their laws to balance religious rights and LGBT rights? What strategies on either side of the issue resonate the strongest? Who exerts the most pressure on elected officials?

And how do officials deal with the fears — the confusion over what the law will do and what it won’t? Legislation would, for example, strike an inaugural conversation in the state about transgender rights.

ILB thoughts: If there currently exists a resource containing all the newly amended municipal ordinances expanding local human rights ordinances, the ILB does not know about it. It would be helpful if this information were compiled in one place, readily accessible to all. If such a resource doesn't already exist, the ILB would be pleased to host it, or to help set it up.

Second, in terms of legislation, there are many, many routes for equal rights supporters to take. Here are some of them:

This list illustrates how the efforts of gay rights supporters in the coming session could be diffused and scattered, if focus and discipline is not maintained.

Posted by Marcia Oddi on Wednesday, September 16, 2015
Posted to Indiana Government

Tuesday, September 15, 2015

Ind. Decisions - "Remaining Defendant in State Fair class-action lawsuit dismissed" by trial judge

Jill Disis reports late this afternoon for the Indianapolis Star:

The final defendant named in a class-action lawsuit filed by victims of the Indiana State Fair stage collapse has been dismissed from the case. * * *

Last December, the law firm representing the victims of that collapse announced it had reached a settlement totaling nearly $50 million with 19 companies.

But a 20th company, ESG Security, did not settle. The case was expected to be heard before a jury next February.

The order from Marion Superior Court Judge Timothy Oakes filed Monday grants ESG’s motion for summary judgment, effectively dropping the company from the case. Beyond a brief statement saying “ the Court finds there is no genuine issue of material fact,” however, Oakes does not expand on the decision.

In court documents filed by ESG’s attorneys, the company contended that it was not involved in crucial events leading up to the collapse.

“The undisputed facts will show that ESG was not involved in the State Fair’s emergency planning process, were not part of the weather monitoring, were not part of the decision making process and were not retained to conduct reviews of the safety of the stage, the rigging, or the emergency planning put in place by the State Fair Commission and the Indiana State Police,” wrote attorneys Christopher Pearcy and Theodore Blanford.

Glenn Goodrich, a longtime ESG employee, was one of those killed in the collapse.

The story continues, looking at the broader picture:
Still at stake in separate, ongoing litigation is the state’s financial responsibility in the tragedy.

Earlier this summer, the Indiana Supreme Court upheld a lower court ruling saying the state would not have to pay additional damages from the incident. In that 3-2 vote, the justices decided not to hear an appeal of a Court of Appeals ruling that upheld the state’s $5 million liability cap.

But in another ruling in March, the state Court of Appeals said the state may still be responsible for additional damage claims faced by the sound company that supplied stage materials for the fatal production.

That case is scheduled for arguments before the state Supreme Court on Sept. 23.

The case set for oral argument before the Supreme Court next week is Mid-America Sound, et al. v. Indiana State Fair Commission.

Posted by Marcia Oddi on Tuesday, September 15, 2015
Posted to Ind. Trial Ct. Decisions | Stage Collapse

Law - "Is there, or should there be, a right to be forgotten?"

In this post today on Constitution Daily, Lyle Denniston:

... looks at the First Amendment and the desire of some people to force Internet companies to delete unflattering or personal information from websites. * * *

Consumer Watchdog, in its formal plea for action by the FTC, insisted that the creation of a “right to be forgotten” by that agency would not be censorship, because the FTC itself would not remove from the Internet any specific content to which a consumer objected. “The right,” the group’s petition said, “simply allows a person to request that links from their name to data that is inadequate, irrelevant, no longer relevant, or excessive to be removed from search results.”

ILB: In other words, to draw analogies, if the internet was a print library, Consumer Watchdog would be asking to remove certain cards from the card catalog. Or certain names from a phone book, leaving the numbers intact!

Here are some earlier ILB entries on the "right to be forgotten."

Posted by Marcia Oddi on Tuesday, September 15, 2015
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 10 NFP memorandum decisions)

For publication opinions today (2):

In Hoker Trucking, LLC and Linda L. Phillips v. Pamela K. Robbins, as Administratrix of the Estate of Mike Douglas Robbins Deceased, a 7-page opinion, Judge Riley writes:

Hoker Trucking raises four issues on appeal, one of which we find dispositive and which we restate as follows: Whether Robbins, as the surviving spouse of the decedent, is entitled to attorneys’ fees under the General Wrongful Death Statute. * * *

Whether an award of attorneys’ fees can be sought under the Indiana General Wrongful Death Statute, Ind. Code § 34-23-1-1 (2014) (GWDS), was an issue of first impression until our supreme court issued its decision in SCI Propane, concluding that attorneys’ fees are not recoverable as a type of compensatory damages if the decedent is survived by a spouse and/or dependents. SCI Propane, LLC, et al. v. Frederick, --- N.E.3d ---- (Ind. Aug. 27, 2015). * * *

[W]here, as here, Robbins, as the surviving widow, pursues the recovery of attorneys’ fees as compensatory damages under the first category of the GWDS, she is not entitled to an award thereof. We reverse the trial court’s award of $2,400,000.00 in attorneys’ fees and prejudgment interest in the amount of $622,028.11.

Based on the foregoing, we conclude that Robbins, as the surviving spouse, is not entitled to recover attorneys’ fees and prejudgment interest as compensable damages under the GWDS. Reversed.

In Charles R. Strunk v. State of Indiana, an 11-page opinion, Judge May writes:
Charles R. Strunk appeals his conviction of two counts of sexual misconduct with a minor, one as a Class A felony and the other as a Class B felony. Strunk argues the trial court abused its discretion when it limited Strunk’s cross-examination of J.B., admitted Strunk’s Facebook message to J.B., and admitted only an excerpt of Strunk’s statement to the police. We affirm. * * *

Strunk argues the trial court abused its discretion when it admitted a message he sent to J.B. via Facebook because the State did not properly authenticate the message. * * *

During J.B.’s testimony, the trial court admitted screen shots of Strunk’s Facebook profile and his message to J.B. J.B. testified that she had communicated with Strunk through the same profile page on previous occasions. She knew it was Strunk’s page because Strunk’s profile picture was a wolf and the screen shot in Exhibit 18 contained the same picture. J.B. knew the screen shot was Strunk’s Facebook profile because they had two mutual friends listed on Strunk’s page, one of which was her mother. J.B.’s mother also identified Exhibit 18 as a screen shot of Strunk’s Facebook profile and verified that she was one of Strunk’s mutual friends.

J.B. testified Strunk left her house around midnight and that after Strunk left, J.B. received his message through the same Facebook page she had used to communicate with Strunk earlier that day. The trial court properly admitted the Facebook message. See id. at 977 (showing that the message originated with the alleged sender’s personal cell phone, under circumstances in which it is reasonable to believe that only the alleged sender would have had access, creates a reasonable probability the item is authentic), trans. denied. * * *

The trial court did not abuse its discretion when it limited Strunk’s cross-examination of J.B., admitted Strunk’s Facebook message to J.B., or admitted only an excerpt of Strunk’s statement to the police. We accordingly affirm.

NFP civil decisions today (2):

Kathleen Burnell v. Review Board of the Indiana Department of Workforce Development (mem. dec.)

Kimball Rustin Roy Scarr v. JPMorgan Chase Bank National Association (mem. dec.)

NFP criminal decisions today (8):

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

Albert Pauley, Jr. v. State of Indiana (mem. dec.)

Aundra L. Haralson v. State of Indiana (mem. dec.)

Bill Snider v. State of Indiana (mem. dec.)

Bobby Lee Dean v. State of Indiana (mem. dec.)

Jimmie Hair, Jr. v. State of Indiana (mem. dec.)

John F. Philpott v. State of Indiana (mem. dec.)

Wyatt Clayton Squyres v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, September 15, 2015
Posted to Ind. App.Ct. Decisions

Courts - "‘Sisters in Law’ Looks at Sandra Day O’Connor and Ruth Bader Ginsburg"

I listened this weekend to Dahlia Lithwick's podcast with author Linda Hirshman on her new book, "Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World." I highly recommend the podcast, from State's "Amicus with Dalhia Lithweick." I ordered the book and am expecting it today.

Linda Greenhouse will have this not totally enthusiastic review of the book in the NYT Sunday Book Review. It begins:

Two young women, near age-mates, grow up in very different corners of the country, one in near isolation on a vast Southwestern cattle ranch and the other on the crowded streets of Brooklyn. They obtain superb educations, enter into early marriage and motherhood, and set out to make their way in a man’s world. Decades later, we find them, having broken through more than a few glass ceilings, sitting together on the United States Supreme Court.

For anyone interested in the court, women’s history or both, the story of Sandra Day O’Connor and Ruth Bader Ginsburg, their separate routes to the Supreme Court and what they accomplished during the more than 12 years they spent together is irresistible. But “Sisters in Law,” with its ambitious subtitle, raises more questions than it answers. Did Justices O’Connor and Ginsburg really change the world? Or did they make it all the way to the Supreme Court, as the first and second women ever to serve there, because the world had changed?

Posted by Marcia Oddi on Tuesday, September 15, 2015
Posted to Courts in general

Courts - Gay-Marriage SCOTUS Attorneys Seek Fees Topping $1 Million

These are the attorneys who represented the plaintiffs in Obergefell v. Hodges, which originated in federal court in Cincinnati. Here is the story from Bloomberg News.

Posted by Marcia Oddi on Tuesday, September 15, 2015
Posted to Courts in general

Ind. Courts - SD Ind. selects new U.S. magistrate judge

From a news release:

INDIANAPOLIS, Indiana (September 14, 2015): The Honorable Richard L. Young, Chief Judge of the United States District Court for the Southern District of Indiana, is pleased to announce the selection of Evansville attorney Matthew P. Brookman as United States Magistrate Judge. Mr. Brookman’s appointment will be made upon completion of a Federal Bureau of Investigation background check, a process that can take a few months. Once appointed, he will fill the vacancy created by the impending retirement of The Honorable William G. Hussmann, who has served the court since April 1988 and will retire on January 31, 2016.

The duties of Magistrate Judges in the Southern District of Indiana are demanding and wide-ranging, and Mr. Brookman will conduct preliminary proceedings in criminal cases; preside over trial and disposition of misdemeanor cases; conduct various pretrial matters and evidentiary proceedings on delegation from a district judge; and preside over trial and disposition of civil cases upon consent of the litigants. Mr. Brookman will primarily serve in the Evansville Division of the Southern District and travel to the other divisional offices of the Court to hold proceedings and conduct settlement conferences.

Mr. Brookman is presently employed by the Office of the United States Attorney for the Southern District of Indiana, where he serves as the Chief of the Office’s Drug and Violent Crime Unit and Lead Organized Crime and Drug Enforcement Task Force Attorney. He is also a member of the United States Attorney’s Executive Committee, Capital Case Coordinator for the Southern District of Indiana, and has served as a Chair and a Member from 2011 until 2015 of the United States Attorney’s various Hiring Committees. In 2010, Mr. Brookman received the Director’s Award from United States Attorney General Eric Holder, in Washington, DC, for superior performance as an Assistant United States Attorney, for his work on the United States v. Jarvis Brown, et al. quadruple homicide prosecution. * * *

Magistrate Judges are appointed by the Judges of the United States District Courts for terms of eight years, and are eligible for reappointment to successive terms.

Posted by Marcia Oddi on Tuesday, September 15, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - List of applicants who were successful on the July 2015 Indiana Bar Examination

Here is the list. Congratulations!

Posted by Marcia Oddi on Tuesday, September 15, 2015
Posted to Indiana Courts

Monday, September 14, 2015

Ind. Gov't. - "Justice Dept. Says Hillary Clinton Had Authority to Delete Certain Emails" - What about Indiana?

Michael S. Schmidt had this story about the DOJ ruling on the Clinton emails in the Sept. 11th NY Times. A quote:

Mrs. Clinton has given the State Department roughly 30,000 emails from the account that she determined were government records. She has said that she deleted about 31,000 other emails that she said were personal, and Justice said that those are not government records.

Under federal record-keeping guidelines, government employees are “required to review each message, identify its value, and either delete it or move it to a record-keeping system,” the Justice Department said.

“There is no question that former Secretary Clinton had authority to delete personal emails without agency supervision — she appropriately could have done so even if she were working on a government server,” the filing said. “Under policies issue both by the National Archives and Records Administration and the State Department, individual officers and employees are permitted and expected to exercise judgment to determine what constitutes a federal record.”

The ILB wrote a great deal about the State of Indiana email policy in 2012:ILB: Several points about these last quotes:As before, the Commission links to several example policies, including that of IDEM, which states at p. 2:
If an employee leaves service at IDEM it is the employee’s responsibility to review e-mail records, download those e-mail that need to be retained onto a disk, archive (printed and stored in the correct place) or delete all e-mail according to the established retention schedule prior to leaving. The employee’s manager is responsible to apply the schedule to any e-mail remaining after the employee leaves.

Posted by Marcia Oddi on Monday, September 14, 2015
Posted to Indiana Government

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

For publication opinions today (2):

In Bryan E. Mitten v. Cynthia L. Mitten, a 25-page opinion, Judge Kirsch writes:

Bryan E. Mitten (“Father”) appeals the trial court’s decree of dissolution (“Decree”) that dissolved his marriage to Cynthia L. Mitten (“Mother”), raising five issues that we consolidate and restate as:
I. Whether the trial court’s determination of Father’s child support obligation was an abuse of discretion; and
II. Whether the trial court abused its discretion in its division of the parties’ debts.
We affirm.
In Thomas A. Ambrose II v. Dalton Construction, Inc., a 15-page opinion, Judge Robb writes:
Dalton Construction, Inc., filed a complaint against Thomas A. Ambrose II, individually and as trustee of the Ambrose Family Trust (collectively, “Ambrose”), after disputes arose concerning the construction of a pool on property owned by Ambrose. Ambrose raises several issues on appeal, which we consolidate and restate as: 1) whether the trial court properly denied him summary judgment because a genuine issue of material fact existed as to whether Dalton Construction breached the contract; and 2) whether the trial court’s findings and conclusions that Ambrose first breached the contract, the contract called for a certain shaped pool, and Dalton Construction was entitled to payment upon Ambrose’s unauthorized occupancy of the pool were clearly erroneous. Dalton Construction cross-appeals for appellate attorney’s fees. Concluding that the trial court properly denied summary judgment and that the trial court’s findings and conclusions are not clearly erroneous, we affirm the trial court’s judgment in favor of Dalton Construction. Also concluding Dalton Construction is statutorily entitled to an award of appellate attorney’s fees, we remand to the trial court for calculation of those fees.
NFP civil decisions today (0):

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Monday, September 14, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending September 11, 2015

Here is the Clerk's transfer list for the week ending Friday, September 11, 2015. It is one page (and 10 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, September 14, 2015
Posted to Indiana Transfer Lists

Ind. Courts - Administrative Rule 9 in action in Simon/Pacers case

Mark Alesia reports today on the front-page of the Indianapolis Star:

Pacers owner Herb Simon is asking a court to declare that neither his late brother’s estate nor his brother’s widow has any financial stake in the team.

The Indianapolis Star learned about the request in an unusual way. It came to light because a court document filed by Bren Simon, widow of Melvin Simon, contained visible words that were meant to have been redacted.

Herb Simon is asking the court to keep the documents, filed last month in Hamilton Superior Court, under seal. He argues that public viewing would create “significant risk of substantial harm” to people who signed a confidential settlement in 2012 pertaining to Melvin Simon’s estate. * * *

It’s unclear what prompted the timing of the request. A lawyer for Simon declined comment, and court documents available to the public are heavily redacted. A Pacers spokesman also declined comment.

Parts of court documents not redacted included Herb Simon noting that since 2009 Bren Simon has been in litigation with Melvin Simon’s children regarding his estate. The filing said Herb Simon has “consistently and earnestly” tried to help them resolve the dispute.

“Herb has done so in an effort to uphold the Simon name, to preserve some measure of family harmony, and to facilitate the charitable giving that his brother Melvin intended under his estate plans,” the court document says.

The court has scheduled an Oct. 16 hearing to decide whether the redacted information should remain hidden from public view. Notice of the hearing was sent to The Star and local television stations.

The visible words where redactions were intended showed up in Bren Simon’s request to move the case to federal court in Indianapolis.

It says that Herb Simon wants a legal finding that “Melvin Simon Family Enterprises Trust, Bren Simon, nor any of their successors, assigns, owns or has any right, title, interest, or expectancy in or to Pacers Basketball, LLC.”

Ownership of the Pacers is of significant public interest, for those who have concerns about the team’s long-term commitment to staying in Indianapolis, and for those who oppose the taxpayer support the team receives.

Alan Brown, an attorney for Bren Simon, said he has never seen an initial complaint filed with most of the allegations and facts redacted, as in this case. He declined to discuss the case in more detail.

“If they (the court) say it’s confidential, we can’t walk through that stop sign,” he said. “I just can’t get into the merits of the complaint in any way. I really can’t.”

ILB: The CCS# is 29D03-0910-ES-000141.

Details about the implementation of Administrative Rule 9 are available in this 32-page document, prepared for attorney continuing legal education by Maggie L. Smith, Frost Brown Todd LLC.

Posted by Marcia Oddi on Monday, September 14, 2015
Posted to Indiana Courts

Ind. Law - Still more on "Indiana Teenager’s Jailing Brings a National Call to Fix Sex Offender Registries"

There were many stories about this last month, but the ILB nearly missed this brief AP update, published Friday in the NY Times:

A judge has agreed to remove from Michigan’s sex offender registry a young man who was sentenced to spend decades on the list after admitting he had sex with a 14-year-old girl who said she was 17. The order was issued Friday during a new bond hearing for Zachery Anderson, 20. He was 19 when he met the girl online and agreed to meet her in December. After pleading guilty to a misdemeanor, he spent 75 days in jail and could spend have spent decades on sex offender lists in both Michigan and his native Indiana. The girl and her mother had requested leniency, saying the punishment was too harsh.

Posted by Marcia Oddi on Monday, September 14, 2015
Posted to Indiana Law

Law - John Oliver on Civil Asset Forfeiture

#14 on the POLITICO 50 List is John Oliver, host of "Last Week Tonight." The story begins:

There’s only one comedian who can make millions of Americans want to watch an 18-minute segment about chicken farming, but in barely a year on the air, John Oliver’s Sunday night show, “Last Week Tonight,” has carved a niche making the driest policy subjects go down easy.
And in fact the ILB, on June 3rd, urged readers to watch "John Oliver vs. chicken - the contract poultry business."

The current POLITICO story pointed the ILB to another great John Oliver feature, this one from Oct. 5, 2014 (opens on You-Tube), on civil asset forfeiture. Don't miss!

The ILB has many, many past posts on civil asset forfeiture.

Posted by Marcia Oddi on Monday, September 14, 2015
Posted to General Law Related

Ind. Gov't. - More on "Dunes liquor license hearing Thursday at Expo Center" [Updated]

Updating this ILB post from last Thursday, Rob Earnshaw of the NWI Times reported Friday in a long story that begins:

VALPARAISO | The Porter County Alcoholic Beverage Commission voted Thursday to nix a plan to allow a restaurant liquor license at the Indiana Dunes State Park submitted by Pavilion Partners LLC.

The vote, 3-1, was a second attempt on the vote after a vote earlier this year ended in a tie. A state agency kicked the vote back to the county level.

Jessica O'Brien of the Michigan City News Dispatch has a story this weekend that begins:
VALPARAISO — Those opposed to the construction of the Dunes pavilion at the Indiana Dunes State Park claimed a victory on Thursday evening as the Porter County Alcohol Board voted 3-1 to deny an alcohol permit requested by Pavilion Partners.

This group has encountered opposition from the community over the past several months in their pursuit to restore the existing pavilion by adding a restaurant, banquet hall and conference center with the hopes of being allowed to serve alcohol.

A hearing held at the Porter County Expo Center on Thursday — which lasted more than four hours — was attended by a couple hundred interested individuals from all over Northwest Indiana. The overwhelming majority was opposed to Pavilion Partners and their request to serve alcohol on state property so near the beach.

Nearly 50 people from the community spoke during a public input session at the hearing. Five were in support of Pavilion Partners receiving an alcohol permit while the rest were firmly in opposition.

The vote by the Porter County Alcohol Board serves as a recommendation to the Indiana Alcohol and Tobacco Commission in Indianapolis, which will have the final say in the coming weeks as to the issuance or denial of an alcohol permit for Pavilion Partners.

A story this weekend in the NWI Times, by reporter Earnshaw, begins:
VALPARAISO | Despite being denied a restaurant liquor license for its operation at Indiana Dunes State Park, Pavilion Partners LLC officials still are holding out hope their beverage plan can be saved in Indianapolis.

Pavilion Partners spokeswoman Deb Butterfield said they appreciate the Porter County Alcoholic Beverage Board's decision in favor of the local community’s concerns, but they will continue to monitor the process at the state level. * * *

Following a meeting Thursday that lasted more than four hours, the local board voted 3-1 against the license. The vote is a recommendation that will go before the Indiana Alcohol and Tobacco Commission on Oct. 6.

[Updated at 12:53 PM]"Dunes liquor license opponents enjoy happy hour" is the headline to Amy Lavalley's Sept. 11th story in the Gary Post-Tribune. Some quotes from the long story:
Thunderous applause and a standing ovation filled the Porter County Expo Center when the Porter County Alcoholic Beverage Commission voted 3-1 against granting a liquor license for Pavilion Partners' plans for a renovated pavilion at Indiana Dunes State Park.

More than 520 people, many clad in green shirts as a show of support against the license, filled the expo center Thursday night during the permit hearing, which stretched on for more than four hours.

Speakers against the license far outnumbered those in favor of it, citing concerns about safety and the loss of a family-friendly environment with the introduction of liquor being served at the pavilion in Chesterton.

Desi Robertson, co-founder of Dunes Action, a grassroots organization that opposes both the liquor permit and Pavilion Partners' plans for an adjacent, 17,000-square-foot banquet facility, presented the county liquor board with petition signatures of 1,175 people against the liquor permit.

She noted the Indiana Department of Natural Resources sought to ban alcohol at the state park 25 years ago.

"The reasons for this ban are positive. It's a family place now," she said, adding Dunes Action is in favor of renovating the pavilion, but not selling alcohol there. "Selling it will only give patrons the perception that consuming alcohol is acceptable."

Posted by Marcia Oddi on Monday, September 14, 2015
Posted to Indiana Government

Law - "For Widows, Social Security System Can Provide Rude Shocks"

From the "Your Money" column in the NY Times this weekend:

Despite the peace of mind its name promises, Social Security can be a source of confusion and stress — and an added burden to those dealing with the loss of a spouse. Benefit choices that seemed sensible, even necessary, for a couple preparing for retirement can prove to be a handicap after one spouse dies.

What a widow or widower claims from Social Security, and when, can make a long-term difference in their lifetime benefits. Widows are entitled to the benefits they have earned based on their own work history, as well as survivor benefits, based on their deceased spouse’s work history — but they cannot collect both at the same time.

In many cases, financial planners advise, the best strategy may be to take the smaller benefit — whether it is the retirement benefit or the widow’s benefit — while letting the other one grow, and switching to it later.

Even so, there is no simple, universal road map for maximizing benefits because of the complexity of Social Security rules and the variations in individual circumstances, including age and work history. * * *

One reason Social Security can be so complicated for women is that laws setting up the program were devised in the 1930s, when the system was based on the employment histories of retired men — since far fewer women worked — and life expectancy was shorter for both men and women.

By 1950, only 314,000 widows (63 widowers) were on the Social Security rolls receiving survivor benefits. Over the years, the number of recipients has soared. Last year, the number of widows and widowers taking such benefits reached four million (fewer than 91,000 are widowers), according to Social Security figures.

More women depend on that government check because they have fewer other sources of retirement income. Women often do not have pensions because they have worked in noncompany settings or have not had continuous employment. And even if a woman does receive a company pension, it tends to be smaller than men’s. * * *

“Many women are not aware that they may be entitled to a survivor’s benefit, which could make a difference in the amount they have to live on,” said Jean Kahl, an independent adviser with the financial services provider Raymond James in Gaithersburg, Md. But figuring it out, Ms. Kahl said, is not easy. “There is absolutely no one formula to follow because everyone’s age, working history and spouse details differ,” she said.

To collect a survivor’s benefit, in most cases, the marriage must have lasted at least nine months, and the benefits may not begin until the widow is age 60.

Disabled survivors can file earlier, at age 50. * * *

And women who are divorced, as long as they were married at least 10 years and meet certain other criteria, also may receive survivor’s benefits.

Critics of Social Security’s complexity, like Laurence J. Kotlikoff, an economics professor at Boston University, argue that it is unfair that survivor’s benefits are determined by a deceased spouse’s (or ex-spouse’s) “decision on how long to work and when to claim his own Social Security benefits.”

Professor Kotlikoff, co-author of “Get What’s Yours: The Secrets to Maxing Out Your Social Security” (Simon & Schuster, 2015), maintains that Social Security is “incredibly outdated, sexist and unfair across and within generations,” adding, “Widows can pay into the system over decades, yet get not a penny based on all the money they paid in Social Security taxes.”

John F. McAdams, a claims authorizer for Social Security in Philadelphia, says an undetermined number of widows are losing thousands of dollars over the long term. Sometimes, he says, widows mistakenly file for both their own benefits and their survivor’s benefits on the same date. Even though they can draw only one at a time, the filing misstep prevents continued growth in an unclaimed benefit that they might switch to later.

There is much more in the article.

Posted by Marcia Oddi on Monday, September 14, 2015
Posted to General Law Related

Ind. Gov't. - Still more on: Water quality certification permit for Singleton Stone Quarry, located in Lake Co., raises controversy in two states

Updating ILB posts from last week, Carrie Napoleon of the Gary Post-Tribune reported Sept. 11 in a long story:

Approval of the final permit needed by Singleton Stone, LLC to operate a stone quarry in Eagle Creek Township in south Lake County was granted late Friday afternoon despite mounting opposition on both sides of the state line.

In a letter from Brian Wolff, branch chief of surface water, operations and enforcement in the Indiana Department of Environmental Management office of Water Quality to Gene Yarkie of Reith Riley Construction Co., Wolff said IDEM staff has determined the permit application as submitted complies with the applicable provisions of the Clean Water Act so long as several conditions are met.

Those conditions include allowing an IDEM commissioner or agent reasonable access to the site and records as well as not changing the scope of work as outlined in the original application, among other conditions. A representative from Reith Riley Construction was not immediately available for comment Friday.

Barry Sneed, public information officer with IDEM, said in an email Friday that the department issued the 401 Water Quality Certification permit after reviewing the comments submitted to the agency.

"The overwhelming majority of the comments that IDEM received concerned three issues: flooding, impacts to endangered aquatic species, and potential threats to water quality from a leaking underground storage tank to the north of the proposed quarry," Sneed said.

Sneed went on to say the Indiana Department of Natural Resources, which is tasked with regulating construction in floodways to prevent the increase of a 100-year flood event to no greater than 0.1 feet, granted two permits for construction in a floodway to Singleton on June 12.

"IDEM did not find any evidence to believe the volumes of groundwater to be pumped into Singleton Ditch from the quarry, as proposed, would create water quality issues in Singleton Ditch," Sneed said.

More quotes from the long story:
Construction is underway on the limestone quarry that sits on a 1-mile by 1.5-mile parcel of farmland south of Indiana 2, west of Range Line Road and east of Interstate 65. The quarry is expected to be about 450 feet deep and is permitted to pump up to 72 million gallons of water a day into the Singleton Ditch. Officials have said the actual amount of water pumped will be between 12 million and 30 million gallons.

The news comes in the wake of a Sept. 4 request by Sen. Rick Niemeyer, R-Lowell, seeking a public hearing on the permit after the U.S. Fish and Wildlife Service recommended against approval on Aug. 24. Niemeyer could not immediately be reached for comment Friday.

Posted by Marcia Oddi on Monday, September 14, 2015
Posted to Environment | Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 9/14/15):

Thursday, September 17

Next week's oral arguments before the Supreme Court (week of 9/21/15):

Wednesday, September 23

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/14/15):

Monday, September 14

Next week's oral arguments before the Court of Appeals (week of 9/21/15):

Wednesday, September 23

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, September 14, 2015
Posted to Upcoming Oral Arguments

Friday, September 11, 2015

Ind. Decisions - More on: 7th Circuit opinion re Marion County's judicial election system termed "questionable" by one writer

Updating this ILB post from yesterday, which quoted statements by Richard Winger, editor/publisher of Ballot Access News, that began "The decision is on shaky grounds, because elsewhere around the nation, limited voting has been upheld," Rob Richie, Executive Director of FairVote, takes the opposite position, as quoted by Rick Hasen in the Election Law Blog today. Hasen links to a lengthy post on the FairVote site that concludes:

The Seventh Circuit's ruling may have significant implications. Indianapolis's current law recognizes that in partisan elections for judges, partisan voters often "vote the ticket" and wipe out one side. That makes the primary the determinative election, with the general election at most contested on paper. FairVote's analyses have pointed out that most state legislative elections have general elections with no meaningful competition; several whole legislative chambers are represented by state representatives with party affiliations that match up perfectly with the partisan affiliation of the presidential nominee who carried their district.

Even worse, more than four in ten state legislative elections are not even contested on paper today.

Here is what the Seventh Circuit panel had to say about the right to vote:

When an election law reduces or forecloses the opportunity for electoral choice, it restricts a market where a voter might effectively and meaningfully exercise his choice between competing ideas or candidates, and thus severely burdens the right to vote.
If there really is a constitutional right to meaningful choices in November, we could be in for some creative legal challenges ahead!

Posted by Marcia Oddi on Friday, September 11, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - COA upholds conviction of man who allegedly swallowed bag of crack

Carson Gerber of the Kokomo Tribune reported yesterday:

The Indiana Court of Appeals upheld the conviction and sentencing Wednesday of a Michigan man who swallowed a bag of crack cocaine during a traffic stop last year by Kokomo police.

Charles A. Clark, 42, was found guilty of obstruction of justice and resisting law enforcement in January and sentenced to three years in prison after a jury determined he swallowed the crack to avoid a drug investigation.

The decision turns out to be an unpublished opinion from yesterday, Charles A. Clark v. State (NFP), by Chief Judge Vaidik, who writes:
Charles A. Clark was stopped by the police for crossing the center line of the road. During the stop, the officers saw a baggie of what appeared to be crack cocaine under the open driver’s-side door and placed the baggie on the hood of the patrol car. A struggle ensued while the officers were handcuffing Clark, and Clark moved toward the baggie on the hood. When the struggle ended, the baggie was gone with only a wet spot that looked like saliva in its place.

Clark was convicted of Class D felony obstruction of justice, and the trial court sentenced him to three years. Clark now appeals, arguing that the evidence is insufficient to support his conviction and that his three-year sentence is inappropriate.

Because it is reasonable to infer that Clark ate the baggie, we conclude that the evidence is sufficient to support his conviction for obstruction of justice. We also conclude that Clark’s three-year sentence is appropriate given the nature of the offense and his character. We therefore affirm the trial court. * * *

According to Sergeant Kelley, it “appeared” that Clark “had taken the baggie and put it in his mouth, used his mouth to go up on the top of the hood, swipe it and swallow it.” Sergeant Kelley called out that Clark had eaten the evidence. All three officers saw that the baggie of evidence was gone and in its place was what appeared to be a smear of saliva and mouth marks.

Officer Maynard asked Clark to open his mouth several times; although Clark initially refused, he eventually complied. A search of the hood and the surrounding area yielded nothing. Later that night, Officer Maynard obtained a search warrant for the contents of Clark’s stomach. Officer Maynard took Clark to St. Joseph Hospital, but the doctor was unable to retrieve anything from his stomach. Accordingly, the baggie and its contents were never recovered. * * *

Clark represented himself at trial. * * *

Although Clark asserts that it is “mere speculation” that he ate the baggie, the facts adduced at trial show otherwise: the baggie was on the hood of the car, Clark was on the hood of the car, and as soon as the struggle between Clark and Officer Maynard ended, the baggie was gone with only a wet spot that looked like saliva in its place. It was not unreasonable for the jury to infer from this that Clark ate the baggie. We therefore find that the evidence is sufficient to support Clark’s conviction for obstruction of justice.

Posted by Marcia Oddi on Friday, September 11, 2015
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (5):

In Robert Blackford v. Boone County Area Plan Commission and Boone County Drainage Board, a 26-page opinion, Judge Pyle writes:

Appellant-Defendant, Robert Blackford (“Blackford”), who is a former prosecutor and represented himself pro se, appeals the trial court’s denial of his oral request for a continuance made on the day of trial. The trial court denied Blackford’s request, held the bench trial, and entered judgment in favor of Appellees-Plaintiffs, Boone County Area Plan Commission (“the Plan Commission”) and Boone County Drainage Board (“the Drainage Board”) (collectively, “Boone County”). Blackford argues that the trial court abused its discretion by denying his continuance request. Given Blackford’s failure to show good cause or prejudice, we conclude that the trial court did not abuse its discretion. We affirm.
In Sheila Sasso and Mary Sasso v. State Farm Mutual Automobile Insurance Company, a 16-page opinion, Judge Najam writes:
Sheila Sasso appeals the trial court’s entry of summary judgment for State Farm Mutual Automobile Insurance Company (“State Farm”) on State Farm’s complaint for declaratory judgment. Sheila presents several issues for our review, which we consolidate and restate as the following two issues:
1. Whether Indiana’s Guest Statute, Indiana Code Section 34-30-11-1 (2014), prohibits Sheila’s negligence claim against her mother, Mary Sasso, for Sheila’s injuries arising from an automobile accident in Mary’s car while Mary was driving.
2. Whether the Guest Statute violates the Fourteenth Amendment to the United States Constitution or Article 1, Sections 12 and 23 of the Indiana Constitution. * * *

In sum, under the plain text of Indiana’s Guest Statute, Mary is not liable to Sheila for the injuries Sheila incurred as a result of an automobile accident in which she was a guest in Mary’s vehicle. Further, under controlling law the Guest Statute does not violate either the Fourteenth Amendment to the United States Constitution or Article 1, Section 12 of the Indiana Constitution. And we hold that the Guest Statute does not violate Article 1, Section 23 of the Indiana Constitution. As such, State Farm was entitled to summary judgment on its declaratory judgment action, and we affirm the trial court. Affirmed.

In Gregory Reef v. Asset Acceptance, LLC, a 7-page opinion, Judge Robb writes:
Gregory Reef, pro se, appeals the trial court’s award of summary judgment in favor of Asset Acceptance, LLC. On appeal, Reef contends that the evidence designated by Asset Acceptance was not sufficient to allow the court to enter summary judgment. We conclude that the documents designated by Asset Acceptance were not properly authenticated and do not entitle it to summary judgment. Therefore, we reverse. * * *

In sum, we conclude that an adequate foundation was not laid for the documents designated by Asset Acceptance, and Asset Acceptance’s only designated affidavit did not comply with Trial Rule 56(E). Consequently, Asset Acceptance failed to properly designate evidence in support of its motion for summary judgment, and the trial court’s award of summary judgment was inappropriate. Reversed.

In Kelli Sprunger v. John A. Egli, M.D., an 11-page opinion, Judge Robb writes:
In December 2008, thirteen-month-old Alissa Guernsey was placed in foster care with relative caregivers. She died just over three months later from injuries consistent with child abuse. During Guernsey’s placement in foster care, John Egli, M.D. (“Dr. Egli”), was Guernsey’s primary physician.

Kelli Sprunger, Guernsey’s biological mother, subsequently filed a medical malpractice action against Dr. Egli alleging failure to diagnose and report child abuse. Concluding that Indiana does not recognize a private right of action for failure to report child abuse, the trial court granted summary judgment in favor of Dr. Egli on August 7, 2014.

Sprunger now appeals, arguing that her claim is premised not on a failure to report, but rather a failure to make a correct diagnosis. We agree with the trial court’s conclusion that Sprunger essentially alleges a failure to report child abuse and hold that the characterization of the claim as medical malpractice does not escape the threshold question of whether the reporting statutes confer a private right of action. As we have already determined that there is no private right of action for failure to report child abuse in Indiana, C.T. v. Gammon, 928 N.E.2d 847, 853-54 (Ind. Ct. App. 2010), we affirm the trial court’s grant of summary judgment in favor of Dr. Egli. [ILB: See C.T., pp. 9-12]

In R.B. v. State of Indiana, a 9-page opinion, Judge Najam writes:
R.B. appeals his adjudication as a delinquent for dangerous possession of a firearm, as a Class A misdemeanor when committed by an adult. R.B. raises two issues for our review:

1. Whether his mother, T.B., had authority under the Fourth Amendment to consent to a police search of R.B.’s bedroom in T.B.’s house.

2. Whether the juvenile court abused its discretion when it admitted R.B.’s subsequent confession to law enforcement officers, which, according to R.B., was fruit of the poisonous tree following the purportedly illegal search of his bedroom.

As a matter of first impression in Indiana, we hold that it is reasonable under the Fourth Amendment for an officer to rely on the voluntary consent of a minor’s parent to search the minor’s bedroom inside the parent’s home. Accordingly, we affirm the juvenile court’s adjudication of R.B. as a delinquent.

NFP civil decisions today (0):

NFP criminal decisions today (1):

Jordan Gray v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, September 11, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court posts one today, filed Sept. 10

In Rent-A-Center, Inc. v. Indiana Department of State Revenue, a 22-page order on parties' cross-motions for summary judgment, Judge Wentworth writes:

Rent-A-Center East, Inc. (RAC East) challenges the Indiana Department of State Revenue’s assessment of adjusted gross income tax (AGIT) for the 2003 tax year. The matter is currently before the Court on the parties’ cross-motions for summary judgment. The dispositive issue is whether the Department properly determined that RAC East must file a combined income tax return with two of its corporate affiliates for the 2003 tax year. The Court finds that the Department’s determination was not proper. * * *

The Department has claimed that RAC East must file a combined income tax return with its affiliates because it “used Indiana’s roadways to deliver . . . and offer its products to residents all over the state” and then it improperly avoided its Indiana AGIT liability by “siphon[ing ] the money it earned in Indiana to [RAC West] and [RAC Texas].” (See Hr’g Tr. at 15, 20.) While the Court is aware that a taxpayer may use its business structure and transfer pricing policies to lower its state income tax liability, the evidence designated in this case simply does not indicate that RAC East has engaged in any improper tax avoidance measures. See, e.g., Carmax Auto Superstores W. Coast, Inc. v. S. C. Dep’t of Revenue, 767 S.E.2d 195, 200-01 (S.C. 2014) (holding that a taxing official’s bald assertions and descriptions of how it recalculated a taxpayer’s income tax liability failed to show that the statutory formula did not fairly represent the taxpayer’s in-state business activities). Furthermore, it is undisputed that the Transfer Pricing Study established arm’s-length rates for RAC East’s Intercompany Transactions and that the royalty and management fee payments were consonant with the Transfer Pricing Study’s rates. Moreover, the designated evidence as well as the parties’ stipulations do not show that RAC East’s Intercompany Transactions can be disregarded because they lacked a valid business purpose or economic substance. Consequently, RAC East’s 2003 separate return fairly reflected its Indiana source income. The Court, therefore, GRANTS summary judgment in favor of RAC East and AGAINST the Department.

Posted by Marcia Oddi on Friday, September 11, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Law - When must an Indiana attorney report the abuse of a child?

[T]he Indiana Code broadly requires any “individual who has reason to believe that a child is a victim of child abuse or neglect” to “immediately make an oral report to (1) the department [of Child Services] or (2) the local law enforcement agency.” [IC 31-33-5-1 and 5]

Failure to do so is a Class B misdemeanor.

The statute is broad and, unlike some other states, does not except lawyers from the reporting requirement.

That quote is from a new opinion [#2-2015] of the ISBA Legal Ethics Committee, which also states:
Issue: If a lawyer learns, while repre senting a client, that a child is a victim of abuse or neglect, must the lawyer make a report to the Indiana Department of Child S ervices or l ocal law enforcement?

Brief answer Lawyers must report information relating to child abuse or neglect if they believe it necessary “to prevent reasonably certain death or substantial bodily harm,” regardless of the client’s wishes. However, a lawyer may not report information of lesser harm absent the client’s consent.

The analysis weighs the conflict between Indiana’s mandatory reporting statute and the duty of confidentiality. * * *

The Committee concludes that, absent taking action “to pre- vent reasonably certain death or substantial bodily harm,” lawyers must maintain their longstanding duty of confidentiality. Samson Habte of Bloomberg has a Sept. 4th story about this ethics opinion that begins:

Absent client consent an attorney may not report information about suspected child abuse learned during a representation unless the lawyer believes it necessary “to prevent reasonably certain death or substantial bodily harm,” in which case the lawyer must report it, the Indiana bar's ethics committee has concluded.

The committee said that although an Indiana criminal statute makes reporting mandatory for anyone who suspects child abuse, a lawyer's duty of confidentiality under Indiana Rule of Professional Conduct 1.6 “is generally paramount over the general duty to report.”

ILB: Here are all the ISBA legal ethics opinions.

The most recent case the ILB recalls re the requirement for the immediate reporting of child abuse was Christoper Smith v. State, involving a high school principal's duty to immediately report instances of suspected child abuse, in this case, an alleged rape.

Posted by Marcia Oddi on Friday, September 11, 2015
Posted to Indiana Law

Thursday, September 10, 2015

Courts - C-SPAN’s New Special History Series: “Landmark Cases: Historic Supreme Court Decisions”

Not to be missed, IMHO! 12-part feature series airing Mondays at 9pm starting October 5. “Landmark Cases” will examine 12 rulings from our country’s founding through 1973. See the details here.

Posted by Marcia Oddi on Thursday, September 10, 2015
Posted to Courts in general

Ind. Gov't. - Notice of appeal filed today in House public records case

Updating this ILB post from August 12th, headed "Marion County judge dismisses House public records case," the plaintiffs have now filed a notice of appeal, and a Rule 56(A) motion, with the Indiana Supreme Court. (The latter is a request for an expedited appeal, bypassing the Court of Appeals.) Both are file-stamped Sept. 10, 2015. From the motion:

3. The trial court heard oral argument on August 11, 2015, and that same day entered an "Order Dismissing Plaintiffs' Claims" based entirely on this Court's decision in State ex rel Masairu v. Marion Superior Court No.1, 621 N.E.2d 1097 (Ind. 1993), which was decided on a writ of prohibition rather than following full briefing on the merits. * * *

6. Masariu has been the subject of much scholarly criticism. For example, in a recent ICLEF seminar, Masairu was described as a "bizarre" holding that separation of powers prevents the courts from enforcing APRA against the Indiana General Assembly, even though APRA defines a "public agency" as any entity "exercising any part of the....legislative power of the state." I.C. § 5-14-3-2(n). Public Access Law in the Modern Digital Age, August 18, 2015. (Exhibit F); see also The Indiana Law Blog, "The Supreme Court Decision Upon Which the General Assembly's Claim to a Right to Secrecy is Based." http://indianalawblog.com/archives/2015/06/as_was_quoted_t_1.html; and Schenck, Laura, Freedom of Information Statutes: The Unfulfilled Legacy, 48 Fed. Comm. L. J. 371 (1995), available at http://www.fclj.org/wp-content/uploads/1995/01/schenck.pdf (observing that Masariu incorrectly viewed the issue as one involving separation of powers rather than statutory interpretation). Although Appellants believe Masariu to be distinguishable, only this Court can provide the needed clarification as to its scope and meaning.

7. The balancing of the competing principles and interests in this case, including the separation of powers doctrine and the right of Indiana citizens to have "full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees," I.C. § 5-14-3-1, poses a substantial question of law of great importance to the public. The question of whether the separation of powers doctrine overrides the public policy, as expressed by the General Assembly itself, that the "fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master," I.C § 5-14-3-1, is an issue of such vast public importance that this Court should accept and expeditiously decide it. Doing so would also be consistent with the General Assembly's express directive that cases filed under APRA be expedited. I.C. § 5-14-3-9(k).

Posted by Marcia Oddi on Thursday, September 10, 2015
Posted to GA and APRA

Ind. Decisions - 7th Circuit opinion re Marion County's judicial election system termed "questionable" by one writer

Richard Winger, editor/publisher of Ballot Access News, and identified thereon as "the nation's leading expert on ballot access legal issues," writes today in a post headed "Seventh Circuit Strikes Down Limited Voting for Indianapolis Judicial Races" about yesterday's opinion:

The decision is on shaky grounds, because elsewhere around the nation, limited voting has been upheld. The decision mentions decisions upholding limited voting in New York, Connecticut, and the District of Columbia. The decisions from Connecticut and the District of Columbia were summarily affirmed by the U.S. Supreme Court. The Seventh Circuit declines to follow those precedents on the grounds that judicial elections are different than elections for other office. The cases from New York, Connecticut, and D.C. involved city council and school board elections. * * *

The decision says the Indianapolis limited voting restricts the right of voters to a choice of whom to vote for. One flaw in that argument is that, in theory, minor party and independent candidates are also permitted to run, so if there were robust independent candidates or minor party candidacies, the voters would still have a meaningful choice in the general election. But, the decision says there haven’t been any such candidates since 2000 and 2002, when there were some Libertarian nominees. Obviously when there are only Democratic and Republican nominees on the general election ballot, and each of those parties can only run for half the seats (and assuming there are no declared write-in candidates), the voters have no choice whatsoever; the outcome is predetermined.

Posted by Marcia Oddi on Thursday, September 10, 2015
Posted to Ind. (7th Cir.) Decisions

Inbd. Gov't. - More on: Water quality certification permit for Singleton Stone Quarry, located in Lake Co., raises controversy in two states

Relevant in conjunction with this Sept. 8th ILB post on the Singleton Stone quarry proposal that will pump water into the Kankakee River, here is a story from the Sept. 4th Chesterton Tribune that begins:

As part of its effort to have the Kankakee River added to the national water trail system, the Northwest Indiana Paddling Association (NWIPA) and its partners in Illinois have published an interactive map journal, also known as a Story Map, for the Kankakee River.
The story links to the Kankakee River Water Trail website. The site opens with a photo of the Kankakee in Porter County and an intro:
Experience ancient wetlands, cliffs and canyons, wooded islands and the gentle farmlands of northwestern Indiana and northeastern Illinois along the 133-mile (160 km) Kankakee River, one of the cleanest rivers in the Midwest.

Posted by Marcia Oddi on Thursday, September 10, 2015
Posted to Environment | Indiana Government

Ind. Decisions - Supreme Court posts one, decided yesterday - minimum contacts and International Shoe ...

In Dennis Boyer and Richard Smith v. Ernest Smith, Suzanne Cassidy, Esq., and In-Plas, Inc., an 8-page, 5-0 opinion, Chief Justice Rush writes:

Indiana courts may exercise personal jurisdiction over non-residents to the fullest extent of “minimum contacts” precedent under the Fourteenth Amendment. Still, we scrutinize those contacts closely so out-of-state defendants will not be unfairly called into our state to defend themselves. Here, a Kentucky attorney’s contacts and connections with Indiana were far too minimal to permit personal jurisdiction. We therefore affirm the trial court. * * *

I. Indiana’s Personal Jurisdiction Approach Mirrors Federal “Minimum Contacts” Analysis. * * *

II. Specific Personal Jurisdiction Must Be Based on a Defendant’s Initiation of Contacts Within Indiana. * * *

III. Attorney Cassidy Did Not Initiate Contacts Within Indiana, and Therefore Indiana Lacked Specific Jurisdiction. * * *

In sum, Indiana lacked specific jurisdiction over Attorney Cassidy. Her actions in the prior Kentucky lawsuit were taken in Kentucky, not Indiana—and we cannot say those actions were purposefully directed into or caused injury in Indiana merely because Plaintiffs are Indiana residents. Her conduct therefore did not establish a substantial connection between herself and this State, and thus cannot support personal jurisdiction. Consequently, we affirm the trial court as to the personal jurisdiction issue.

Posted by Marcia Oddi on Thursday, September 10, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (0):

NFP civil decisions today (1):

In the Matter of the Involuntary Term. of the Parent-Child Relationship of I.A., and his Father, A.A.-S, and Mother, T.S. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (1):

Charles A. Clark v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, September 10, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Purdue, Exponent resolve legal dispute"

The ILB's most recent post on this story was from Aug. 22, 2014, and headed "Purdue releases surveillance video of confrontation." Today the Lafayette Journal & Courier reports, in a story by Joseph Paul:

Purdue University and its student newspaper on Tuesday resolved a yearlong legal dispute stemming from a 2014 campus shooting.

The Purdue Student Publishing Foundation and the university filed a stipulation of dismissal on Friday, wrapping up a lengthy lawsuit compelling Purdue to release surveillance footage of a confrontation between campus police and photojournalist Michael Takeda in the Electrical Engineering Building during the Jan. 21, 2014, shooting of Andrew Boldt.

On Tuesday, “the judge confirmed that he (had) entered that dismissal,” said William Kealey, an attorney for Stuart & Branigin in Lafayette. “The two sides amicably resolved the dispute.” * * *

The university subsequently denied the Exponent’s request for the videos of the confrontation, stating the material was protected under Indiana’s Access to Public Records Act because it was related to an ongoing criminal investigation.

Indiana’s Public Access Counselor issued an opinion last April supporting Purdue’s claim. The American Civil Liberties Union of Indiana then filed suit on behalf of the Exponent.

About a week after the suit was filed, Purdue publicly released the video.

Posted by Marcia Oddi on Thursday, September 10, 2015
Posted to Indiana Government

Ind. Gov't. - "Dunes liquor license hearing Thursday at Expo Center"

Updating a long list of ILB posts, including this one from August 1st, headed "State Alcohol and Tobacco Commission offers direction on pavilion liquor license bid," Amy Lavalley of the Gary Post-Tribune reported yesterday in a story that begins:

Both sides will get to have their say during a hearing on whether Pavilion Partners should have a liquor license for the pavilion at Indiana Dunes State Park in Chesterton.

The Porter County Alcoholic Beverage Commission meets at 6 p.m. Thursday at the Porter County Expo Center, 215 E. Division Road, Valparaiso, to consider Pavilion Partners' application.

The meeting is being held at the Expo Center to accommodate the large number of people the county board expects to attend the meeting, as recommended by the state's Alcohol and Tobacco Commission.

More from the story:
A Post-Tribune investigation last month revealed Pavilion Partners officials were in contact with the DNR for more than a year before the DNR released a request for proposal to renovate the pavilion.

Pavilion Partners started a postcard campaign in favor of both the liquor license and the banquet center last month, printing 1,000 postcards for the county liquor board and another 1,000 for Gov. Mike Pence's office in support of the banquet center.

State officials have said the DNR could not afford to renovate the pavilion without the lease agreement with Pavilion Partners, and Pavilion Partners representatives have said a renovated pavilion and new banquet center will generate tourism dollars in the region.

Regardless of how the county board votes on the liquor license, the final decision rests with the state board. If the local board ties, as happened in June, the state board steps in and uses the local criteria to decide on the license, said David Cook, commissioner of the state board. * * *

Though the state board is meeting Tuesday, Cook doubts members will have time to review information from Thursday's hearing to make a decision. He expects a decision at their Oct. 6 meeting.

"I know everybody's anxious to get it resolved," he said.

Cook also expects that no matter what the state board decides, that decision will be appealed. Appeals go through a hearing before a judge who puts together the findings and presents them to the state board to adopt or reject. An appeal of that decision goes through the courts, he said.

ILB: Interestingly, a few miles east of the Dune State Park and National Lakeshore, a municipality has taken a different route, according to this story by Stan Maddux of the NWI Times, headed "New lakefront pavilion in Michigan City now open." A quote:
"The people of Michigan City are very lucky to have a building like this," said Moe Mroueh, the owner of the restaurant who pays rent for the space he operates to the Michigan City Parks Department.

The brick and glass exterior structure began going up in the spring with funding from the increase in property tax assessments from the hotel at Blue Casino, said Ken Behrendt, chairman of the Michigan City Redevelopment Commission.

The pavilion also contains an operations center for the police department to occupy during major lakefront events and a locker room for lifeguards.

There are also public restrooms and an elevated stage for concerts and other performances.

Posted by Marcia Oddi on Thursday, September 10, 2015
Posted to Indiana Government

Ind. Gov't. - Medical Malpractice Caps Subject of Legislative Committee Today

Today at 1:00 PM the Interim Committee on Courts and the Judiciary will hear testimony on caps on damages in medical malpractice cases.

Here is the agenda, the committee will meet in Room 130 of the Statehouse.

You will be able to watch the meeting live at this link.

Here are a few earlier ILB posts on this topic:

Posted by Marcia Oddi on Thursday, September 10, 2015
Posted to Indiana Government

Wednesday, September 09, 2015

Ind. Courts - "7th Circuit Affirms Win in Challenge to Marion County's Judicial Election System" [Updated]

Here is the ACLU Indiana news release on today's 7th Circuit decision:

Indianapolis -Today the U.S. Court of Appeals for the Seventh Circuit upheld a district court ruling and declared that the method of electing Marion Superior Court judges is unconstitutional.

The lawsuit, brought by Common Cause Indiana represented by the American Civil Liberties Union of Indiana, challenged the constitutionality of Indiana Code § 33-33-49-13, which results in each major party nominating candidates for only one half of judicial vacancies.

The statute effectively removed any choice from voters and rendered the election of judges a mere formality. Voters in Marion County who did not cast a ballot in the primary election had absolutely no say in electing judges. Even people who did vote in the primary election had a say in only half of the judgeships.

"There is no more important right in our Constitution than that of exercising a meaningful vote," said Ken Falk, ACLU of Indiana legal director. "We are very pleased that the Court's decision forcefully reaffirms that right."

The Seventh Circuit ruling held that: "When an election law reduces or forecloses the opportunity for electoral choice, it restricts a market where a voter might effectively and meaningfully exercise his choice between competing candidates, and thus severely burdens the right to vote." The Court concluded that this severe burden was not justified.

The ACLU of Indiana filed the lawsuit on behalf of Common Cause Indiana in November, 2012.
ILB: Here is the earlier ILB summary of today's opinion.

[Updated 9/10/15] Here is Indianapolis Star coverage of the 7th Circuit opinion.

Posted by Marcia Oddi on Wednesday, September 09, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Tax Court decides two today

Carol Cooper v. Allen County Assessor (NFP)

In Gregory and Carmen Cooper v. Allen County Assessor, a 7-page opinion, Judge Wentworth writes:

This case examines whether the Indiana Board of Tax Review erred in upholding Gregory and Carmen Cooper’s 2012 land assessment. Upon review, the Court finds that the Indiana Board did not err.

Posted by Marcia Oddi on Wednesday, September 09, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, re Marion Co. judicial elections

In Common Cause Indiana v. Individual Members of the Ind. Election Commission, et al (SD Ind., Young), a 32-page opinion, Judge Springmann (ND Ind., sitting by designation) writes:

Common Cause is a national organization that advocates for, among other things, the fairness of elections and the elimination of barriers to voting. Its Indiana affiliate, Common Cause Indiana (“Common Cause”), initiated this litigation to challenge the constitutionality of the Indiana Statute that establishes the process for electing judges to the Marion Superior Court in Marion County, Indiana.1 Common Cause contends that the election procedure established by the Statute violates the First and Fourteenth Amendments to the United States Constitution, while the State of Indiana (“the State”) argues that the Statute falls within its constitutional power to regulate elections. For the reasons discussed below, we affirm the decision of the district court and find the challenged statute unconstitutional. * * *

It is of no consequence whether voters approve or disapprove of the candidates. So long as each candidate votes for himself or herself, as he or she presumably will, actions taken by other voters in the general election are meaningless, as they lack any opportunity to affect the outcome. The candidate will win, whether he gets a vote from every voter or no voters at all.[5] Thus, the winning candidates for judge have effectively been determined in the primary election without the participation of the full electorate, because all the major party nominees who successfully obtained their parties’s nomination are virtually guaranteed to win, with an even split between the parties. * * *

iii. Stability and Public Confidence

The State contends that partisan balance is critical to ensuring stability and public confidence in the court. The State argues that partisan balance is particularly important in the Marion Superior Court because it accounts for approximately twenty percent (20%) of all cases filed and disposed of in the State each year, many of which have a statewide impact because petitions for judicial review of State agency actions are often filed in Marion County. The State also argues that the Statute ensures stability on the court by removing the possibility that one party could sweep the election. Such a provision is necessary, the State contends, to prevent a turnover such as occurred in the wake of the Watergate Scandal, in which the Republicans swept all of the seats in the 1970 election and the Democrats swept all of the seats in the 1974 election.

These interests provide little justification for the severe burden imposed upon the right to vote, however.We do not see why the fact that the Marion Superior Court ultimately decides a relatively significant percentage of the State’s annual cases, including cases with statewide impact, necessitates a unique electoral system ensuring partisan balance. The Indiana Code of Judicial Conduct applies the same for judges in Marion County as it does for judges in every other county of the State, yet only the Marion Superior Court has a partisan balance requirement. We do not appreciate how a court with comparatively greater influence, by virtue of the quantity of its decisions or their statewide impact, has sufficient interests in partisan balance to justify the severe burden on the right to vote, but that these interests are not present for any other county in the State, or, for that matter, the country. A case in any other jurisdiction is just as important to the litigants, and the judge is under the same obligations to apply the law to the facts of the case. If the State decides that a partisan judicial election is the best-suited system for filling judicial vacancies in a particular jurisdiction, as it of course may, voters must have the opportunity to cast a meaningful vote in that election.

As for the stability of the court, or stated differently, the State’s asserted interest in avoiding a sweeping turnover of judicial personnel, this interest may be served in ways that do not necessarily burden the right to vote. For example, the current version of the Statute already provides for staggered elections, a procedure that allows the State to avoid a complete turnover in any one election that might upset the operation of the court without restricting voters’ opportunity to exercise their voice as to which candidates should fill the open positions.

In balancing the asserted injury to the plaintiff with the interests of the State, “the Court must not only determine the legitimacy and strength of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” Anderson, 460 U.S. at 789. In light of the burden placed upon the right to vote, the interests put forward by the State do not justify the burden. In the context of partisan judicial elections, the interests identified by the State can either be served through other means, making it unnecessary to burden the right to vote, or those interests are not strong enough to overcome the burden. We conclude that the precise interests put forward by the State do not justify the burden placed on the right to vote for judicial candidates for the Marion Superior Court. Therefore, the Statute violates the First and Fourteenth Amendments.

II. CONCLUSION.

We agree with the district court that the Statute at issue burdens the right to cast a meaningful vote without sufficiently weighty interests to justify such a burden. In the context of partisan judicial elections, which the State has chosen to adopt as its preferred system for selecting judges for the Marion Superior Court, the asserted benefits and interests surrounding partisan balance do not justify the burden placed on the right to vote. The judgment of the district court is AFFIRMED.
__________________

[5] A prime example of the predetermined nature of the general election is a blog post from the Indiana Law Blog, dated two months before the general election, that listed the changes in the Marion Superior Court assignments, effective January 1, 2015, including the yet unelected judicial candidates. Ind. Courts—Changes in Marion County Court Assignments, Indiana Law Blog (Sept. 5, 2014, 4:18 PM), http://indianalawblog.com/archives/2014/09/ind_ courts_chan_16.html; see also Marion County Court Assignments Made for 2015, Indianapolis Bar Association, (Sept. 10, 2014), http://www.indybar.org/news/indybar-news/ 2014/271 (showing the court assignments to the Marion Superior Court decided by the Marion County Executive Committee, including the new judge assignments in the criminal courts).

Here is the Oct. 9, 2014 Distrct Court opinion by Judge Young.

Posted by Marcia Oddi on Wednesday, September 09, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Marion County and the big-box reassessment issues

Today Chelsea Schneider has posted a long Indianapolis Star story headed "Are big-box retailers getting a tax break at schools’ expense?" The story begins:

Last December, when a state board effectively reduced property taxes for a Meijer on 96th Street in Indianapolis and a Kohl’s in Howard County, it sounded a warning bell for local governments.

The Meijer and Kohl’s used the sale prices of vacant stores in other locations to successfully argue their fully-stocked, fully-operational stores were assessed too highly for tax purposes.

In the industry, it’s known as using “dark sales.” And while county governments may not like it — or think it’s fair — big-box retailers counter that using the vacant properties actually gets closer to an accurate assessed value. And the Indiana Board of Tax Review has been inclined to agree.

With the board’s two decisions, concern grew among county officials, who don’t agree with the strategy some big-box stores employ to try and cut their property taxes.

Lawmakers placed some restrictions on the strategy this year, but county assessors say the new law passed in April didn’t go far enough. They point to a new case out of Monroe County where a CVS used vacant sales in its appeal — and won.

“This is the biggest threat to the tax base right now,” said Drew Carlson, chief financial officer for the Marion County Auditor’s office.

How big? In Marion County alone, an analysis estimated a $7.8 million financial loss if the strategy became the common method for valuing those properties.

The big loser? Schools in the county run the risk of losing the most at an estimated $3.2 million, according to projections by the Association of Indiana Counties.

ILB: The new CVS ruling is available here. More from the Star story:
At the heart of the debate: County officials argue the “dark sales” method runs counter to their belief that values should coincide with the cost to construct a building. Big-box store owners argue that since the building is constructed for a specific purpose, they can’t typically turn around and sell that building for the same price. Thus, their assessments are set too high.

Counties believe any sales used as comparisons in determining a property’s assessed value need to be an “apples to apples” comparison, said David Bottorff, executive director of the Association of Indiana Counties. A Meijer potentially could sell a building to a Wal-Mart and be deemed a comparable sale. But if Meijer sold its building to a consignment shop that didn’t use the full functionality of the building that wouldn’t be a comparable sale, Bottorff said.

Grant Monahan, the head of the Indiana Retail Council said lawmakers should let changes they passed last session play out before revisiting the issue. In those changes, lawmakers placed limits on properties that could be used for comparison purposes.

“No retailer is attempting to avoid paying his or her fair share of property taxes,” Monahan said. The fact retailers are appealing and so far winning these cases shows Monahan that “they were over-assessed from the very beginning.” * * *

The author of this year’s legislation, state Sen. Brandt Hershman, said he’s planning to look into the issue further and is reviewing the CVS decision.

Some assessors’ fears go beyond the big-box stores. They worry restaurants and smaller businesses could latch onto the strategy and seek property tax reductions.

In Hancock County, the big concern is the trickle down to those types of businesses, County Assessor Mary Noe said. “Looking at the supermarkets, the Walgreens and the CVS’s.” Noe said. “Things of that nature being the next step in this approach to value.”

ILB: Here is a list of earlier ILB posts on this issue:

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

Updating this post from earlier this afternoon, here now is the August 19th 38-page IBTR ruling in CVS v. Monroe County Assessor. The ruling discusses the 2015 legislation beginning at p. 28:#86. After the Tax Court decided the cases discussed...

Posted in The Indiana Law Blog on September 8, 2015 03:36 PM

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

On August 25th and August 26th the ILB had posts on the Indiana Board of Tax Review's mid-August ruling "in favor of CVS on its appeal of the county’s assessments of its College Avenue location from 2009 to 2013," per...

Posted in The Indiana Law Blog on September 8, 2015 01:27 PM

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...

Posted in The Indiana Law Blog on August 26, 2015 08:31 AM

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...

Posted in The Indiana Law Blog on August 25, 2015 12:12 PM

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...

Posted in The Indiana Law Blog on August 10, 2015 08:31 AM

Ind. Gov't. - More on: Appraisal/assessment of big box stores remains a big issue

Following on the ILB's comprehensive July 7th post on this topic, the Fort Wayne Journal Gazette on Sunday had a long editorial on the tax rulings and the "dark store" effect....

Posted in The Indiana Law Blog on July 13, 2015 08:59 AM

Ind. Gov't. - Appraisal/assessment of big box stores remains a big issue

The ILB's first major post on this issue was on Jan. 18th, and quoted the IBJ, the FWJG and the LCJ, as well as linked to both the Meijer and Kohl opinions. This was followed by about half-a-dozen subsequent posts,...

Posted in The Indiana Law Blog on July 7, 2015 10:08 AM

Ind. Gov't. - What happened re the taxation of big box stores during this General Assembly

The ILB has several posts earlier this year on the appraisal/assessment of big box stores. This Jan. 29th story by Rachel Bunn has in the Bloomington Herald-Times about the Dec. 1 and Dec. 31 Indiana Tax Board rulings in Meijer...

Posted in The Indiana Law Blog on May 5, 2015 11:30 AM

Ind. Decisions - Still more on: Appraisal/assessment of big box stores

Supplementing this morning's earlier post, Daniel Suddeath's Jan. 27th story in the New Albany News and Tribune, here republished at Indiana Economic Digest, is headed "Major retailers' tax challenge in New Albany costs city's law firm its job." It begins:NEW...

Posted in The Indiana Law Blog on January 29, 2015 09:42 AM

Ind. Decisions - More on: Appraisal/assessment of big box stores

Updating this ILB post from Jan. 18th, about the Dec. 1 and Dec. 31 Indiana Tax Board rulings in Meijer and Kohl's, respectively, Rachel Bunn has a $$ story today in the Bloomington Herald-Times. Some quotes: Monroe County could lose...

Posted in The Indiana Law Blog on January 29, 2015 09:09 AM

Ind. Decisions - Appraisal/assessment of big box stores

The 50-page Dec. 1, 2014 Indiana Board of Tax Review decision in Meijer Stores LP v. Marion County Assessor is the subject of a long Jan. 17th story in the IBJ, reported by Kathleen McLaughlin. A few quotes:Big-box retailers could...

Posted in The Indiana Law Blog on January 18, 2015 02:02 PM

Posted by Marcia Oddi on Wednesday, September 09, 2015
Posted to Indiana Government

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

For publication opinions today (2):

In Kolby O'Banion, Taylor O'Banion, Tim O'Banion, and Kelly O'Banion, et al. v. Ford Motor Company, a 23-page opinion, Judge Barnes writes:

Kolby, Taylor, Tim, and Kelly O’Banion (“the O’Banions”), Michael Roush as Executor of the Estate of Karen Roush (“the Estate”), and Indiana Farm Bureau Insurance Company (“Farm Bureau”) (collectively “the Appellants”) appeal the trial court’s grant of summary judgment in favor of Ford Motor Company (“Ford”). We reverse and remand. * * *

As background information, it is necessary to understand a car’s throttle assembly. * * *

The trial court erred in excluding the testimony of Zedonis, either as a question of admissibility under Evidence Rule 702 or as a sanction for a purported discovery violation. Because Zedonis’s testimony was erroneously excluded, Berg’s testimony was as well. With Zedonis’s and Berg’s testimony, it is clear that Ford is not entitled to summary judgment. We reverse and remand for further proceedings consistent with this opinion.

In Melvin C. Hamilton v. State of Indiana, a 12-page opinion, Judge Barnes writes:
Melvin Hamilton appeals his convictions for three counts of Class A felony child molesting. We reverse and remand. * * *

The trial court committed reversible error in admitting Elfreich’s [ILB - "Molly Elfreich, a trained forensic interviewer"] testimony regarding whether D.P. or A.S. had been coached. However, Detective Fortune’s statements during his interview with Hamilton did not constitute improper vouching. We reverse Hamilton’s convictions and remand for retrial consistent with this opinion.

The sole restated issue before us is whether the trial court properly allowed witnesses for the State to vouch for the credibility of the alleged victims.

NFP civil decisions today (2):

John Lind v. Nancy Lind (mem. dec.)

Bryan Paul Whitlatch v. Priscilla Marie Wolfe (mem. dec.)

NFP criminal decisions today (3):

Kasey Hutchings v. State of Indiana (mem. dec.)

Robert E. Ellett v. State of Indiana (mem. dec.)

Xiomara Kyle v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, September 09, 2015
Posted to Ind. App.Ct. Decisions

Courts - Pa. Gov. appeals his right to fire open records chief to Pa. Supreme Court

Thanks to How Appealing for flagging this story by Christian Alexandersen that appeared yesterday in the Harrisburg Patriot-News. Some quotes:

Gov. Tom Wolf will appeal a judge's decision to reinstate the state's open records chief he fired earlier this year when he takes the matter to the Pennsylvania Supreme Court on Wednesday.

The state's highest court will hear arguments in Philadelphia regarding the firing and later reinstatement of Erik Arneson as the executive director of the Pennsylvania Office of Open Records. The Supreme Court has not indicated when it will decide if Arneson can keep his job or not.

The arguments come down to a simple question; does the governor have the authority to fire the executive director of the Office of Open Records without cause? Wolf says yes and Arneson says no.

"Our position remains and has been consistent that the governor only has the right to terminate the executive director of the Office of Open Records, no matter who it is, upon cause only," said Joel Frank, Arneson's attorney.

Wolf Spokesman Jeffrey Sheridan said they continued their appeal in order to restore the governor's executive authority under the Pennsylvania constitution. * * *

In January, Wolf fired Arneson as the state's open records chief, claiming the former Gov. Tom Corbett made the appointment for political reasons.

Posted by Marcia Oddi on Wednesday, September 09, 2015
Posted to Courts in general

Tuesday, September 08, 2015

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

In USA v. Eugene Clarke (ND Ind., Lozano), an 8-page decision, Judge Bauer writes:

On June 2 and 3, 2014, defendantappellant, Eugene Clarke, stood trial for seven counts of filing a false claim with the United States in violation of 18 U.S.C. § 287. At the close of the government’s evidence, Clarke moved for judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing that the government failed to present any evidence that he knew the claims he presented were false. The district court denied the motion. Clarke also requested a jury instruction on good faith, which the district court also denied. The jury ultimately convicted him on all counts. Clarke now appeals his conviction, as well as the district court’s ruling on the jury instruction. * * *

For the aforementioned reasons, we AFFIRM the judgment of the district court and Clarke’s conviction.

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to Ind. (7th Cir.) Decisions

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

Updating this post from earlier this afternoon, here now is the August 19th 38-page IBTR ruling in CVS v. Monroe County Assessor.

The ruling discusses the 2015 legislation beginning at p. 28:

#86. After the Tax Court decided the cases discussed above, the General Assembly enacted 2015 Ind. Acts 249, relevant parts of which are codified in Ind. Code § 6-1.1-4-44 as follows: * * *

#87. This statute is relevant to these appeals. It limits the sales that may be used in determining the true tax value for properties, like the subject property, that have been part of a sale leaseback transaction. As discussed below, that has ramifications for the experts’ sales comparison analyses in these appeals. But it does not purport to significantly change the true tax value standard as interpreted by the Tax Court.

Since the ILB's earlier post this afternoon, the IBTR website has been updated to include decisions issued during the month of August.

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to Indiana Government

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

On August 25th and August 26th the ILB had posts on the Indiana Board of Tax Review's mid-August ruling "in favor of CVS on its appeal of the county’s assessments of its College Avenue location from 2009 to 2013," per the Bloomington Herald Times.

On August 31st, Hayleigh Colombo reported in a lengthy story in the IBJ headed "County assessors may push for stricter big-box tax laws":

Monroe County Assessor Judy Sharp hoped a new Indiana law that prohibits appraisals from using closed or sold stores as comparisons in determining the value of newer big-box stores would ensure a CVS in her county wouldn’t get a reprieve on its taxes.

So, she was disappointed when the Indiana Board of Tax Review determined in August that the Bloomington CVS had been over-assessed, and as a result, overtaxed for five years starting in 2009.

To Sharp, that was proof that the new law didn’t go far enough to protect counties from losing out on tax revenue from retailers in search of lower tax bills.

The law "was a Band-Aid, but not a total fix,” said Sharp, who is president of the Indiana County Assessors Association. “It was too open-ended.”

Now, some Indiana county officials are pushing lawmakers to strengthen the rules when the General Assembly convenes in January in an effort to restrict stores from using the “dark store theory” in determining the value of their properties. * * *

But new legislation would almost assuredly bring another fight with big-box retailers, who say they’re being unfairly taxed. The Indiana Board of Tax Review, or IBTR, has previously ruled in favor of the retail stores, including a late 2014 ruling that a successful Meijer on East 96th Street should have been assessed in 2012 at $7.2 million, not the $19.7 million assigned by Marion County.

Stephen Paul, an attorney with Faegre Baker Daniels who represented retail stores in opposing the 2015 legislation, said retailers would certainly fight any new legislation—and might even push for this year’s law to be repealed.

“I’m confident stores will oppose any further push,” Paul said. “The stores have bent over backwards to cooperate with local government. … There could be [a push to repeal] if the assessors aren’t going to be reasonable about it.”

The 2015 law, authored by Sen. Brandt Hershman, R-Buck Creek, passed both the Senate and House unanimously, and applied to appraisals of non-income-producing buildings newer than 10 years old that are occupied by the original owner. It stated, among other restrictions, that comparable sales should include properties that have been for sale for less than year and are used for similar purposes.

Hershman said he is receptive to revisiting the issue in the next legislative session, but cautious to judge the effectiveness of the new law on the recent CVS decision. Monroe County will have to refund CVS about $150,000 if Sharp, who plans to appeal the decision, is unsuccessful.

The matter will be discussed at an upcoming study committee on fiscal issues, Hershman said.

“I don’t want one case to pass judgment on the effectiveness of a new law,” he said. “The jury is still out. If this is the precursor to a pattern of continuing decisions, that’s something we would take into account.”

Meanwhile, Indiana county assessors are on the lookout for more appeals from retailers. Some counties, including Johnson County, have just sent out their 2016 property tax bills and are still waiting to hear from unhappy taxpayers.

ILB: As for the CVS ruling and its reasoning with respect to the 2015 statutory change, the IBTR as yet has not made the ruling available online, or indeed any of its rulings since the end of July, 2015. Earlier the ILB was told that per policy, "the parties have 2 weeks after a decision is reached to identify any confidential information that needs to be redacted." The date of the CVS ruling also is unknown to the ILB.

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to Indiana Government

Ind. Law - "The costs of failing to plan: the tragedy of Lawrence Inlow "

The Lawrence Inlow intestacy story, well told by Mark E. Harbin of Bingham Greenebaum Doll LLP. A sample:

With larger, bifurcated families, intestacy can often produce long legal battles among the family members who feel slighted by the default distributions. The intent of the deceased is never known, and the family members fight over what they each presume it would have been. * * *

Perhaps Mr. Inlow’s family would not have spent so many years and fees in court if he had had a Will. We cannot know for certain, but we can rely on years of statistics that litigation occurs less often in estates where the decedent dies with a Will than without. Intestacy has apparent drawbacks, and it is structurally unsuitable for nontraditional families. The Indiana intestacy statutes could not comprehend whether Mr. Inlow favored his second wife Anita and child over his four older children from his first marriage. The statutes and the Personal Representative had to make an assumption, and that assumption was fiercely challenged.

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 3 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (2):

Jon Richard Loomis v. Barbara Jean Loomis (mem. dec.)

Deonte R. Hester v. State of Indiana (mem. dec.)

NFP criminal decisions today (1):

Danny James Horton v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from August 24th, which references an August 14th news release from AG Zoeller that began:

Attorney General urges Court to make police report records public: State files amicus brief in lawsuit between ESPN and Notre Dame Security Police
Kara Kenney of WRTV6 News reported September 4th:
Indiana Attorney General Greg Zoeller has declined to issue an opinion in a battle over access to legislative emails, saying it would require his office to take a legal position in opposition to their own client: state government. * * *

Zoeller issued a response to Common Cause on Sept. 2.

"The fact that the Legislature reserves, pursuant to statute, the right to hire its own outside counsel -- and has done so in this specific case -- does not relieve our office of the obligation to not act adverse to our law client's legal interest, since we continue to represent the Legislature in other unrelated legal matters," read Zoeller's letter.

Julia Vaughn, Policy Director for Common Cause Indiana, expressed frustration Friday about Zoeller's decision not to issue a brief on the legislative email issue.

"We're disappointed the AG is using the separation of powers principle to avoid taking a firm stand against legislative secrecy," Vaughn said. "He is assuming that the Access to Public Records Act's application to the General Assembly violates that doctrine, which isn't warranted in this case.

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to GA and APRA | Indiana Government

Ind. Gov't. - City on the Brink: A Terre-Haute Tribune Star speical report

A multi-part series from the Terre-Haute Tribune-Star. The thesis:

Indiana’s property tax reform measures of 2008 profoundly changed the financial landscape for local governments on all levels. Some thrived. Some struggled. A few, including Terre Haute, began to sink into financial crisis, where it remains mired today.
Indiana Economic Digest has excerpted part of the series, with a very long story from Mark Bennett that looks at how communities from around the state have responded to "the new reality."

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to Indiana Government

Law - "Two notable new papers about plea bargaining procedures and practices"

Via the Sentencing Law blog, two notable new papers.

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to General Law Related

Ind. Gov't. - Arguments that local budgets should be published in newspapers continue

KPCNews of Kendallville (here via Indiana Economic Digest) has an ediotiral that begins:

The past few weeks, you have probably noticed stories about the budgets being drafted by local school districts, cities and towns and your county government.

As is the case with news stories, our reporters write about the highlights of these budgets, such as raises for personnel, key capital projects and tax rates.

Historically, citizens have been able to drill down into the nuts and bolts of budgets through public notice advertising that has appeared in this newspaper and others across Indiana. This allowed you to scrutinize every penny that was proposed to be spent.

Until this year.

That’s because the Legislature, under the advice of the Indiana Department of Local Government Finance that oversees the budget process, changed state law in 2014 requiring that budgets be published as legal notices in newspapers. Instead, the budgets now must be posted on a website that’s run by state government called Indiana Gateway for Government Units (not exactly a household name like Google or Yahoo).

Later in the article, this caught the ILB's eye:
[T]raffic on the Gateway website, for the last half of 2014, reportedly was 4,633 unique visitors. We would guess that much of that traffic is from representatives of local government who are checking information about their budgets. By comparison, daily readership of KPC Media Group newspapers is about five times that amount on a daily basis. And that’s chiefly just for four counties, not 92.

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending September 4, 2015

Here is the Clerk's transfer list for the week ending Friday, September 4, 2015. It is two pages (and 20 cases) long.

Five transfers were granted last week:

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - Water quality certification permit for Singleton Stone Quarry, located in Lake County, raises controversy in two states

The story in the August 28th Daily Journal of Kankakee, Illinois was the first the ILB read of this issue; Jon Krenek wrote under the heading "Feds try to stop Indiana quarry sand." Some quotes:

The U.S. Fish & Wildlife Service is opposing a proposed quarry in Lake County, Ind., over concerns it could harm aquatic life in the Kankakee River. The federal agency is targeting the high volume of water the quarry will pump into the Singleton Ditch, the largest source of sediment to the river.

The Indiana Department of Environmental Management is reviewing a permit for a 600-acre stone quarry being developed by Singleton Stone LLC. If approved, the permit would allow it to pump between 12 million and 52 million gallons of water per day into the ditch, which would worsen erosion and deposit more silt and sand in the river.

"You'd think if they were pumping that much water and sediment, they would have to do something about it," said Elizabeth McCloskey, the fish and wildlife biologist who submitted the comments. "They have not offered anything."

About 25 residents, farmers and business owners from Kankakee County also submitted public comments to the Indiana agency. Marty Maupin, IDEM permits specialist, said Illinois residents submitted more comments than people in Indiana with concerns centered primarily on flooding and the environmental consequences for the river.

The federal agency, in a formal letter to IDEM and the U.S. Army Corps of Engineers, said the impact on fish and mussels "are of particular concern." Extra water will push more sand and silt into the river altering the aquatic habitat for many of the bugs that fish feed on. The extra sedimentation also covers potential breeding grounds for fish. The ability of mussels to feed also is harmed. * * *

"In my 55 years of living on the river I have witnessed firsthand the destruction that sediment from Indiana, both from the river upstream and from the Singleton Ditch, has done," Mark wrote. "It has been my observation that Indiana has no respect for its neighbors downstream."

McCloskey said the federal agency wants the company to reduce the amount of sand and silt the high volume of water will push into the river. Those comments also are being submitted to the U.S. Army Corps of Engineers, which grants final approval after IDEM grants a permit. Maupin said all the comments are being considered as IDEM makes a decision on the permit.

The Chicago Tribune has an August 30th story, including a photo of the Singleton Ditch.

Bill Dolan of the NWI Times has an August 31st story that reports:

LOWELL | Area farmers are making a last ditch effort to stop the Singleton Stone Quarry even as bulldozers scrape off acres of topsoil to clear the way for deeper stone excavations. * * *

Elizabeth S. McCloskey, a biologist for the federal agency, recently wrote the Indiana Department of Environmental Management asking them to deny quarry operators permission to pump millions of gallons of groundwater into the Singleton Ditch where it could cloud the man-made waterway and farther downstream in the Kankakee River with sediment, endangering fish and freshwater mussels.

James Wieser, an attorney for Singleton Stone and its parent company, Reith-Riley Construction Co., said Monday he is unaware of the U.S. Fish and Wildlife letter, but is confident the state is ready to give its final approval for all quarry operations.

John Bryant, a south county farmer against the quarry, said the only thing that may ultimately stop the quarry is a lawsuit by Illinois residents to stop potential damage to the Kankakee River in their state.

Local farmers have opposed plans to mine limestone used in concrete from the local bedrock on 600 acres southeast of Interstate 65 and Indiana 2 in rural Eagle Creek Township, since 2010.

South county agriculture is located on wetlands that must be drained and sand ridges that must be irrigated.

Farmers argued the quarry could lower the local aquifer on which they, their crops and livestock depend for water and overwhelm the surface drainage system when they pump an estimated 12 million to 52 millions gallons out of the ground daily to keep the quarry from flooding and discharge it into the Singleton Ditch, which drains much of the Kankakee River floodplain.

Most state and local officials have sided with Reith-Riley, which has promised the quarry will create jobs and boost the county's tax base while harming no one.

The Indiana Department of Natural Resources gave its approval of the quarry last June, and IDEM is allowing preliminary work on the site even though its final decision is pending. * * *

Marty Maupin, IDEM permits specialist, reportedly said earlier that IDEM rarely gets comments on such projects, but has received more than 45 on Singleton, including one from the U.S. Fish and Wildlife Service.

Federal Fish and Wildlife's McCloskey said the pressure of the groundwater pumped out of the excavation will loosen sediment from the Singleton Ditch's banks and stream bed that could drift far downstream and bury fish-spawning sites and bottom-dwelling organisms on which fish and mussels feed.

The September 4th Gary Post-Tribune has a long story by Carrie Napoleon that includes a photo captioned "A line of heavy equipment is seen Aug. 26 looking north toward Indiana 2 at the Singleton Stone quarry site," and begins:
State Sen. Rick Niemeyer has requested a public hearing from the Indiana Department of Environmental Management regarding the Singleton Stone Quarry water quality certification permit.

The move comes in the wake of the number of submissions to the agency during a public comment period for the permit, including a request to deny the permit from U.S. Fish and Wildlife Service. Marty Maupin, IDEM project manager, previously has said the agency received between 45 and 60 independent comments on the permit. Most permits draw few to no comments, he said.

"I am requesting a public hearing and we will see what happens," Niemeyer, R-Lowell, said. "There have been a lot of comments. There is a lot of paperwork."

Niemeyer said he shares residents' concerns about the impact on their wells, the quality of water, the flow of water into the Singleton Ditch and the Kankakee River, and the potential flooding that may occur during a heavy rain event.

Niemeyer said he is skeptical of claims made by the quarry developers, Singleton Stone LLC, a subsidiary of Goshen-based Reith-Riley Construction, that they would allow the site to flood in a rain event.

"They are not going to flood their quarry with all their heavy equipment in it," Niemeyer said.

Calls to Reith-Riley were not immediately returned Friday afternoon.

He is also skeptical the promises made to obtain the permits already received will be adequately policed by IDEM or the Department of Natural Resources. Niemeyer said he understands neither state agency, nor the local drainage board, would be able to put a person on the ground monitoring the site every day to ensure compliance.

In most building situations, such as a new home or commercial development, all the permits must be in place before work is allowed to begin. The same should have held true for this project, he said.

"Maybe (all the permits) should have been in place before they allowed anything to go on out there. That's a concern of mine," Niemeyer said.

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to Environment | Indiana Government

Ind. Law - "Government’s extension of protections for long-term unemployed, people with criminal records and transgendered people"

Jeff Swiatek of the Indianapolis Star had a long story on Labor Day, reporting:

The Second Chance law, passed in 2013, is part of what Indianapolis employment lawyer Michael Blickman refers to as “a new frontier of employee rights” in America. For at least three major categories of employees — those with criminal records, the long-term unemployed and the transgendered — new workplace protections have affected the way they are hired, fired and treated on the job.

Hundreds of thousands of Hoosier workers stand to benefit from the new protections, which are coming mostly out of the federal agencies and the Obama administration. Some states are weighing in with protective statutes as well.

But the protections also add red tape and legal hurdles for employers as they try to find the best fit for their job openings. Job applications from the long-term unemployed can’t be routinely tossed into the circular file. People with criminal records have greater access to jobs. And the transgendered must have equal bathroom and other work accommodations and can’t be fired over their gender switch.

Many employers are feeling angst, wondering what they need to do to adapt.

“Employers have to remain aware of how employee rights are expanding,” said Blickman, an attorney with the large law firm of Ice Miller.

“The law is changing. Courts are more accepting of these cases. Federal agencies such as the EEOC are pursuing actions across the country. And you have an administration very accepting of broadened employee rights.”

The lengthy story then goes into much detail about eact category. Definitely worth reading.

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to Indiana Law

Courts - State of Washington Supreme Court: "Charter schools are unconstitutional "

This story Sept. 4th by John Higgins in the Seattle Times began:

After nearly a year of deliberation, the state Supreme Court ruled 6-3 late Friday afternoon that charter schools are unconstitutional, creating chaos for hundreds of families whose children have already started classes.

The ruling — believed to be one of the first of its kind in the country — overturns the law voters narrowly approved in 2012 allowing publicly funded, but privately operated, schools.

Eight new charter schools are opening in Washington this fall, in addition to one that opened in Seattle last year.

It was not immediately known what would happen with the schools that are already running. The parties have 20 days to ask the court for reconsideration before the ruling becomes final. * * *

In the ruling, Chief Justice Barbara Madsen wrote that charter schools aren’t “common schools” because they’re governed by appointed rather than elected boards.

Therefore, “money that is dedicated to common schools is unconstitutionally diverted to charter schools,” Madsen wrote.

Justice Mary E. Fairhurst agreed with the majority that charter schools aren’t common schools, but argued in a partial dissenting opinion that the state “can constitutionally support charter schools through the general fund.”

She was joined by Justices Steven C. González and Sheryl Gordon McCloud.

The ruling is a victory for the coalition that filed the suit in July 2013, asking a judge to declare the law unconstitutional for “improperly diverting public-school funds to private organizations that are not subject to local voter control.”

The Washington Education Association was joined by the League of Women Voters of Washington, El Centro de la Raza, the Washington Association of School Administrators and several individual plaintiffs.

“The Supreme Court has affirmed what we’ve said all along — charter schools steal money from our existing classrooms, and voters have no say in how these charter schools spend taxpayer funding,” said Kim Mead, president of the Washington Education Association.

More links, including to the opinion, at this How Appealing post.

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to Courts in general

Ind. Courts - Two former Indiana lawyers in trouble

"Former attorney surrenders, faces theft charges," is the headline of this Sept. 2nd story from the Richmond Palladium-Item. Mike Emery's story begins:

A former Richmond attorney was in jail Wednesday morning on 10 felony counts of theft.

E. Thomas Kemp, 48, of the 300 block of South Water Street in Greens Fork, Ind., turned himself in at the Wayne County Jail, Sheriff Jeff Cappa said, and was booked in at about 3:30 p.m. Tuesday.

Kemp remained in the jail Wednesday morning without bond, according to jail records.

A warrant for Kemp’s arrest was issued Friday after the Wayne County Prosecutor’s Office filed 10 Class D felony charges against him on Aug. 14. Kemp is accused in one count of mishandling money in a trust fund and in the other nine counts of accepting money from clients without providing them with any legal services.

Some earlier ILB posts re Mr. Kemp.

"Man accused of posing as attorney" is the heading of this September 1st story by Caitlin VanOverberghe in the Greenfield Daily Reporter that begins:

An Indianapolis man posed as a lawyer and charged at least one Hancock County resident for legal advice, despite being disbarred more than 25 years ago for taking clients’ money without acting on their cases, investigators said.

Timothy P. O’Connor turned himself in to police Monday morning. He is charged with practicing law without a legal degree, a Class B misdemeanor. Now, investigators with the Hancock County Prosecutor’s Office say they are on the lookout for others who received legal service from a man not qualified to give it.

Prosecutors fielded a complaint in July from a Greenfield man who said he became suspicious after hiring O’Connor as his attorney, according to Thomas Zentz, an investigator with the prosecutor’s office.

O’Connor was hired to appear in court with the man as he petitioned the state to expunge his criminal record. O’Connor met with the man several times and charged him $1,250 for his legal help, court documents state.

When the time came to appear in court, however, all the paperwork O’Connor filed on the man’s behalf was marked “pro se,” meaning the man would be representing himself in the case without official attorney assistance, court documents state.

That was the first time the man had any indication O’Connor might not be a practicing attorney, Zentz said. O’Connor sat in the spectator area of the courtroom rather than at the defense table with his client, though he answered the man’s questions and offered legal instruction. [ILB emphasis]

Posted by Marcia Oddi on Tuesday, September 08, 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 9/8/15):

Tuesday, September 8

Next week's oral arguments before the Supreme Court (week of 9/14/15):

Thursday, September 17

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/8/15):

Next week's oral arguments before the Court of Appeals (week of 9/14/15):

Monday, September 14

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

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


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

Posted by Marcia Oddi on Tuesday, September 08, 2015
Posted to Upcoming Oral Arguments

Friday, September 04, 2015

About this Blog - The ILB is on vacation through Labor Day

The ILB is taking a vacation through Labor Day.* This is the first break of more than four days in its over 12-year history. On Sept. 8th the posts will begin again and will then continue through the remainder of September -- the rest of this 3rd Quarter. The ILB's future thereafter remains uncertain.
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*I will, however, continue next week to post the lists of any new opinions so that, in case the ILB does find the major long-term contributors it needs to keep it from going permanently dark the end of September, there is not a week of missing case summaries.

Posted by Marcia Oddi on Friday, September 04, 2015
Posted to About the Indiana Law Blog

Ind. Decisions - 7th Circuit decides combined Indiana case today, re ACA accomodations for religious organizations

In a 74-page, combined, 2-1 opinion in Grace Schools v. Sylvia Mathews Burwell and Diocese of Fort Wayne-South Bend v. Sylvia Mathews Burwell (ND Ind., DeGuilio), Judge Rovner writes:

The district court entered a preliminary injunction in favor of the plaintiffs, a number of religious, not-for-profit organizations, preventing the defendants from applying or enforcing the so-called “contraceptive mandate” of the Patient Protection and Affordable Care Act of 2010 (“ACA”) to the plaintiffs. See 42 U.S.C. § 300gg-13(a)(4); Pub. L. No. 111-148, 124 Stat. 119 (2010). The plaintiffs contend that the ACA’s accommodations for religious organizations impose a substantial burden on their free exercise of religion, and that the ACA and accompanying regulations are not the least restrictive means of furthering a compelling government interest, in violation of the plaintiffs’ rights under the Religious Freedom Restoration Act of 1993 (“RFRA”). See 42 U.S.C. § 2000bb et seq. The defendants, several agencies of the United States government, appeal. We conclude that ACA does not impose a substantial burden on the plaintiffs’ free exercise rights and so we reverse and remand. However, we will maintain the injunction for a period of sixty days in order to allow the district court adequate time to address additional arguments made by the parties but not addressed prior to this appeal. * * *

[A dissent by Judge Manion begins on p. 39]

Posted by Marcia Oddi on Friday, September 04, 2015
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Cleveland Range, LLC v. Lincoln Fort Wayne Associates, LLC, a 10-page opinion, Judge May writes:

Cleveland Range, LLC (“Cleveland”) appeals an order permitting Lincoln Fort Wayne Associates, LLC (“Lincoln”) to depose three of Cleveland’s witnesses even though Lincoln has not yet initiated litigation. As that order was not an abuse of the trial court’s discretion, we affirm.[1] * * *

The grant of Lincoln’s petition was within the trial court’s discretion, as there was evidence supporting Lincoln’s expectations it might be a party to a suit, Lincoln seeks to preserve specifically identified facts probative to a key issue, and declining to permit the depositions could result in a failure or delay of justice based on the age of the witnesses. We accordingly affirm.
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[1] Lincoln argues we lack jurisdiction over Cleveland’s appeal because the trial court’s order was interlocutory. It was not, and we have jurisdiction.

No Indiana decision appears to have addressed when we have jurisdiction over such matters, but we have noted that the rule closely parallels the federal rule of procedure governing the perpetuation of testimony in advance of litigation. * * *

NFP civil decisions today (1):

In Re the Adoption of: N.S. and I.S., Children, M.S. v. B.K. (mem. dec.)

NFP criminal decisions today (3):

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

Jonathan Paul Graham v. State of Indiana (mem. dec.)

Nathan McFarland v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, September 04, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court posts one, filed Sept. 3rd

In Pulte Homes of Indiana, LLC v. Hendricks County Assessor, a 10-page opinion, Judge Wentworth writes:

This case concerns whether the Indiana Board of Tax dismissed Pulte Homes of Indiana, LLC’s1 twenty Petitions For Correction Of An Error (Forms 133) for the 2003, 2004, and 2005 tax years (the years at issue) because each alleged errors not correctable under that appeal procedure. The Court finds that the Indiana Board did not err.

Posted by Marcia Oddi on Friday, September 04, 2015
Posted to Ind. Tax Ct. Decisions

Thursday, September 03, 2015

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

For publication opinions today (1):

Memory Gardens Management Corporation, Inc. v. Liberty Equity Partners, LLC, and Old Bridge Funeral Home, LLC

NFP civil decisions today (1):

Vinod C. Gupta v. Green Tree Servicing LLC, f/k/a Conseco Finance Servicing Corp. (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Thursday, September 03, 2015
Posted to Ind. App.Ct. Decisions

Wednesday, September 02, 2015

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

For publication opinions today (2):

In Re the Adoption of E.A., M.A. v. D.B.

In the Matter of D.B. (Minor Child), a Child in Need of Services: D.B.(Father) v. The Ind. Dept. of Child Services, and Child Advocates, Inc.

NFP civil decisions today (0):

NFP criminal decisions today (1):

Ryan Nieves v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, September 02, 2015
Posted to Ind. App.Ct. Decisions

Tuesday, September 01, 2015

Ind. Decisions - 7th Circuit decides one Indiana case Aug. 31st

In Neal Secrease, Jr. v. Western & Southern Life Insurance (SD Ind., Magnus-Stinson), an 8-page, opinion, Judge Hamilton writes:

This appeal is a reminder of a district judge’s inherent power to impose the severe sanction of dismissal (on a plaintiff) or default (on a defendant) when a party deliberately tries to defraud the court. We affirm the dismissal with prejudice here. * * *

After considering the evidence, the district judge dismissed Secrease’s suit with prejudice as a sanction for seeking relief based on falsified evidence. By sandwiching pages from a different contract between the first and last pages of his own contract, the judge explained, Secrease had tried to deceive the court into thinking the document was a single contract that required arbitration. The judge found implausible Secrease’s contention that he had retained the first and last pages but not the inside pages of his own contract.

The judge also did not believe Secrease’s claims that he had combined the pages into one exhibit accidentally or that he had called the court to try to fix his error. The details of his story were inconsistent, and he could not substantiate that he had called the court.

The judge recognized that dismissal with prejudice would be a harsh sanction. She determined that the sanction was appropriate because Secrease had tried, willfully and in bad faith, to deceive the court and then, when questioned about it, gave dishonest and implausible explanations.

Posted by Marcia Oddi on Tuesday, September 01, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Gary L. Dilk, Indianapolis, suspended for 6 months, without automatic reinstatement, now reinstated

Proving that a suspension from the practice of law without automatic reinstatement need not always be "the kiss of death" for an attorney (see this Feb. 14, 2014 ILB post), the Supreme Court on Aug. 28th issued an order reinstating Gary L. Dilk to the practice of law. Dilk had been suspended for 6-months without automatic reinstatement on Feb. 10, 2014.

Posted by Marcia Oddi on Tuesday, September 01, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues two opinions today, Sept. 1st

In David Anderson, Joe Wray, John Kennard, Commissioners, and Board of Trustees, Brown County Fire Protection District v. Susanne Gaudin, Janet Kramer, and Ruth Reichmann, an 11-page, 4-1 opinion, Justice Dickson concludes:

We conclude that, under the Home Rule Act, boards of county commissioners are authorized to amend a fire protection district, even if such amendment dissolves the district. While this holding is inconsistent with the reinstated opinion of the Court of Appeals in Gaudin I, this Court is now able to review the issue with full participation, and we now disapprove of Gaudin I. The commissioners do not ask this Court to revisit Gaudin I; however, and the matter on appeal is not a dissolution of the District but a partial amendment of the ordinance that created it. We thus need not decide whether the Law of the Case Doctrine prohibits retroactive operation of our holding today. We conclude that under the Home Rule Act, the Board of Commissioners is not limited in its power to unilaterally amend the ordinance that previously established the District, notwithstanding the landowners' claim that such amendment constitutes a de facto dissolution.

Conclusion. The amended ordinance 09-04-07-01 is a valid exercise of the authority of the Brown County Board of Commissioners. We reverse the trial court's order granting summary judgment for the plaintiff landowners and remand to the trial court for further proceedings.

Rush, C.J., and Massa, J., concur.
David, J., concurs in result with separate opinion.
Rucker, J., dissents with separate opinion.

[David, Justice, concurring in result. At p. 8] However, I write separately because I do not believe that the Fire District Act’s express grant of authority to a county legislative body in Indiana Code § 36-8-11-4 to establish a fire protection district1 necessarily includes the power to amend the fire district established. * * *

[RUCKER, J., dissenting. At p. 10] I respectfully dissent. In Gaudin v. Austin, 921 N.E.2d 895 (Ind. Ct. App. 2010) (“Gaudin I”) freeholders challenged the Commissioners’ attempt to dissolve the fire protection district and the Court of Appeals reversed the trial court’s grant of summary judgment in the Commissioners’ favor. In so doing the court held that although the Fire District Act explicitly provides in two discrete sections for the establishment of a district either by ordinance or by freeholder petitions, the Act provides only one method of dissolution, namely: the freeholder-petition process. See Ind. Code § 36-8-11-24 (“(a) Proceedings to dissolve a fire protection district may be instituted by the filing of a petition with the county legislative body that formed the district . . . . (b) The petition must be signed: (1) by at least twenty percent (20%), with a minimum of five hundred (500), of the freeholders owning land within the district; or (2) by a majority of those freeholders owning land within the district; whichever is less.”). Therefore the Commissioners lacked authority to unilaterally dissolve the district. See Gaudin I, 921 N.E.2d at 897-900.

With one Justice not participating, this Court was evenly divided on whether the Court of Appeals correctly interpreted and applied the Fire District Act. And thus the opinion stood as the controlling authority on the issues presented. See Gaudin v. Austin, 936 N.E.2d 1241 (Ind. 2010) (Order Reinstating Decision of the Court of Appeals). Importantly, in the nearly decade and a half since Gaudin I was decided, the Legislature has not amended the Act to express any disagreement with the interpretation advanced by the Court of Appeals. “[A] judicial interpretation of a statute, particularly by the Indiana Supreme Court, accompanied by substantial legislative inaction for a considerable time, may be understood to signify the General Assembly’s acquiescence and agreement with the judicial interpretation.” DePuy, Inc. v. Farmer, 847 N.E.2d 160, 168 (Ind. 2006) (quotation and citations omitted). Although Gaudin I does not reflect an interpretation of the Act by this Court, still legislative silence on this issue is instructive. And this is especially so considering this Court was evenly divided.

In any event, noting and agreeing with the trial court’s characterization that the Commissioners “gutted” the Ordinance, the Court of Appeals here reached “the inescapable conclusion . . . that the ‘amendment’ the Commissioners made to the Ordinance was so extreme and far-reaching as to amount to a de facto dissolution of the Ordinance, in contravention of both section 36-8-11-24 and Gaudin [I].” Anderson v. Gaudin, 24 N.E.3d 479, 485 (Ind. Ct. App. 2015). I agree and would affirm the judgment of the trial court.

For background, see this ILB post from Nov. 17, 2010. In the 2010 ruling, CJ Shepard recused and the others split 2-2, meaning the COA opinion stood (until now).

In Gary Allen Gibson v. State of Indiana, a 2-page, per curiam opinion, the Court concludes:

We agree with Gibson that there was insufficient evidence to support his conviction for criminal confinement under section 3(a)(2). Accordingly, we grant transfer and reverse Gibson’s criminal confinement conviction and concurrent two and one-half year sentence. In all other respects we summarily affirm the Court of Appeals’ decision. See Ind. Appellate Rule 58(A)(2).

Posted by Marcia Oddi on Tuesday, September 01, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Tax Court posts one today, Sept. 1st

In Paul J. Elmer and Carol A. N. Elmer v. Indiana Department of Revenue, a 19-page opinion, Sr. Judge Fisher writes:

Paul J. Elmer and Carol A. N. Elmer have appealed the Indiana Department of State Revenue’s assessments of Indiana adjusted gross income tax (AGIT) for the 2005, 2006, 2007, and 2008 tax years (the years at issue). The matter is currently before the Court on the Department’s Motion for Summary Judgment. While the Department’s Motion presents three issues, the Court consolidates and restates them as: whether the Department, in determining the Elmers’ Indiana AGIT liability, erred in disallowing their business expense and uncollectible debt deductions. * * *

In this case, the parties’ designated evidence invites the Court to resolve factual disputes and conflicting inferences, assess the credibility of witnesses, and determine where the preponderance of the parties’ designated evidence lies. This, however, is improper because the summary judgment procedure is not a substitute for trial, a means for resolving factual disputes or conflicting inferences that arise from undisputed facts, or a tool for deciding where the preponderance of the evidence lies before the evidence has been fully presented. See Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 909 (Ind. 2001); Egnatz v. Med. Protective Co., 581 N.E.2d 438, 439-40 (Ind. Ct. App. 1991). The Court, finding that there are genuine issues of material fact as to whether the Department, in determining the Elmers’ Indiana AGIT liability, erred in disallowing the Elmers’ business expense and uncollectible debt deductions for the years at issue, DENIES the Department’s Motion. The Court will order the parties to file a joint status report under separate cover.

Posted by Marcia Oddi on Tuesday, September 01, 2015
Posted to Ind. Tax Ct. Decisions