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Friday, October 30, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (2):

In Tina Carmer v. Scott Carmer, a 20-page ruling with a separate concurring opinion, Judge Mathias concludes:

The trial court did not err when it interpreted the parties’ prenuptial agreement. The trial court also did not err when it subtracted certain sums from Tina’s $70,000 payment under the terms of the agreement after the court awarded her non-marital assets at her request and due to her dissipation of Scott’s structured settlement payments. However, the trial court erred when it failed to consider Scott’s structured settlement payments in its calculation of Scott’s gross income for the purposes of child support. We therefore remand this case to the trial court for proceedings consistent with this opinion. * * *

May, J., concurs.
Robb, J., concurs in result in part with opinion. [which begins, at p. 17] I write separately to address only the first issue: whether the trial court abused its discretion when it failed to include Scott’s monthly structured settlement payments as income in the calculation of child support. * * *

Because the trial court’s decision was based on an improper legal standard, and subject to the caveat that the trial court should have the leeway on remand to make an “innovative” determination regarding the inclusion or exclusion in whole or in part of Scott’s structured settlement payments, I concur in result as to the child support issue. As to the remainder of the opinion, I concur in full.

In Brooks Berg v. State of Indiana , a 9-page opinion, Judge Najam writes:
Brooks Berg appeals his convictions for operating while intoxicated, as a Class D felony, and reckless driving, as a Class B misdemeanor. Berg raises a single issue for our review, namely, whether the State violated his double jeopardy rights under Richardson v. State, 717 N.E.2d 32 (Ind. 1999), when it used the evidence it had presented to the jury to support the reckless-driving charge to demonstrate the endangerment element of the operating-while-intoxicated charge. The State concedes on appeal that this use of the evidence resulted in a violation of Berg’s rights under the Richardson actual evidence test.

We reject Berg’s argument and the State’s concession, and we hold that the trial court did not violate Berg’s double jeopardy rights when it entered its judgment of conviction against him for both operating while intoxicated, as a Class D felony, and reckless driving, as a Class B misdemeanor. Thus, we affirm Berg’s convictions.

NFP civil decisions today (4):

Aundreia Dant v. Anthony J. Dant (mem. dec.)

S.W. v. A.W. (mem. dec.)

Rose Keen v. Terminix International Company Limited Partnership, Servicemaster Residential Commercial Services Limited Partnership, and Timothy Slocum (mem. dec.)

In Re J.H. (Minor Child), Child in Need of Services, and E.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (7):

Willie J. Herman, Jr. v. State of Indiana (mem. dec.)

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

Willie J. Herman, Jr. v. State of Indiana (mem. dec.)

N.W. v. State of Indiana (mem. dec.)

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

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

Aloric Carson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, October 30, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Indiana's Indian tribes, and the national picture

Earlier this week the ILB highlighted Andrea Neal's story of the "Miami Nation of Indiana Trying to Win Back Recognition as a Tribe."

An interesting column in the NWI Times from June 11th, by John Hudson, began:

Most Native Americans were relocated west of the Mississippi River by 1840. However, the Pokagon Band of Potawatomi avoided removal.

In Indiana, treaties between the Native Americans and the U.S. government began with the Treaty of Greenville in 1795 and culminated with the Treaty of Chicago in 1833. The Indian Removal Act of 1830 authorized the U.S. government to negotiate treaties relocating all Native Americans west of the Mississippi.

An ILB post from May 14th reported on the "Pokagon Band of Potawatomi Indians who are seeking to build a casino in South Bend." Included is this quote from the AP:
SOUTH BEND — The chairman for the Pokagon Band of Potawatomi Indians who are seeking to build a casino in South Bend said Wednesday a new law approved by the General Assembly prevents Gov. Mike Pence from negotiating in good faith with the tribe on a compact, voiding the need for such an agreement.

Tribal Chairman John Warren said the law specifying the process for the state to enter into a compact violates the Indian Gaming Regulatory Act because it includes stipulations on what the compact must include.

Today Politico has a very long and informative story by David Rogers headed "The new Indian wars in Washington: How the Supreme Court and a divided Congress have stymied efforts by poor tribes to recover long-lost lands." It begins:
Custer’s long gone, but a hostile Supreme Court and divided Congress are still playing havoc these days with Indian tribes trying to get some of their lands back.

“With all due respect, there’s not anybody on the court who knows very much about Indians or Indian law,” says Rep. Tom Cole, an Oklahoma Republican who hails from the Chickasaw tribe. It’s little better in the House and Senate where the growth in Indian gaming has so poisoned the well that getting any relief for the tribes is harder and harder.

The immediate issue is how Congress should respond to a 2009 ruling in which the justices narrowed the mandate of the Indian Reorganization Act that has guided federal policy since the New Deal. In the process, the court effectively created two new classes of tribes under the 1934 law and cast doubt on decades of land conveyances approved by the Interior Department.

“They literally overturned what both parties and successive secretaries of the Interior thought was the law for 80 years,” says Cole.

But getting a simple legislative fix is anything but simple in Congress, as major stakeholders have seized the chance to demand larger changes — not just in IRA but also the direction of Indian gaming.

Indeed, the whole Indian lands debate in Washington has turned 180 degrees. The fight is less about the justice of returning historic territory and more simply cash — whether measured in the revenues gained from casinos or property taxes lost for local counties. From Oklahoma to California, rich tribes play the political system to protect their share of the gaming markets. Lost is any perspective on the hundreds of poorer tribes just trying to establish some economic foothold and homeland for themselves.

Posted by Marcia Oddi on Friday, October 30, 2015
Posted to Indiana Government

Ind. Gov't. - "Not on Her Watch: One Woman’s Fight to Change Indiana’s Time Zone"

The intro to a long, long article in Indianapolis Monthly, by Evan West:

It has been 10 years since Indiana adopted Eastern Daylight Time, an issue Hoosiers debated for decades. But as we prepare to ”fall back” this month, a former schoolteacher in Carmel leads a coalition of activists who think we ended up in the wrong time zone—and that children are suffering as a result.
More:
The crux of the Central Time Coalition’s position is this: Because Indiana is the second-westernmost state in the Eastern time zone (after Michigan’s Upper Penninsula), the sun comes up later here than almost anywhere else in the country. As a consequence, many Hoosiers, children in particular, start their day before daylight, which, the coalition argues, adversely impacts public health and safety.

Posted by Marcia Oddi on Friday, October 30, 2015
Posted to Indiana Government

Ind. Gov't. - "Family, ACLU sue DCS over adoption subsidies"

Marisa Kwiatkowski reports today in the Indianapolis Star on the lawsuit filed yesterday in federal court by the ACLU of Indiana, Julie Arthur and David Arthur, et al., v. Director, Central Eligibility Unit, Indiana Department of Child Services.

From the Star story:

DCS removed the boys from their mother's care last year, because she was addicted to drugs and failed to take Jeremiah to some of his appointments, Julie Arthur said. The mother's parental rights were terminated in February.

As licensed foster parents, the Arthurs receive $145.72 per day for all three children to help offset the costs of the boys' extensive needs, which they say is workable.

But DCS' "final offer" for adoption assistance payments for the three boys would reduce that amount to $52 per day once the adoption is final. The Arthurs said that amount that would make it "impossible" for them to "adequately and appropriately care for the children," according to the lawsuit. They asked DCS to provide adoption assistance payments equal to the amount they receive as foster parents, but the agency refused. * * *

Julie Arthur said she had to quit her job to be able to shuttle the boys to and from their therapy and medical appointments. Two-year-old Jensen also requires constant supervision and, because of his behaviors, is "not appropriate" for day care, court records state.

The lawsuit asks a judge to force DCS to negotiate adoption assistance payments for the Arthurs that consider the children's and family's needs.

Posted by Marcia Oddi on Friday, October 30, 2015
Posted to Indiana Government

Thursday, October 29, 2015

Ind. Law - "Lawmakers endorse idea of denying rapists parental rights"

Dan Carden of the NWI Times reported Oct. 27th:

INDIANAPOLIS | A proposal to deny rapists parental rights if their crime results in a pregnancy was unanimously endorsed Tuesday by the General Assembly's Interim Study Committee on Corrections and the Criminal Code.

However, the panel cautioned that lingering questions on a variety of related issues, including standard of proof, child support, deadlines and adoption, must still be addressed by the sponsors — state Rep. Hal Slager, R-Schererville, and state Sen. Ed Charbonneau, R-Valparaiso — if the concept is to become law.

"I can't recall a bill where it seems like the policy objective is so clear and kind of a no-brainer, but then the minute you scratch the surface all these complications come up," said state Rep. Matt Pierce, D-Bloomington.

Slager and Charbonneau said, regardless of complications, their goal continues to be protecting rape victims from attackers who use the threat of asserting their parental rights to compel victims to refuse to testify or accept plea bargains for shorter prison sentences.

The study committee spent more than an hour struggling to modify Slager's House Bill 1261, which failed to advance out of the House Judiciary Committee during the 2015 session, to address some of those complications in advance of the Legislature's 2016 term that begins Jan. 5.

Lawmakers agreed to maintain "clear and convincing evidence" of rape as the standard for denying parental rights, even if there is not a "beyond a reasonable doubt" criminal rape conviction, so long as the decision is in the best interest of the child.

At the same time, the panel decided that a rape conviction should automatically stand as evidence that denying parental rights is in the best interests of the child, unless the rapist is able to prove otherwise.

They also insisted a rapist denied parental rights still pay child support, at least until the child is adopted by a second parent. Questions about the inheritance rights of a child following the intestate death of a rapist-parent were put off for another day.

Under the plan, a rape victim would have six months following the birth of a child conceived by rape to request a civil judge find sufficient evidence of the crime and terminate the rapist's parental rights.

A rape victim younger than 18 would have two years to make the request after turning 18, though a victim's parent or guardian could make the request sooner.

Related is this long Oct. 14th story, also by Times reporter Carden, that began:
INDIANAPOLIS | Two Northwest Indiana lawmakers are renewing efforts to terminate a rapist's parental rights if his or her crime results in a pregnancy.

For the past five years, state Sen. Ed Charbonneau, R-Valparaiso, and state Rep. Hal Slager, R-Schererville, repeatedly have hit roadblocks trying to advance their plan easing the path for rape victims to deny their attackers custody, parenting time or visitation with children conceived in rape.

But the Sept. 29 resignation of House Majority Leader Jud McMillin, R-Brookville, following the reported release of a sexually-explicit cell phone video, may finally open the door for Indiana to join the 10 other states with similar laws protecting rape victims on their books.

McMillin was among a handful of legislators who challenged the fairness of denying an accused rapist parental rights through a civil court proceeding without first requiring a criminal conviction.

He also helped kill a 2012 proposal by insisting on an exemption for rapes committed in marriages. [ILB emphasis]

The Oct. 14th story has a sidebar with links to earlier stories, as well as the failed 2012 and 2015 bills.

The ILB has several posts about this issue in 2012:

Posted by Marcia Oddi on Thursday, October 29, 2015
Posted to Indiana Law

Law - "Harvard Law School Launches 'Free the Law' Project"

This could be great. A news release from Harvard Law (with video) begins:

Harvard Law School has announced that, with the support of Ravel Law, a legal research and analytics platform, it is digitizing its entire collection of U.S. case law, one of the largest collections of legal materials in the world, and that it will make the collection available online, for free, to anyone with an Internet connection.

The “Free the Law” initiative will provide open, wide-ranging access to American case law for the first time in United States history. “Driving this effort is a shared belief that the law should be free and open to all,” said Harvard Law School Dean Martha Minow. “Using technology to create broad access to legal information will help create a more transparent and more just legal system.” * * *

In the Harvard Library Innovation Lab (a unit within the Harvard Law School Library), bound volumes are being scanned by high-speed imaging equipment capable of scanning 500,000 pages per week, and the text of each decision is then extracted into machine-readable files made available to Ravel Law and to Harvard – and ultimately the public at large.

Case law for California jurisdictions will be online in November. The full collection of nationwide case law is expected to be digitized and searchable for free by mid-2017, and will be available through www.ravellaw.com. Harvard and Ravel have agreed to release the entire database for bulk use by anyone within eight years. * * *

Said Jim Sandman, president of the Legal Services Corporation, the largest funder of civil legal aid for low-income Americans: “This is a great development. Making legal materials and analytical tools available for free will be of great value to non-profit legal aid lawyers in providing essential legal services to low-income people.”

Ralph Baxter, an advisor to Ravel and also to the Harvard Law School Center on the Legal Profession said: “Technology is changing the legal landscape, and the law firm of the future will need to be more efficient, more agile, and more opportunistic in finding new ways to deliver legal services. The collaboration between Harvard Law School and Ravel Law offers a new and exciting resource that lawyers can deploy to improve how they practice law.”

A companion article in the NY Times, by Erik Eckholn, is titled "Harvard Law Library Readies Trove of Decisions for Digital Age." Some quotes:
Shelves of law books are an august symbol of legal practice, and no place, save the Library of Congress, can match the collection at Harvard’s Law School Library. Its trove includes nearly every state, federal, territorial and tribal judicial decision since colonial times — a priceless potential resource for everyone from legal scholars to defense lawyers trying to challenge a criminal conviction.

Now, in a digital-age sacrifice intended to serve grand intentions, the Harvard librarians are slicing off the spines of all but the rarest volumes and feeding some 40 million pages through a high-speed scanner. They are taking this once unthinkable step to create a complete, searchable database of American case law that will be offered free on the Internet, allowing instant retrieval of vital records that usually must be paid for.

For many years now, bookcases of legal tomes in law offices have been mostly for show. Rather than spending days poring over book indexes and footnoted citations, as law clerks and associates did in earlier times, researchers find what they need on the Internet in minutes. But that nearly always comes at a price.

Though the primary documents are formally in the public domain, many are not put online in a convenient format, if at all. Many states even rely on commercial services to post court briefs and decisions, which then provide them to paying subscribers.

Legal groups spend anywhere from thousands of dollars a year, for a small office, to millions, for a giant firm, using commercial services like Westlaw and LexisNexis to find cases and trace doctrinal strands.

While Harvard’s “Free the Law” project cannot put the lone defense lawyer or citizen on an equal footing with a deep-pocketed law firm, legal experts say, it can at least guarantee a floor of essential information. The project will also offer some sophisticated techniques for visualizing relations among cases and searching for themes.

Complete state results will become publicly available this fall for California and New York, and the entire library will be online in 2017, said Daniel Lewis, chief executive and co-founder of Ravel Law, a commercial start-up in California that has teamed up with Harvard Law for the project. The cases will be available at www.ravellaw.com.

Read on, there is much more interesting info.

Posted by Marcia Oddi on Thursday, October 29, 2015
Posted to General Law Related

Ind. Law - Professor Schumm Honored for Appellate Institute Work

IU McKinney Law announces:

Professor Joel Schumm, ’98, will be honored for his work with the Indiana Appellate Institute, created by the IndyBar Appellate Practice Section. Professor Schumm will be honored with the Indianapolis Bar Association’s President’s Medal for Service to the Profession.

“It’s wonderful to see Professor Schumm receive recognition from his peers for the excellent work he does every day,” said IU McKinney Dean Andrew R. Klein. “Not only is Joel a tremendous appellate advocate in his own right, but he is also a superb educator who is dedicated to our students and the best in legal education.”

The institute was created in 2010 as a resource for lawyers throughout the state who have oral arguments scheduled before the Indiana Supreme Court or the Indiana Court of Appeals. Modeled after the Supreme Court Institute at Georgetown Law School, the institute offers “moot” or practice argument sessions before panels of seasoned appellate advocates and others who have reviewed the briefs and will ask the sorts of questions that the practitioner can expect during the argument.

“Congratulations to Joel Schumm for his well-deserved kudos,” said Geoffrey Slaughter, chair of the IndyBar’s Appellate Practice Section. “The Institute was your brainchild. It succeeds thanks to your ongoing efforts. It’s been a tremendous resource for local lawyers of all experience levels. And it’s unquestionably improved the caliber of oral advocacy in our state appellate courts.”

Professor Schumm will receive the award from IndyBar president John Trimble, ‘81, at a ceremony on November 18.

Professor Schumm is a magna cum laude graduate of the law school. In addition to his work with the Appellate Clinic, he is director of the Judicial Externship Program, and director of Experiential Learning at IU McKinney.

Posted by Marcia Oddi on Thursday, October 29, 2015
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (2):

In Citizens Action Coalition of Indiana, Inc., Sierra Club, Inc., and Valley Watch, Inc. v. Southern Indiana Gas and Electric Co. d/b/a Vectren Energy Delivery of Indiana, Inc., Ind. Utility Regulatory , a 34-page opinion, Judge Bradford writes:

On January 17, 2014, Appellee-Petitioner Southern Indiana Gas and Electric Company d/b/a Vectren Energy Delivery of Indiana (“Vectren”), a public utility company which provides electricity to southern Indiana residents, filed a petition with Appellee the Indiana Utility Regulatory Commission (“the Commission” or “IURC”) for approval of projects to modify their current coal-powered generating stations so as to meet new EPA standards. The petition also requested financial incentives and reimbursement from ratepayers for costs associated with the projects. Appellants-Intervenors Citizens Action Coalition of Indiana, Inc., (“CAC”) Sierra Club, Inc., and Valley Watch, Inc. (collectively “Appellants”) intervened in the action and, in addition to the Indiana Office of Utility Consumer Counselor1 (“OUCC”), opposed Vectren’s petition. Appellants argued that retiring some or all of Vectren’s current coal-powered generators and replacing them with new natural gas-powered generators was a more cost-effective plan than Vectren’s proposal to install emission controls on its current generators. Ultimately, the OUCC ceased its opposition to Vectren’s proposal prior to the Commission’s decision.

The Commission found that Vectren’s proposal was reasonable and necessary, approved the proposal, and granted Vectren’s request for reimbursement of project costs. On appeal, Appellants argue that the Commission failed to make necessary findings on (1) facts material to its determination of the issues and (2) statutory factors required to be addressed prior to authorizing the use of clean coal technology. In response, Vectren claims that Appellants’ appeal is moot and that the Commission made all necessary findings. We find that the Commission erred in failing to make findings on the factors listed in Indiana Code section 8-1-8.7-3 and, accordingly, we remand with instructions. * * *

We find that (1) the Appellants’ claims are not moot, (2) the Commission did not err in failing to consider the necessity of Culley unit 2 or the reasonableness of Vectren’s delay in filing its petition, and (3) regarding the soda ash and hydrated lime injection systems, the Commission erred by failing to make findings on the statutory factors listed in Indiana Code section 8-1-8.7-3 and by failing to grant or deny Vectren’s request for a CPCN thereunder. Accordingly, we remand the case to the Commission with instructions that the Commission make the required findings under Chapter 8.7.

In State Farm Mutual Automobile Insurance Company v. Carol Jakubowicz, Individually, and as Parent and Legal Guardian of Jacob Jakubowicz and Joseph Jakubowicz, Minors, a 12-page opinion, Judge Riley writes:
Appellant-Defendant, State Farm Mutual Automobile Insurance Company (State Farm), appeals the trial court’s denial of its motion for summary judgment in favor of Appellees-Plaintiffs, Carol Jakubowicz, Individually, and as Parent and Legal Guardian of Jacob and Joseph Jakubowicz, Minors (Collectively, Jakubowicz). We reverse and remand. * * *

State Farm raises one issue on appeal, which we restate as: Whether the trial court properly denied summary judgment when it determined that Jakubowicz’ underinsured motorist vehicle claim against State Farm is not barred even though it was filed outside the policy’s three-year limitations period for claims arising under the underinsured motorist coverage. * * *

Here, the collision occurred on August 2, 2007 and thus, pursuant to the provisions of the policy, Jakubowicz had to present State Farm with an underinsured motor vehicle claim and file a lawsuit within three years, i.e., by August 2, 2010. Jakubowicz filed her Amended Complaint on July 27, 2011, almost a full year outside the contractual limitation period. Even if we were to construe Jakubowicz’ notification to State Farm on December 10, 2009 that a claim was “likely” to be instituted, Jakubowicz would still not be in compliance with the provisions of the policy as these require both the notification of the claim and the lawsuit to be filed within the three-year contractual limitation period. Therefore, we reverse the trial court’s denial of State Farm’s motion for summary judgment and we remand with instruction to grant summary judgment to State Farm.

NFP civil decisions today (0):

NFP criminal decisions today (7):

D.S. v. State of Indiana (mem. dec.)

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

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

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

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

Christina L. Reber v. State of Indiana (mem. dec.)

Jennifer Gibson Pearson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, October 29, 2015
Posted to Ind. App.Ct. Decisions

Wednesday, October 28, 2015

Courts - "'Business Courts' Take on Complex Corporate Conflicts" What about Indiana? [Updated]

That quoted part is the heading to a lengthy story by Jenni Bergal at Stateline, a Pew publication. Some quotes:

Much like other specialty courts that only deal with drugs or mental health, these courts typically hear cases related to business disputes, many of which are complex cases.

Supporters credit business courts for handling time-consuming corporate lawsuits that can otherwise languish on the docket for years and clog the courts.

“These are complicated issues, and businesses need decisions made in as short a time as possible, with an end date in sight,” [Miami-Dade Circuit Judge John Thornton] said. “It’s good for the business community and the judicial system.”

Advocates say the courts’ quick resolutions can also make a state more attractive to companies deciding where to locate.

But critics say the courts can create an unfair, two-tiered system—one for businesses and one for everyone else—and some consider them an affront to the judges who ordinarily would hear such cases.

It amounts to “special courts for special people,” said Bryan Blevins Jr., president of the Texas Trial Lawyers Association, which fought a legislative proposal this year to create a business court in the state. * * *

Specialized courts that handle business disputes have been established in at least 27 states, from Arizona to Maine, according to the American Bar Association’s business courts subcommittee. A 28th, Indiana, will join the list in 2016, when its court is to begin hearing cases.

What about Indiana? Are we really that far along?

The ILB had a post June 2, 2015 headed " Supreme Court creates commercial courts working group: specialized trial courts to handle complex business litigation." Here is a second post from June 9th, that concludes:

Chief Justice Rush says she doesn’t think it’s likely each Indiana county will have its own commercial court. Instead, she envisions a regional system where several neighboring counties share jurisdiction over the business cases in their area.
Here is a copy of the June 2, 2015 order establishing the Indiana commercial court working group, and a list of its members. It concludes:
By October 1, 2015, [the working group is to] submit an initial report to the Supreme Court on its activities and a recommendation to establish commercial court pilot projects, if appropriate.
There has been no further word from the Supreme Court on this group.

[Updated at 4:15]
Marion County Superior Court Judge Tim Oakes writes, in response to an ILB question, to say:
I would point out, in response to the comments of Mr. Blevins from Texas, a couple of things as it relates to Indiana:
  1. As currently envisioned, the business court would only assume jurisdiction if BOTH parties agree. There are some subtleties and nuance to that, but generally, that is the envisioned rule.
  2. In reality, that is a ZERO change from current law. Why? Because today, under the relatively new Indiana Trial Rules, two lawyers on either side of a business dispute (or any other civil matter) in Steuben Co (or any other) can have their case heard, by agreement, in Vanderburgh (or any other) county.
The real benefit of the proposed business court is the extra judicial education for those judges handling those dockets and the promised law clerks. Those two things alone should bring greater consistency across the state to complex business litigation in Indiana.

Posted by Marcia Oddi on Wednesday, October 28, 2015
Posted to Courts in general | Ind. Commercial Courts | Indiana Courts

Environment - "Coal not coming back, Appalachian Power president says"

David Gutman reports in the Charleston W Va Gazette-Mail in an important story that begins:

ROANOKE — Coal consumption is not likely to increase, regardless of whether new federal regulations on power plants go into effect, and, from coal’s perspective, the national debate on coal and climate change has largely been lost, the president of West Virginia’s largest electric utility told a roomful of energy executives Tuesday.

The Clean Power Plan, the Obama administration’s proposal to regulate greenhouse gas emissions from power plants, would cut coal consumption — but even if the regulations are blocked, coal consumption will not increase, Appalachian Power President Charles Patton said at the state Energy Summit at the Stonewall Resort.

“You just can’t go with new coal [plants] at this point in time,” Patton said. “It is just not economically feasible to do so.”

Patton acknowledged that entire communities, particularly across Southern West Virginia, are being decimated by coal’s decline. However, he laid out a series of stark economic realities.

The story concludes:
Patton said the federal regulations, intended to help stave off the worst effects of climate change, would cause a reduction in coal use, but even defeating the regulations won’t make the push to address climate change disappear.

He urged the crowd to “think globally” and work to advance cleaner-burning coal technologies.

“If we believe that we can just change administrations and this issue is going to go away,” Patton said, “we’re making a terrible mistake.”

[h/t to Maureen Hayden]

Posted by Marcia Oddi on Wednesday, October 28, 2015
Posted to Environment

Ind. Law - Two good upcoming Nov. CLEs that might just fit your budget

First, from the U.S. District Court for the Southern District of Indiana:

The Eighth Annual Court History and Continuing Legal Education Symposium will be presented on Friday, November 13, 2015, at the Birch Bayh Federal Building and United States Court House, 46 East Ohio Street, Indianapolis, in the William E. Steckler Ceremonial Courtroom (Courtroom 202). Organized by the Historical Society of the United States District Court for the Southern District of Indiana, and sponsored by the Court, this three-hour Continuing Legal Education event will be held from 1:00 p.m. to 4:30 p.m.

For full details and registration information, please see the attached The registration fee is $50.

And from the Indiana University Robert H. McKinney School of Law:
Friday, November 6, 2015, Indiana Law Review Symposium presents "Partisan Conflict, Political Structure, and Culture," a 6.3 HOUR CLE (lunch included).

This link will show you the agenda and lead to the registration details. The options:

All Day CLE - $100.00
Half Day CLE - $60.00
Non-CLE Attendee - $40.00
Non-McKinney Student - $15.00
McKinney Student, Full-Time Faculty, and Adjunct Professors - Free

Posted by Marcia Oddi on Wednesday, October 28, 2015
Posted to Indiana Law

Ind. Decisions - "Supreme Court decries police eavesdropping" [Updated]

At 9 AM this morning our Supreme Court heard oral argument in State of Indiana v. Brian Taylor, the Michigan City police eavesdropping case. (See ILB summary/links here.)

Dan Carden of the NWI Times reports on this morning's oral argument:

INDIANAPOLIS | The justices of the Indiana Supreme Court Wednesday strongly condemned the act of eavesdropping by Michigan City police and LaPorte County prosecutors on a private conversation between a criminal suspect and his attorney.

That violation of the constitutional right to consult with an attorney was described as "blatant" by Chief Justice Loretta Rush, "egregious" by Justice Brent Dickson, a Hobart native, and Justice Steven David said, "It doesn't get much worse than this."

However, the state's high court appeared unwilling to potentially short-circuit a murder trial by upholding LaPorte Superior Judge Kathleen Lang's decision to bar all trial testimony by the officers who listened in. * * *

At the Supreme Court, Rush suggested a blanket ban on police testimony, including for foundational or evidentiary matters untainted by the eavesdropping, would make Taylor "better than whole."

Justices Mark Massa and Robert Rucker, a Gary native, seemed to agree.

Rush indicated that prosecutors might be required to remedy the violation by having to show an origin, other than eavesdropping, for every witness and every piece of evidence presented to the jury, which she described as a "whale" of a burden.

Payne, Taylor's attorney, argued that still is inadequate and potentially breaks the seal on attorney-client privilege as it is impossible to otherwise know what the police heard, since the officers have asserted their Fifth Amendment right against self-incrimination.

He urged the Supreme Court send a strong message that police eavesdropping and similar constitutional violations never will be tolerated and must be severely sanctioned.

"The defendant cannot be made whole, so long as there is tainted evidence or tainted witnesses presented to the jury," Payne said.

Deputy Attorney General Brian Reitz, representing the prosecutors, concurred that any evidence obtained through eavesdropping must be prohibited, including the suspected murder weapon.

But he said nothing is gained by disallowing police testimony about impounding a vehicle or collecting forensic evidence, especially when it occurred prior to the eavesdropping.

In response, Dickson warned of a potential slippery slope where police and prosecutors might resort to torture or take other illegal actions against criminal suspects, but then still be allowed to proceed to trial using evidence allegedly gleaned through other means.

A decision by the state's high court is expected early next year.

You can watch the oral argument here. [although you must have Adobe Flash to watch it...]

[Updated on 10/29/15] Here is another take on yesterday's oral argument, this one from Rick Callahan of the Gary Post-Tribune. Some quotes:

[Chief Justice] Rush said the eavesdropping was no accident and questioned Brian Reitz, a deputy state attorney general who is representing prosecutors, about his comment that the officers "may have overheard" some of the conversations.

"May have overhead the conversation? It's pretty blatant here, it wasn't like an accidental walking by and someone is speaking loudly," she said. * * *

The high court took up the case in September, three months after the Indiana Court of Appeals found that LaPorte Superior Court Judge Kathleen Lang correctly barred the gun as evidence but went too far in barring all the officers' testimony.

Reitz told the justices Wednesday that Lang's order was "an extreme sanction" and the officers should be allowed to testify about evidence they collected before the eavesdropping.

Justice Mark Massa called the officers' eavesdropping "egregious police conduct, unprecedented" and Justice Brent Dickson called the officers' actions "despicable."

Posted by Marcia Oddi on Wednesday, October 28, 2015
Posted to Ind. Sup.Ct. Decisions

Law - "Don't Baby Law School Applicants"

Supplementing this ILB post from earlier today, Prof. Noah Feldman of Harvard writes convincingly at Bloomberg View:

Those who think law schools shouldn't admit students with low test scores are reflecting, whether they know it or not, a culture of paternalism that verges on infantilization. Since when did college graduates pursuing the American dream of professional success come to be seen as an act of self-delusion? Do we really need to protect people from trying to achieve their dreams?
More from the long column:
Our beliefs about law school admissions processes have changed drastically over the last century. At one time, my own institution, Harvard Law School, admitted many more students than would ultimately graduate, then flunked them out.

The old (possibly apocryphal) first-day Harvard Law speech, “Look to your left, look to your right; one of you won't be here by the end of the year,” reflected a conscious admissions strategy based on giving opportunities while simultaneously maintaining high standards. The idea was that lots of people should have the chance to attend, and that only those who could make the cut would be counted as graduates of the law school. This was considered the essence of meritocracy: It gave people (OK, men) the chance to succeed or fail.

Today, our conception of meritocracy at many elite universities has morphed into a technocratic faith in the capacity of admissions officers to admit only those who can succeed -- and by implication to keep out those who can't. Once you’re admitted to a fancy college or professional school, you’re pretty much going to graduate, unless you harm one of your fellow students or voluntarily quit. Elite, private institutions see it as part of their mission to make sure everyone they admit graduates -- anything less would be an admission of failure on the part of the infallible admissions process.

The less elite the institution, the lower the graduation rate. That’s also true of bar passage rates for law schools. But what, exactly, is bad about that? Not every law school needs to subscribe to the technocratic-elite belief that all its handpicked students are excellent and should therefore be guaranteed success.

Posted by Marcia Oddi on Wednesday, October 28, 2015
Posted to General Law Related

Ind. Decisions - 7th Circuit posts one Indiana case, dated Oct. 27

In USA v. Christopher Bour (ND Ind., Lozano), a 12-page opinion, Judge Manion writes:

Christopher Bour paid a woman named Natisha for permission to molest, rape, and create pornographic films of her infant daughter—and, not content with these crimes, he also took explicit photographs of Natisha’s four-to-five-year-old daughter. After Bour invited a woman called TJ to watch him “play with” the littlest girl, TJ informed the FBI and a criminal investigation launched. Bour pleaded guilty on five counts, while Natisha was separately sentenced for her role in this grisly treatment of her daughters. Bour now challenges his sentence, supervisedrelease conditions, and restitution order. We affirm.

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

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

For publication opinions today (0):

NFP civil decisions today (1):

Raymond McNeil Love v. Mike Herron, Daryl Kent, Jerry Jones, and Pen Products Correctional Industries (mem. dec.)

NFP criminal decisions today (1):

Andre L. Owens v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, October 28, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Singleton Quarry controversy continues

Adding to this long list of earlier ILB posts, the Kankakee Valley Illinois Daily Journal reports today in a story by Jon Krenek that begins:

After months of battling back from river advocates here in Kankakee County, the federal Environmental Protection Agency finally has stepped in, saying Illinois deserves a chance to publicly object to an Indiana quarry that threatens the life of the Kankakee River.

It is the first official action the EPA has taken in a dispute between Illinois and Indiana over a quarry proposed by Singleton Stone LLC, which could discharge upward of 52 million gallons of water per day into the Singleton Ditch, the Kankakee River's largest source of sediment.

Tinka Hyde, the federal agency's water division director for six Midwestern states, addressed the letter to officials in both states and the U.S. Army Corps of Engineers, which will have the final say in the matter. While the Army Corps already has issued the project a permit, provisions under the Clean Water Act still could grant Illinois the opportunity to weigh in on the matter.

"It's a notification to Illinois of its rights," said Peter Cassell, an EPA spokesman. U.S. Rep. Robin Kelly, D-Matteson, had written EPA officials requesting such a public hearing.

The Illinois Attorney General's office currently is appealing the quarry's permit granted by the state of Indiana. Illinois officials have objected to the quarry saying it will exacerbate flooding and accelerate the buildup of sand and silt in the Kankakee River. The sediment damages spawning and feeding grounds for fish and other aquatic wildlife and are considered by many to be the river's most serious environmental problem.

Posted by Marcia Oddi on Wednesday, October 28, 2015
Posted to Environment | Indiana Government

Law - The "ins" and "outs" of a law school education - the LSAT and the bar exam

Sunday's NY Times had a long editorial headed "The Law School Debt Crisis," that included:

In 2013, the median LSAT score of students admitted to Florida Coastal School of Law was in the bottom quarter of all test-takers nationwide. According to the test’s administrators, students with scores this low are unlikely to ever pass the bar exam.

Despite this bleak outlook, Florida Coastal charges nearly $45,000 a year in tuition, which, with living expenses, can lead to crushing amounts of debt for its students. Ninety-three percent of the school’s 2014 graduating class of 484 had debts and the average was almost $163,000 — a higher average than all but three law schools in the country. In short, most of Florida Coastal’s students are leaving law school with a degree they can’t use, bought with a debt they can’t repay.

If this sounds like a scam, that’s because it is. Florida Coastal, in Jacksonville, is one of six for-profit law schools in the country that have been vacuuming up hordes of young people, charging them outrageously high tuition and, after many of the students fail to become lawyers, sticking taxpayers with the tab for their loan defaults.

Yet for-profit schools are not the only offenders. A majority of American law schools, which have nonprofit status, are increasingly engaging in such behavior, and in the process threatening the future of legal education.

The editorial blames "free money," the federal Direct PLUS Loan program:
The consequences of this free flow of federal loans have been entirely predictable: Law schools jacked up tuition and accepted more students, even after the legal job market stalled and shrank in the wake of the recession. For years, law schools were able to obscure the poor market by refusing to publish meaningful employment information about their graduates. But in response to pressure from skeptical lawmakers and unhappy graduates, the schools began sharing the data — and it wasn’t a pretty picture. Forty-three percent of all 2013 law school graduates did not have long-term full-time legal jobs nine months after graduation, and the numbers are only getting worse. In 2012, the average law graduate’s debt was $140,000, 59 percent higher than eight years earlier.

This reality has contributed to the drastic drop in law school applications since 2011, which has in turn exacerbated the problem — to maintain enrollment numbers, law schools have had to lower their admissions standards and take even more unqualified students. These students then fail to pass the bar in alarmingly high numbers — in 2014, the average score on the common portion of the test was the lowest in more than 25 years.

Related is this Oct. 26th NYT's Dealbook column by Elizabeth Olson, headed "Study Cites Lower Standards in Law School Admissions." It begins:
As law schools across the country try to keep their classrooms full, many are admitting students with lesser qualifications, including those with a lower admissions test score — considered an important predictor of whether a graduate will earn the credentials to practice law.

About a third of the 204 accredited law schools had entering classes last year with at least 25 percent of the class consisting of “at risk” students, or those with law school admissions test scores of below 150, according to a new study by Law School Transparency, a nonprofit advocacy organization.

Law school admissions scores closely mirror the final results of the state bar exams, which graduates must pass to qualify as licensed lawyers. Many in legal education consider a score of 150 as a telling dividing line between future success or failure.

“Too many law schools are filling their entering classes with people who face serious risk of not passing the bar exam,” said Kyle McEntee, executive director of Law School Transparency, which he helped to found six years ago to promote more open law school practices. He said that last year 45 schools, up from eight in 2010, admitted seriously at-risk students. * * *

Threatening to further weaken laws schools’ position, initial reports from states show that bar passage rates this year are again slumping.

The National Conference of Bar Examiners, a Madison, Wis., organization that oversees the 200-question multiple choice portion of the exam given in most states, found that overall results slipped again, to the lowest point since 1988.

Most states have yet to report the complete results of their July 2015 bar exam, but early numbers paint a dismal picture.

For more on the admissions aspect, see the Law School Transparency Study and particularly "Compare Schools."

For more on the bar passage aspect, see this story by Staci Zaretsky in Above the Law, headed "New York Bar Exam Results Reveal Worst Pass Rates In More Than A Decade." The article has a nice chart showing the NY results for the past 10 years.

The Indiana Board of Law Examiners also shows results and statistics over time, although not in a compact, at a glance chart that allows one to quickly compare. (One would be easy to do ...)

This Above the Law post by Staci Zaretsky from Oct. 20 reports on the results of an Arizona law school offer to pay certain graduates not to take the bar exam without additional study:

Several of those who opted not to unlock their potential received phone calls from the law school’s dean on the day before the test — not to wish them luck, but to plead with them to take a bar deferral stipend of $10,000 and not sit for the exam the next day.
ILB: Some states appear to have stats showing bar results by school. I don't know if that is the case in Indiana ...

Posted by Marcia Oddi on Wednesday, October 28, 2015
Posted to General Law Related

Ind. Law - "Is Indiana to blame for Chicago gun violence?"

Good, lengthy Indianapolis Star story today by Tony Cook - just a few quotes:

President Barack Obama suggested Tuesday that Indiana and other states with few gun restrictions are to blame for Chicago’s homicide problem. * * *

“There are those who criticize any gun safety reforms by pointing to my hometown as an example,” Obama said. “The problem with that argument, as the Chicago Police Department will tell you, is that 60 percent of guns recovered in crimes come from out of state. You’ve just got to hop across the border.” * * *

A report issued by Chicago authorities found that nearly 60 percent of illegal guns recovered in the city from 2009 to 2013 were first sold in states with more lax gun laws. The largest portion came from Indiana, which accounted for 19 percent of the illegal guns in Chicago.

The report blames Indiana’s lax gun laws, which allow gun owners to sell their weapons to other people without background checks or paperwork recording the sale.

“This makes it incredibly easy for gun traffickers, violent offenders and other prohibited purchasers to buy guns undetected,” the report says.

Indiana lawmakers, however, have shown no appetite for tougher gun laws.

In fact, while Chicago’s homicide count grew to nearly 400 so far this year, the Republican-controlled legislature in Indiana has rolled back restrictions.

Just this year, lawmakers repealed a prohibition on manufactured sawed-off shotguns and passed a law intended to inoculate gun manufacturers from an ongoing lawsuit filed by the city of Gary. Those changes come on the heels of a measure last year allowing adults to keep guns locked in their vehicles in school parking lots.

Sen. Jim Tomes, a Wadesville Republican who authored the two most recent measures, called Obama’s comments “absolutely ridiculous.”

“It doesn’t matter where the guns come from,” he said. “It’s a societal problem in Chicago. … I don’t know what in the world Indiana could have to do with their inability to deal with their criminal activity.”

Gary Mayor Karen Freeman-Wilson, a Democrat who supports universal background checks and stronger rules for gun shows and sales, acknowledged that pushing for such laws in gun-friendly Indiana likely is impossible.

After all, this is a state where Indianapolis restaurant Papa Roux reacted this week to a robbery of its store by offering discounts to patrons if they showed a gun carrying permit. The promotion drew huge crowds of gun-toting customers.

There is much more in the story.

Posted by Marcia Oddi on Wednesday, October 28, 2015
Posted to Indiana Law

Law - Lear: "Having a lean legal dept. works"

Interesting story from Blake Edwards in Bloomberg BNA, headed "Trimming Legal Department Makes Sense, Lear GC Says," is the first of a two-part interview with Lear GC Terry Larkin. (h/t @wihender) A sample:

It’s an unusual approach, but having a lean legal department works, Larkin explained. The company has a relatively low volume of litigation work, and has been able to negotiate fixed fee arrangements with long-standing “relationship firms” Winston & Strawn, Bodman PLC, and Brooks Kushman.

Larkin was an attorney at Bodman for 28 years before coming to Lear and graduated from Wayne State Law School. In an interview with Big Law Business, he discussed the virtues of running a thin legal department, the Detroit legal market, and the future of the law firm.

Posted by Marcia Oddi on Wednesday, October 28, 2015
Posted to General Law Related

Tuesday, October 27, 2015

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

For publication opinions today (2):

In In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.G. (Minor Child): A.M. (Father) v. Indiana Department of Child Services , a 15-page opinion, Chief Judge Vaidik writes:

A.M. (“Father”) appeals the trial court’s termination of his parental rights.
Among other things, he argues that paternity was not established until four
months before the termination proceedings and, as a result, the statutory
requirement of removal from “the home” for fifteen of the most recent twentytwo
months cannot be met. Because we interpret “the home” to mean the
home of the child and not the home of a particular parent, we affirm.
In Jonathan E. Powell v. State of Indiana , a 6-page opinion, Chief Judge Vaidik writes:
Jonathan Edward Powell was convicted in a bench trial of Class A
misdemeanor criminal trespass after a bouncer at a downtown Indianapolis bar
escorted him out of the bar and he refused to comply with an off-duty police
officer’s request that he leave the premises. However, because the State failed
to prove that Powell was on the bar’s property when the officer asked him to
leave, there is insufficient evidence to support his criminal trespass conviction. We therefore reverse.
ILB: In footnote #1 the court discusses an earlier trespass conviction which the ILB remembers well, Alves v. State. Here is a post from Dec. 30, 2004.

NFP civil decisions today (4):

Fathollah Partow v. Countryside Homeowners Association, Inc. (mem. dec.)

Ronald Miller, d/b/a United Country Washington County Indiana Real Estate, LLC v. Anthony Arnold, Rhonda Arnold, Lee Ann Arnold, Daniel Arnold, Mid-Southern Savings Bank, FSB, et al. (mem. dec.)

David Tilton v. EIM, LLC, John M. Wyatt, Individually and d/b/a Wyatt Construction, and Jennifer Thompson (mem. dec.)

T.H. and J.W. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (4):

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

Collin McAllister v. State of Indiana (mem. dec.)

Jeffery Allen Hmurovic, Sr. v. State of Indiana (mem. dec.)

Gary L. Monday v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, October 27, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: What if our Attorney General and Governor were of different parties?

Updating this ILB post from this morning where I quoted a column by the NYT's Adam Liptak, about the governor and attorney general of Illinois, who are of two different parties, being at odds ...

What about Indiana? I wrote "It could happen. It has happened in Illinois."

Local attorney Lawrence J. Carcare II, responding to the ILB: "Marcia. It could happen in Indiana and it has happened."

And Mr. Carcare helpfully included this chart:


Posted by Marcia Oddi on Tuesday, October 27, 2015
Posted to Indiana Government

Courts - "Notorious RBG: The Supreme Court Justice Turned Cultural Icon"

Read and/or listen to Nina Totenberg's story on NPR's All Things Considered. It begins:

Supreme Court justices are generally robed and mysterious figures. Their faces are not emblazoned on T-shirts, painted on fingernails, tattooed on arms and shoulders, and their characters are not parodied on TV programs ranging from Saturday Night Live to Scandal. At least not until Justice Ruth Bader Ginsburg became a cultural icon at about the same time she turned 80. Much of that iconic status is attributed to a Tumblr called "Notorious R.B.G.," which now has been transformed into a graphic nonfiction book due out Tuesday.
There are also some great photos.

Posted by Marcia Oddi on Tuesday, October 27, 2015
Posted to Courts in general

Courts - "Coming to SCOTUS: Battle of the dueling interpretive canons"

This very long post in the blog LAWnLinguistics, by Neal Goldfarb, begins:

THE CANONS OF LEGAL INTERPRETATION are pithy sayings setting out various ways in which statutes should or should not be interpreted:
Every word in a statute should be given effect.
Expressio unius est exclusion alterius (the expression of one thing suggests the exclusion of others).
Ejusdem generis (interpret a general term to reflect the class of objects reflected in more specific terms accompanying it).
Statutes should be presumed not to apply extraterritorially.
and so forth.
Karl Llewellyn, a prominent mid-20th century legal scholar, famously said that “there are two opposing canons on almost every point.” On November 3, the Supreme Court will hear argument in Lockhart v. United States, a case that presents about as stark a clash between opposing canons as you could ever hope to find.

Posted by Marcia Oddi on Tuesday, October 27, 2015
Posted to Courts in general

Ind. Courts - "Patience-Depleted Judge Reschedules Murder Trial for 18th Time"

That is the headline to a long post today by Jacob Gershman in the WSJ Law Blog. The worth-reading post notes:

An Indiana rule requires the state to bring a defendant to trial within 365 days of when the charges were filed, excluding extra time requested by the defense. The state will be approaching its limit in January.

Posted by Marcia Oddi on Tuesday, October 27, 2015
Posted to Indiana Courts

Ind. Gov't. - "Indiana driver's license test to be offered in Polish"

Dan Carden had the story yesterday in the NWI Times. A snippet:

In the next six months, the Bureau of Motor Vehicles is set to begin offering a Polish version of its Operator Knowledge Test, in addition to the dozen other language options already available at the BMV's automated testing terminals.

[Sen. Earline Rogers, D-Gary] said she urged the BMV to add Polish as a test language more than a year ago after she learned of several former residents of Poland, now living in Merrillville, who struggled to pass the English version of the test.

She initially proposed legislation (Senate Bill 342) that would have required the BMV offer driver's license tests in any language spoken by at least 4,800 Hoosiers, which includes Polish. That measure did not advance in the Republican-controlled General Assembly.

However, Rogers continued working with the BMV on the language issue during the summer and fall. She announced Monday the agency has agreed to include Polish in its next round of test language selections.

ILB: Readers may recall this post from Jan. 30, 2011 re earlier, failed "English-only" legislation proposed in the General Assembly with claims that Hoosiers are sick of “pressing 1 for English.”

Posted by Marcia Oddi on Tuesday, October 27, 2015
Posted to Indiana Government

Ind. Gov't. - What if our Attorney General and Governor were of different parties?

It could happen. It has happened in Illinois. Adam Liptak writes today in his weekly Sidebar column in the NY Times about a dispute between the Illinois attorney general, Lisa Madigan, a Democrat, and the Republican Illinois governor, who took office earlier this year, Bruce Rauner. Here is how it starts:

WASHINGTON — An extraordinary letter landed at the Supreme Court last month. In it, Illinois’s attorney general accused its governor of violating the law — by filing a brief at the court.

The accusation was but one salvo in the white-hot war over the fate of public unions, which hangs in the balance in a case to be argued early next year. It gave the court a taste of Illinois’s bruising politics and a sense of how closely the state’s officials, workers and unions are watching the case.

The contested brief, from Gov. Bruce Rauner, a Republican, said his state’s public unions “have negotiated wages and benefits that have unrealistically kept going up while the state economy has kept going down.”

The state’s attorney general, Lisa Madigan, a Democrat, was not happy to see the governor’s brief. Her top appellate lawyer wrote to the justices to alert them to “an unauthorized filing, purportedly on behalf of Bruce Rauner, governor of Illinois.”

“Neither the governor nor his attorneys have the authority, as a matter of state law, to represent the state or its officials in any court or to determine the state’s litigation positions,” the lawyer, Solicitor General Carolyn Shapiro, wrote.

As a purely legal matter, she seemed to have a point. The Illinois Supreme Court has said the state attorney general “is the chief legal officer of the state and the state government’s only legal representative in the courts.”

The governor’s general counsel, Jason Barclay, did not really contest the point in his own letter in response. The governor had not meant to speak for the state, Mr. Barclay wrote. Indeed, he said, the brief “makes very clear that it is filed only in his individual capacity.”

If there is support for that assertion in the brief, it is hard to find. The phrase “individual capacity,” for instance, does not appear in it.

The assertion in any event presented its own problems, Ms. Shapiro wrote in a third letter. “It would be unlawful,” she wrote, for “state employees paid from public revenues to represent Mr. Rauner in his individual capacity in any matter.”

Mr. Barclay clarified his position in an email on Friday. He now said the governor “filed the brief in his official capacity” but “was speaking on behalf of his office only.”

“The term ‘individual capacity’ in our letter to the court does not mean or imply ‘private citizen,’ ” Mr. Barclay wrote.

Posted by Marcia Oddi on Tuesday, October 27, 2015
Posted to Indiana Government

Ind. Gov't. - "Texas May Join Movement to Make Hunting and Fishing a Constitutional Right " as may Indiana

That is the headline to an article in Governing, reported by J.B. Wogan. The measure will be on Texas ballot in November:

Supporters of the measure, including the NRA, acknowledge that no one has tried to curb the right to hunt and fish in Texas. Instead, they justify the amendment as a safeguard against future threats by anti-hunting groups.

As of March, 18 states included the right to hunt and fish in their constitutions. All but one (Vermont) added the right some time since 1996. In most cases, state voters have approved the amendment. This year, legislators in at least nine states debated bills to add a constitutional right to hunt and fish. * * *

Initially, the Texas Municipal League warned that the bill would lead to constitutional challenges of city ordinances related to gun control. The final version of the measure, however, says the amendment does not affect any authority the legislature grants to cities to regulate firearms in the interest of public safety.

ILB: The Indiana General Assembly also passed a meaure in 2015 to add similar language to the Indiana Constitution's bill of rights. (For details see this April 8th ILB post re SJR 2.)

Here is the text of the SJR 2. Having passed two General Assemblies, it will be placed on the ballot of the next general election, which is Nov. 2016.

Posted by Marcia Oddi on Tuesday, October 27, 2015
Posted to Indiana Government

Monday, October 26, 2015

Ind. Decisions - Supreme Court issues one opinion today

In Wenzel Williams v. State of Indiana, an 8-page, 5-0 opinion, Chief Justice Rush writes:

Indiana Evidence Rule 704(a) generally allows witness opinion testimony to “embrace” an ultimate issue — but as a matter of constitutional right, only a jury may resolve an ultimate issue. And Evidence Rule 704(b) explicitly prohibits, in criminal cases, witness opinions concerning the ultimate issue of guilt.

In Defendant’s trial for drug dealing, the detective who observed a controlled buy testified, “there’s zero doubt in my mind that that was a transaction for cocaine.” This opinion did not merely “embrace” an ultimate issue by implying Defendant’s guilt. It was rather an outright opinion of guilt—rendering it inadmissible under Evidence Rule 704(b) and violative of the jury’s right to determine the law and facts in criminal cases. The trial court therefore should have excluded that testimony. But because that error was harmless, we affirm. * * *

Audio and video evidence from both buys, independent and consistent testimony from three detectives and a CI, and Williams’s own incriminating statements sufficiently show that erroneously admitting Detective Gaskill’s statement was harmless with regards to both convic-tions. Reversal is not required.

Posted by Marcia Oddi on Monday, October 26, 2015
Posted to Ind. Sup.Ct. Decisions

Law - "IRS possessed Stingray cellphone surveillance gear, documents reveal"

Following on a long list of earlier ILB posts, including most recently, from Oct. 9, "California cops, want to use a stingray? Get a warrant"; What About Indiana? The Guardian today has an exclusive that begins:

The Internal Revenue Service is the latest in a growing list of US federal agencies known to have possessed the sophisticated cellphone dragnet equipment known as Stingray, according to documents obtained by the Guardian.

Invoices obtained following a request under the Freedom of Information Act show purchases made in 2009 and 2012 by the federal tax agency with Harris Corporation, one of a number of companies that manufacture the devices. Privacy advocates said the revelation “shows the wide proliferation of this very invasive surveillance technology”.

Posted by Marcia Oddi on Monday, October 26, 2015
Posted to General Law Related

Ind. Decisions - "Judge Margret Robb does not suffer incompetence"

The heading to this ILB post is taken from the caption to a photo today in a post by Kathryn Rubino of Above the Law, titled "A Lawyer Way Out Of Her League Gets Benchslapped By Frustrated Judge."

Readers may remember that the ILB's summary of COA cases posted on the morning of Oct. 22, included the ILB's statement, "It is hard to know where to start here, perhaps with some of the footnotes ..."

That was the case of Brazier v. Maple Lane Apts, where the court at a number of points took issue with Mr. Brazier's attorney (e.g. footnote #4 "Counsel’s failures to follow even the simplest rules regarding the content of an appellate brief have made our review of this case unnecessarily difficult...")

Posted by Marcia Oddi on Monday, October 26, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 23, 2015

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

Three transfers were granted last week:

Finally, there was one case last week where transfer was denied by a 3-2 vote: Timothy Devereux v. Jim Love, et al., Transfer Denied 10/22/15 - All Justices concur, except Rush, C.J., and Rucker, J., who vote to grant the petition to transfer. Here is J.Bradford's summary from his April 22nd COA opinion:
One of the blocks of the foundation of America is an individual’s ability to seek to right a wrong through the courts of justice. In a civil case, a plaintiff entrusts his plight and cause to his attorney. The instant matter involves the disturbing tale of a husband and wife whose confidence and trust was betrayed by the very attorney to which they had entrusted their cause of action. The just and normal inclination in such a matter is to punish the wrongdoer and make the victims whole. While William Conour, i.e., the wrongdoer, has been punished and now occupies his appropriate place in federal prison, to date, it appears that these victims have not been made whole for the misdeeds inflicted upon them.

In an attempt to redress this wrong, Appellees/Cross-Appellants/Plaintiffs Jim and Diana Love (collectively, the “Loves”) now seek relief from Appellant/Cross-Appellee/Defendant Timothy Devereux, a former member of Conour’s law practice. However, in light of the facts of this particular case, we find that Devereux satisfied his legal duty to the Loves based on his lack of knowledge of any specific wrongdoing by Conour relating to the Loves. We therefore reverse the judgment of the trial court in this regard and remand the matter to the trial court with instructions that the trial court grant summary judgment in favor of Devereux.

Posted by Marcia Oddi on Monday, October 26, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - "Miami Nation of Indiana trying to win back recognition as a tribe"

Andrea Neal of the Indiana Policy Review has this fascinating story, part of Indiana's 200-year history, that begins:

In 1897, an assistant attorney general made a legal error that cost the Miami Nation of Indiana their federal recognition as a tribe. They’ve been fighting ever since to win it back.

“Our people are as upset now as they were 100 years ago,” declares Chief Brian Buchanan.

It’s a story that began not long after Indiana achieved statehood when settlers came flooding into the state with their eyes on land already occupied by Potawatomi, Delaware, Miami and other Indian nations. The government’s formal policy was removal. Under the Indian Removal Act of 1830 and a succession of treaties, Indiana’s Native Americans were pushed westward to present-day Kansas and Oklahoma.

The Miami fought to stay in Indiana during the 19th century and were split in two when the U.S. government forcibly removed about half of them in 1846. Under an 1840 treaty, the Miami ceded virtually all of their commonly held land in exchange for $550,000 in annuity payments.

Through this treaty and earlier ones, several individual Miami were awarded land, and they and their families were exempted from removal, forming the nucleus of the Miami Nation of Indiana. Those sent to Kansas eventually relocated to Oklahoma and today are called the Miami Tribe of Oklahoma, one of 566 federally recognized tribes.

For decades the Miami of Indiana were treated by the government like their western Miami counterparts, exempt from federal taxes, free to hunt and fish without a license and eligible to attend federal Indian schools.

Immediately following removal, Miami lands in Indiana were illegally taxed. Hoping to recover past payments, they appealed to the Department of the Interior, which oversees tribal matters through its Bureau of Indian Affairs. The case was referred to Assistant Attorney General Willis Van Devanter, a Hoosier who would go on to become a Supreme Court justice.

As part of his decision on the tax case, Van Devanter concluded that the Indiana Miami were “no longer a tribe” under a law called the Dawes Act and were U.S. citizens, thus ineligible for tribal recognition – a decision the government later admitted was based on a flawed application of the law.

Posted by Marcia Oddi on Monday, October 26, 2015
Posted to Indiana Government

Ind. Gov't. - "Can a Venture Capitalist Jumpstart Illinois?"

Illinois is not paying its lottery winners anymore, but that is just the tip of the iceberg, according to this revealing Politico story Oct. 22, reported by Carol Felsenthal. A few quotes from the lengthy story:

[Illinois Governor Bruce] Rauner made no secret of his business-minded impulses on the campaign trail: Last year, he told me that Republican governors Mitch Daniels, Rick Scott, Jeb Bush, Scott Walker, and Michigan’s Rick Snyder, “a venture capitalist just like I’ve been,” would all serve as role models for him. * * *

Late last week, Jim Edgar, a two-term republican governor in the 1990s—respected for his moderation and, this being Illinois, for the fact that he has never been indicted and imprisoned—warned Rauner, for whom he campaigned, that he should make a deal with the Democrats and drop his insistence on reforms first. Edgar told Bernard Schoenburg, the State Journal-Register’s political writer, “State government’s probably in the worst state it’s been in the 47 years that I’ve been around.”

Indeed, the headlines about the budget crisis are getting increasingly rough politically for everyone involved. The latest set of news even went international: Illinois lottery winners would be getting IOUs in place of cash for winnings of more than $600 because Illinois has no budget and so no appropriation to pay winners.Because of various court orders, existing laws, temporary restraining orders and consent decrees, roughly 90 percent of spending continues at last fiscal year’s levels. State employees are being paid; DMVs are open, although the Secretary of State has announced that he’ll no longer be sending out vehicle registration renewal reminders.

As state government lurches along, leaving unpaid bills, the fiscal crisis is hitting hard on social services to the most vulnerable—the young, the old, the poor. Domestic abuse shelters, rape crisis centers, homeless shelters, state day care centers that allow low-income parents to work are cutting back or even shutting their doors.

Posted by Marcia Oddi on Monday, October 26, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (2):

In Robbie Lomax v. Jennie L. Michael, a 9-page opinion, Judge Altice writes:

Edward Lomax died as a result of injuries sustained after the bicycle he was riding was struck from behind by a vehicle driven by Jennie Michael. Robbie Lomax, individually and as Personal Representative of the Estate of Edward Lomax (the Estate), filed a wrongful death action against Jennie. The trial court granted partial summary judgment in favor of Jennie based on its conclusion that Robbie does not qualify as a dependent next of kin to Edward as required by Ind. Code § 34-23-1-1, otherwise known as the General Wrongful Death Statute (GWDS). Finding no just cause for delay, the court issued a final judgment against Robbie, individually. Robbie appeals, asserting that the facts demonstrate he does qualify as a dependent next of kin, or, in the alternative, that there is at least a question of fact as to whether he is a dependent next of kin thus making summary judgment inappropriate. * * *

Having concluded that questions of fact exist as to whether Robbie is a dependent next of kin to Edward, we reverse the trial court’s grant of partial summary judgment in favor of Jennie and remand this matter to the trial court for further proceedings.

In Adam Gaff v. Indiana-Purdue University of Fort Wayne, a 15-page opinion, Judge Najam writes:
Adam Gaff appeals the trial court’s grant of Indiana University-Purdue University of Fort Wayne’s (“IPFW’s”) motion for summary judgment. Gaff raises four issues on appeal, which we consolidate and restate as the following three issues:
1. Whether the trial court erred when it concluded that Gaff’s federal constitutional claims were not permissible under 42 U.S.C. § 1983;
2. Whether the trial court erred when it concluded that Gaff’s state constitutional claims failed as a matter of law; and
3. Whether the trial court erred when it granted Purdue’s motion for summary judgment on Gaff’s Title VII retaliation claim.
We affirm.
NFP civil decisions today (1):

Greg Rink v. Emily Rink (mem. dec.)

NFP criminal decisions today (4):

Roy Huddleston v. State of Indiana (mem. dec.)

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

Sammie L. Binion v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Monday, October 26, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Indiana trial court filings drop 8.9 percent in 2014"

Dan Carden reports today in the NWI Times:

The 2014 Indiana Judicial Service Report, issued last week by the Supreme Court's Division of State Court Administration, details exactly how often and in which ways the 6.6 million Hoosiers engaged with their courts last year.

Here's a look at some of the highlights from the three volume, 1,290-page document:

A total of 1,036,503 new cases were filed last year in the 315 circuit, superior and probate courts located in the state's 92 counties. An additional 314,406 cases were filed in 76 city, town or small claims courts. Altogether, new filings were down 8.9 percent compared to 2013, due primarily to fewer tickets being issued for infractions and ordinance violations.

After peaking in 2009 at 2,001,731 filings, the state has seen a 27.4 percent decrease in new court cases through 2014. Both criminal and civil suits are down sharply, while juvenile, probate and adoption cases have remained steady.

However, the 271 murder cases filed in 2014 were the most in more than a decade, and a 32.2 percent increase from the 205 murder cases of 2010.

A whopping 1,728,373 cases were pending at the start of 2014. Despite judges completing work on 1,438,450 cases during the year, a total of 1,646,889 cases remained unresolved going into 2015.

Infractions [ILB: typically traffic violations] were the most common court case, comprising 35 percent of the state's total. Criminal cases made up 19 percent, followed by small claims (17 percent), civil (16 percent), ordinance violations (6 percent), juvenile (5 percent) and probate/adoptions (2 percent).

Just 1,169 jury trials were held last year across Indiana accounting for a mere 0.08 percent of all case dispositions.

Bench trials, where the judge is the jury, decided 61,621 cases (4 percent). The most common outcome of an Indiana court case was dismissal, occurring with 17 percent of new filings. Guilty pleas resolved 15 percent of the cases. * * *

The total cost to operate Indiana's court system last year was $459,585,176. That's a 37.8 percent increase compared to 2005. The state's share of court system costs was $141,485,332, counties spent $298,904,950 and localities paid $19,194,894. The court system also generated $173,601,840 in revenue for the state, counties and municipalities.

A trial court judge earned $134,112 in 2014. The 16 appellate judges serving on the Indiana Court of Appeals and Tax Court were paid $157,104. Each of the five Indiana Supreme Court justices received $161,524 for their work.

Posted by Marcia Oddi on Monday, October 26, 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 10/26/15):

Wednesday, October 28

Friday, October 30

Webcasts of Supreme Court oral arguments are available here.

Next week's oral arguments before the Supreme Court (week of 11/2/15):

Thursday, November 5


This week's oral arguments before the Court of Appeals (week of 10/26/15):

Tuesday, October 27

Wednesday, October 28 Next week's oral arguments before the Court of Appeals (week of 11/2/15):

Thursday, November 5

Friday, November 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, October 26, 2015
Posted to Upcoming Oral Arguments

Sunday, October 25, 2015

Ind. Law - More on: "New judge (in Michigan) orders lighter sentence in Elkhart man's sex case"

Updating this ILB post from Oct. 21st, the Elkhart Truth reported Oct. 23rd in a story by Tori Fater:

Zach Anderson of Elkhart is off the Indiana sex offender registry after a months-long court battle over a criminal sexual conduct case. * * *

Anderson’s sentence included 25 years on the sex offender registry — a punishment his family thought was too harsh considering both Anderson, who was 19 at the time, and the girl said he did not know she was underage.

His family appealed the decision, saying a prosecutor’s comments during sentencing violated the terms of Anderson’s plea agreement.

A judge in Berrien County (Mich.) Trial Court threw out the previous sentence in September. Judge Angela Pasula then ruled on Monday that Anderson would be removed from the Michigan sex offender registry, but his family feared he would have to remain on the Indiana sex offender registry.

As of 5 p.m. Friday, Anderson was no longer on Indiana’s list.

“To be off both registries has been the whole goal,” Les Anderson, Zach Anderson’s dad, said Friday evening.

He added that the family checked the Indiana registry about 10 times just to make sure his son’s name had been removed.

“We don’t anticipate him being put back on,” Les Anderson said.

During Monday’s hearing, Pasula granted Zach Anderson status under Michigan’s Holmes Youthful Trainee Act, which allows leniency for first-time offenders between 17 and 20 years old. His original sentence called for 90 days in jail, which Anderson served, and five years on probation. Pasula’s ruling reduced Anderson’s time on probation to two years.

The terms of his probation mean Anderson, now 20, can’t use a computer except for school or keep profiles on social media. He can’t have contact with anyone under 17 unless a “responsible adult” is present.

His lawyer, Scott Grabel of Lansing, Mich., said after Monday’s hearing that he was pleased with the decision.

“I’m very pleased with the judge’s decision,” Grabel said. “I don’t think she could have been fairer to him.”

Posted by Marcia Oddi on Sunday, October 25, 2015
Posted to Indiana Law

Saturday, October 24, 2015

Ind. Courts - State files petition for Supreme Court to rehear Elkhart Four cases [Updated]

Tom Fater reported last evening in the Elkhart Truth:

The state of Indiana has filed a petition asking the Indiana Supreme Court to rehear the cases of three members of the Elkhart Four who had their convictions overturned.

In September, the state Supreme Court tossed out the felony murder convictions of Blake Layman, Levi Sparks and Anthony Sharp Jr., who were involved in a 2012 burglary that resulted in a fatal shooting in Elkhart.

Elkhart Circuit Court was instructed by the high court to find the three guilty of burglary as a Class B felony, which carries a sentence of up to 20 years in prison.

Prior to the Indiana Supreme Court overturning the decision, Layman and Sharp had received a sentence of 55 years in prison after an August 2013 trial in Elkhart Circuit Court. Sparks was sentenced to 50 years.

Court records show the state of Indiana, represented by the county prosecutor’s office, mailed a petition to rehear the cases on Monday. WNDU reports Elkhart County Prosecutor Curtis Hill filed the petition.

ILB: Here is a copy of the 16-page Petition for Rehearing, filing by Attorney General Zoeller. The "Statement of the Issue" is on p. 5:
Whether the evidence as a whole, including facts which this Court's opinion overlooked, is sufficient to sustain the jury's finding that Defendants were the mediate or immediate cause of Johnson's death.
The ILB has had a long list of posts on the "Elkart Four" cases. The most recent, from Sept. 24th, quoted a long story headed " "Elkhart Four felony murder convictions overturned by Indiana Supreme Court," reported by Kristine Guerra of the Indianapolis Star, which included the following:
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.

The ILB is unable to locate the AG's Sept. 24th statement in the list of news releases for Sept.

[Updated 10/25/15]
From the Indianapolis Star, a story by John Tuohy that quotes at length from the petition for rehearing [that is linked above]. A sample:
The state in its petition said the court wrongly interpreted what the state statute requires when perpetrators die during crimes. The court said that the perpetrators must engage in violent or threatening behavior beyond what was involved in the original felony, in this case, kicking down the doors for a burglary, according to the petition.

But the attorney general argues that the violent entrance to the home was sufficiently threatening that the intruders knew that it could end violently.

"Defendants did not merely commit burglary,” according to the petition. "Defendants committed a ‘home invasion,’ a shattering, violent attack on Scott’s home.

“Defendants conduct was threatening; it communicated to Scott that they intended to commit a violent attack.”

Failing to apply the statute to the Elkhart Four minimizes Johnson's death because he was a criminal, the state argues.

“By limiting felony-murder liability for co-perpetrators' deaths, this court’s opinion says that the culpable deaths of criminals is less worthy of the law’s notice and less deserving of punishment than a ‘real crime.'”

“Our legislature did not intend Indiana’s courts to close their eyes to such tragedies,” according to the filing.

Posted by Marcia Oddi on Saturday, October 24, 2015
Posted to Indiana Courts

Friday, October 23, 2015

Ind. Gov't. - "Messy conflict over horse manure divides Amish, neighbors"

Following on this Oct. 13th ILB post, headed "Horse manure in the news," Maureen Hayden of CNHI reports today in the Washington Times Herald:

LAGRANGE, Ind. – Terry Martin, like it or not, knows horse manure.

As a state trooper, he routinely washed it off his patrol car after driving through Amish country, where horses and buggies are as ubiquitous as pickup trucks.

Later, as sheriff of LaGrange County, he cleaned it up outside the local lock-up, where he also installed a hitching post for Amish prisoners. Even in his off-hours, he shovels manure as a horse owner and competitor in mounted shooting contests.

Now, as a county commissioner, he's looking for a way to keep it from splattering on tourists and townsfolk.

A conflict over horse manure is playing out publicly in this scenic county, home to the second-largest Amish community in the United States, with more than 17,000 members.

Headlines about the fight over manure littered streets and highways are an embarrassment for some. Others fear they signal of growing tension between the Amish and “English," as the Amish call those outside their faith.

Last week, seeking to quell growing discontent as the number of Amish – and their horses - swells in his county, Martin agreed to test a manure-catching diaper on a horse.

Pre-loaded with 40 pounds of droppings to simulate a real road scenario, the device was strapped onto the rear of a harnessed Amish buggy horse with Martin’s help.

“It’s not going to work,” he said, breaking the news Wednesday at a specially called commission meeting. The room was crowded with unhappy residents who want to mandate the devices for their Amish neighbors -- a proposal that stalled as commissioners look for a better option.

“This problem isn’t going away,” Martin added. “We’ve always had horse manure here. Now, we’ve got just a lot more of it.”

Martin said he’s concerned about the tenor of the debate, including in recent postings on social media. One accused him of cowing to "the Amish mafia.”

Steve Nolt, who studies the Amish at the nearby Mennonite-run Goshen College, said the controversy is out of character.

“It’s a little unusual to have this kind of skirmish in a place where the English and Amish have co-existed for so long,” he said.

That is just the start of this interesting story.

[More] Here is the whole, long CNHI story on one-page, via Indiana Economic Digest.

Posted by Marcia Oddi on Friday, October 23, 2015
Posted to Indiana Government

Law - New Cook County Illinois Head Public Defender comes out swinging

The subhead of this lengthy story today by Steve Schmadeke in the Chicago Tribune: "Outspoken new public defender a refreshing change for low-profile office, colleagues say." Some quotes:

Just six months in her appointed post, [Amy] Campanelli has burst onto the scene, taking a much higher profile than any Cook County public defender in decades, speaking out on behalf of her office and what she calls the county's "broken" criminal justice system.

In an interview of more than two hours this week in her office overlooking Daley Plaza, she laid out her plans for a new direction for the public defender's office while letting loose with sometimes-pointed criticisms of Mayor Rahm Emanuel, the Chicago Police Department and the Illinois secretary of state's office in addition to Alvarez and her office. * * *

In the interview, Campanelli announced ambitious plans for the office, saying she wanted to establish a presence in Springfield to lobby for a legislative agenda that includes repealing controversial mandatory minimum sentences in certain cases.

She also talked about making those convicted on low-level heroin and burglary charges eligible for probation, reducing all Class 4 felonies — typically thefts and drug cases — to misdemeanors, and easing the process to expunge records on certain convictions.

In addition, she wants to hire a spokesperson to highlight her office's successes, launch a mental health unit with a staff psychologist and psychiatrist to evaluate defendants, increase training for her attorneys and start support services for families of defendants.

Colleagues say Campanelli, 53, represents a refreshing change for an office used to taking a beating from judges in the courtroom and being held in low regard by the public and often even its own indigent clients.

"With the other public defenders, sometimes you got the idea they were ashamed of what they were doing," said Marijane Placek, an assistant public defender for more than four decades who works in the elite Homicide Task Force. "She's a real breath of fresh air. Just the fact that she cares means something, and she's able to infuse this in the troops." * * *

With more than 500 attorneys and nearly 60 investigators, Campanelli said she wants to spend more money on training for the staff and intends to "empower" assistant public defenders to take more cases to jury trials instead of accepting plea deals.

"Maybe we win a few jury trials and the offers (from prosecutors) start getting better," she said.

Posted by Marcia Oddi on Friday, October 23, 2015
Posted to General Law Related

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

For publication opinions today (0):

NFP civil decisions today (2):

Larry R. Flanagan v. Mary J. Beckman (mem. dec.)

Virginia L. Bishop v. Dennis Parks d/b/a Dennis Parks & Son (mem. dec.)

NFP criminal decisions today (4):

Russell A. Prosser, Jr. v. State of Indiana (mem. dec.)

Kimberly Gaskins v. State of Indiana (mem. dec.)

Hitzel Palafox-Dominguez v. State of Indiana (mem. dec.)

Alvin R. Hollis, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, October 23, 2015
Posted to Ind. App.Ct. Decisions

Thursday, October 22, 2015

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

For publication opinions today (1):

In Eric Brazier d/b/a Brazier Painting v. Maple Lane Apartments I, LLC, a 26-page opinion, Judge Robb writes:

Eric Brazier sued Maple Lane Apartments I, LLC (“Maple Lane”), claiming he had performed over $60,000 in painting services at Maple Lane’s request for which he had not been paid. Following a five-day bench trial, the trial court entered judgment in favor of Maple Lane and imposed sanctions against Brazier’s counsel in the amount of $5,000 toward Maple Lane’s attorney fees. Brazier now appeals, raising several issues for our review, which we have restated as: 1) whether the trial court erred in denying his motion for summary judgment; 2) whether the trial court erred in its evidentiary ruling on certain exhibits proffered by Brazier; 3) whether the trial court’s judgment is clearly erroneous; and 4) whether the trial court erred in imposing sanctions. Concluding there was no error in any respect, we affirm. * * *

The trial court did not err in denying Brazier’s motion for summary judgment or in its evidentiary rulings at trial. Further, the trial court’s judgment is not clearly erroneous, and the trial court did not abuse its discretion in imposing sanctions against Brazier’s counsel for mispresenting the nature of the documents on which Brazier based his entire case. The judgment of the trial court is affirmed. [ILB emphasis]

ILB: It is hard to know where to start here, perhaps with some of the footnotes:
[#4 at p. 12 of 26] Counsel’s failures to follow even the simplest rules regarding the content of an appellate brief have made our review of this case unnecessarily difficult. We commend Maple Lane for largely refraining from comment on the quality of the brief and endeavoring to respond to the legal arguments. Were it within our purview to do so, we would order Brazier’s counsel to verify to this court her attendance at a continuing legal education program regarding appellate practice before submitting any further briefs to this court. Although it would be within our purview to order counsel to show cause why she should not be held in contempt for willful violation of this court’s order granting leave to amend the brief to correct technical errors only and specifically prohibiting any substantive changes, counsel does not appear to frequently represent clients on appeal nor has she been previously cited for poor briefing practices. Therefore, we have chosen not to take such extreme measures at this juncture. Nonetheless, we admonish counsel in the strongest possible terms to carefully review the appellate rules and fully conform her briefs to their requirements in the future.

[#8 at p. 21 of 26 begins] Brazier’s complaint and, as the trial court noted, “belabored, disorganized presentation of his case” at trial, Appellant’s App. at 19, leaves us without a clear understanding of the theory under which he was seeking recovery.

NFP civil decisions today (3):

In the Matter of the Termination of the Parent-Child Relationship of: H.S., Mad.S., & Mal.S. (Minor Children), and K.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Dannie Michelle Clark v. Elizabeth Spradlin (mem. dec.)

In re the Termination of the Parent-Child Relationship of: G.J. and J.E., II (minor children), and D.J. (mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (2):

Kenneth L.Collins v. State of Indiana (mem. dec.)

Jeffrey E. Akard v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, October 22, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Floyd County Prosecutor Keith Henderson takes stand again in own ethics hearing"

Here is the WDRB Louisville story on yesterday's hearing, with video. Some quotes:

Henderson’s colleagues and fellow Indiana prosecutors were first on the stand.

Melvin Wilhelm is Franklin County’s Prosecuting Attorney, and one of the most senior prosecutors in the state. He said Henderson is one of the most ethical prosecutors he knows.

On the other hand, Stacie Uliana, the defense attorney for David Camm -- a man who was twice convicted, and finally acquitted of the murders of his wife and children -- argued that Henderson caused irreparable harm to the justice system in Floyd County.

"The harm of having two interests: one, your personal interest and making money, and another, the interest of justice for representing the state and doing what’s right," Uliana said. "You can’t have them both."

Henderson himself took the stand Wednesday morning. He told the hearing officer that he was the son of immigrants – middle-class parents who struggled to send him and his siblings to private school. He said his father had only an eighth grade education, but was still, "the smartest person I knew."

Posted by Marcia Oddi on Thursday, October 22, 2015
Posted to Indiana Courts

Ind. Courts - "Henderson ethics hearings wrap up"

Updating earlier ILB posts, Elizabeth DePompei of the New Albany News & Tribune reported late last evening in a lengthy story - here are some quotes:

The focus of Wednesday’s disciplinary hearing was how and when Henderson started talking to a literary agent and whether that was a conflict of interest. Attorneys also focused on the role the Indiana Prosecuting Attorneys Council’s, or IPAC, ethics committee played in Henderson’s actions.

THE AGREEMENTS

In an email dated March 3, 2006, a literary agency sent a proposed agreement to Henderson "to serve as your exclusive literary agent," according to the complaint. Later that same day, a jury convicted Camm on three counts of first-degree murder for the second time.

Seven days later on March 10, 2006, Henderson signed an agreement with the literary agent. But he and his attorney, Donald Lundberg, argue that the agreement was for representation for a possible book deal in the future, not a contract to write a book.

“Never did I think I was obligated to produce anything I didn’t want to produce,” Henderson testified, adding that he felt he was in control of the agreements.

Then in May 2009, just one month before the Indiana Supreme Court would reverse Camm's second conviction, Henderson allegedly entered into an agreement with a co-author to prepare a manuscript.

Henderson said before signing that agreement, he got permission from the family of Kim Camm, David Camm’s deceased wife.

“Because they are truly the victims. They still are,” Henderson said.

The co-author agreement provided a $10,000 advance to be split between Henderson, the co-author and a publisher. Henderson said he received only a $1,700 advance that was never cashed and later returned.

Henderson also testified that at that time, he was "fairly confident" that the Indiana Supreme Court wasn't going to reverse the second conviction. But on June 26, 2009, the conviction was reversed.

HENDERSON REMOVED

Henderson again filed murder charges against Camm for a third and final trial. In December 2010, after learning of the potential book deal negotiations, Camm's attorneys filed a petition to assign a special prosecutor to represent the state.

“I believed then, based on our analysis, they were not going to be successful in removing me and my office from the case,” Henderson said.

But when he realized the allegations were getting more attention, he wanted to take the issue to the IPAC ethics committee. Henderson, who seemed relaxed throughout the hearings, raised his voice to defend his choice to turn to IPAC.

“I strongly believe in that group to advise prosecuting attorneys in the state of Indiana,” Henderson said. “The fact that you (the disciplinary commission) don’t do that, then we’re left out here to figure it out.”

Henderson said there’s a “gotcha game” mood in Indiana and characterized the relationship with the disciplinary commission as adversarial. He added that he feels he has been publicly “crucified.” Attorney David Hughes represented the disciplinary commission. Hughes said Monday that he would not comment on the case.

“I believe that you examine cases based on the facts,” Henderson said after the hearing. “I don’t believe there was [sufficient proof] in this case. I don’t believe the case should have ever been brought. It’s more of a ‘gotcha game’ instead of working with attorneys.”

Henderson said that if the IPAC ethics committee had told him to remove himself from the third Camm trial, he would have. In fact, he said, he probably would have been relieved. Instead, the committee unanimously agreed that Henderson should remain on the case.

Camm’s motion for a special prosecutor was at first denied by the trial court judge. But in late 2011, an appeals court adopted the motion and Henderson was removed from the case.

"I felt then [and] I feel now that it was a trial tactic to get me off [the case]," Henderson said.

At that time, Henderson said he canceled the book deal agreements. Special Prosecutor Stan Levco represented the state in the third Camm trial. Camm was acquitted of all charges. * * *

THE FINAL SAY

David Pippen, the hearing officer in the disciplinary commission allegations, expects to have the hearings transcribed within 30 days. After that, Lundberg and Hughes will have another 30 days to prepare findings. Pippen will then send a report with his decision to the Indiana Supreme Court. The Supreme Court will hand down the final decision.

“If you start putting all those time frames together, we’re easily in the six-month range before we would hear anything,” Lundberg said. “And that’s probably a conservative [estimate].”

If the disciplinary commission's allegations are upheld, Henderson could be sanctioned to private or public reprimand; suspension from practice for a set period of time; suspension from practice with reinstatement only after proving fitness; or permanent disbarment.

“I’m not worried,” Henderson said. “When you do the right thing … I’m not concerned. I’m more concerned with the [disciplinary commission] process.”

Posted by Marcia Oddi on Thursday, October 22, 2015
Posted to Indiana Courts

Ind. Courts - "Dissenting statement from denial of review — first ever?"

That is the heading to an Oct. 20th post in the At the Lectern: Practicing Before the California Supreme Court blog of Horvitz & Levy. It reports on trhe CA Supreme Court denial of review in a high profile case where 3 justices recorded votes to grant review, continuing:

Record votes are not common, but they do happen with some regularity, although it’s rather rare for a petition for review to come up just one vote short of being granted.

What’s really noteworthy from a Supreme Court practice standpoint, however, is that Justice Liu not only recorded his vote, but also wrote a dissenting statement from the denial of review. The statement — a long one, signed by Justice Cuéllar but not Justice Kruger — says that the case “raises an important legal issue that likely affects hundreds of children each year: whether and, if so, how the concept of a voluntary, knowing, and intelligent Miranda waiver can be meaningfully applied to a child as young as 10 years old.” The statement also suggests that the “Legislature may wish to take up this issue in light of this court’s decision not to do so here.”

U.S. Supreme Court justices will sometimes write dissents from certiorari denials and Ninth Circuit judges occasionally file “dissentals” from denials of en banc review. However, to our knowledge, a dissenting California Supreme Court justice has never before stated reasons for wanting to grant a petition for review.

ILB: What about Indiana; haven't we had this here? The ILB asked Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, who responded:
Yes, we've had a least three this year:One difference is the timing (continues Schumm, quoting more of the Horvitz & Levy post):
Another thing about Justice Liu’s dissenting statement — it apparently delayed the ruling on the petition for review. Atypically, the order denying review was not issued after the court’s weekly Wednesday conference and thus did not appear on the court’s list of conference actions. (That’s why we didn’t notice the dissenting statement right away.) Instead, it was on Friday that the court denied review and filed Justice Liu’s statement, the last day to which the court had — and could have — extended its time to rule.
I think our justices take significantly longer than a day or two to write their dissents from the denial of transfer.

These opinions usually represent strongly held views of two of the five justices and signal issues likely to arise in the future on which counsel and lower courts should take careful notice.

Posted by Marcia Oddi on Thursday, October 22, 2015
Posted to Indiana Courts

Ind. Courts - "For the first time in an Indiana courtroom a different statistical formula for calculating the DNA in an evidence sample was used"

A story today reported by Ellie Bogue in the Fort Wayne News-Sentinel reports:

Although the Allen Superior Court jurors in the Freddie Alcantar murder trial may not have known it, for the first time in an Indiana courtroom a different statistical formula for calculating the DNA in an evidence sample was used. * * *

The 2P test allows samples of DNA that were previously judged as low-level data, to be used as a viable sample. Wednesday, Serafina Solamo, Indiana State Police crime lab forensic scientist, explained the test and the significance it has to the Alcantar trial. This meant of the three samples they originally tested, they could come up with only a high statistical probability of the suspect, Alcantar, in the kitchen counter sample and inconclusive data of another person, a high statistical probability of victim Jones, in the doorway sample and light switch sample, but, again, the minor contributor's DNA was statistically impossible to draw a conclusion on. By using the 2P statistical equation on all three of the samples they were able to find enough statistical data to draw the conclusion that Jones' DNA was also a contributor in the kitchen sample, and Alcantar was also a contributor in the doorway and on the light switch samples. This evidence would prove that Alcantar was not totally forthcoming about where he had said he had been in the Jones home on the night in question.

Starting last year, Indiana began using the new statistical equation. The results of the DNA samples using the 2P statistical equation differed from the results of those with the statistical equations that have been commonly used in Indiana courts since 1996. The DNA test is not new, but the use of the mathematical formula 2P in Indiana is, Linda McDonald, forensic scientist at the Indiana State Police Crime Lab in Fort Wayne told The News-Sentinel last spring.

Posted by Marcia Oddi on Thursday, October 22, 2015
Posted to Indiana Courts

Wednesday, October 21, 2015

Ind. Courts - "Soderquists granted one viewing of trial video"

Jumping right to the meat of the story today by Bob Kasarda in the NWI Times:

Attorneys for the Soderquists are seeking a retrial, claiming their clients were denied a fair trial because the federal judge presiding over the case -- U.S. District Senior Judge Rudy Lozano -- was asleep during portions of their criminal trial.
Now some context:
HAMMOND | Former Lake Station Mayor Keith Soderquist and his wife, Deborah Soderquist, were granted their request Wednesday to view the courtroom video recording from their September criminal trial.

The video of the court proceedings from Sept. 1 through Sept. 11 will be shown just once at the office of the United States Marshals Service with defense and government attorneys present at an agreed upon time, according to the order.

"No copies, photographs, or any other recorded images or additional recordings may be made by any party," the order says.

Here is a list of earlier Soderquist stories.

Posted by Marcia Oddi on Wednesday, October 21, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Bloomington incident highlights Indiana's lack of a hate crimes law

An AP story in The Republic yesterday was headed "Supporters planning to make new push for enactment of hate crime law in Indiana." A few quotes:

INDIANAPOLIS — Supporters of establishing a hate crimes law in Indiana are planning a new push for it during next year's state legislative session, although a key lawmaker continues to say it is unnecessary.

Democratic state Rep. Gregory Porter of Indianapolis has been advocating for at least 15 years for legislation to increase penalties for crimes motivated by biases, including race, gender and religion.

Among those joining Porter in his new push are the Indianapolis Urban League civil rights group, the Indianapolis Jewish Community Relations Council and Democratic Marion County Prosecutor Terry Curry. * * *

Indiana is among only five states without a hate crime law, according to the New York-based Anti-Defamation League. The others are Arkansas, Georgia, South Carolina and Wyoming.

"This isn't cutting edge," Porter said. "This is really catch-up."

The new push comes as authorities are investigating a weekend attack at a Bloomington cafe in which a 19-year-old Indiana University student is accused of trying to remove a Muslim woman's headscarf and shouting racial slurs.

Curry said crimes that are motivated by hate and bias ought to face greater penalties.

The Bloomington incident was the subject of an AP story last evening headed "IU student dismissed after attack on Muslim woman." The story as it originally appeared contained this reference to an Indiana hate crime law:
Hooper said the low bail set for Bickford suggests authorities aren’t taking the assault seriously.

He said CAIR wants prosecutors to consider filing a state bias crime charge against Bickford. That statute is used in cases where the victim was chosen because of their “color, creed, disability, national origin, race, religion, or sexual orientation.”

The current version removed that reference:
Ibrahim Hooper, a spokesman for the Council on American-Islamic Relations, said the attack fits a nationwide pattern.

“We’ve seen a tremendous spike in the level of anti-Muslim sentiment in our society and increasingly violent hate rhetoric” in recent years, he said Tuesday.

Wendy Osborne, a spokeswoman for the FBI in Indianapolis, said the agency is reviewing Saturday’s incident and could open up a hate crimes investigation if it “determines that a federal law has been violated.”

Posted by Marcia Oddi on Wednesday, October 21, 2015
Posted to Indiana Law

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

For publication opinions today (1):

NFP civil decisions today (0):

Loren J. Adams v. Review Board of the Indiana Department of Workforce Development, and F&J Pizza III LLC (mem. dec.)

NFP criminal decisions today (2):

Perry Gebhart v. State of Indiana (mem. dec.)

Eric D. Lacy v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, October 21, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Third day of Henderson hearings start this morning in Indianapolis"

Updating this post from earlier this morning, here is the story now posted by Elizabeth DePompei in the New Albany News & Tribune. A few quotes from the long story:

INDIANAPOLIS — A third and likely final disciplinary hearing for Floyd County Prosecutor Keith Henderson begins this morning, Oct. 21, at the Indiana Supreme Court in Indianapolis. * * *

The complaint, filed by disciplinary commission attorney David Hughes, alleges that Henderson started negotiations with Frank Weimann, a literary agent, in 2005 before the second Camm trial began, this time in Warrick County. The complaint states that Henderson then filed a notice of intent to introduce in the second trial allegations that Camm molested his children.

During the first disciplinary hearing held Monday in Floyd County Superior Court No. 3 in New Albany, Hughes introduced emails between Henderson and the literary agency dated the morning of March 3, 2006. In that email, the agency sent a proposed agreement "to serve as your exclusive literary agent," according to the complaint. Later that same day, the Warrick County jury convicted Camm of three counts of first-degree murder for the second time.

"I was quite bored around then," Henderson said of the week in Warrick County when he was waiting for a decision from the jury.

Henderson, the first of many witnesses to take the stand Monday, acknowledged that four days later on March 10, 2006, he signed an agreement with the literary agent. But he and his attorney, Donald Lundberg, argue that the agreement was for representation for a possible book deal in the future, not a contract to write a book. * * *

The disciplinary commission alleges that while waiting for the court's decision on the appeal, a 60-page book proposal was completed and the literary agency started shopping the proposal around to publishers. Then in May 2009, just one month before the Indiana Supreme Court would reverse Camm's conviction, Henderson allegedly entered into an agreement with a co-author to prepare a manuscript. The agreement provided a $10,000 advance to be split between Henderson and the co-author.

Henderson testified that at that time, he was" fairly confident" that the Indiana Supreme Court wasn't going to reverse the conviction. On June 26, 2009, the conviction was reversed, in part because the allegations Camm molested his child was "speculative at best and far more prejudicial than probative."

The disciplinary commission's complaint includes text from an email in which Henderson told the literary agency that he was still "committed to writing the book ..."

"It's a great story that needs to be told," Henderson wrote. "However the book can not come out prior to the completion of a potential third trial. It would jeopardize the case, potentially getting me removed from the case due to certain disclosures and opinions we are writing in the book."

Henderson's attorney said he received only a $1,700 advance that was later returned. Henderson testified that he did not remember what the details were that could have jeopardized the case had the book been published. But, he said, there were certainly details of the case that had not been presented at trial.

In November 2009, Henderson again filed murder charges against Camm for a third and final trial. A month later, after learning of the potential book deal negotiations, Camm's attorneys filed a petition to assign a special prosecutor to represent the state. In response to that petition, Henderson said allegations that the state would push to retry the case because of a book deal were "false" and that the deal was "conditioned on an affirmation by" the Supreme Court. * * *

If the disciplinary commission's allegations are upheld, Henderson could be sanctioned to private or public reprimand; suspension from practice for a set period of time; suspension from practice with reinstatement only after proving fitness; or permanent disbarment.

The News and Tribune is in Indianapolis today covering the hearing. Check back for story updates.

Posted by Marcia Oddi on Wednesday, October 21, 2015
Posted to Indiana Courts

Ind. Gov't. - A look at the upcoming Indiana attorney general race

Governing has an article today by Louis Jacobson titled on some of the upcoming state attorneys general races. Here is what he has to say about Indiana, which he places in the "Tossup" category:

Indiana: Open seat; AG Greg Zoeller (R) is running for Congress

Former Republican AG Steve Carter is expected to run to succeed his longtime confidant Zoeller. Carter was popular during his tenure for pioneering the Do Not Call Registry, which helped reduce telemarketing. Randy Head, a well-liked two-term state senator and former county prosecutor, is interested in the race.

The Democratic field includes retired Lake County Circuit Court Judge Lorenzo Arredondo, the longest serving elected Latino state trial judge in the country when he retired from the bench in 2010. Arredondo is respected among members of the state’s judicial community. Democratic state Sen. Karen Tallian, on the party’s liberal end, is also a possible candidate.

Carter's argument centers on continuity and experience. Arredondo, for his part, will need to overcome skepticism about Lake County (which includes Gary, Hammond, and East Chicago) and its history of corruption. Unknown for now is how voters will be feeling about GOP Gov. Mike Pence, and whether they prefer to steer the AG’s office away from the hot-button national topics it has taken up, such as immigration, public prayer, gay rights and the Affordable Care Act.

Posted by Marcia Oddi on Wednesday, October 21, 2015
Posted to Indiana Government

Ind. Law - "New judge (in Michigan) orders lighter sentence in Elkhart man's sex case"

Updating this Sept. 14th ILB entry, Virginia Black of the South Bend Tribune reports:

ST. JOSEPH — A new judge in the highly publicized case of a young Elkhart man who had sex with a Niles 14-year-old who lied about her age issued a lighter sentence, with an admonition.

Junge Angela Pasula sentenced Zachery Anderson to two years on probation and the time he already served in the Berrien County Jail, granting him a second chance under a Michigan law that provides leniency to first-time offenders who are young adults.

The hearing Monday was a far cry from the scene almost six months ago in a different courtroom and before a different judge.

Anderson, now 20, was 19 when he met the teenager, now 15, on a popular website in December. Judge Dennis Wiley in Niles declined to sentence the young man under the state's Holmes Youthful Trainee Act, which would have kept him from being listed for 25 years on Michigan's sex offender registry.

The case — and Wiley's angry words at Anderson's original sentencing in late April about people who "hook up" online — has since been featured in newspapers, television and online articles around the country. Monday's re-sentencing in a St. Joseph courtroom was attended mostly by journalists. * * *

The judge cited Anderson's lack of a prior record, the support of his family as well as the victim's, and his intention to continue his education among a list of mitigating factors that led her to sentence two years of probation under HYTA. He will still have conditions under probation, such as a 9 p.m. curfew and restricted computer access.

"You and you alone," she told Anderson, "have control over your actions, your choices and your behaviors, 100 percent of the time."

Anderson and his parents, Lester and Amanda, were relieved, with Amanda noting Judge Pasula, unlike Judge Wiley, "sounded like a mother speaking to her own child, and I appreciate that."

"He's not a convicted sex offender," Lester said in front of several television cameras after sentencing. "That feels good to say that."

But they say their battle, which has cost about $40,000 so far, is not over.

Indiana probation rules mean that for the two years he's on probation in Michigan, Zach Anderson will still be listed on Indiana's sex offender registry, with its many restrictions. Grabel said he will research how to best attack that legally.

Les Anderson says they will continue to fight to change laws for the hundreds of thousands of people across the country they now know are in similar situations. "You make a mistake, you shouldn't have to pay for it the rest of your life," he said.

Posted by Marcia Oddi on Wednesday, October 21, 2015
Posted to Indiana Law

Courts - "Louisville judge questioned for dismissing juries based on lack of minorities"

The ILB happened onto this WDRB Louisville story this morning, reported by Jason Riley. The long story, with video, begins:

LOUISVILLE, Ky. (WDRB) – Unhappy with the number of potential black jurors called to his court last week, Jefferson Circuit Court Judge Olu Stevens halted a drug trial and dismissed the entire jury panel, asking for a new group to be sent up.

“The concern is that the panel is not representative of the community,” said Stevens, who brought in a new group of jurors despite objections from both the defense and prosecutor.

And this wasn’t the first time Stevens, who is black, has dismissed a jury because he felt it was lacking enough minorities. Now the state Supreme Court is going to determine whether the judge is abusing his power.

On Nov. 18, after a 13-member jury chosen for a theft trial ended up with no black jurors, Stevens found it “troublesome” and dismissed the panel at the request of a defense attorney.

“There is not a single African-American on this jury and (the defendant) is an African-American man,” Stevens said, according to a video of the trial. “I cannot in good conscious go forward with this jury.”

A new jury panel was called up the next day.

After that, the Jefferson County Commonwealth’s Attorney’s Office and Attorney General asked the Kentucky Supreme Court to look at the issue and see if Stevens has the authority to dismiss jury panels because of a lack of minorities. And last month, the high court agreed to hear arguments.

Jefferson County has long had a problem with minorities being underrepresented on local juries. Several black defendants have complained over the years that they were convicted by an all-white jury - not of their peers.

Posted by Marcia Oddi on Wednesday, October 21, 2015
Posted to Courts in general

Ind. Courts - Still more on "Hearing underway to determine if Floyd Co. prosecutor's handling of Camm case violated ethics rules"

Updating earlier ILB posts, WDRB Louisville reports on Tuesday's hearing, held in the state Supreme Court courtroom in the Statehouse. Stephan Johnson reports, with video (worth watching). Some quotes:

Tuesday brought the second day of testimony in the ethics hearing for Floyd County Prosecutor Keith Henderson.

Henderson is accused of negotiating a book deal leading up to the third trial, and then using taxpayer money to cover his legal fees. Henderson counters that there was never anything in writing.

The hearing was moved to the state house in Indianapolis to allow David Camm's defense attorneys to testify. First on the stand today was Indianapolis attorney Stacy Uliana, who represented Camm in his second and third trials.

The hearing started off pretty tame, but things got heated when Uliana was questioned about her personal relationship with Camm. She admits her sister did have a relationship with Camm after the third trial, but then stressed to us after testifying that this is not about any personal relationships, or even David Camm, for that matter.

"This proceeding is about the harm that was done to the Floyd Count taxpayers, and about the harm that was done to my profession -- the legal profession -- by Mr. Henderson's conduct," Uliana said.

"I felt then -- I feel now -- it was a trial tactic to get me off," Henderson said. "Kudos to them. They were successful. But it was certainly related to the appeal that was pending up at the court of appeals. But with that, I don't really want to say any more until after I testify."

Also on the stand today, Henderson's chief Deputy Prosecutor, Steve Owen, called the attorney for the ethic commission a "tool." * * *

The hearing is expected to wrap up on Wednesday.

Posted by Marcia Oddi on Wednesday, October 21, 2015
Posted to Indiana Courts

Tuesday, October 20, 2015

Ind. Law - Sue Shadley, co-founder of Plews Shadley Racher and Braun, died today

"PSRB Mourns the Loss of Firm Founding Partner and Legal Pioneer Sue A. Shadley" is the heading of the tribute now posted on the website of Plews Shadley Racher & Braun. It begins:

It is with great sadness that Plews Shadley Racher and Braun LLP announces the passing of Sue A. Shadley on October 19, 2015. In testament to the contributions Shadley made to her firm, the law, and the community, she was honored as the 2016 recipient of the prestigious IndyBar Women & the Law Division’s Antoinette Dakin Leach Award just a week before her passing.

Sue A. Shadley was a founding partner at Plews Shadley Racher & Braun LLP. Plews Shadley Racher & Braun LLP is the only top 10 law firm in Indianapolis formed in the last 25 years and Shadley was the first female managing partner of such a large Indianapolis firm. She held the post five times. Now, more than 25 years later, the firm Shadley and her partners founded with four lawyers has grown to over 40 lawyers.

Posted by Marcia Oddi on Tuesday, October 20, 2015
Posted to Indiana Law

Ind. Courts - Brownsburg Schools cafeteria workers, punished for Facebook postings, sue

From an ACLU of Indiana news release:

Indianapolis – Two cafeteria workers employed by Brownsburg Community School Corporation filed suit yesterday to challenge disciplinary actions taken by the school to punish them for opinions expressed on Facebook and to stop the school from enforcing its social media policy. The school's policy and its enforcement of that policy violate the First Amendment to the U.S. Constitution.

The American Civil Liberties Union of Indiana brought suit on behalf of Tina Gracey and Brenda Farnsworth, cafeteria workers who joined a Facebook group called "Brownsburg Residents for Fiscal Responsibility" to advocate against building referendums that were ultimately defeated at the May 2015 election. Both women were given written reprimands by the school corporation and informed that they would be subject to termination if they continued to post their opinions to online forums. Their comments were all made and posted on their own time and from their own electronic devices.

The lawsuit seeks to have the reprimands of the women expunged, and to stop the school from enforcing its social media policy.

"There is no justification for the school corporation's attempts to silence its workers' speech on issues of public interest and concern," said Gavin Rose, ACLU of Indiana senior staff attorney. "The First Amendment protects everyone's right to express their opinions, and online forums are a means of such expression."

The case, Gracey et al v. Brownsburg Community School Corporation, 1:15-cv-01647-RLY-DKL, was filed in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on October 19, 2015.

ILB: Here is the 9-page complaint.

Posted by Marcia Oddi on Tuesday, October 20, 2015
Posted to Indiana Courts

Ind. Decisions - COA oral argument tomorrow at Indiana Tech Law School

The ILB is now able to update the Court of Appeals' Upcoming Oral Arguments listing for tomorrow:

Wednesday, October 21
  • 1:00 PM - Phillip Whitley v. State (49A02-1501-CR-50) An Indianapolis Police Department officer initiated a traffic stop of a truck driven by Phillip Whitley after the officer determined that the license plate displayed on the truck was registered to another vehicle. During the stop, Whitley was unable to produce a vehicle registration or a valid driver's license, and the officer determined that the truck was not registered to Whitley; therefore, the officer decided to impound the truck. An inventory search of the vehicle was conducted at the scene, before the truck was impounded, and an officer found a decorative box containing methamphetamine and a pill bottle containing methamphetamine, two Alprazolam pills, and eight Clonazepam pills, both of which are Schedule IV controlled substances. Whitley was subsequently charged with Class A felony dealing in methamphetamine, Class C felony possession of methamphetamine, Class D felony possession of a controlled substance, and Class A misdemeanor driving while suspended. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Mathias Barnes. [Where: Indiana Tech Law School, 1600 E. Washington Blvd., Fort Wayne]
Thanks to the Chief Judge for the assist!

Posted by Marcia Oddi on Tuesday, October 20, 2015
Posted to Upcoming Oral Arguments

Ind. Courts - "Floyd County prosecutor appears in court for disciplinary hearing"

Updating this ILB post from yesterday, Elizabeth DePompei of the New Albany News & Tribune reports today:

NEW ALBANY — Floyd County Prosecutor Keith Henderson took the witness stand Monday during a disciplinary hearing regarding allegations that he violated rules of ethics during the David Camm trials. * * *

Monday was the first of three disciplinary hearings addressing the allegations. Attorney David Pippen is the presiding hearing officer.

"I waited almost five years to have this take place," Henderson said after the hearing. "So I'm excited that we're underway and we're going to get this concluded this week."

If Pippen affirms the allegations, Henderson could be sanctioned to private or public reprimand; suspension from practice for a set period of time; suspension from practice with reinstatement only after proving fitness; or permanent disbarment, according to an earlier News and Tribune report.

Henderson said during the hearing that he sought advice from the Indiana Prosecuting Attorneys Council's ethics committee as to whether he was ethically required to remove himself from the Camm case. At the time, Henderson served as chairman of the ethics committee, but Henderson said he was not part of the deliberations to determine his ethical obligations in the Camm case. The committee advised there was no conflict and that Henderson did not need to remove himself.

"I felt then [and] I feel now that it was a trial tactic to get me off [the case]," Henderson said of the request for an ethical investigation. "Kudos to them. They were successful ... " Special prosecutor Stan Levco tried Camm's third trial.

Also in question is how Henderson used county tax dollars to fund his own legal representation. Henderson hired attorneys to respond to Camm's request for a special prosecutor and to advise in the ethical investigation into his conduct. The disciplinary commission, represented by attorney David Hughes, argued that using county money for Henderson's representation in the ethical investigation, was a violation of the Indiana Code of Professional Conduct. Henderson's attorney, Donald Lundberg, argued that the ethical investigation was directly related to the Camm case and therefore an appropriate county expenditure.

There is much more in the long story. It concludes:
The hearing is continuing Tuesday, beginning at 9:30 a.m. at the Indiana Supreme Court in Indianapolis.

Posted by Marcia Oddi on Tuesday, October 20, 2015
Posted to Indiana Courts

Ind. Courts - Here is yesterday's ruling in the ballot-selfie case [Updated]

Updating this ILB post from Oct. 19 and this one from Oct. 13, here is yesterday's 20-page ruling granting plaintiff's motion for a preliminary injunction, issued by SD Ind. Judge Sarah Evans Barker in Indiana Civil Liberties Union v. Indiana Sec. of State.

Here is an AP story on the ruling.

The upshot: The State is enjoined from enforcing the law now on the books prohibiting you from taking a photo of your completed ballot and posting it on Twitter. From the opinion:

Here, the balance weighs heavily in favor of the ACLU. The harm to the ACLU and its members as advanced on behalf of Indiana voters—the deprivation of First Amendment free speech rights—is presumptively irreparable. Elrod, 427 U.S. at 373; Joelner, 378 F.3d at 620. The State has failed to identify any harm that would result if an injunction were entered. See Defs.’ Resp. at 12 (conceding that “digital photography has yet to contribute to vote buying issues in Indiana.”). Central to our analysis of these factors is the principle that the public interest is always served when First Amendment freedoms are protected. Elrod, 427 U.S. at 373; Joelner, 378 F.3d at 620. Given the ACLU’s likelihood of success and the balance of these harms, a preliminary injunction enjoining enforcement of this statute is both appropriate and necessary.
[Updated at 12:45 PM] Here is the ACLU of Indiana news release.

Posted by Marcia Oddi on Tuesday, October 20, 2015
Posted to Ind Fed D.Ct. Decisions

Monday, October 19, 2015

Ind. Courts - More on: Ivy Tech instructor appeals in claim school discriminated against her because of her sexual orientation

Supplementing this ILB post from Oct. 1st, Equality Case Files has now posted all the filings.

Posted by Marcia Oddi on Monday, October 19, 2015
Posted to Indiana Courts

Ind. Courts - More on: Today [Oct. 13] was the ballot-selfie argument in federal court here

Updating this post from Oct. 13th, federal Judge Sara Evans Barker just enjoined law vs. ballot selfies, says it can't withstand strict scrutiny.

[More] From Jim Shella at WISHTV8:

Federal Judge Sarah Evans Barker signed the order on Monday. In her conclusion, Barker wrote that Indiana code “embodies a content-based restriction on speech that cannot survive strict scrutiny because it neither serves compelling state interests nor is narrowly tailored to achieve those interests.”

[Oct. 20th update] The ruling is now available here.

Posted by Marcia Oddi on Monday, October 19, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - More on "Hearing underway to determine if Floyd Co. prosecutor's handling of Camm case violated ethics rules"

Updating this post from morning, here is the docket in the Floyd County Prosecutor Keith A. Henderson disciplinary hearing being held today in at the Floyd County courthouse in New Albany.

Indianapolis attorney David L. Pippen was appointed earlier this year by the Supreme Court to serve as hearing officer.

The WDRB 41 Louisville story has now been updated, and also now includes a 3-minute news video. From the story itself:

On the stand today, Henderson was questioned about his book, "Sacred Trust: Deadly Betrayal," a nearly completed manuscript on the Camm case.

David Hughes, the attorney for the ethics commission, says Henderson had the nearly completed manuscript about a week before Camm's second case was reversed.

Henderson's attorney, Donald Lundberg, says there was never a book contract during the Camm trial, only a literary agreement that did not commit Henderson to writing the book.

Henderson was then confronted about a July 2009 email to a publisher where he says: "I am committed to writing this book."

Lundberg says Henderson did receive a $1,700 advance on the book, but returned it.

Under questioning on the stand, Henderson admitted to working on the book at home, and Hughes responded by saying writing a book wasn't part of job as prosecutor. Henderson says he has never even read the manuscript, which was essentially written by another person. Henderson says that person received no monetary compensation.

Hughes' contention that Henderson's book is not part of his job calls into question whether he should have billed the county for his defense.

"To say that I'm not a prosecutor at home is an incorrect statement," Henderson answered.

Next on the stand was Charles Frieberger, a middle school teacher and Floyd County commissioner for 15 years, takes the stand. Friebergerger testified that Richard Fox, an attorney for commissioners and Henderson's relative, spoke with commissioners in 2011 about Camm case.

At that time, the commissioners authorized $10,000 payment related to Henderson's continued involvement in Camm case. Frieberger testified that late in 2011, the commissioners came under fire over allegations that additional funds - more that the $10,000 - were dispersed.

Frieberger says the commissioners later learned that the Attorney General's office was supposed to pay for Henderson's involvement in Camm, and the commissioners eventually asked that the money be returned.

WDRB news producer "Freiberger" is live-tweeting the hearing. You may follow him here.

Posted by Marcia Oddi on Monday, October 19, 2015
Posted to Indiana Courts

Ind. Law - The value of easy access to non-current Indiana statute books ...

This observation in Sarah Glassmeyer's blog, from the start of this Feb. 19th post caught my interest immediately (and could serve as a companion to this post from Oct. 14th):

Back in the good old days (2006-2010) when I was a reference librarian at the University of Kentucky College of Law, about once a week or so I had to email/mail/fax a piece of Kentucky law to a lawyer. They may may not have had the infrastructure to access WEXIS or they may have decided my labor was cheaper than the WEXIS charges. Maybe they just liked the sound of my voice on the phone. Doesn’t matter. The point is this: real live practicing attorneys of the small and solo variety needed to know the state of Kentucky law circa 20, 40, 80, 100 years ago.

Much more recently, Vint Cerf, a father of the Internet said in a speech that due to the variety of formats and devices and the rapidly changing nature thereof, people are going to lose all the photos and emails and other ephemera that we store online instead of shoeboxes in the basement. We are facing…wait for it…a future Digital Dark Age. People in the year 2200 will have no idea about what we looked like or how we live. * * *

Cerf’s suggestion to combat the Future Dark Age was to start printing stuff out. Let that soak in a minute…a digital pioneer and Internet forefather is saying digital isn’t stable enough to archive right now. He’s working on it…but in the meantime, print it.

Let me tell you a fun little story about law, the people that make it, the people that publish it and the words “official” , “certified” and “authentic.”

COME BACK! It’ll be fun, I swear.

Although I am practically a socialist, one of the things that I can admit government doesn’t do very well is print material in a timely fashion. That’s why we have slip laws and we’re still waiting on official US Supreme Court citations from years ago. So the government contracted the printing of its laws out to private companies. Some of this became “official” version of the law, some of it was “certified” and some of it was just a up to date copy.

So the Internet came along and budget minded government officials decided that print was for suckers and that they were going to throw everything online and call it a day.

Except a lot of the time, no one thought about how to archive this material properly if at all.

And the malleable nature of electronic text suddenly made official designation not sufficient and we needed to worry about “authentic” versions. Which, near as I can tell, no one really agrees on what it means, how to do that, or if it matters.

Meanwhile, the commercial print versions of law became too expensive to maintain, especially when one is also paying for an electronic version via WEXIS and no one likes coming to the smelly library anyway and we could use this space for faculty or partner offices.

Never mind the fact that you can’t ever own law accessed by WEXIS, you can only lease it and as soon as you stop paying your bills… *poof* no more law!

ILB: That is just a sample. I asked a local law librarian about all this and learned that it is amazing how much the pre-1980 laws and statutes are used every day. "Everyone still thinks [the law is] all online."

I asked why the need for pre-1980 law?

Westlaw coverage of Indiana Statutes is 1980 to current and LexisNexis coverage is 1991 to current. [Of course these are both $$$ services.]

I also learned that the official Indiana Code is now updated like the West/Lexis publication -- the official code replaces volumes as needed, rather than replacing every year in its entirety as it was before 2005, meaning you may need to research the intervening years.

Question. So where else can people in Indiana go to find the older laws, along with the intervening years since 2005?

Answer. Check the collections at the university law schools. Vanderburg County law library, Indiana State library in the Indiana section. Allen County has a bar association library.

The official Indiana Code is no longer distributed in print to the public libraries and they use the online code from the General Assembly.

Posted by Marcia Oddi on Monday, October 19, 2015
Posted to Indiana Law

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

For publication opinions today (0):

NFP civil decisions today (0):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of T.N., H.N., and S.W., Minor Children, and their Mother, A.N., A.N. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (0):

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

Posted by Marcia Oddi on Monday, October 19, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 16, 2015

There were no transfer dispositions last week, and hence, there is no transfer list.

Posted by Marcia Oddi on Monday, October 19, 2015
Posted to Indiana Transfer Lists

Law - "The Consequences of Technological Incompetence"

Sam Glover of Lawyerist has a long, important article full of examples, that begins:

Being a Luddite can be expensive, embarrassing, and potentially disastrous for lawyers and clients. Technological incompetence can result in wasted time (and therefore increased cost to the client), loss of money and identity, ethical sanctions, and embarrassment or worse in the courtroom. Those are high prices to pay for being too proud (or lazy) to learn how the Internet, social media, and that box on your desk work.
One of the examples cites an Indiana COA opinion:
Courts have started to lose patience with litigants who complain they didn’t know something they could easily have found online. In Munster v. Groce, for example, the plaintiff tried to use alternative service through the Secretary of State because it couldn’t find the defendants to serve them. The court did a quick Google search and lost its patience:
In fact, we discovered, upon entering “Joe Groce Indiana” into the Google™ search engine, an address for Groce that differed from either address used in this case, as well as an apparent obituary for Groce’s mother that listed numerous surviving relatives who might have known his whereabouts.

Posted by Marcia Oddi on Monday, October 19, 2015
Posted to General Law Related

Ind. Courts - "Hearing underway to determine if Floyd Co. prosecutor's handling of Camm case violated ethics rules"

That is the headline to this story this morning from WDRB41, New Albany.NEW ALBANY, Ind. (WDRB) -- An ethics hearing is now underway for Floyd County Prosecutor Keith Henderson.

The allegations against Henderson stem from his handling of the David Camm case, which dates back to Sept. 2000. Camm was accused of murdering his wife, Kim, and children, Brad and Jill. Camm was convicted of the murders in 2002, but that conviction was reversed by the Indiana Court of Appeals. * ** *

In a complaint filed in March of 2015
, the Indiana Supreme Court Disciplinary Commission accused Henderson of "professional misconduct" for allegedly violating portions of the Indiana Rules of Professional Conduct when he secured a deal to write a true-crime book about the Camm case after Camm's second trial, while the case was still in the appeals process.

The complaint also alleges that Henderson violated ethics rules when he used Floyd County funds to pay the fees of the attorneys who defended him in connection with the ethics investigation.

The commission asked the Indiana Supreme Court to discipline Henderson, "as warranted for professional misconduct" and to order him to pay court expenses. * * *

We have a crew at the Floyd County courthouse and we'll bring you the latest information as soon as it's available.ILB: For background, start with this March 23rd ILB post.

Posted by Marcia Oddi on Monday, October 19, 2015
Posted to Indiana Courts

Ind. Courts - Allen Co. Superior Court partnership with Mental Health America in Allen Co.

From a news release that begins:

Fort Wayne, Ind. – A new venture between Allen Superior Court and Mental Health America in Allen County (MHAAC) will provide much-needed support for seniors and incapacitated adults who require an advocate in complex court proceedings.

The Volunteer Advocates for Seniors or Incapacitated Adults program (VASIA) was created by state statute and made available for communities to implement. VASIA is designed to help communities recruit, screen, train and supervise volunteers to serve as guardians for senior citizens and incapacitated adults unable to make their own legal decisions.

Posted by Marcia Oddi on Monday, October 19, 2015
Posted to Indiana Courts

Ind. Courts - "Three more pending cases against Anderson lawyer Stephen Schuyler"

The ILB had an earlier post on Jan. 19, quoting a story in the Anderson Herald Bulletin by Ken de la Bastide. Today the same reporter has a second story, that begins:

ANDERSON – The Indiana State Disciplinary Commission has three pending orders to show cause against suspended Anderson lawyer Stephen Schuyler from practicing law.

Schuyler, 62, is facing a total of 13 felony counts involving four estates.

Steve Koester, chief deputy prosecutor, said Indiana State Police investigators are continuing to work on two other cases.

All five justices on the Indiana Supreme Court concurred with the request of the Disciplinary Commission for Schuyler’s suspension for noncooperation with the commission in the investigation of one of the four complaints. [ILB: here is the Oct. 7, 2015 order]

The suspension will continue until the executive director of the Disciplinary Commission certifies to the Supreme Court that Schuyler has cooperating with the investigation; the investigation or disciplinary proceeds are completed and until further order of the court, provided no other suspensions are in effect.

The order issued Wednesday requires Schuyler to reimburse the Disciplinary Commission nearly $1,600 for the costs of prosecuting the proceeding.

Schuyler has repeatedly failed to respond to the commission's letters asking for him to show why his license should not be suspended.

Posted by Marcia Oddi on Monday, October 19, 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 10/19/15):

Thursday, October 22

Next week's oral arguments before the Supreme Court (week of 10/26/15):

Wednesday, October 28

Friday, October 30

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 10/19/15):

Monday, October 19

Tuesday, October 20

Wednesday, October 21

Next week's oral arguments before the Court of Appeals (week of 10/26/15):

Tuesday, October 27

Wednesday, October 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, October 19, 2015
Posted to Upcoming Oral Arguments

Friday, October 16, 2015

Ind. Gov't. - "Can the state follow Carmel on LGBT rights?"

Updating this ILB post from Oct. 6, quoting an IndyStar story on Carmel's passage of LGBT protections, here is a long Indianapolis Star story this week, reported by Chris Sikich and Stephanie Wang, that begins:

Carmel's recent vote, adopting anti-discrimination protections based on sexual orientation and gender identity, showed just how difficult it may be to fashion similar legislation statewide.

Passage of the Carmel ordinance on Monday took strong leadership, and considerable political muscle, combined with an ability to create coalitions across ideological lines, political observers say. And those qualities have been in short supply at the state level.

The city's two most powerful elected leaders set aside their ideological differences and pushed heavily for Carmel's law. But even then, after weeks of intense lobbying, political hand-wringing and contentious debate, they struggled to carry the close 4-3 vote to approve the measure.

Lobbyists and the public turned out in droves to make impassioned speeches. And what started as an economic argument boiled down to a matter of morals.

The mayor went into the discussion thinking he had the potential for 6-1 support, but it quickly slipped away, with one of the mayor's traditional supporters going against the measure, and some of his opponents voting with him.

As advocates prepare to push similar lesbian, gay, bisexual and transgender protections into state law, the obstacles loom larger. It's a volatile and strident issue that experts say demands bipartisanship. The state's already muddied reputation could be at stake.

Posted by Marcia Oddi on Friday, October 16, 2015
Posted to Indiana Government

Courts - "If a lawyer believes that a court, any court (including the Supreme Court), has gone wrong, what is he or she to do?"

That is the question addressed by Lyle Denniston this week in an article for the Constitution Center titled "Constitution Check: May lawyers lead a campaign to defy the Supreme Court?"

Posted by Marcia Oddi on Friday, October 16, 2015
Posted to Courts in general

Ind. Courts - "COA Judges hear Wartell appeal" - oral argument held in Ft.Wayne

On Wednesday a Court of Appeals panel heard oral argument in the case of Wartell v. Lee. [ILB: Here is a long list of earlier posts on the Wartell litigation.]

Rebecca S. Green of the Fort Wayne Journal Gazette had this report yesterday:

A panel of Indiana appellate court judges heard oral arguments in a local case Wednesday afternoon, an event that packed the expansive Courtroom 1 in the Allen County Courthouse.

The defamation case was one of about three lawsuits stemming from the 2012 forced retirement of former IPFW Chancellor Michael Wartell.

Purdue University forced the long-serving chancellor to retire, citing a little-used policy that required high-level administrators to retire at 65.

Although he was told that he would be forced to retire at the end of the 2012 academic year, Wartell had asked to be allowed to remain at the helm of IPFW until after the school’s 50th anniversary celebration in the 2014-15 academic year. His request was denied.

Before Wartell’s ouster, local businessman Larry Lee composed a letter to then-Purdue President France Córdova, requesting that she deny Wartell’s requested extension.

In the letter, Lee asserted that Wartell’s “word (does) not always serve as his bond,” and that he had a “lack of integrity.”

Wartell sued Lee in Allen Superior Court, alleging two types of defamation and tortious interference with a business relationship.

Lee responded, seeking summary judgment in his favor.

Allen Superior Court Judge Stanley Levine granted Lee’s request on the matter of defamation per se, meaning the statements made in the letter were not damaging on their face, according to court documents.

The case continues, though, and a jury could decide whether statements in the letter were made in good faith or were knowingly false.

According to court records, an attempt at mediation was unsuccessful in August.

Wartell appealed Levine’s judgment in the defamation per se portion of the case, and it was that issue heard by the Indiana Court of Appeals 3rd District, comprising Judge Michael Barnes, Judge Paul Mathias and Judge Terry Crone.

During the 45-minute hearing, the judges questioned the attorneys for both sides about Lee’s letter.

Wartell’s attorney Blake Hike argued that the letter is enough to determine defamation, that the phrase regarding Wartell’s “word not being his bond” is basically calling the educator a liar.

Lee’s attorney Linda Polley urged the appellate judges to study and consider only the words used in the letter, not any additional circumstances. The words were a general statement, not an allegation of misconduct, she said.

Mathias asked whether the last few lines of the letter made Lee’s intention clear, basically indicating that Lee and the other businessmen working for Wartell’s replacement were “out for blood.”

Polley characterized the letter as a polite way of expressing criticism.

“He never called (Wartell) a liar,” she said.

The judges took the matter under advisement and will issue their opinion at a later date.

Posted by Marcia Oddi on Friday, October 16, 2015
Posted to Indiana Courts

Ind. Law - "IU McKinney School of Law Dean Emeritus Gary Roberts tapped to lead Bradley University"

A long news release today from the IUPUI newsroom begins:

The Bradley University Board of Trustees announced today that Bradley alumnus and former Indiana University Robert H. McKinney School of Law Dean Gary R. Roberts will become the 11th president of Bradley University, effective January 2016.

Doug Stewart, chairman of the Bradley board of trustees, says Roberts is the right choice to lead Bradley. "Gary is a forward-thinking, innovative and proven leader who understands Bradley from the inside out. He has extensive experience that makes him uniquely qualified to take on the challenge of moving Bradley forward."

Posted by Marcia Oddi on Friday, October 16, 2015
Posted to General Law Related

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

For publication opinions today (1):

In John A. Fox v. Tracy Bonam and Doug Bonam , a 19-page opinion, Judge Crone writes:

Soon after Tracy and Doug Bonam moved next door to John and Mary Fox, their neighborly relationship soured. John obtained protective orders against the Bonams, and the Bonams petitioned for a protective order against John based on allegations of stalking. After a hearing, the trial court concluded that John committed stalking against Tracy and issued a protective order that includes restrictions involving his motorcycle, motorized tools, and firearms. John now appeals, contending that the protective order should be dismissed because he did not commit stalking and that the above restrictions are impermissible. We hold that the trial court did not err in concluding that John committed stalking but that it did err in imposing the restrictions. Therefore, we affirm the protective order in part and vacate those restrictions.
NFP civil decisions today (4):

Dennis L. Floyd and Terence E. Bartholomew v. Scott Piepenbrink and Janet Piepenbrink (mem. dec.)

Tanya Anderson and Delmonte Anderson, Individually and as Personal Representatives of the Supervised Estate of Michael Delshawn Anderson, Deceased, et al v. Civil City of South Bend, et al (mem. dec.)

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

In Re the Marriage of: R.L.R-H v. J.M.R. (mem. dec.)

NFP criminal decisions today (6):

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

Jason Medley v. State of Indiana (mem. dec.)

Patrick Bovia Wallace, Jr. v. State of Indiana (mem. dec.)

Tylen L. Fowlkes v. State of Indiana (mem. dec.)

Harry F. Bolton v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Friday, October 16, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one opinion today, re attorney's fees in a dissolution of marriage case

In Robert A. Masters v. Leah Masters, 10-page, 5-0 opinion, Justice Dickson writes:

This appeal challenges an award of attorney's fees in a dissolution of marriage case by a family law arbitrator under the Family Law Arbitration Act. We affirm the fee award. * * *

In the appellate review of an award under the Family Law Arbitration Act, the proper standard of review is not the narrow, highly deferential standard prescribed by the Uniform Arbitration Act but rather the same standard of appellate review that applies to trial court decisions in marriage dissolution cases with entered findings of fact and conclusions of law—the clearly erroneous standard prescribed by Indiana Trial Rule 52(A). In this case, the family law arbitrator's award satisfies that standard. The husband has failed to establish that the award of attorney's fees is not supported by the arbitrator's findings. We are not persuaded to a firm conviction that a mistake has been made, which is required for clear error. The attorney's fees award is not clearly erroneous and the judgment entering the arbitration award is hereby affirmed.

Posted by Marcia Oddi on Friday, October 16, 2015
Posted to Ind. Sup.Ct. Decisions

Thursday, October 15, 2015

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

The ILB summary of one of today's NFP decision, Douglas Bragg v. State of Indiana (mem. dec.), notes that it is a 2-1 decision with three separate opinions. The issue: Whether the trial court abused its discretion when it denied Bragg’s motion to strike a prospective juror for cause because the juror was a deputy attorney general. From the opinion:

During the venire, one of the prospective jurors volunteered that he was “not a law enforcement officer per se” but that he was a “deputy attorney general [and] a supervisor in [the] appeals division,” working very closely with the criminal appeals attorneys. As such, he felt “a little uncomfortable about serving as a juror.” When questioned by Bragg that he is “probably leaning towards favoring the State or being biased by the State,” the prospective juror responded that he had “been doing that for a long time [and] [s]o there’s a natural tendency probably.” * * *

When asked by the trial court “assuming you were throughout here as a juror—throughout the whole trial, and at the end of the day, you didn’t think the State met the burden of proof, would you be able to enter a finding of not guilty,” the prospective juror replied, “Yes.” He added, however, “I’m just uncomfortable about it from a [] professional [] point of view.”

Posted by Marcia Oddi on Thursday, October 15, 2015
Posted to Why is this NFP?

Ind. Decisions - Supreme Court issues one disciplinary opinion today

In In the Matter of: Anonymous, a 4-0, 5-0, per curiam attorney disciplinary action, the Court writes:

The Court approves the [submitted “Statement of Circumstances and Conditional Agreement for Discipline”] and finds that Respondent engaged in attorney misconduct by communicating ex parte with a judge without authorization to do so. For this misconduct, we find that Respondent should receive a private reprimand. * * *

The question of authority in this case hinges upon Trial Rule 65(B), which governs the type of emergency judicial relief sought by Respondent on the grandparents’ behalf. See Matter of Anonymous, 729 N.E.2d 566, 568 (Ind. 2000). That rule provides that a temporary restraining order may be granted without notice to the adverse party only if, among other things, “the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give notice and the reasons supporting [her] claim that notice should not be required.” Ind. Trial Rule 65(B)(2). An attorney’s failure to comply with this rule renders the subject proceeding an unauthorized ex parte communication prohibited under Professional Conduct Rule 3.5(b). * * *

In sum, while Respondent’s intentions regarding the welfare of her clients’ grandchild may have been good, they did not justify dispensing with the mandatory procedures designed to protect the rights of other parties with legal interests at stake in the proceeding. See Anonymous, 729 N.E.2d at 569. For Respondent’s misconduct in this case, we agree with the parties that a private reprimand is warranted. * * *

The costs of this proceeding are assessed against Respondent.

Posted by Marcia Oddi on Thursday, October 15, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (4):

In The Branham Corporation v. Newland Resources, LLC and John E. Bator, et al., a 27-page opinion, Sr. Judge Sharpnack writes:

This is the fourth appeal in this litigation between the parties stemming from a contract for assistance in negotiation for the provision of water and sewer utility services in Boone County. Here, the trial court granted The Branham Corporation’s motion to voluntarily dismiss without prejudice proceedings supplemental to execution of garnishment against certain garnishee defendants, conditioning the same upon the payment of the attorney fees incurred by the garnishee defendants up to the time of the filing of the motion to dismiss. The trial court later issued an amended order establishing the amount of the various attorney fee awards, setting a deadline for the payment of those fees, and ordering the dismissal be converted to a dismissal with prejudice in the event of nonpayment of the fees by the established deadline. The trial court’s order was stayed pending appeal. Branham now appeals and John E. Bator, a garnishee defendant, cross-appeals. We affirm.
In The Bar Plan Mutual Insurance Company v. Likes Law Office, LLC; Kevin L. Likes; Rickey D. Whitaker; and Cheryl L. Whitaker , a 23-page opinion, Judge Rley writes:
Appellant-Third-Party Defendant and Counter/Cross-Claimant, The Bar Plan Mutual Insurance Company (Bar Plan), appeals the trial court’s summary judgment in favor of Appellees-Third-Party Plaintiffs and Counter/Cross-Defendants, Likes Law Office, LLC; Kevin L. Likes, Esq. (Likes) and Rickey D. and Cheryl L. Whitaker (Whitaker), concluding that Likes made no material misrepresentation in his application for an insurance policy issued by the Bar Plan and was therefore entitled to coverage under the Bar Plan’s policy. We reverse. * * *

Based on the foregoing, we conclude that the trial court erred in granting summary judgment to Likes because the undisputed evidence establishes that Likes failed to timely notify the Bar Plan of the Claim and therefore is now precluded from coverage under the Policy. In addition, we find that the trial court abused its discretion when it admitted paragraph 4 of Likes’ affidavit and paragraphs 15-23 and 26 of Sagalow’s affidavit.

In Robert Hicks v. Marion Thatcher, in his official capacity as Unit Team Manager, and the Indiana Department of Correction, a 10-page opinion involving a pro se plaintiff, Sr. Judge Darden writes:
Robert Hicks appeals the trial court’s grant of summary judgment in favor of Marion Thatcher, in his official capacity as Unit Team Manager, and the Indiana Department of Correction (DOC). We affirm. * * *

In his brief to this Court, Hicks contends that inmates in the general population of ISP are treated differently from inmates in the Honor Unit in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The crux of Hicks’ argument is that he wants to have all the same privileges that are reserved for those offenders in the Honor Unit, specifically more time out of his cell each day, weekly visits, access to more microwaves and additional time throughout the day to use them, the use of weight equipment, and the opportunity to buy and use an Xbox gaming system. * * *

The Appellees have established that the disparate treatment complained of by Hicks bears a rational relation to a legitimate penological interest. As a whole, prison security is a primary, legitimate governmental interest that is influenced by things such as fostering responsibility and good behavior in inmates and using inmates as role models for other inmates. Conversely, Hicks has failed to demonstrate discrimination that was instituted for the purpose of causing adverse effects on the general population of inmates at ISP. The opposite is true; the Honor Unit at ISP, with its attendant privileges, was created to have positive effects on the behavior of the general population. As a panel of this Court previously noted, inmates do not forfeit all constitutional protections by reason of their conviction and confinement in prison. Faver v. Bayh, 689 N.E.2d 727, 730 (Ind. Ct. App. 1997). However, incarceration does bring about the necessary withdrawal or limitation of many privileges and rights, which is justified by the considerations underlying our penal system, including deterrence of crime, rehabilitation of inmates, and institutional safety and security

In John A. Hill, III and Susan Hill v. Steven N. Rhinehart, M.D. and Fort Wayne Medical Oncology and Hematology, Inc.; John F. Csicsko, M.D. and David P. Lloyd, M.D., as Individuals, et al, a 26-page opinion, Judge Riley writes:
Appellants-Plaintiffs, John A. Hill (Hill) and Susan Hill, appeal the trial court’s judgment in favor of Steven N. Rhinehart, M.D. (Dr. Rhinehart) and Fort Wayne Medical Oncology and Hematology, Inc.; John F. Csicsko, M.D. (Dr. Csicsko) and David P. Lloyd, M.D. (Dr. Lloyd), as individuals, and Cardiovascular Associates of Northeastern Indiana, LLC, a professional corporation; and Thomas P. Ryan, D.O. (Dr. Ryan). We affirm. * * *

Based on the foregoing, we conclude the trial court properly granted judgment on the evidence in favor of Drs. Lloyd and Csicsko; Hill was not prejudiced by the entry of the judgment on the evidence against two of the physicians; and the trial court properly tendered Jury Instruction No. 23 which advised the jury that physicians are not liable for an error in diagnosis or treatment when exercising reasonable care.

NFP civil decisions today (1):

W.P. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (7):

In Douglas Bragg v. State of Indiana (mem. dec.), a 17-page, 2-1, 3-opinion ruling, Judge Riley writes:

Douglas Bragg (Bragg), appeals his conviction for criminal deviate conduct, a Class A felony, Ind. Code § 35-42-4-2 (2012); sexual battery, a Class C felony, I.C. § 35-42-4-8 (2012); and theft, a Class D felony, I.C. § 34-43-4-2 (2013). We affirm.

Bragg raises one issue on appeal, which we restate as: Whether the trial court abused its discretion when it denied Bragg’s motion to strike a prospective juror for cause because the juror was a deputy attorney general. * * *

During the venire, one of the prospective jurors volunteered that he was “not a law enforcement officer per se” but that he was a “deputy attorney general [and] a supervisor in [the] appeals division,” working very closely with the criminal appeals attorneys. As such, he felt “a little uncomfortable about serving as a juror.” When questioned by Bragg that he is “probably leaning towards favoring the State or being biased by the State,” the prospective juror responded that he had “been doing that for a long time [and] [s]o there’s a natural tendency probably.” * * *

When asked by the trial court “assuming you were throughout here as a juror—throughout the whole trial, and at the end of the day, you didn’t think the State met the burden of proof, would you be able to enter a finding of not guilty,” the prospective juror replied, “Yes.” He added, however, “I’m just uncomfortable about it from a [] professional [] point of view.” After the trial court refused to strike the prospective juror for cause, Bragg peremptorily struck him. * * *

Later during voir dire, Bragg used his last peremptory challenge and also requested to remove two other jurors for cause because they “were pretty clear that they did not want to be on this jury, they did not feel that they could be fair” even though they did say “that they would follow the instructions.” (Tr. p. 207). Bragg also requested an additional peremptory challenge because he believed that “the attorney general should have been struck for cause” so he could have used it to strike another objectionable juror. After the trial court rejected the for-cause challenges and denied Bragg’s request for an additional challenge, Bragg declined to accept the jury venire. The trial court allowed Bragg to make a record of his denial. At the close of the jury trial, the jury returned a guilty verdict on one Count of Class A criminal deviate conduct, one Count of Class C felony battery, and Class D felony theft. * * *

Accordingly, because I do not find presumed bias in the case of a prospective juror who is a deputy attorney general under the circumstances before me, I cannot conclude that the trial court abused its discretion in denying Bragg’s challenge for cause. Based on the foregoing, I conclude that the trial court properly denied Bragg’s motion to strike for cause. Affirmed.

Bailey, J. concurs in result with separate opinion
Barnes, J. concurs in part and dissents in part with separate opinion

Bailey, Judge, concurring in result [begining on p. 9]Weisheit v. State, 26 N.E.3d 3 (Ind. 2015). Thus, I write separately to explain my reasoning. * * *

According to our supreme court’s guidance in Weisheit, a conclusory allegation of forced acceptance of biased jurors is not nearly enough to support reversal.

For the foregoing reasons, I conclude that Bragg has not established grounds for reversal of his conviction. I concur in the result reached, that is, the affirmation of Bragg’s convictions for Criminal Deviate Conduct and Theft.

Barnes, Judge, concurring in part and dissenting in part [beginning on p. 15] I concur with Judge Bailey’s conclusion that Juror S was subject to removal for cause because, as a deputy attorney general with responsibility for criminal appeals, he was at least impliedly biased in favor of the State.

However, I dissent from Judge Bailey’s conclusion that Bragg failed to establish reversible error in the denial of his for-cause challenge to Juror S. As our supreme court has succinctly explained, “If on appeal you then prove both the erroneous denial [of a challenge for cause] and that you were unable to strike another objectionable juror because you exhausted your peremptories, you are entitled to a new trial, full stop.” Merritt v. Evansville-Vanderburgh Sch. Corp., 765 N.E.2d 1232, 1237 (Ind. 2002). * * *

I understand Bragg is accused of committing a very serious and heinous crime. However, our judicial system is premised on the theory that even the least pleasing criminal defendant gets a “fair shake.” I do not think that happened here. The fairness and impartiality of the jury can certainly be called into question.

I believe Juror S should have been subject to a cause challenge, removed, and that Bragg has satisfied the exhaustion rule. As such, I believe his convictions should be reversed, and the cause remanded for a new trial.

Dwight Neal v. State of Indiana (mem. dec.)

Ricardo Minney v. State of Indiana (mem. dec.)

Joseph McDonald v. State of Indiana (mem. dec.)

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

Shawn Thayer v. State of Indiana (mem. dec.)

Ricardo Montanez v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, October 15, 2015
Posted to Ind. App.Ct. Decisions

Law - Health and Human Services Office of the Inspector General Increases HIPAA Enforcement

Good article by Shelley M. Jackson and Ashley N. Osak of Plews Shadley Racher & Braun LLP. (h/t @IndyBar) A sample:

Recent actions by the Department of Health and Human Services Office of the Inspector General (“OIG”) reflect heightened scrutiny and enforcement activity relating to HIPAA privacy and security matters. This is noteworthy because most HIPAA compliance oversight is delegated to the Office of Civil Rights (“OCR”). The OIG has responsibility and resources for audits, investigations and enforcement on a range of health care matters, so it is giving notice of its expanding role in this area. As discussed below, this has immediate implications for Indiana health care providers and business associates.

On September 29, 2015 the OIG released two reports discussing the need for the OCR to increase its health privacy and data breach enforcement efforts. The reports detail deficiencies in OCR enforcement efforts and suggest improvement opportunities for oversight. The reports were created because the OIG believes that “covered entities such as doctors, pharmacies, and health insurance companies … do not adequately safeguard patients’ protected health information, [which] could expose patients to an invasion of privacy, fraud, identity theft, and/or other harm.”

Posted by Marcia Oddi on Thursday, October 15, 2015
Posted to General Law Related

Ind. Gov't. - "Watchdogs can score victories against 'favored' projects'"

Andrea Neal of the Indiana Policy Review Foundation has an worth-reading in full column Oct.12th (h/t Ind.Econ.Digest), made particularly interesting to the ILB because it features two projects the ILB has followed since their inceptions; the Dunes pavilion banquet center, and the Mounds Lake Reservoir. Some quotes:

Yes, you can fight City Hall. That’s the message from citizen activists across Indiana who effectively challenged two seemingly unstoppable government-backed projects that would hand over public resources for private gain.

One is a controversial dam and reservoir proposed for the White River at Anderson, a $440-million venture billed as a boon to the economy and to the regional water supply. The other is a banquet and conference center to be built in Porter County at Indiana Dunes State Park.

Both appeared done deals due to the close ties between business leaders touting the plans and political leaders positioned to act on them. In both cases, citizens felt costs outweighed benefits, and they packed public hearings to press their case.

Posted by Marcia Oddi on Thursday, October 15, 2015
Posted to Indiana Government

Ind. Courts - "Attorneys for woman convicted of feticide make case for appeal"

Updating a list of earlier ILB posts on this case, the Indianapolis Star today has a story by Jill Disis that begins:

Attorneys for a Northern Indiana woman convicted of neglect and feticide say there was nothing the woman “possibly could have done” to save her child, according to recently filed court documents.

Purvi Patel’s lawyers outlined their case for throwing out the February convictions against the Granger woman in a 65-page brief to the Indiana Court of Appeals filed Oct. 2. Patel, who was sentenced to 20 years in prison, is the first Indiana woman to be convicted of feticide in connection with her own miscarriage.

The brief has been posted by the ILB, and is linked to this Oct. 5th post.

Posted by Marcia Oddi on Thursday, October 15, 2015
Posted to Indiana Courts

Ind. Courts - "Pence Appoints Alicia Gooden To Marion Superior Court" [Updated twice]

Gary Welsh of Advance Indiana is reporting the above in his blog this morning.

No news release has been issued by the Governor's office as of now.

See this Oct. 13th post from the ILB.

I will post the news release here if one is issued ...

[Update at 9:58] Here is a copy of the news release:

Indianapolis - Governor Mike Pence today named Alicia Gooden as Marion County Superior Court Judge. She fills the position previously vacated by Judge Robert Altice, Jr. who was appointed by Governor Pence to the Court of Appeals in July.

"I'm grateful today to name Alicia Gooden as Marion County Superior Court Judge," said Governor Pence. "I'm confident that Gooden's extensive experience in both private and public law will serve her well in this new role."

Gooden currently serves as mediator/arbitrator/parenting coordinator at The Mediation Group LLC. Previously, she worked in the Marion Circuit Court as Master Commissioner of the Paternity Division. She has also worked at the Marion County Public Defender Agency and at private law firms in Indianapolis. She is a member of the Junior League of Indianapolis, the Marion County Public Defender Board, and serves on the CenterPoint Counseling of Second Presbyterian Church Board of Directors. Gooden earned her undergraduate degree from Indiana University and her law degree from Indiana University McKinney School of Law.

[Update #2] The ILB has learned new Marion Co. Sup. Court judge, Alicia Gooden, will start Mon., Nov. 9. Coutroom assignment not yet fully determined

Posted by Marcia Oddi on Thursday, October 15, 2015
Posted to Indiana Courts

Ind. Gov't. - "Alcohol ruling leaves Indiana Dunes pavilion project in limbo"

The most recent of a long list of ILB entries on the Dune pavilion issue (dating back to 2006) is this entry from Oct. 7th, headed "Indiana Dunes liquor license denied."

On Oct. 9th, Amy LaValley of the Gary Post-Tribune reported in a story headed "Alcohol ruling leaves Indiana Dunes pavilion project in limbo":

her than a couple of Indiana Department of Natural Resources work trucks parked in the lot, all appeared quiet last week at the Indiana Dunes State Park pavilion.

The chain link fence that surrounded the facility earlier this year was gone Friday, and there was no sign of work going on inside or outside as speculation continues over whether Pavilion Partners, which is renovating the region landmark in a public-private partnership with the DNR, will appeal a state board's Oct. 6 decision to uphold the Porter County Alcoholic Beverage Commission's denial of a liquor permit.

Deb Butterfield, spokeswoman for Pavilion Partners, declined to comment in an email on whether work at the pavilion is continuing as the group, led by Valparaiso businessman Chuck Williams, decides what to do next. Pavilion Partners has until Oct. 21 to file an appeal with the state's Alcohol and Tobacco Commission.

She also would not comment on what factors Pavilion Partners is considering as it moves forward, but she was willing to provide an update on the expense to Pavilion Partners and the work done so far.

"Taking into account the architectural, legal and engineering fees, along with construction and demolition, Pavilion Partners has invested well over $1 million to date," including the construction of a comfort station, Butterfield said in her email. "The demolition inside the pavilion is substantially complete so the building is mostly a shell at this point. The elevator shaft has been constructed but the elevator itself has not been installed."

The DNR is committed to the project and that has not changed despite the outcome of the hearing before the alcohol board, Dan Bortner, director of the DNR's Division of State Parks and Reservoirs, said in an email.

Under the terms of the lease, which was signed in late February, Pavilion Partners can break off the arrangement "as a result of … no longer being able to sell alcohol" and would be compensated for its investment in the completed work."

"The contract does have a provision that allows Pavilion Partners that option under certain circumstances but we are way too early in the process to speculate where that might end up," Bortner said in his email.

There is much more information in the long story.

In addition, the Chesterton Tribune had a brief, interesting story by Kevin Nevers (with a good photo by Margaret Willis) on Oct. 8th headed "Pavilion gets locks on doors; construction fences removed."

Posted by Marcia Oddi on Thursday, October 15, 2015
Posted to Indiana Government

Ind. Courts - "Mahoning County Juvenile Justice officials lend a hand to judges in Indiana"

That is the headline to a lengthy editorial today in the Akron Legal News. A few quotes:

Should a teenager who has been abandoned by his/her parents and steals food from a local grocery store out of need be treated the same as a young person who robs a business to get money to buy the latest video game?

More juvenile court systems are taking such factors into account when determining the appropriate punishment for young offenders.

In 2012, representatives from the Mahoning County Juvenile Justice Center, the Mahoning County Children Services Board as well as other service providers began meeting with those from the Center for Juvenile Justice Reform at Georgetown University to implement the Crossover Youth Practice Model, in which young people involved with both the child welfare and the juvenile justice systems are identified so they can receive targeted services to help them get their lives moving in a positive direction. * * *

Since 2011, the Ohio Department of Job and Family Services, the Center for Juvenile Justice Reform at Georgetown University and the Ohio Department of Youth Services have worked to bring the Crossover Youth Practice Model to 12 Ohio counties, but Mahoning County has been particularly successful in implementing the model.

When a new law went into effect in Indiana on July 1 requiring the adoption of a crossover youth model in the state’s juvenile courts, it was only natural that the Indiana judges might look to Mahoning County Juvenile Court officials to help them set up their program.

“Our law provides a framework for identifying a young person who is both delinquent and in the child welfare system,” said Henry County Circuit Court Judge Mary Willis, who together with her colleague Allen County Superior Court Judge Charles Pratt helped to draft House Enrolled Act (HEA) 1196 dual status child legislation. “Once the youth has been identified, we convene a team, based on the judge’s discretion, of several possible participants designated in the statute, share information and formulate a plan with a designated lead agency that makes recommendations on how to move forward.”

For example, Judge Willis said the child and family might be referred to an informal adjustment program without the formal filing of a petition or referred to necessary mental health services.

In August, Judge Willis and several other Indiana judges paid a visit to the Mahoning County Juvenile Justice Center.

The trip was arranged by the Georgetown University Center for Juvenile Justice Reform and the national foundation, Casey Family Programs. United Parcel Service founder Jim Casey established Casey Family Programs in 1966 to help improve the safety of vulnerable children and their families and reduce the need for foster care.

“We had been working with the Indiana judges to find an appropriate venue where they could learn more about the Crossover Youth Practice Model,” said retired Texas senior district court Judge Robin Sage, a judicial consultant for Casey Family Programs.

“One of the reasons we selected Mahoning County was because it has a good mix of urban and suburban areas and it is closer in size and demographics to many of the Indiana counties.”

In all four Indiana judges took part in the visit, including Judge Willis, Clark County Circuit Court Judge Vicki Carmichael, Allen County Superior Court Judge Charles Pratt and Elkhart County Juvenile Court Magistrate Deborah Domine. Retired Judge Robin Sage and Casey Family Programs’ Senior Director of Judicial Engagement Christopher Wu also made the trip. * * *

“We estimate that about 20 to 30 percent of our court-involved youth fit into the crossover model,” said Judge Willis. “Our definition by statute is a bit broader than other places in the country since we include youth alleged to have been in both systems, even if no adjudication has occurred.”

Judge Willis said while the law has taken effect across all 92 counties in Indiana, five counties (Tippecanoe, Elkhart, Allen, Clark and Henry) are piloting programs.

“Each county has a handful of cases, so far,” said Judge Willis. “In addition to the five pilots taking place, Marion County is conducting its own program to gather information from an academic perspective.

“If not for Mahoning County, we would have had to reinvent the wheel,” said Judge Willis. “They shared many of their forms with us like the memorandum of understanding they use when convening a team.

“I believe that if we can get the right kid into the right system from the beginning it will not only make a big difference to that child, it will also have a much larger positive impact on the next generation in that child’s family,” said Judge Willis.

Posted by Marcia Oddi on Thursday, October 15, 2015
Posted to Indiana Courts

Wednesday, October 14, 2015

Ind. Gov't. - "AG Zoeller takes stand on voting case"

Maureen Hayden of the CNHI Statehouse Bureau reports this afternoon on the Anderson Herald-Bulletin site in a story that begins:

Indiana is stepping into a closely watched case that tests the principle of “one person, one vote.”

It has joined a group of 21 states asking the U.S. Supreme Court to uphold the practice of counting total population - and not just eligible voters - when carving up state election districts.

Late last month, Indiana Attorney General Greg Zoeller signed onto a brief in the case, Evenwel v. Abbott. The case was brought by two Texas citizens who claim their voting power is diluted when districts are created because non-eligible voters - including undocumented immigrants, prisoners and children - are counted the same way as they are.

Zoeller and other attorneys general say throwing out the current system, which relies on U.S. Census data, would create havoc.

“We’d have to create a whole new system that’s fair, representational and non-partisan,” said Zoeller, “and one that could stand up in court.”

Legal experts and lawmakers are closely [watching] the outcome. If plaintiffs prevail - and only eligible voters are included when district lines are drawn - it would mean the exclusion of millions of people now counted as part of the process that takes place every 10 years.

Most states have drawn legislative maps based on total population, without regard to legal status or voter eligibility, for more than 50 years. They’ve done so since a 1964 Supreme Court ruling that said states must draw electoral districts based on population so political power is shared equally. But the court didn’t specify the method states should use.

The process of using U.S. Census numbers has withstood legal challenges, Zoeller said, calling it a “gold standard” because it allows states to get as close as possible to a goal of “fair and effective” representation of everyone served by government.

ILB: Here is the SCOTUSblog case page on Evenwel v. Abbott.

Here is the amicus brief
filed by the states of: New York, Alaska, California, Delaware, Hawaii, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, North Dakota, Oregon, Rhode Island, Vermont, Virginia, and Washington. The case, which originated in Texas, will be argued Dec. 8, 2015.

This article, on listed on SCOTUSblog case page, discusses that the current "one person-one vote" system" obtains its data from the decennial census. Counting "citizens" or "registered voters" instead would prov e unworkable:

Current data on citizenship or on registered voters is simply too inaccurate or contested to be used in redistricting. Unless the Justices are prepared to mandate a new kind of “citizen census” or to constitutionalize the voter registration process, then they should leave it to the states to draw their districts using the most accurate data available.

Posted by Marcia Oddi on Wednesday, October 14, 2015
Posted to Indiana Government

Ind. Courts - Chief Justice Loretta Rush speaks at Red Mass dinner

A very long story by Tim Johnson in Today's Catholic News, the official web publication of the Diocese of Fort Wayne-South Bend, begins:

FORT WAYNE — Lawyers, judges and civil government officials congregated at the Cathedral of the Immaculate Conception on Oct. 6 to participate in a Red Mass, an ancient tradition dating back to the 13th century that invokes God’s blessing on those who serve the law. Bishop Kevin C. Rhoades celebrated the Red Mass.

Following the Mass, Loretta H. Rush, the Chief Justice of the Indiana Supreme Court, was the featured guest and keynote speaker. Bishop Rhoades and the St. Thomas More Society of Fort Wayne hosted the annual event.

Worth reading in full.

Posted by Marcia Oddi on Wednesday, October 14, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (4):

In Scott Alan Stibbins, individually and as Personal Rep. of the Estate of Warren E. Stibbins, and Trustee of the Warren E. Stibbins Revocable Trust, et al. v. Carol (Stibbins) Pagano Foster, et al., a 14-page opinion, Judge Baker writes:

Warren Stibbins had seven children and a complicated estate plan. In the years before his death, Warren became frustrated with the inability of his daughter, Carol, to manage her finances. He purchased an annuity for her that would have provided a steady source of income for the rest of her life, and then removed her as a beneficiary from his estate plan and from her deceased mother’s trust. After Warren’s death, Carol and her children filed an action contesting the probate of Warren’s will. They were unsuccessful after years of litigation and a five-day jury trial. After they lost the will contest, they sought to be reimbursed for their attorney fees pursuant to Indiana Code section 29-1-10-14. Although the trial court found that two of their three claims were litigated without good faith and just cause, it found that their third claim met that test. As a result, the trial court ordered that the estate pay all of Carol’s attorney fees and costs in an amount exceeding $170,000.

The estate now appeals, arguing, among other things, that Carol and her children do not have standing to seek attorney fees because they are not devisees under the relevant statute. We agree, and reverse the judgment of the trial court awarding attorney fees to Carol and her children.

In Techna-Fit, Inc. and Stuart Trotter v. Fluid Transfer Products, Inc., a 36-page opinion, Judge Najam writes:
Techna-Fit, Inc. filed a complaint against Fluid Transfer Products, Inc. (“FTP”) alleging, among other claims, that FTP engaged in unfair competition with Techna-Fit in violation of a provision of the Lanham Act, 15 U.S.C. § 1125, and seeking injunctive relief. FTP filed a counterclaim against Techna-Fit alleging breach of contract and a third-party claim against Stuart Trotter alleging breach of contract, breach of fiduciary duty, defamation, and deception. Techna-Fit and FTP each filed motions for partial summary judgment, which the trial court denied. Following a bench trial with the assistance of an advisory jury, the trial court entered judgment in favor of FTP on Techna-Fit’s claims, its counter-claim against Techna-Fit for breach of contract, and its third-party claims against Trotter for breach of contract and breach of fiduciary duty. The trial court awarded damages to FTP as follows: $662,901.86 for Techna-Fit and Trotter’s breach of contract; $125,000 for Trotter’s breach of fiduciary duty; and punitive damages for Trotter’s breach of fiduciary duty in the amount of $1,500,000. FTP requested attorney’s fees, which the trial court awarded following a hearing. Techna-Fit filed a motion to correct error, which the trial court denied. * * *

Techna-Fit has not demonstrated that it was entitled to summary judgment on its Lanham Act claim. The trial court’s exclusion of certain evidence at trial was not reversible error. The trial court’s refusal to proffer a proposed instruction to the advisory jury was not reversible error. We will not reweigh the evidence or reassess the credibility of witnesses with respect to the breach of contract claims. The trial court erred when it awarded FTP $1,500,000 in punitive damages. We reverse that award and order Trotter to pay $375,000 in punitive damages for his breach of fiduciary duty. And the trial court erred when it awarded FTP attorney’s fees.

In Travis Allen v. State of Indiana, a 2-1, 13-page opinion, Judge Najam writes:
Travis Allen appeals his convictions for operating a vehicle while intoxicated, as a Class A misdemeanor; driving with a suspended license, a Class A misdemeanor; and driving without a license, as a Class C felony; following a bench trial. Allen presents two issues for our review:
1. Whether the trial court erred when it denied his motion for discharge pursuant to Criminal Rule 4(C).
2. Whether the delay in bringing him to trial violated his right to a speedy trial as guaranteed by the United States and Indiana Constitutions.
Affirmed.

Kirsch, J., concurs.
Barnes, J., dissents with separate opinion. [which begins, at p.11] I respectfully dissent. While I believe that trial judges, clerks, prosecutors, and other court personnel should not be obligated to do a defendant’s work on his or her behalf, I cannot agree with the majority that the first time the State and the trial court received actual notice of Allen’s incarceration was April 23, 2014. * * *

Allen informed the trial court of his incarceration in person on the record at the October 2012 pretrial conference. Even if this actual notice of his incarceration was not sufficient to preserve Allen’s Rule 4(C) rights, I believe that Allen’s September 5, 2013 pro se petition was. If these attempts at notification were not sufficient, what else was Allen to do?

I know this case arose in Marion County, where the criminal case overload is, at times, chaotic; however, Allen did what he could to protect his rights. Although I am not a fan of discharges pursuant to Criminal Rule 4(C), I would recalculate the time in a manner that reflects the attempt(s) by Allen to notify the trial court of his whereabouts. If that results in discharge, so be it.

In Tonya Herron v. State of Indiana, a 10-page opinion, Judge Baker writes:
Tonya Herron appeals the certified interlocutory order of the trial court denying her motion to suppress evidence. She argues that the warrant authorizing a blood draw lacked probable cause where the officer’s probable cause affidavit left several material sections blank. Finding a lack of probable cause to issue the warrant, we reverse. * * *

In sum, the good faith exception does not apply to this error. The error was made first by the officer and so the public policy of incentivizing better police behavior still applies. Affirming a form affidavit that does not, in its individualized portions, include a crime would come much too close to the obliteration of the exclusionary rule that our Supreme Court has cautioned against.

NFP civil decisions today (4):

In the Matter of the Term. of the Parent-Child Relationship of E.B. (minor child), and, R.K. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

Amanda B. Dobbs v. Bradley W. Dobbs (mem. dec.)

Sylvia M. Rodriquez v. John R. Wyse (mem. dec.)

Ulrich Tibaut Houzanme v. Sally Jo Houzanme (mem. dec.)

NFP criminal decisions today (9):

William B. Scroggs v. State of Indiana (mem. dec.)

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

Khalid M. Jackson-Bey v. State of Indiana (mem. dec.)

Noah Shane Warren v. State of Indiana (mem. dec.)

Bucky Willard Kado and Amanda Dankert v. State of Indiana (mem. dec.)

Darney R. Karim v. State of Indiana (mem. dec.)

Matthew Marcus II v. State of Indiana (mem. dec.)

Alan W. Jenkins v. State of Indiana (mem. dec.)

Brittney Massey v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, October 14, 2015
Posted to Ind. App.Ct. Decisions

Ind. Law - Ind. Trial Lawyers Ass'n. Annual Institute set for Nov. 5-6

From the Indiana Trial Lawyers Association (ITLA), one of the ILB's valued supporters:

The ITLA will be holding their 51st Annual Institute on November 5th and 6th at the Indiana Convention Center in downtown Indianapolis.

The event is being chaired by Bill Winingham and attendees will have the opportunity to earn 12 hours of CLE (which includes one hour of ethics). ITLA will have 12 different presenters speaking on topics ranging from Client Metrics to Mass Torts to Lie Detection.

Lee Christie (Cline, Farrell, Christie & Lee), who was selected by his peers as the 2015 Trial Lawyer of the Year, will also be honored during this two day event.

The Indiana Trial Lawyers Association welcomes all to attend their cornerstone event. Online registration can be found here.

Posted by Marcia Oddi on Wednesday, October 14, 2015
Posted to Indiana Law

Ind. Court - Interesting report on Madison Circuit Court ruling and reaction thereto [Updated 3 times]

The Anderson Herald-Bulletin's Ken de la Bastide reports today in a long story that reads in part:

ANDERSON – When Madison Circuit Court Division 6 Judge Mark Dudley set aside the guilty pleas of Steve Sells, his ruling was in line with an Indiana Supreme Court ruling. * * *

During questioning by Deputy Prosecutor Stephanie Wade, Sells denied hitting the girl or dragging her down a flight of stairs by the hair.

“You pleaded guilty to two counts of battery,” Dudley said to Sells. ‘Did you touch (the victim) in an insolent manner?”

Sells said he didn’t understand the charges when he entered the guilty pleas, but told Dudley to go ahead and sentence him.

Dudley said he couldn’t sentence Sells on a charge that he denied committing and set aside the guilty pleas. He set the trial date for Nov. 17.

Wade and Madison County Prosecutor Rodney Cummings said they were going to file an objection to Dudley’s decision and ask him to reconsider the decision.

Cummings said Tuesday that a motion to request Dudley reconsider his decision is being prepared for filing.

"This is what happens when an attorney spends all their time in front of a computer and not in a courtroom," he said of Dudley's actions on Monday when Joetta Sells was sentenced to 24 years on several felony counts after pleading guilty in September.

"Any other judge would have sentenced the two of them at the same time," he said.

Cummings said in his 20 years as a prosecuting attorney, normally a judge allows a defense attorney to consult with their client and explain what is taking place. * * *

In a memorandum filed Tuesday in the case, Dudley said Sells denied that he committed battery against his granddaughter.

“It is important to note that the defendant did not merely minimize or excuse his guilt (sometimes that regularly happens in criminal court).” Dudley wrote. “In this case, the defendant denied committing the very acts that formed the basis of the charges against him.”

The memorandum goes on to state that the Indiana Supreme Court said that a judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time.

“To accept such a plea constitutes reversible error,” the high court concluded.

Dudley said the Supreme Court ruling applies even if the claim of innocence occurs at a sentencing hearing.

In the memorandum Dudley wrote that following a conference with Wade and defense attorney Anthony Lawrence it was concluded the only ethical and legal option was to set aside the guilty pleas and set the case for trial.

ILB Update: Here is a citation from p. 3-4 of the 2008 Indiana Supreme Court opinion in Norris v. State:
In 1970, the United States Supreme Court found that the federal Constitution did not bar a court from accepting a guilty plea when the defendant maintains innocence. North Carolina v. Alford, 400 U.S. 25, 38, 27 L. Ed. 2d 162, 91 S.Ct. 160 (1970). But Alford explicitly recognizes that the individual states may refuse to accept guilty pleas that accompany protestations of innocence. Id. at 38 n.11. Indiana law has long refused to accept such "Alford" pleas. Over fifty years ago, this Court held that “a plea of guilty tendered by one who in the same breath protests his innocence, or declares he does not actually know whether or not he is guilty, is no plea at all.” Harshman v. State, 232 Ind. 618, 621, 115 N.E.2d 501, 502 (1953). “A defendant who says he did the crime and says he did not do the crime has in effect said nothing, at least nothing to warrant a judge in entering a conviction.” Carter v. State, 739 N.E.2d 126, 128-29 (Ind. 2000). Indiana jurisprudence has insisted that a factual basis must exist for a guilty plea, and that a judge may not accept a guilty plea while a defendant claims actual innocence. Ross v. State, 456 N.E.2d 420, 423 (Ind. 1983). This rule was designed to both increase the reliability of guilty pleas and prevent the diminishment of respect for the court system as jailing people who committed no crime. See Trueblood v. State, 587 N.E.2d 105, 107 (Ind. 1992).
[More] In answer to a question posed by the ILB, Indiana defense attorney Cara Wieneke responded:
It is an interesting legal issue because both sides might be right. The judge is right that he cannot accept a guilty plea from someone who claims his innocence at the same time. But the State is right that he claimed innocence at sentencing, not during the factual basis used to support the guilty plea. I don't know if the case law is clear that you can assert your innocence at sentencing. I've had clients try to do this before at sentencing and lose. A lot of it depends on judicial discretion.
[Updated 10/15/15] "State disputes judge's ruling, asks for new sentencing date for Sells" is the heading of a new story today in the Herald-Bulletin.

Posted by Marcia Oddi on Wednesday, October 14, 2015
Posted to Ind. Trial Ct. Decisions

Courts - "SCOTUS takes up case that could affect power rates"

Maureen Groppe of the Star Washington Bureau reports today in a long story that begins:

WASHINGTON – Indiana Attorney General Greg Zoeller and the state agency representing the interests of utility rate payers are on opposite sides of an electricity case the Supreme Court will take up Wednesday.

The case deals with jurisdiction over the increasingly blurred line between the wholesale electricity market, which the federal government oversees, and the retail electricity market, which states control.

But it matters to consumers. The court could throw out a federal rule aimed at increasing programs that pay customers to reduce their energy use during peak demand times. That would raise the cost of electricity, said Indiana Utility Consumer Counselor A. David Stippler.

"It really, in our view, would lead to increased electricity costs for our consumers, and it's going to put more money into the pockets of power generators," he said.

"Demand response" programs are meant to reduce the occurrence of blackouts and meet power needs more cheaply without generating more power. They also lessen the ability of power providers to charge higher rates at peak times.

The programs have been used at the wholesale and retail levels, but Congress determined in 2005 that there are too many barriers to participation.

The Federal Energy Regulatory Commission tried to reduce barriers in a rule issued in 2011. * * *

The rule was challenged by organizations representing electricity generators and others. * * *

But in a brief filed in support of the challenge to the federal rule, Zoeller and the attorneys general of 10 other states argue that the federal government is essentially requiring wholesale market administrators to pay retail customers as much for the electricity they don't use as power companies are paid for the electricity they produce.

The rule, the attorneys general wrote, is a "blatant intrusion" into the traditional authority of states.

Although the federal government allowed states to opt out, Zoeller and the other attorneys general said that's not good enough.

"When a state makes a decision about how best to regulate retail electricity sales, it should not be forced to 'opt out' of a federal regime to protect the policy decision it has already made," they wrote in their brief.

ILB: The case is Federal Energy Regulatory Commission v. Electric Power Supply Association (SCOTUSblog casepage). Lyle Denniston of SCOTUSblog has a long argument preview here. Here is the amicus brief referenced in today's story, titled "BRIEF OF INDIANA, OKLAHOMA, AND TEN STATES AS AMICI CURIAE IN SUPPORT OF THE RESPONDENTS."

Posted by Marcia Oddi on Wednesday, October 14, 2015
Posted to Courts in general

Ind. Decisions - More on "Ex-teacher's award finalized: Diocese to pay $403,608, down from jury's $1.9 million"

The headline of this August 10th post was Ind. Decisions - "Ex-teacher's award finalized: Diocese to pay $403,608, down from jury's $1.9 million." Last Wed., Oct. 7th, Rebecca S. Green of the Fort Wayne Journal Gazette had this update, headed "Diocese sets aside money to pay Herx: Appeal over ruling continues," that begins:

Emily Herx won her lawsuit against the Roman Catholic Diocese of Fort Wayne-South Bend.

As was expected, the diocese appealed, even though the jury’s award was cut from $1.9 million to $403,607.

But they still have to pay the former language arts teacher, even while the case works its way up the federal court system. On Monday, the diocese opened an account at a local bank and deposited $444,184, which includes the final judgment plus 10 percent.

The account was opened about two weeks after U.S. District Judge Robert L. Miller Jr. denied the diocese’s request to not pay until the case is finally concluded.

Miller also denied Herx’s request that the diocese pay right away. He ordered the creation of the account, according to court documents.

Posted by Marcia Oddi on Wednesday, October 14, 2015
Posted to Ind Fed D.Ct. Decisions

Law "If a Pulitzer-nominated 34-part series of investigative journalism can vanish from the web, anything can"

The Atlantic today has posted a very long article by Adrienne LaFrance that reports on the total impermanence of the web. I consider it a must-read. It begins:

The web, as it appears at any one moment, is a phantasmagoria. It’s not a place in any reliable sense of the word. It is not a repository. It is not a library. It is a constantly changing patchwork of perpetual nowness.

You can't count on the web, okay? It’s unstable. You have to know this.

Digital information itself has all kinds of advantages. It can be read by machines, sorted and analyzed in massive quantities, and disseminated instantaneously. “Except when it goes, it really goes,” said Jason Scott, an archivist and historian for the Internet Archive. “It’s gone gone. A piece of paper can burn and you can still kind of get something from it. With a hard drive or a URL, when it’s gone, there is just zero recourse.” * * *

Today’s web is more dynamic than ever and therefore more at-risk than it sometimes seems.

It is not just access to knowledge, but the knowledge itself that’s at stake. Thousands of years ago, the Library of Alexandra was, as the astrophysicist Carl Sagan wrote, “the brain and heart of the ancient world.” For seven centuries, it housed hundreds of thousands of scrolls; great works of philosophy, literature, technology, math, and medicine. It took as many centuries for most of its collections to be destroyed.

The promise of the web is that Alexandria’s library might be resurrected for the modern world. But today’s great library is being destroyed even as it is being built. Until you lose something big on the Internet, something truly valuable, this paradox can be difficult to understand.

An aspect of this impermanence that the SCOTUS acknowledged this month is "link-rot." Adam Liptak covered the recent Court action in his Oct. 5, 2015 NYT column:
The court said it would also address what it called “the problem of ‘link rot,’ where Internet material cited in court opinions may change or cease to exist.” The court will now collect and post the materials it links to on a dedicated page on its site.

The move seemed to have been prompted by news media coverage of a study showing that about half of 555 links in Supreme Court opinions did not work. A second study called the situation dire.

“It is disturbing that even at the Supreme Court, where creating and citing precedent is of the utmost importance, citations often fail to point the researcher to the authority on which the court based its decision,” Raizel Liebler and June Liebert, librarians at the John Marshall Law School in Chicago, wrote in the second study, “Something Rotten in the State of Legal Citation.”

Posted by Marcia Oddi on Wednesday, October 14, 2015
Posted to General Law Related

Tuesday, October 13, 2015

Ind. Courts - Marion County sign ordinance challenged in federal court

There has been interest in the lawsuit filed last week by GEFT OUTDOOR, LLC against Marion County. From the complaint:

Through this lawsuit, among other things, GEFT seeks to enjoin the Defendant from further restraining GEFT's First Amendment rights through continued application of the unconstitutional provisions of Defendant's Sign Ordinance (defined infra). Those provisions are content-based and suppress constitutionally protected political, noncommercial, and commercial speech on signs throughout the City, and have since at least 1995.
The 30-page GEFT Complaint argues, inter alia, that the sign ordinance, the digital ban, and the highway digital ban violate the free speech clauses of the 1st amendment of the US Const., and Art. I, Sec. 9 of the Indiana Constitution, as well as the equal protection clause of the 14th amendment and Art. I, sec. 23 of the Indiana constitution. The accompanying 36-page GEFT brief supporting its motion for preliminary injunction is the more interesting reading.

Scott Olson of the IBJ had a good story on the law suit Oct. 9 - access it here.

In February Brian Easton of the Indianapolis Star had a very long story headed "Digital billboards under glare of ethics concerns in Indy." The lede:

A proposal to bring the bright lights of digital billboards to Indianapolis is flickering under a glare of scrutiny.
The story was also linked in this Feb. 17, 2015 ILB post.

Here is the SCOTUSblog case page on Reed v. Town of Gilbert, last term's SCOTUS opinion relied on in the GEFT filings.

Here are two related ILB posts:

Posted by Marcia Oddi on Tuesday, October 13, 2015
Posted to Indiana Courts | Indiana Government

Ind. Courts - Today was the ballot-selfie argument in federal court here

It is being heard by Judge Sara Evans Barker, who also presided over the Indiana voter ID case (Crawford) several years ago.

The ILB has several background posts. This one from Aug. 25th is headed Is Indiana law explicitly banning taking photographs in voting booth unconstitutiional? From Aug. 27th: ACLU of Indiana Challenges State Law Prohibiting Ballot "Selfies." And an update from the same day. (It appears the ILB never did get a copy of the complaint.)

Brandon Smith of Indiana Public Media attended today's federal court argument and reports:

The ACLU says an Indiana law barring voters from taking pictures of their ballot in the voting booth violates the First Amendment, but the state is countering that the legislature is trying to prevent voter fraud.

A federal court heard arguments Tuesday over the law’s constitutionality.

The state offered several potential problems the so-called “ballot selfie” law seeks to prevent: taking photos of one’s ballot could help facilitate buying and selling votes. Barring pictures of a ballot could also help prevent voter intimidation and coercion.

Simply put, the state argues that ballot secrecy has been vital for more than a hundred years, and the “ballot selfie” statute is a natural offshoot of an existing law that bars people from showing their ballot to others.

But Judge Sarah Evans Barker noted the state’s position, in her words, “wobbles” on its inability to show evidence of any of those problems; the state couldn’t provide examples of vote buying within the last 25 years.

And ACLU Indiana legal director Ken Falk says even if those problems existed, the law is still too broad.

“There’s no excuse for a law that bans taking pictures of ballots that aren’t completed or taking pictures of ballots that you never intend to share or that you’re going to share for completely innocent reasons,” he says.

Judge Barker says she plans to issue a ruling before the Nov. 3 election.

Prof. Rick Hasen, of Election Law Blog, writes after reading Brandon Smith's story:
Oh, this is interesting. The same federal judge who found in the Crawford that Indiana could pass its voter id law despite any evidence that voter impersonation fraud was ever a problem in Indiana seems to think it is a problem that Indiana doesn’t have evidence of vote buying to support its anti-selfie law.

Will be interested to see how the judge purports to distinguish the cases.

Posted by Marcia Oddi on Tuesday, October 13, 2015
Posted to Indiana Courts

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

For publication opinions today (1):

In Scott A. Criswell v. State of Indiana, a 26-page opinion, Judge Bradford writes:

At all times relevant to this appeal, Appellant-Defendant Scott Criswell was a Sergeant with the Fort Wayne Police Department (“FWPD”). Criswell attended a party at the home of another Fort Wayne police officer on August 10, 2013. While at the party, Criswell and the wives of two other Fort Wayne police officers are alleged to have forcibly entered a nearby home and removed certain items from the property. As part of a subsequent internal investigation by the FWPD, Criswell gave a statement regarding the events in question after signing a document which indicated that any statements made would not be used against him in any potential subsequent criminal action.

In May of 2014, Appellee-Plaintiff the State of Indiana (the “State”) charged Criswell with Class A misdemeanor criminal conversion and Class A misdemeanor criminal trespass. Criswell subsequently filed a motion to dismiss and/or suppress, arguing that the criminal charges against him should be dismissed because the charges were brought in violation of his Fifth Amendment privilege against self-incrimination, as well as the legal protections enunciated by the United States Supreme Court in Garrity v. New Jersey, 385 U.S. 493 (1967), and Kastigar v. United States, 406 U.S. 441 (1972). Alternatively, Criswell argued that his statement and any evidence derived from his statement should be suppressed. Following a hearing, the trial court denied Criswell’s motion.

Concluding that the trial court abused its discretion in denying Criswell’s motion to suppress, we reverse the ruling of the trial court. We remand the matter to the trial court with instructions for the trial court to grant Criswell’s motion to suppress his statement as well as any other evidence that was directly or indirectly derived from the statement.

NFP civil decisions today (0):

NFP criminal decisions today (1):

William Ray Neeb v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, October 13, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Horse manure in the news

This long, interesting Oct. 9th column by CNHI's Maureen Hayden, here in the Kokomo Tribune, begins:

INDIANAPOLIS – The new floor leader of Republicans in the House of Representatives is familiar with the manure of politics. Or, rather, the politics of manure.

Before he was elected to the General Assembly seven years ago, Rep. Matt Lehman served 16 years as a councilman in rural Adams County – home to one of the largest concentrations of Old Order Amish in the country.

Religious freedom – a lightning-rod issue in the Legislature - wasn’t just an abstract concept.

Lehman respected the hardworking, frugal ethos of the Amish, whose presence brings tourists and their dollars into his community. But he routinely fielded calls from non-Amish complaining about the manure deposited by buggy-pulling horses of the Amish, whose faith calls them to eschew things of the modern world, including cars.

“I’d get more angry calls on horse manure on county roads than almost anything else,” Lehman said. “Now I get calls from people complaining about manure on state roads.”

This interesting Oct. 5th story by Sheila Selman of the Goshen News focuses directly on the horse manure problem; the headline is "Stink raised in LaGrange County over horse manure on roads." Some quotes:

LAGRANGE — A petition to require manure bags on horses drew more than 130 people into the LaGrange County Commissioners meeting room at the LaGrange County Building Monday morning.

More than half those in the audience were Amish — the target of a petition by LaGrange County resident Chad Fry, who along with a couple of thousand petitioners, hopes to eliminate horse manure in parking lots and roadways in LaGrange County.

“This isn’t about English vs. Amish,” Fry said. “It’s about respect and cleaner towns. It’s only going to benefit the community in the long run.”

Also presented to the commissioners were resolutions from the town councils of Shipshewana and Topeka in support of manure bags, keeping streets clean and waste out of the water. Shipshewana councilman Roger Yoder said after the meeting that towns could hardly have their own ordinances concerning manure. It would have to be countywide to be effective.

During his presentation, Fry said county officials have catered to the Amish with reduced speed zones in heavily Amish populated areas, buggy lanes on roads and hitching racks at businesses and government offices — all costing taxpayers money.

“We shouldn’t have to clean up after that,” he said. “We’re paying for the clean up as well.”

He also said there are health issues involved with manure. When it rains, there is runoff into lakes, fields and eventually drinking water. He pointed out that Shipshewana has a storm drain clogged because of manure. And people have to walk through brown water when it rains, tracking feces into businesses and homes.

Safety was another of Fry’s concerns. Motorists, particularly motorcyclists, could have accidents trying to avoid manure, he said. And if they don’t avoid the piles, motorists have to continually clean their vehicles. * * *

He pointed to Auburn, Kentucky, which passed an ordinance in 2014 requiring manure bags on horses. Fry presented what he believes is a cost-effective solution, a product called the Bun Bag. It attaches to the horse’s tail and when the horse poops, the bag catches it.

Members of the Amish community were not impressed with the device, but felt as Christians they should try to listen and work with their neighbors.

One Amish bishop, through Commissioner Larry Miller, offered to form a committee of Amish and English residents to study the matter and perhaps come up with a compromise. Fry accepted that offer.

“We understand it’s a problem,” said Atlee Miller of Topeka, “and we want to look at it in a fair way.” * * *

But they have to keep the safety of their families in mind.

Miller said they were not willing to risk their wives and children being injured if a horse became uncontrollable because the bag bouncing against its hindquarters felt like a whip.

“It could be nasty — very, very nasty,” Miller said.

Many of the horses hooked to buggies are former race horses, several Amish men explained after the meeting. These former racers are more sensitive and high strung than a draft horse.

Fry said during the meeting the horses would have to get used to the bag and he was supported in that by a resident who said he has trained horses for 35 years.

However, Fry said he has not been successful in trying out the Bun Bag to see if it would aggravate a horse. No one from the Amish community was willing to test it for him, he said. Several Amish men after the meeting said they were not willing to take that risk. If Fry wanted to pay for damages that could be caused by the horse, they would be willing.

Posted by Marcia Oddi on Tuesday, October 13, 2015
Posted to Environment | Indiana Government

Ind Law - "Valpo Law students win asylum for Eritrean man"

A long story today in the NWI Times, reported by Susan Emery, begins:

VALPARAISO | A man who was tortured for speaking out against his country’s government has received asylum in the United States, thanks to the tenacity of two Valparaiso University law school students.

Students Jordan Chelovich and Mayombo Mbanza won asylum this past summer for "Sam," from Eritrea, a country in Africa.

The Times has agreed not to identify Sam to protect his family in Africa from retaliation.

The case was undertaken through the law school’s Immigration Clinic, one of nine clinics designed to help students gain practical experience while providing free or low-cost legal services to those in need.

Posted by Marcia Oddi on Tuesday, October 13, 2015
Posted to Indiana Law

Ind. Gov't - " Trends in Juvenile Justice State Legislation 2011-2015"

From the National Conference of State Legislatures, a new report:

... illustrating the trends in juvenile justice enactments over the past five years. The new report describes the increasing momentum of state juvenile justice policy in recent years and catalogs the volume and variety of juvenile justice legislation enacted in states. It builds on an earlier “Trends Report” released in 2012 that highlights a decade of juvenile justice legislation over 2001-2011.

Posted by Marcia Oddi on Tuesday, October 13, 2015
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending October 9, 2015

Here is the Clerk's transfer list for the week ending Friday, October 9, 2015. It is one page (and 24 cases) long.

Three transfers were granted last week:

The transfer list also notes the grant of a Rule 56(A) motion in Citizens Action Coalition of Indiana, et al. v. Indiana House Republican Caucus, et. al. The ILB had a write-up of this grant on Oct. 6th.

Finally, there were two cases last week where transfer was denied by a 3-2 vote:

Posted by Marcia Oddi on Tuesday, October 13, 2015
Posted to Indiana Transfer Lists

Courts - More on: Chicago Tribune sues Mayor Emanuel over use of private email

Supplementing this ILB post from Oct. 12th, quoting a Chicago Tribune story, SFGate on Oct. 11th had this AP story by John O'Connor, dateline Springfield, Ill. The first thing you see is a photo with this heading:

FILE - In this Jan. 22, 2014, file photo, former University of Illinois Urbana-Champaign Chancellor Phyllis Wise speaks in Champaign, Ill. Illinois law is clear that government officials’ emails about work are public records. But what if they’re sent from personal accounts or cellphones? The Illinois attorney general and its appellate court have ruled that public business on private emails must be disclosed. Wise resigned when the university announced that her emails on private accounts had potentially been improperly withheld. (John Dixon/The News-Gazette via AP)
Then the lengthy story itself begins:
Illinois law says government officials' emails about taxpayer business are public records for all to see. But what if they're sent from private accounts or personal cellphones?

Chicago Mayor Rahm Emanuel argues those are not for public consumption. The Chicago Tribune claims they are, and took the matter to court last month. Gov. Bruce Rauner had his own dust-up this summer over an aide's private emails, and the practice cost a University of Illinois chancellor her job in August.

The issue, once limited to scattered consternations over politicians playing fast and loose with new technology, is pervasive this year, beginning with revelations about Democratic presidential front-runner Hillary Clinton's use of a private email server to conduct business while she was U.S. secretary of state — a case that spurred a lawsuit by The Associated Press.

Public-access advocates insist Illinois law is clear, and the state's attorney general and appellate court weighed in just two years ago, declaring that public business is public record — no matter how it's conducted.

The story includes a link to City of Champaign v. Madigan, 2013 IL App (4th) 120662, and to the Illinois Freedom of Information Act.

Posted by Marcia Oddi on Tuesday, October 13, 2015
Posted to Courts in general

Ind. Courts - More on: No word yet on who Gov. Pence will appoint to Marion Co. Superior Court

And the message is the same: no word yet. Repeating from the Sept. 25th ILB post:

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.

Posted by Marcia Oddi on Tuesday, October 13, 2015
Posted to Indiana Courts

Ind. Courts - Ted Boehm on potential changes to judicial section for the Marion Co. Superior Court

On Sept. 9th the 7th Circuit "upheld a district court ruling and declared that the method of electing Marion Superior Court judges is unconstitutional." See details in this ILB post and its links.

In the Oct. 10 IBJ Forefront, former Indiana Supreme Court Justice Ted Boehm writes under the heading "A door opens for appointing Marion County judges." A few quotes:

The Legislature will get first crack at a new system, hopefully one that eliminates campaign finance and dependence on any interest group and also vets candidates for thoughtfulness, experience and patience.

Three versions of appointment from nominees by a nonpartisan commission have been used for some time in Indiana for the appellate bench and trial courts in two large counties. Improvements can be made in their details, but generally these merit systems have worked well. Those who know these courts overwhelmingly believe they improved the judiciary.

Concerns about merit appointment have proven unwarranted. Minority judges continue to be selected. The nominating commission can be structured to local needs and can be selected by multiple officials or groups to limit the influence of any one of them.

No judge’s term will expire before 2019. Although there is no immediate need to do anything, the Legislature will presumably act before then because inaction could leave the design up to the federal courts. We could have a plan even in 2016, because waiting until 2017 risks losing the iron grip of the current Republican supermajority on both houses of the Legislature.

A merit system has another virtue. Enactment of a plan that is not tested for compliance with the federal Constitution would risk invalidation by the courts without time to implement a new one. A merit system seems immune from court challenge. Alternatives being floated are less clearly constitutional with one exception—election of all 36 judges at large in the county. But that seems an improbable choice by a Republican Legislature for an increasingly Democratic county.

Posted by Marcia Oddi on Tuesday, October 13, 2015
Posted to Indiana Courts

Law - Fund-raising in full swing for Kentucky AG contest

Joe Gerth's Oct. 10th column in the Louisville Courier Journal was headed "Money in AG race is devil of a problem." Some quotes:

Kentucky’s race for attorney general is a contrast in old school politics and modern politics.

It’s also a case study for the potential of old school corruption and the potential for modern corruption.

Old school is Andy Beshear, the son of the governor and a Louisville corporate lawyer who is making his political money the old fashioned way: He’s traveling the state begging for it. And boy has it worked.

Thumb through his most recent fundraising report and you’ll see coal executives, road contractors and lawyers. Lots and lots of lawyers. * * *

Beshear has amassed a war chest of $2.7 million using a very structured campaign to go out and hit up friends of his father and people who do business with the state. In the process, he’s piled up more money than anyone has ever piled up in Kentucky for a down-ticket race. * * *

If you are a pessimist, you’d believe that raising the money that Beshear has raised opens the door for corruption, since many of the people donating to his campaign are still dependent on his father for government contracts and appointments, and many others could have cases involving the attorney general once Andy Beshear is swept into office.

If you’re an optimist, you might say that if Beshear works half as hard as attorney general as he has raising money, then he could be the best ever.

There is much more in the story. The Republican opponent, according to the story, is being funded by:
The Republican Attorneys General Association [, which] has sent $2.2 million to the Kentucky Republican Attorneys General Association to help him. The national group gets is funding largely from conservative groups, corporations and wealthy business people. * * *

Money, no matter where it comes from, can be a corrupting influence.Democrats believe that the Republican Attorneys General Association is prepared to sink up to $5 million into television ads and mailers in an effort to beat Beshear.

Both old-style fundraising and new-style fundraising can lead to political corruption. The question becomes, do you prefer the devil you know, or the devil you don’t?

Posted by Marcia Oddi on Tuesday, October 13, 2015
Posted to General Law Related

Monday, October 12, 2015

Ind. Courts - More on "Former Lake Station Mayor Keith Soderquist asking for a new trial; claims the federal judge fell asleep twice"

Updating this ILB post from Sept. 23rd, Jim Masters reported Oct. 8th in the NWI Times in a story headed "Soderquists get new judge for second criminal trial," that:

HAMMOND | Former Lake Station Mayor Keith Soderquist and his wife had their petition granted for a different judge in their upcoming second criminal trial.

Keith and Deborah Soderquist claimed in court documents that U.S. District Court Judge Rudy Lozano fell asleep at times during their trial. A federal jury convicted the Soderquists on Sept. * * *

Lozano voluntarily recused himself in the case. In court documents he makes no admission of falling asleep during the Soderquists’ trial. The case has been referred to Senior Judge Philip P. Simon.

Posted by Marcia Oddi on Monday, October 12, 2015
Posted to Ind Fed D.Ct. Decisions

Courts - Chicago Tribune sues Mayor Emanuel over use of private email

The subhead of this Sept. 24th Chicago Tribune story by Steve Mills: "Tribune asks judge to order mayor to comply with FOIA request for emails, texts." A few quotes:

he Chicago Tribune filed a lawsuit Thursday alleging that Mayor Rahm Emanuel violated state open records laws by refusing to release communications about city business conducted through private emails and text messages.

The lawsuit, filed in Cook County Circuit Court, asks a judge to order the mayor to comply with a state Freedom of Information Act request from the Tribune and produce the documents. The lawsuit also seeks to have Emanuel declared in violation of the Illinois Local Records Act for failing to preserve emails and texts he sent or received while doing city business.

The lawsuit claims that, in recent years, Freedom of Information Act requests from the Tribune to the mayor's office "have been met with a pattern of non-compliance, partial compliance, delay and obfuscation." Emanuel's use of private phones and personal email, the lawsuit alleges, allows the mayor to do the public's business without scrutiny and contributes to a "lack of transparency."

The lawsuit is the second the news organization has filed against the Emanuel administration in recent months. In June, the Tribune sued the mayor's office over its refusal to produce some email chains related to a multimillion-dollar no-bid Chicago Public Schools contract now at the center of a federal criminal investigation.

Indeed, the ILB also had a June 25th post about the earlier suit.

Posted by Marcia Oddi on Monday, October 12, 2015
Posted to Courts in general

Courts - 6th Circuit blocks EPA proposal to expand federal protection of water and wetlands

Friday the 6th Circuit, by a 2-1 vote:

temporarily blocked an Environmental Protection Agency regulation that would bring more waterways and wetlands under federal protection, in the latest sign the effort could face an uphill legal battle.

The order * * * was a preliminary boost for a group of 18 states that challenged the EPA regulation. The rule seeks to bring smaller bodies of water at the outer edges of watersheds under the Clean Water Act and was issued jointly with the U.S. Army Corps of Engineers.

“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing,” said the majority on a three-judge appeals court panel.

That is from a story Friday by Brent Kendall and Amy Harder of the WSJ. Another quote from the worth-reading $$$ WSJ coverage:
The EPA has said the rule is necessary to clarify which waters should fall under the protection of the Clean Water Act after two Supreme Court rulings, in 2001 and 2006, called into question whether and to what extent 60% of U.S. waterways, especially smaller streams and wetlands, should fall under federal jurisdiction.

Critics, including lawmakers and business and farming groups, say the new regulation amounts to federal intrusion upon states’ rights.

An AP story in the NY Times explains:
U.S. District Judge Ralph Erickson in Fargo, N.D., halted the rule's implementation in 13 central and Western states shortly before it took effect in August. Erickson said judges have wide discretion to craft their orders narrowly or broadly, but he declined to extend his order to additional states.

The 6th circuit panel took a different approach, even while acknowledging uncertainty over which court was the proper venue for the legal battle. Judges David W. McKeague and Richard Allen Griffin — both appointed by Republican President George W. Bush — said delaying implementation nationwide "temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing."

The legal challenges have "a substantial possibility of success," the judges said, adding that it was "far from clear" that the new regulations comply with guidelines in the Supreme Court's latest ruling in 2006. * * *

At issue in the ruling Friday is which smaller waterways — those not adjacent to navigable rivers or lakes — are subject to federal oversight under the Clean Water Act. The EPA contends Supreme Court decisions in 2001 and 2006 left 60 percent of the nation's streams and millions of acres of wetlands without clear federal protection.

Under the latest regulations, a business or landowner would need a permit to fill wetlands or otherwise damage affected waters with a "direct and significant" link to larger water bodies downstream that have legal protection.

Opponents such as the American Farm Bureau Federation said the provisions give federal officials power over even intermittently flowing streams that farmers use for drainage and irrigation — "nearly every pothole and ditch in our country," Senate Majority Leader Mitch McConnell of Kentucky said.

ILB: Here is a copy of the 7-page stay in EPA v. Ohio.

Posted by Marcia Oddi on Monday, October 12, 2015
Posted to Courts in general | Environment

Ind. Decisions - Tyson and Zerbe sex offender registration cases rescheduled as separate oral arguments

Updating "Upcoming Oral Arguments," posted earlier today, the Supreme Court has issued this order, dated Oct. 7th:

On September 11, 2015, this Court issued an order scheduling a consolidated oral argument in these cases on Thursday, October 22, 2015. On October 2, 2015, Sidney Tyson and Scott Zerbe, by their respective counsel, filed a joint motion requesting their arguments be held separately. Being duly advised, the Court hereby GRANTS Tyson’s and Zerbe’s Joint Motion to Separate Oral Arguments, and RESCHEDULES their oral arguments.

Argument in Tyson v. State will be held on Thursday, November 5, 2015, at 9:45 a.m.

Argument in State v. Zerbe will be held on Thursday, November 5, 2015, at 10:30 a.m.

Each argument will be forty minutes in length, equally divided between the appellant and the appellee. The Court has granted transfer, and the appellant shall argue first.

Posted by Marcia Oddi on Monday, October 12, 2015
Posted to Upcoming Oral Arguments

Courts - Judge Easterbrook and 7th Cir. v. DC Circuit

Interesting post Saturday on Judge Easterbrook in the Yale Journal on Regulation Blog.

Posted by Marcia Oddi on Monday, October 12, 2015
Posted to Courts in general

Ind. Courts - Still more on "Class Action Lawsuit to be Filed Over Inadequate Johnson County Public Defense System"

Updating this ILB post from Oct. 9th, which links to the complaint, Kristine Guerra of the Indianapolis Star had a long story Oct. 10 about the lawsuit, headed "Indiana inmates accuse public defenders of mishandling cases." Today Courthouse News has a story by David Wells, headed "Indiana's Overworked Public Defenders Assailed."

Posted by Marcia Oddi on Monday, October 12, 2015
Posted to Indiana Courts

Law - "Jarrett Adams’ unlikely path from prison to lawyer" - now clerking for 7th Circuit

This lengthy story, by Ari Melber of MSNBC, like the earlier ILB post this morning, also involves a former prisoner who is now an attorney. (h/t Michelle Olsen) Some quotes:

While [Jerrett] Adams had never been to college, he began studying the appeals process in the prison library.

He began to fully appreciate the flaws in his trial, and to notice patterns in other people’s cases.

“There were a lot of young black people in there as a result of bad representation, not knowing anything about the law, pleading guilty to cases where they shouldn’t have plead guilty,” he recalls. “I’m driven now, because not only do I want to prove my innocence, but I also want to advocate on behalf of those who I know were just like me.”

While most of the local appeals in his case had failed, Adams determined a federal appeal was still possible, if he could get outside help. He petitioned the Wisconsin Innocence Project.

Kevin Findley, who co-directs the project, recalls that while Adams did have legal grounds to appeal, the rules for winning are so tough, he was skeptical of taking the case.

“When my students came to me and said, ‘Let’s file this habeas petition,’ I said, ‘I know what the standards are in federal habeas,’” he recalls. Initially, he says he felt it “probably wasn’t worth the effort.” * * *

The court found Adams’ lawyer’s “failure to investigate” and refusal to present an available defense had prejudiced the trial – the argument Adams advocated. The court also ruled that given the “the relatively thin evidence” against Adams, in a fair trial, it was reasonably probable that “the outcome of Adams’ trial would be different.”

Findley says the victory made him think back to when he doubted whether a long-shot appeal was worth the effort. “I learned that’s not an excuse we should rely on very often,” he says. “You never know,” he adds, “when you’re going be successful in achieving justice.” * * *

Adams graduated law school in May and took the bar this summer. His path already reflects tremendous growth, but it’s what he’s doing this Fall that may be the most remarkable.

Adams just won a fellowship to clerk on the Seventh Circuit Court of Appeals – the very court that overturned his conviction.

Every morning, he walks through downtown Chicago and into the federal court that set him free. He says it’s “surreal.”

“I sit in the same court room, take notes, listen to the judge, observe the arguments,” Adams says, while “not too long ago, I listened as lawyers argued my case in front of these same three judges.”

Clerking for one of the 13 federal appeals courts is a coveted opportunity for any young lawyer. Loyola “occasionally send students to these clerkships,” notes Dean Yellen, “but it’s more often from the Harvards, and the University of Chicago, and places like that.”

Adams’ situation is especially rare. Michael Monico, who has practiced in the Seventh Circuit for 42 years, says he never heard of a former inmate clerking for the court that freed him.

Posted by Marcia Oddi on Monday, October 12, 2015
Posted to General Law Related

Law - "A Former Heroin Dealer’s Second Chance"

The NY Times has a long, fascinating story today by Benjamin Weiseroct headed "A Defense Lawyer Draws on His Past as a ‘Three-Time Loser.’" A few quotes:

Mr. Haber, 75, is one of the more unlikely criminal defense lawyers in New York. For the last three decades, first as a public defender and then in private practice, Allan P. Haber has long represented the kind of hardened criminals who might seem beyond redemption.

As ethical lawyers must, he has always kept his clients’ secrets. But throughout his career, Mr. Haber has also kept tight guard of a secret of his own.

Mr. Haber was once a drug dealer, selling heroin in Midtown Manhattan, carrying a gun, running a stash house and earning thousands of dollars a day selling bundles of heroin through a network of distributors. He had 10 convictions in his 20s and early 30s, including three drug-related felonies.

It was not until he was in his 40s that Mr. Haber, fully disclosing his past during the application process, obtained college and law degrees from New York University and admission to the bar. * * *

Mr. Haber is hardly the only lawyer with a criminal record: New York, like almost every other state, does not automatically exclude felons from admission to the bar. But in contrast with his successful legal career, the length and severity of Mr. Haber’s criminal past stand out, especially to those unfamiliar with his background.

Posted by Marcia Oddi on Monday, October 12, 2015
Posted to General Law Related

Ind. Law - More on: When must an Indiana attorney report the abuse of a child?

On Sept. 11 the ILB had this post on a then-new opinion [#2-2015] of the ISBA Legal Ethics Committee.

The ILB wasn't the first to report on this ethics opinion, the Sept. 11th ILB post points out (and credits) Samson Habte of Bloomberg, who had a long Sept. 4th story about this opinion.

The ILB post also noted:

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.
Today the Indianapolis Star has a front-page story by Marisa Kwiatkowski that begins:
Indiana law requires anyone who believes a child is being abused or neglected to immediately report it. Unless you are a lawyer.

At least, that's the opinion of the Indiana State Bar Association's Legal Ethics Committee, which says lawyers may report suspected child abuse or neglect against their clients’ wishes only when they believe it necessary “

The story goes on to survey the reactions of lawyers who work with children to the ISBA opinion:
James Wide, spokesman for the Indiana Department of Child Services, said the opinion puts the safety of children at risk. Everyone — even therapists, doctors, teachers and ministers — is required to report suspected child abuse or neglect. People who fail to do so could be charged with a misdemeanor.

“No one’s exempt,” Wide said. “We can’t agree with that.”

Tim Stoesz, a longtime family law attorney, called the State Bar Association’s opinion “abhorrent.”

“I think the people who made this decision haven’t spent a lot of time in the real world of family law and seen the things that happen,” he said. “Attorney-client privilege is not more important than the health and safety of the child.”

Stoesz said the opinion allows lawyers to decide for themselves whether something rises to the level of “reasonably certain death or substantial bodily harm.”

“Is sexual contact between a teacher and students ‘substantial bodily harm?’ ” he asked. “What about child pornography?”

Sandy Runkle-DeLorme, director of programs at Prevent Child Abuse Indiana, said she is concerned that lawyers may not have had the training to be able to make that determination. Child neglect, in particular, can be a complex issue, she said.

Runkle-DeLorme pointed out that people also can report child abuse and neglect anonymously.

“Because it’s an opinion and not a change in legislation, I hope that people do what they need to do, which is follow the law,” she said.

The opinion makes it clear that it is just that — an opinion to give guidance to attorneys. The Indiana Supreme Court has final say over Indiana law and attorneys’ professional conduct.

Through a spokeswoman, Chief Justice Loretta Rush said she could not comment on the opinion because the matter could come before the Supreme Court.

Posted by Marcia Oddi on Monday, October 12, 2015
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next [Updated]

This week's oral arguments before the Supreme Court (week of 10/12/15):

Next week's oral arguments before the Supreme Court (week of 10/19/15):

Thursday, October 22

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 10/12/15):

Tuesday, October 13

Wednesday, October 14 Next week's oral arguments before the Court of Appeals (week of 10/19/15):

Monday, October 19

Tuesday, October 20

Wednesday, October 21

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, October 12, 2015
Posted to Upcoming Oral Arguments

Saturday, October 10, 2015

Courts - "Michigan Pays $1.9M in Legal Fees in Same-Sex Marriage Case"

Zoe Tillman of The National Law Journal reported Oct. 8 in a story that begins:

The state of Michigan will pay $1.9 million in legal fees to lawyers who successfully challenged the state’s ban on same-sex marriage. It is the single largest payout to date by a state in the federal court marriage cases.

The state will pay all of the fees that the challengers asked for in court papers filed in July. By reaching an agreement, the state avoided a potential fee “enhancement” that the challengers asked U.S. District Judge Bernard Friedman in Detroit to consider based on their “exceptional success” in the case. * * *

[Carole Stanyar, a lead attorney for the challengers and a solo practitioner in Ann Arbor, Michigan] will receive $763,875 for the more than 2,000 hours she spent working on the case, the largest single share of the fees in the Michigan case. Mary Bonauto of Gay & Lesbian Advocates & Defenders (GLAD) in Boston, who argued for the challengers in the Supreme Court, will receive $278,845. * * *

Other states to hit the $1 million mark in federal court cases have included Pennsylvania, which reached a $1.5 million settlement; Wisconsin, which reached a $1 million settlement; and Indiana, which has agreed to pay more than $1.4 million.

Michigan is the first state to reach an agreement on fees of the four states that were part of the same-sex marriage litigation in the U.S. Supreme Court. In June, a divided Supreme Court declared a national right to same-sex marriage. The high court took up the issue after the U.S. Court of Appeals for the Sixth Circuit upheld bans in Michigan, Ohio, Kentucky and Tennessee.

ILB: Recall this detailed June 6th ILB post on the payout in Indiana.

Posted by Marcia Oddi on Saturday, October 10, 2015
Posted to Courts in general

Friday, October 09, 2015

About this Blog - Welcome to the Indianapolis Bar Association (IndyBar)

The Indianapolis Bar Association has joined the Indiana Law Blog's list of front-page supporters.

Already on the list are:

Without these front-page donors, and the ILB's generous "inside donors," the ILB could not continue to operate (over 12 years now).

Think about joining up!

Posted by Marcia Oddi on Friday, October 09, 2015
Posted to About the Indiana Law Blog

Law - "California cops, want to use a stingray? Get a warrant"; What About Indiana?

A story posted last evening on ArsTechnica, reported by Cyrus Farivar, begins:

On Thursday, California Governor Jerry Brown signed a bill into law that requires police get a warrant to use a stingray during investigations. The devices, which are also known as cell-site simulators, are usually used to locate a phone but can also in some cases intercept calls and text messages.

The law, known as the California Electronic Communications Privacy Act, imposes other sweeping new requirements to enhance digital privacy, and imposes a warrant requirement before police can access nearly any type of digital data produced by or contained within a device or service.

"Governor Brown just signed a law that says ‘no’ to warrantless government snooping in our digital information. This is a landmark win for digital privacy and all Californians," Nicole Ozer, a lawyer with the American Civil Liberties Union of California ACLU, said in a statement. "We hope this is a model for the rest of the nation in protecting our digital privacy rights." * * *

California is by no means the first state to impose such a requirement, but as the most populous state it the union, it will surely have an outsized effect. Others states that already have similar laws include Washington, Virginia, Minnesota, and Utah. [ILB: the story includes links to each state's statute]

The ILB has had a number of posts on the "stringray" and other law enforcement surveillance, most recently this long post on Sept. 29th.

The latter part of a long lead article in the 9/17/15 issue of Indiana Legislative Insight ($$$) also dealt with the use of stringray technology in Indiana and how our General Assembly has dealt with it so far.

Posted by Marcia Oddi on Friday, October 09, 2015
Posted to General Law Related

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

For publication opinions today (1):

In Allen Gray Limited Partnership IV v. Bishop Mumford, Christopher Mumford, Elizabeth B. Mumford, Richardson S. Mumford, Thomas F. Mumford, Jr., and William M. Mumford, an 8-page opinion, Judge May writes:

Allen Gray Limited Partnership IV (“Allen Gray”) appeals a summary judgment for Bishop, Christopher, Elizabeth, Richardson, Thomas, and William Mumford, (collectively, “Mumford”), who sold mineral rights to Allen Gray but reserved the rights to oil and gas from certain producing wells. As the reservations were for a defined area and did not limit Mumford to oil and gas produced under existing permits, we affirm. * * *

The trial court correctly determined the reservation applied to the surface area of the “drilling unit,” and did not restrict Mumford from making the reserved wells deeper. Summary judgment for Mumford therefore was not error, and we affirm.

NFP civil decisions today (0):

NFP criminal decisions today (3):

William R. Wilson, II v. State of Indiana (mem. dec.)

Amy Ann Price v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Friday, October 09, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Class Action Lawsuit to be Filed Over Inadequate Johnson County Public Defense System"

Updating this post from yesterday, here is the complaint filed Oct. 8 in Alford v. Johnson Co. Comm.

Here is a lenthy story filed yesterday evening by Annie Goeller of the Daily Journal that begins:

A lawsuit filed against Johnson County judges, commissioners and attorneys questions the way public defenders are paid, who oversees them and how many cases they handle at once.

Under the current system in the county, in which judges hire local attorneys, public defenders have caseloads that are too large to properly represent their clients and are unable to question or challenge the judges overseeing the cases, who also are their bosses, the lawsuit filed in Marion County claims.

One public defender had a caseload of 176 felony cases and 32 misdemeanors last year, more than twice the recommended amount for part-time attorneys. Some suspects reported not seeing their attorney for months at a time, not getting responses to requests for a speedy trial and feeling pressured to plead guilty in order to move the case along, according to the lawsuit.

That’s why Johnson County and other counties statewide must change the way they offer public defender services, attorneys who filed the lawsuit said.

Johnson County is likely no worse than other counties around central Indiana or the state but was chosen for its proximity to Indianapolis and because records showing the caseloads of local public defenders were easily accessible, according to Jonathan Little, one of the Indianapolis attorneys who filed the lawsuit.

The goal of the lawsuit, which was filed on behalf of seven local offenders and any others represented by public defenders, is to prompt change statewide, the attorneys said.

They also filed a separate petition with the Indiana Supreme Court, asking the justices to declare that the way Johnson County is offering public defender services is unconstitutional, Little said. And if this lawsuit doesn’t prompt statewide change, more lawsuits could be filed in other counties, he said.

“If Johnson County is being unconstitutional, then other counties would hopefully see that, too,” Little said.

Posted by Marcia Oddi on Friday, October 09, 2015
Posted to Indiana Courts

Thursday, October 08, 2015

Ind. Courts - Suspended Goshen lawyer fined and held in contempt for practicing while suspended

In In the Matter of: Joseph Lehman, a 2-page order filed yesterday, the Court writes:

[T]the Commission alleges Respondent entered his appearance as counsel for the mother in a paternity action on or about the date his active suspension began, and, two months later (after the court had ordered Respondent’s appearance be withdrawn due to his suspension), Respondent filed with the court a minute entry purporting to represent the mother as her “translator” and requesting a final hearing be set. The Court issued an order to show cause on September 1, 2015, and Respondent filed a response on September 10. Respondent largely does not dispute the salient facts but denies those facts constitute the practice of law in violation of his suspension.

This Court has not attempted to provide a comprehensive definition of what constitutes the practice of law. See Matter of Patterson, 907 N.E.2d 970, 971 (Ind. 2009). Nevertheless, it is well-established that the “practice of law includes making it one’s business to act for others in legal formalities, negotiations, or proceedings.” Id. (citing Matter of Mitthower, 693 N.E.2d 555, 558 (Ind. 1998)).

It is not entirely clear from the parties’ submissions whether Respondent’s initial filings in the paternity action as counsel for the mother occurred on the first day of Respondent’s suspension or on the previous day. However, we conclude that the minute entry requesting a final hearing, which Respondent filed on the mother’s behalf purportedly as her “translator,” unquestionably constitutes the practice of law during his suspension. Accordingly, we find that Respondent is guilty of indirect contempt of this Court.

This Court has inherent and statutory authority to punish contempt of court by fine and imprisonment. Mittower, 693 N.E.2d at 559. Under the circumstances, the Court concludes that a fine of $500 is appropriate discipline for the contempt in this particular case.

Tori Fater of the Elkhart Truth has this story, posted yesterday afternoon, that includes:
During a bench trial Sept. 28, Lehman argued that he only gave “general instruction” to those clients, the Prosecutor’s Office says. However, prosecutors say he took cash payments from at least two clients in exchange for legal advice.

Judge David Bonfiglio of Elkhart Superior Court 6 on Tuesday found Lehman guilty of three counts of practice of law by a non-attorney, a Class B misdemeanor, the Prosecutor’s Office says. Though Lehman argued he only provided legal instructions that could have easily been found online and was not practicing law, the judge was unconvinced.

“All of the victims sought out an attorney they believed was an attorney in good standing,” Bonfiglio wrote.

Posted by Marcia Oddi on Thursday, October 08, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Robert E. Quinn v. State of Indiana, a 14-page opinion, Sr. Judge Barteau writes:

Quinn argues that Indiana Code section 35-41-4-2(b)’s DNA extension to the statute of limitations violates federal and state constitutional prohibitions of ex post facto laws. Quinn did not present his ex post facto constitutional claims to the trial court. Instead, when Quinn moved to dismiss the charges of child molesting and criminal confinement, he alleged only that the State violated the statute of limitations. He did not present ex post facto claims at the evidentiary hearing on the motion to dismiss. Thus, he has procedurally defaulted his ex post facto claims for appellate review. See Saunders v. State, 848 N.E.2d 1117, 1122 (Ind. Ct. App. 2006) (constitutional claim waived for appellate review; defendant had presented a different claim to the trial court), trans. denied.

Waiver notwithstanding, the DNA extension to the statute of limitations does not impose a punishment for an act that was not punishable at the time, nor
does it impose an additional punishment to that which was then prescribed. The DNA extension does not violate federal or state constitutional prohibitions of ex post facto laws. * * *

Next, Quinn argues that the State failed to act with due diligence in discovering the DNA evidence that led the State to charge him with child molesting and criminal confinement. [ILB - the charges resulted from a 1988 "cold case" investigation] * * *

Under the facts and circumstances of this case, the State’s employees acted reasonably in the manner in which they maintained, discovered, and tested the DNA evidence that led to Quinn’s convictions, thereby establishing the due diligence requirement of Indiana Code section 35-41-4-2(b). Quinn’s request to vacate his child molesting and confinement convictions must fail.

NFP civil decisions today (3):

In the Matter of the Term. of the Parent-Child Relationship: M.V. & J.V., (Minor Children) and M.H. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Adoption of M.H.; D.M. v. B.H. (mem. dec.)

Jens Thogerson v. Millennium Trailers, Inc. (mem. dec.)

NFP criminal decisions today (5):

Cortez Boxley v. State of Indiana (mem. dec.)

Clyde N. Piggie v. State of Indiana (mem. dec.)

Khalid M. Jackson-Bey v. State of Indiana (mem. dec.)

Kyle E. Marvel v. State of Indiana (mem. dec.)

Keith T. Gardon v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, October 08, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Class Action Lawsuit to be Filed Over Inadequate Johnson County Public Defense System"

The ILB yesterday received a news release announcing a press conference to occur this afternoon in Johnson County. From the release:

On October 8, 2015, Kenneth Alford and other individuals incarcerated in the Johnson County Jail will join together to sue the Johnson County Commissioners, all of the judges in Johnson County, and all of the Johnson County public defenders for their failure to provide adequate representation in the criminal justice process. These individual are presumed innocent, and as accused enjoy the right to defense in all criminal cases under the United States and Indiana Constitution.

As enunciated in the landmark decision of the United States Supreme Court in Gideon v. Wainwright, and in many cases that follow, the provision of an ineffective defense attorney is in fact a violation of the right to adequate and proper representation.

They bring this action on behalf of all others who are currently being represented by public defenders in the Johnson County courts. They challenge the failure of the circuit court and the various superior courts to properly fund and provide adequate support for public defenders.

It is the hope that they will find a remedy that will reform the Johnson County public defense system. It is also the hope of the individual inmates that this lawsuit will spark interest in the larger question of public defender services throughout the entire state, and that, like other states (including neighboring Kentucky), the State of Indiana will adopt a state-wide approach that is not reliant on county funding.

The release concludes by pointing out that "not that long ago, the salaries of judge judges, prosecutors, and family services were supported by the taxes from the local counties. Those services became the responsibility of the state and placed under the administration of a uniform service with standards and accountability."

The ILB will post the complaint when it is made available. [Now available here]

Posted by Marcia Oddi on Thursday, October 08, 2015
Posted to Indiana Courts

Ind. Courts - Still more on "Couple wrongfully accused of child death settles for $31M"

Updating yesterday's ILB posts, Marisa Kwiatkowski has a story this morning in the Indianapolis Star that concludes:

"The DCS essentially took an incredible tragedy and made it worse," said attorney Richard Waples, who also represented the Knox family.

DCS spokesman James Wide referred all questions to the Indiana attorney general's office, which represented state officials in the lawsuit.

Bryan Corbin, spokesman for the Indiana attorney general's office, said state officials "acted reasonably under the circumstances, based on the information available to them at the time, and consistent with the state’s duty to protect children and enforce laws for public safety."

Corbin pointed out that the jury awarded the family $70 million less than what the Finnegans' attorneys had asked for. He said the attorney general's office, which represents state government in about 2,700 civil lawsuits per year, is considering whether to appeal the verdict or seek a reduction in the monetary award.

Posted by Marcia Oddi on Thursday, October 08, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - HEC files suit challenging the Constitutionality of State’s Right to Farm Laws

Some quotes from yesterday's news release:

(DANVILLE, IN)- The Hoosier Environmental Council filed suit in Hendricks County Superior Court today, with the aim of protecting long-suffering rural families and, more broadly, to challenge the constitutionality of Indiana’s so-called Right to Farm laws.

The plaintiffs in the case include a retired farm family from Hendricks County whose quality of life and property values have been greatly diminished due to air pollution and extreme odors from a newly built concentrated animal feeding operation (CAFO) with 8,000 hogs. Unfortunately, Indiana’s Right to Farm Act (RTFA) and a new “right to farm” law passed in 2014 (SEA 186), provide special legal protections to industrial-scale livestock operations that effectively eliminate the ability of retired farmers and other long-time rural residents, like the plaintiffs, to protect their homes and families from the life-disrupting pollution of a nearby CAFO.

“Our family has lived on this property and farmed it for generations,” said Richard Himsel, one of the named plaintiffs. “I grew up on this farm and my wife and I raised our children here. But this CAFO has literally ruined our lives. The odors are so foul and so invasive, that it makes it difficult to eat or sleep, our throats hurt constantly, we have to keep the windows and doors closed all the time, and we can’t even sit outside and enjoy the fresh air because there isn’t any. My wife now lives with our daughter because my wife can’t take it anymore. No one wants to buy our property because of the smell, so we can’t even move away – we’re prisoners in our own home.”

“Indiana’s Right to Farm laws can be profoundly harmful to rural Hoosiers like the Himsels who, in many cases, have lived in their homes for decades, and suddenly find themselves living next door to thousands of animals that produce the same amount of raw sewage as a small, town would,” said Kim Ferraro, senior attorney with the Hoosier Environmental Council. “A favorable court ruling in this case will not only end our clients’ suffering and restore their property rights, but will also restore balance in Indiana policy with respect to agriculture so that the rights and interests of rural Hoosier families are given equal protection and no longer take a back seat to the special interests of the corporate livestock industry.”

Indiana’s Right to Farm Act (RTFA) was originally enacted in 1981 in response to urban sprawl – to prevent urban/suburban newcomers to rural areas from suing farmers because they don’t like the ordinary smells of agriculture. But farmers generally no longer raise livestock in traditional pasture settings. Now, primarily, contract growers confine thousands of animals in warehouses controlled by giant corporations. These giant corporations, not traditional family farmers, are the ones unfairly protected by the RTFA. Also, due to the powerful livestock agriculture industry lobby, the RTFA was amended to prevent longtime rural residents -- including retired farmers who didn’t move to the country but were there first -- from defending themselves when a CAFO moves in next door.

Making matters worse, Indiana lawmakers recently passed SEA 186 to require regulators and courts to interpret and apply state law in a way that does not impede -- and in fact protects -- the livestock industry’s use of its preferred industry practices which include the use of CAFOs. No other industry or economic sector enjoys the privilege of knowing state government agencies and courts must interpret the law to serve and protect that industry’s special interests and both laws violate Plaintiffs’ equal protection and due process rights, and amount to an unconstitutional taking of their property rights.

Almost all states have some sort of Right to Farm laws on the books originally intended to protect real farmers. But with the transformation of farming to a corporate-controlled industry, some states are rethinking whether such laws are fair and still serving their intended purpose. In 1998, Iowa became the first state to repeal its Right to Farm Act.

The ILB has obtained a copy of the 19-page, worth reading in full, complaint in Himsel v. Himsel.

The Indianapolis Star this morning has a long story by Kristine Guerra about the lawsuit. Some quotes:

[Richard] Himsel, his wife, Janet, and two neighbors are suing 4/9 Livestock LLC, located less than a mile from his property, as well as his cousin, Sammuel Himsel; and his children, Cory and Clinton Himsel, who operate 4/9 Livestock.

Himsel said the problem began about two years ago, when the livestock company operated by his relatives built a concentrated animal feeding operation, or CAFO, next door to his home. The feedlot included two 33,500-square-foot buildings that warehoused up to 8,000 hogs and collected, stored and disposed of millions of gallons of feces and urine in the fields near Himsel's property, according to a 19-page complaint filed in Hendricks Superior Court.

Himsel is one of four plaintiffs who are alleging that the presence of the feedlot near their properties have diminished the quality of their lives. The civil lawsuit also challenges the constitutionality of Indiana's Right to Farm laws, which, the complaint says, unfairly protects giant corporations and industrial-scale livestock operations. The nonprofit Hoosier Environmental Council filed the lawsuit on behalf of the plaintiffs Wednesday.

Himsel came from a farm family. He owns a 26-acre farm in rural Danville where he planted crops and raised livestock until he retired in 2000. He now lives alone in the two-story wooden home he inherited from his parents. His children have moved out and so did his wife, who now lives with her daughter. Himsel said the odor coming from the livestock less than a mile southwest of his home causes his wife to have headaches and a sore throat. * * *

The lawsuit alleges that the defendants built the feedlot close to where people live, despite the health hazards involved. Such facilities generate large quantities of wastes, as well as air pollutants, such as ammonia, hydrogen sulfide and methane, the suit says. Health problems could include bronchitis, pulmonary disease and asthma.

More broadly, the lawsuit says, Indiana's Right to Farm laws, which are meant to help farm families, only protects the interests of giant corporations that control contract growers confining thousands of animals. * * *

The state's Right to Farm Act, in particular, which was originally enacted to protect farmers from lawsuits by urban and suburban residents who moved to rural areas, now protects conglomerates, not individual farmers, Ferraro said.

"No other industry or economic sector enjoys the privilege of knowing state government agencies and courts must interpret the law to serve and protect that industry's special interests," according to the lawsuit, which also alleges violation of the plaintiffs' equal protection and due-process rights.

The property where the feedlot is located also was not zoned for a massive agricultural operation. That property was zoned agricultural residential. But the defendants, according to the complaint, received approval in 2013 from the Hendricks County Commissioners to rezone the property to allow for a more intense agricultural operation.

Construction of the feedlot was finished in September 2013 and about 8,000 hogs were moved in the following month.

The plaintiffs are seeking compensatory damages. They're also asking the court to issue an injunction ordering the defendants to end what they say has been a nuisance.

The ILB has had a number of posts over the years re statutes and case law on the "right to farm" in Indiana, as well as on legislative efforts to continue to expand it, including by constitutional amendment. The most recent post may be this July 24, 2014 post on the Randolph County Maxwell Farms cases.

Another, even longer list of related ILB entries is found via a search for the term "CAFO".

Posted by Marcia Oddi on Thursday, October 08, 2015
Posted to Indiana Courts

Ind. Gov't. - "St. Joseph Co. Democrats file public records complaint against county commissioners"

From WNDU.com yesterday, this story that begins:

On Wednesday, the St. Joseph County Democrats, along with Indiana Public Access Counselor Luke Britt, filed a formal complaint against the St. Joseph County commissioners.

The complaint involves the commissioners' alleged attempt to charge an excessive fee for access to public records, denying an in-person inspection of public records, and having delayed access to public records beyond "reasonable" timeframe limits.

The original request to access public records was filed on September 3.

The request centered around Commissioner Deb Fleming's proposed plan to eliminate voting locations ahead of the 2016 elections.

Since then, the Democratic Party says in-person inspections have been denied, and the commissioners attempted to charge between $2,000 to $5,000 for records.

Still, no records have been provided.

“We have no choice but to file a formal complaint at this time," explains Democratic Party Chairman Jason Critchlow. "It has been nearly five weeks and no records have been provided. Does that seem reasonable to the average person? This should have been simple and straightforward, but I’m forced to believe Commissioner Fleming is intentionally stalling a taxpaying citizen’s fundamental right to inspect public records.”

ILB: The story, which may be based on a news release, links to a packet of correspondence which (despite the lede) appears to indicate only that a formal complaint was filed with the Public Access Counselor on Oct. 7th.

Posted by Marcia Oddi on Thursday, October 08, 2015
Posted to Indiana Government

Wednesday, October 07, 2015

Ind. Courts - More on "Couple wrongfully accused of child death settles for $31M"

Updating this ILB post from this morning, an AP story this afternoon concludes:

The award, while large, is $70 million less than the total that the couple’s lawyers had asked for in their final arguments, [AG office spokesman Bryan Corbin] said. The jury denied the couple’s request for punitive damages and awarded compensatory damages only.
ILB: The ILB has obtained a copy of the 95-page, 6/20/12 amended complaint filed in the ND of Ind. It concluded:
RELIEF REQUESTED
308. For each violation of 42 U.S.C. § 1983, Plaintiffs Roman Finnegan, Lynnette
Finnegan, Johnathon Abair, Tabitha Abair, and Katelynn Salyer seek to recover the following:
1. compensatory damages in an amount to be determined by a jury;
2. punitive damages in an amount to be determined by a jury;
3. reasonable attorney and expert fees pursuant to 42 U.S.C. § 1988;
4. an injunction against DCS, Dr. Laskey and/or Dr. Cavanaugh making any
determinations on the cause and manner of death in pediatric injury cases; and
5. any further relief that may be appropriate.

Posted by Marcia Oddi on Wednesday, October 07, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "New court gives struggling vets a 2nd chance"

Vic Ryckaert of the Indianapolis Star reported Oct. 2:

The Indianapolis Veterans Court, which opened Friday, will be able to give [veternas] a second chance.

"When they get off track, we have the obligation to keep our promise and help them to get back on track," Marion Superior Court Judge David J. Certo said during a ceremony in his courtroom Friday morning to kick off the new court.

This will be a different kind of court, less about punishment and more about healing.

Certo called it a "treatment-oriented program," akin to drug court, which works to get addicts into counseling, instead of prison.

"If you made a boneheaded mistake, everyone understands," Certo said. "We want to push you out of the system and get things back on track if we can." * * *

Veterans Court will hear cases every Friday morning, beginning next week. Veterans accused of low-level crimes will be assigned to this court, where they will be hooked up with a mentor and given a chance to change their lives.

"If we can get you engaged with the VA (Veterans Affairs), with services you've already earned, we're not likely to see you again," Certo said.

ILB: In response to questions from the ILB, Judge Certo responded today:
The Indianapolis Veterans Court is located in Court 12, and I am the presiding judge. We will accept a transfer case from other court after the defendant’s application is approved by our court team. The Indianapolis Veterans Court is a separate, problem-solving court docket, and we received provisional certification from the Indiana Judicial Center.

We’ve worked for more than three years to establish the Indianapolis Veterans Court, and I feel grateful to the U.S. Department of Justice-Office of Justice Programs for their grant to open our program. I also appreciate the help of my colleagues on the Marion Superior Court bench and the Court’s Executive Committee for their support. Mostly I feel grateful to the veterans we’ll serve and to the veterans in our community who have helped push this effort to fruition.

Posted by Marcia Oddi on Wednesday, October 07, 2015
Posted to Indiana Courts

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

In Manuel v. Terris (SD Ind., Magnus-Stinson), a 4 page opinion, Judge Posner writes:

Manuel, a federal prisoner, filed a petition for habeas corpus (28 U.S.C. § 2241) directed at the warden of his prison and claiming an entitlement to a reduction in his prison sentence. The district court, disagreeing, denied the petition. * * * Affirmed.

Posted by Marcia Oddi on Wednesday, October 07, 2015
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Steven M. Kelly v. Rebecca J. Kelly , a 16-page opinion, Judge Bradford writes:

Appellant-Respondent Steven M. Kelly (“Husband”) and Appellee-Petitioner Rebecca J. Kelly (“Wife”) (collectively “the parties”) were divorced in 1995. The parties entered into a property settlement agreement which was accepted by the trial court and provided that Husband would pay Wife five million dollars over the course of several years. In 1997, the parties, by written agreement, amended the original settlement agreement and established a new payment schedule under which Husband would pay Wife $300,000 each year until 2014 (“1997 PSA”). The parties entered into two subsequent agreements, in 1999 and 2003, under which Husband advanced or loaned money to Wife from the amounts she would be entitled to receive under the 1997 PSA. In 2007, Husband ceased making payments under the 1997 PSA payment schedule because he believed Wife had been advanced or loaned the maximum amount she would have been entitled to receive in the remaining eight years of the 1997 PSA.

In 2013, Wife filed a motion requesting that the trial court enforce the terms of the 1997 PSA, alleging that Husband owed her the annual payments from 2007 to 2014 and that the agreements made following the 1997 PSA were unenforceable because they were not approved by the trial court. The trial court agreed with Wife, finding that it did not have jurisdiction to consider the 1999 and 2003 agreements because it had not approved and incorporated those agreements into the dissolution decree. The trial court ordered Husband to pay Wife $2.4 million. We find that the parties were free to modify the settlement agreement without approval of the trial court and that the trial court erred in failing to consider the 1999 and 2003 agreements. We reverse and remand.

NFP civil decisions today (2):

Geoff Gustafson v. Ami Leigh Gomez (Winebrenner) (mem. dec.)

In Brian Andert v. State of Indiana and Bruce Lemmon, in his official capacity as Commissioner of the Indiana Department of Correction (mem. dec.), a 9-page opinion, Judge Najam writes at #9:

Andert attempted to show irreparable harm when he alleged in his motion for the preliminary injunction that sex-offender inmates who refuse to admit to guilt as part of the INSOMM program will have their credit class lowered, such that they will earn less credit time. However, as the trial court correctly noted, our supreme court recently held that when the State presents an inmate with a choice to participate in a DOC program that may lead to a reduced sentence, such as through credit time or a release on parole, that opportunity is a “constitutionally permissible choice” to participate that does not compel self-incrimination and, therefore, does not violate the Fifth Amendment. Bleeke, 6 N.E. 3rd 934-35. Therefore, Andert has not shown that a potential loss of credit time amounts to irreparable harm or supports his claim on the merits.[9] * * *
______________
[9] Although being incentivized to admit guilt by a reduction in one’s release date does not constitute compulsion according to Bleeke, 6 N.E.3d 907, neither Bleeke nor any other Indiana case has addressed whether being required to admit guilt as part of a DOC program while a post-conviction relief action is pending is prohibited under the Fifth Amendment. * * * However, this is not the case to decide this issue of first impression.
NFP criminal decisions today (8):

Quentin J. Abbott v. State of Indiana (mem. dec.)

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

Shepell Orr v. State of Indiana (mem. dec.)

Jacob Lacy Higgins v. State of Indiana (mem. dec.)

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

Kaleigh Hix v. State of Indiana (mem. dec.)

Antionne Lamar Brewster v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Wednesday, October 07, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues two opinions today, re synthetic drugs (spice)

In Christopher Tiplick v. State of Indiana, an 18-page, 5-0 opinion, Justice Massa writes [ILB emphasis]:

Christopher Tiplick faces criminal charges for possessing, selling, and dealing in the chemical compound designated XLR11, and dealing and conspiracy to commit dealing in look-alike substances. He sought dismissal of all counts, on the grounds that: (1) the charging information failed to reference the Indiana Board of Pharmacy’s Emergency Rule 12-493(E), which criminalized XLR11; (2) the applicable statutory schemes are impermissibly vague under both the United States and Indiana Constitutions; and (3) our General Assembly impermissibly delegated the authority to criminalize XLR11 to the Pharmacy Board under the Indiana Constitution. The trial court denied Tiplick’s motion, and he appealed. We too find no constitutional or statutory infirmity to any of the charges, but find the charging information inadequate with respect to the XLR11-related charges, necessitating dismissal of those counts. * * *

I. The Synthetic Drug Statute Is Not Unconstitutionally Vague. * * * “Synthetic drug” is defined in Section 321, it names the Section 4.1 emergency rules as the only additional source for prohibited substances, and Section 4.1(c) describes where to look for those published rules, based on the procedures contained in Indiana Code section 4-22-2-37.1 (2012). This is not a “maze,” but rather a chain with three links—three discrete statutes which give clear guidance as to how to find everything falling within the definition of “synthetic drug” under Section 321. Such a statutory scheme is not unduly vague.

II. The Look-Alike Statutes Are Not Unconstitutionally Vague. * * * Therefore, the text of the Look-Alike Statutes gives adequate notice to ordinary persons of the conduct proscribed. * * * There are thus no grounds to find the Look-Alike Statutes are subject to arbitrary enforcement, or were arbitrarily applied to Tiplick.

III. The Synthetic Drug Statute Is Not an Unconstitutional Delegation of Legislative Authority. Tiplick also asserts that Section 4.1 is in derogation of the Distribution of Powers Clause of the Indiana Constitution, because it impermissibly assigns the legislative function of enacting criminal statutes to the Pharmacy Board, an executive agency. * * *

Accordingly, it appears to be a matter of first impression whether our General Assembly may delegate rule-making power to an administrative agency if violation of such rules would result in penal sanctions.9 This issue contains two pertinent questions: (1) is such a delegation permissible under the Indiana Constitution; and (2) even if generally permissible, what test should we apply to determine whether a particular delegation of this kind is valid? * * *

Based on the weight and consistency of this authority, we find that the Distribution of Powers Clause of the Indiana Constitution does not prohibit our General Assembly from delegating rule-making authority to administrative agencies where violation of such rules may result in criminal penalties by statute, and moreover, that it is appropriate to apply Indiana’s traditional analysis to determine whether such a delegation is valid.

In Indiana, “although the legislature cannot delegate the power to make a law, it can make a law delegating power to an agency to determine the existence of some fact or situation upon which the law is intended to operate.” City of Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781, 788 (Ind. 2008)
(internal quotations omitted). Such delegations are valid when “accompanied by sufficient standards to guide the agency in the exercise of its statutory authority.” Healthscript, 770 N.E.2d at 814. These standards “need to be as specific as the circumstances permit, considering the purpose to be accomplished by the statute.” Barco Beverage Corp. v. Ind. Alcoholic Beverage Comm’n, 595 N.E.2d 250, 254 (Ind. 1992).

Here, the Pharmacy Board has not been empowered to legislate with respect to dealing, conspiracy to commit dealing, or possession of synthetic drugs; that power has already been exercised by the General Assembly, as contained in relevant part at Indiana Code sections 35-48-4-10(a)(1) and -11 (Supp. 2012). The Pharmacy Board has merely been given the power to determine, via emergency rule, whether additional substances should qualify as “synthetic drugs” under Section 321—in other words, “to determine the existence of some fact or situation upon which the law is intended to operate.” * * *

In sum, we find Section 4.1 does not constitute an impermissible delegation of legislative authority to the Pharmacy Board under the Distribution of Powers Clause.

IV. The XLR11-Related Counts Must Be Dismissed for Failure to Reference the Emergency Rule. * * * Second, Tiplick claims the information was required to reference the Emergency Rule rather than just the criminal statute, because without it, there is nothing to indicate with specificity the criminality of XLR11. On this technical point, we find Tiplick to be correct. * * *

Tiplick was charged under Indiana statutes with dealing, conspiracy to commit dealing, and possession of synthetic drugs. Yet, the only synthetic drug listed in the information or the probable cause affidavit is XLR11. XLR11 was only illegal at that time pursuant to the Emergency Rule, and neither the charging information nor the probable cause affidavit reference that Rule. We thus find the charging information inadequate under Jennings. * * *

Conclusion. XLR11 became a criminal substance in Indiana on September 15, 2012, and Christopher Tiplick is alleged to have violated that rule a mere five days later. While he may have the dubious honor of being the first person in Indiana history so charged, being first does not entitle him to a free pass. As Justice Joseph Story opined more than 180 years ago:

It is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally . . . . There is scarcely any law, which does not admit of some ingenious doubt, and there would be perpetual temptations to violations of the laws, if men were not put upon extreme vigilance to avoid them.
Barlow v. United States, 32 U.S. 404, 411 (1833). For the foregoing reasons, we affirm the trial court’s denial of Tiplick’s motion to dismiss the charges against him under the Look-Alike Statutes (counts I through VI and XVI), we dismiss the XLR11-related charges (counts VII through XV and counts XVII through XVIII) only for insufficiency of the charging information, and remand to the trial court for all other proceedings consistent with this opinion.
In Aadil Ashfaque v. State of Indiana, a 1-page, 5-0 opinion, Justice Massa writes:
Aadil Ashfaque appeals the trial court’s denial of his motion to dismiss charges of dealing in and possession of a synthetic drug, namely XLR11 [(1-(5-fluoropentyl)indol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone]. For the reasons set forth in our companion decision of Tiplick v. State, also issued today, we find no constitutional or statutory infirmity to these charges, but nevertheless dismiss them due to the inadequacy of the charging information, and remand to the trial court for all other proceedings consistent with that opinion.

Posted by Marcia Oddi on Wednesday, October 07, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Couple wrongfully accused of child death settles for $31M"

Sarah Reese has a brief story today in the NWI Times [ILB emphasis]:

HAMMOND | A federal jury in Hammond on Tuesday awarded more than $31 million to a Knox family who sued five DCS officers, an Indiana State Police detective and a doctor after the parents were wrongfully accused of causing their daughter's death.

Roman and Lynnette Finnegan were awarded the verdict after a three-week trial in U.S. District Court, said Richard Waples, one of the family's attorneys.

The Finnegans' 14-year-old daughter, Jessica, was found dead in their Francesville, Ind., home in 2005. The Indiana Department of Child Services and Indiana State Police suspected the Finnegans caused Jessica's death and ultimately took custody of the couple's three other children and arrested the Finnegans, Waples said.

It was later determined that Jessica, who had a congenital heart defect and suffered from seizure disorder, died as a result of a medication error by her family doctor, Waples said. The doctor had prescribed too much warfarin, which caused hemorrhages in Jessica's brain, court records state.

The defendants in the case included Laurel Myers, Regina McAninch, Tracy Salyers and Reba James, all DCS employees, former DCS Director James Payne, Indiana State Police Detective Jennifer McDonald and Antoinette Laskey, a pediatrician who was employed at Riley Hospital for Children.

There appears to be much more to this story. From a Nov. 7, 2007 story (8 years ago) in the Pharos Tribune:
FRANCESVILLE — The nightmare might be coming to an end for a Francesville couple charged last spring in the death of their 14-year-old daughter.

Lynette Finnegan and her husband, Roman, had been charged with neglect of a dependent in the December 2005 death of her daughter, Jessica Salyer. The charges grew out of an investigation by the Indiana Department of Child Services in Pulaski County.

In November 2006, the Indiana Department of Child Services in Pulaski County removed two other daughters from the home as it began to investigate the circumstances surrounding Jessica’s death.

Roman Finnegan, who worked for the Indiana Department of Correction, was suspended from work because he had been charged with a felony.

Jasper County Coroner Gordon Klockow — who dealt with Salyer’s case because she was taken to the Jasper County Hospital the day she died — said in his verdict July 17 that the skull fracture investigators had claimed was caused by head trauma was actually caused by the autopsy itself.

Her death instead has been ruled a result of cardiac arrest related to an error in her prescription. Jessica, who had her first heart surgery at the age of 2, had been on medication much of her life to treat a heart condition and seizures.

Lynnette Finnegan was reunited with her daughters in August. By late October, charges had been dropped against Roman, and last week, they were dropped against Lynnette as well.

Roman Finnegan told the Lafayette Journal and Courier he expected to be able to return to work next week.

Still, the Finnegans told the newspaper they were not quite yet ready to put the case entirely behind them. They said they still looked forward to confronting state officials in a court of law. DCS staff counsel Mike Boonstra told the Journal and Courier that as of Friday, the Department of Child Services still had a case involving the Finnegan family pending in court.

Posted by Marcia Oddi on Wednesday, October 07, 2015
Posted to Indiana Courts

Law - "Newspaper not liable for alleged defamatory letter to editor published online"

That is the heading to this post by Chicago attorney Evan Brown in his blog, InternetCases. The post begins:

Plaintiff — a lawyer and self-identified civil rights advocate — sent several letters to local businesses claiming those businesses did not have enough handicapped parking spaces. Instead of merely asking the businesses to create those parking spaces, he demanded each one pay him $5,000 or face a lawsuit.

One local resident thought plaintiff’s demands were greedy and extortionate, and wrote a letter to editor of the local newspaper covering the story. The newspaper posted the letter online. Both the newspaper and the letter’s author found themselves as defendants plaintiff’s defamation lawsuit.

The letter-writer settled with plaintiff, but the newspaper stayed in as a defendant and moved to dismiss, arguing that federal law immunized it from liability for content provided by the third party letter-writer.

The summary:
The Appellate Court of Illinois has sided in favor of a local newspaper in a defamation lawsuit brought against the paper over a reader’s allegedly defamatory letter to the editor. The court held that the Communciations Decency Act (at 47 U.S.C. 230) “absolved” the newspaper of liability over this appearance of third party content on the newspaper’s website.

Posted by Marcia Oddi on Wednesday, October 07, 2015
Posted to General Law Related

Ind. Courts - "Former Lake Co. cop said he chopped up machine guns for illicit profit"

From the NWI Times yesterday, a long story by Bill Dolan that begins:

HAMMOND | A former county police officer and firearms enthusiast told a federal court jury Tuesday that the illicit gun trade going on in the Lake County Sheriff's Department bothered him.

But it wasn't because buying banned weapons under the pretense of using them for law enforcement and then chopping them up for resale on the Internet for private profit was a violation of his oath to uphold the law.

"I didn't like destroying perfectly good machine guns," Ronald Slusser testified Tuesday in the U.S. District Court trial of a Philadelphia gun dealer, pleading innocent to conspiracy to cover up machine gun law violations with a tissue of phony county government documents. * * *

Slusser, who was skilled at disassembling machine guns and selling them online, sometimes within hours of posting them on a firearms website, took advantage of a hot market for H and K gun barrels, which sold for double the retail price of the fully assembled guns.

However, he said they had to be wary of federal law restricting ownership of the automatic weapons to the military, law enforcement and certain gun dealers.

To make their trade appear legitimate, the machine guns were purchased in the name of the sheriff's department to skirt the ban. Joseph Kumstar, who was third highest ranking officer, had the authority to buy guns for the department and generate phony paperwork indicating the guns were purchased with public money for exclusive law enforcement use.

Posted by Marcia Oddi on Wednesday, October 07, 2015
Posted to Indiana Courts

Ind. Gov't. - "Indiana Dunes liquor license denied" [Updated]

Updating this ILB post from yesterday, Brian Slodysko of the AP reports today in the Indianapolis Star:

State officials have upheld a local board’s decision denying a liquor license to a politically connected developer who won a contract to bring a restaurant, bar and banquet hall to the beachfront of Indiana Dunes State Park.

The state Alcohol and Tobacco Commission voted 4-0 Tuesday, siding with a Porter County board that denied a license to Chuck Williams in September. Williams says the decision imperils the whole multimillion dollar project to rehabilitate and build out the park’s dilapidated pavilion.

Though Williams made a convincing argument that alcohol sales are needed to make the project viable, his need for alcohol sales doesn’t “translate to a need for (those) services in the neighborhood and the community,” Chairman David Cook said of the Porter County board’s 3-1 vote rejecting Williams’ permit application. * * *

For five years, Williams worked behind the scenes on the project with state Department of Natural Resources officials, securing a decades-long privatization deal. But once the project was formally announced last March, it was engulfed in controversy amid accusations that Williams used political clout to get a sweetheart deal, working with the state long before the project went out to bid.

Williams, a high-ranking state Republican Party official who has donated handsomely to GOP causes, has denied his political connections played a role, and the Indiana DNR says it followed state and federal laws and did not give Williams preferential treatment. However, legal experts have said the deal raises red flags and amounts to a long-term give-away of cherished public parkland. They questioned why the state didn’t seek additional bids on the project. The only competing offer came from a nonprofit group of local conservationists, lawyers and finance professionals. * * *

Commission Vice Chairman David Coleman questioned why the state ceded so much control of the building to Williams.

“I think it’s the state’s duty to keep that building in tip-top shape and they just haven’t done it. It should be the tax payers sharing equally in that burden,” Coleman said.

ILB: Here is a long list of earlier ILB posts.

[Updated at 1:19 PM]
Here is the Gary Post-Tribune coverage, by Amy Lavalley. Some quotes from the long story:
"Pavilion Partners is disappointed by the state board's vote and continues to be surprised by the denial of the liquor license for the Dunes Pavilion," said Pavilion Partners spokeswoman Deb Butterfield, declining to comment beyond a prepared statement. "It is too early to determine what their next course of action will be and they will continue to explore their options."

Pavilion Partners has a 15-day window in which to file an appeal with the ATC. The appeal would go before an administrative law judge before heading again to the state board for a final decision.

Phil Bloom, director of the division of communications for the Indiana Department of Natural Resources, said in an email, "The Pavilion Restoration project is not contingent upon alcohol sales. While alcohol sales help with our ability to work with private partners, it does not change our plans with what we feel is needed." * * *

Pavilion Partners has already gutted the pavilion, constructed in 1930, and built new restrooms outside the pavilion. The group has not publicly released plans for the new banquet facility.

The state board has the option of overturning the ruling only if that ruling runs against state statute, said David Cook, chair of the state board. The statute notes the decision by the county commission can be overturned if its decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law; if it's contrary to a constitutional right; if it's in excess of or contrary to statutory jurisdiction; if it's without observance of procedure required by law; or if it's unsupported by substantial evidence.

"Our review process is very clearly set out in that statute," Cook said. "Unless we make a determination they have violated one of those innumerable principles, there is no reason to overturn the local board's ruling."

Posted by Marcia Oddi on Wednesday, October 07, 2015
Posted to Indiana Government

Law - "Who Should Have Access to DNA Evidence?"

From the Sept. 28th NY Times Magazine, this long article by Emily Bazelon: "Who Should Have Access to DNA Evidence?" that begins:

Next week, the West Virginia Supreme Court will hear a case in which 30 former prosecutors from around the country have taken the unusual step of siding with the defense. It’s a battle over a DNA test, and whether prosecutors must turn the results over to a defendant when they point to his innocence — even if he has made the decision to plead guilty.
Here is a column from yesterday, Oct. 6, by Hoppy Kercheval, in the Charleston, WVa Metro News, headed "Joe Buffey gets his day in court." It previews the case.

Here is a post-argument story in the Metro News, by Aaron Payne. Here is how the long report concludes:

The state maintains a two-suspect theory and Buffey used a condom, which would explain why his DNA was not found on the victim.

Seemingly, the majority of the justices were leaning toward the argument presented by Buffey’s representation.

Chief Justice Margaret L. Workman, who proclaimed herself as one of the more conservative judges when it comes to violent criminals on the bench, described the proceedings back in 2002 as relayed to her as a “bad movie” that started with no one altering Buffey to the fact the DNA testing was completed before sentencing.

“On top of that, you get the bad advice your lawyer gave you about ‘You’re not going to get any more time anyhow.’ Then you get the, weren’t there misrepresentations or misstatements made by the authorities to the grand jury? The ‘so called’ confession had so many inconsistencies with what the victim said occurred…It just really comes out a mess.”

Justices also inquired if they were to allow Buffey to vacate his guilty plea, would the state’s case be impeded in anyway should the opt to take it to trial and what other evidence the state had besides the confession.

Karlin closed his presentation to the court Tuesday morning by imploring them to allow Buffey the chance to use DNA evidence to clear his name of this heinous crime.

“Keep Brady alive,” he said. “In a world of plea bargains, minimize the false pleas and allow Mr. Buffey to vacate his plea and return for whatever the state wants to do. We’re ready to face it.”

Posted by Marcia Oddi on Wednesday, October 07, 2015
Posted to General Law Related

Ind. Courts - Judge Posner and judicial internet research, continues

On August 20th the ILB posted "7th Circuit decided one Indiana case yesterday, a must read on independent research by judges." There was also a long follow-up post on Sept. 29th, "Judge Posner and the use of information gathered from the Internet." Yesterday, Eric G. Pearson posted in Wisconsin Appellate Law an entry headed "Judicial Internet Research: Does the First SCOTUS Decision of OT 2015 Bode Ill for Dr. Posner?" A few quotes:

The parties in Rowe currently are briefing the issue of whether the case should be heard en banc (see our post here), and we’ve suggested (here and in other forums) that this issue might be ripe for review—not only by all judges of the Seventh Circuit in regular active service—but by the nine justices sitting at One First Street.

Lo and behold, yesterday the Supreme Court decided, per curiam, the first case of October Term 2015, Maryland v. Kulbicki, No. 14-848 (Oct. 5, 2015), in which it upbraided the Maryland Court of Appeals for “apparently conducting its own Internet research nearly two decades after the trial.” Slip op. at 4.

Posted by Marcia Oddi on Wednesday, October 07, 2015
Posted to Ind. (7th Cir.) Decisions

Law - "Short-circuiting defendants’ ability to cross-examine forensic evidence is not only unjust—it paves the way for bad science"

There has been much litigation in Indiana and elsewhere over use of evidence from breathalyzer and other tests for measuring blood alcohol - exactly how were the results determined? But, as reported in an article this week in Slate, by Rebecca Wexler, code is everywhere, and defendants should have the right to inspect the software used to convict them:

Secret code is everywhere—in elevators, airplanes, medical devices. By refusing to publish the source code for software, companies make it impossible for third parties to inspect, even when that code has enormous effects on society and policy. Secret code risks security flaws that leave us vulnerable to hacks and data leaks. It can threaten privacy by gathering information about us without our knowledge. It may interfere with equal treatment under law if the government relies on it to determine our eligibility for benefits or whether to put us on a no-fly list. And secret code enables cheaters and hides mistakes, as with Volkswagen: The company admitted recently that it used covert software to cheat emissions tests for 11 million diesel cars spewing smog at 40 times the legal limit.

But as shocking as Volkswagen’s fraud may be, it only heralds more of its kind. It’s time to address one of the most urgent if overlooked tech transparency issues—secret code in the criminal justice system. Today, closed, proprietary software can put you in prison or even on death row. And in most U.S. jurisdictions you still wouldn’t have the right to inspect it. In short, prosecutors have a Volkswagen problem.

Take California. Defendant Martell Chubbs currently faces murder charges for a 1977 cold case in which the only evidence against him is a DNA match by a proprietary computer program. Chubbs, who ran a small home-repair business at the time of his arrest, asked to inspect the software’s source code in order to challenge the accuracy of its results. Chubbs sought to determine whether the code properly implements established scientific procedures for DNA matching and if it operates the way its manufacturer claims. But the manufacturer argued that the defense attorney might steal or duplicate the code and cause the company to lose money. The court denied Chubbs’ request, leaving him free to examine the state’s expert witness but not the tool that the witness relied on. Courts in Pennsylvania, North Carolina, Florida, and elsewhere have made similar rulings.

That is just the start of the long article.

Posted by Marcia Oddi on Wednesday, October 07, 2015
Posted to General Law Related

Tuesday, October 06, 2015

Ind. Gov't. - Supreme Court grants emergency transfer in House public records case, bypassing COA review

The Indiana Supreme Court has today, in an order filed within the hour, granted the plaintiffs' motion for emergency transfer in the House email public records case, CAC, et al. v. Koch:

Having considered the parties submissions, the Court hereby GRANTS the appellants’ verified motion. Pursuant to Appellate Rule 56(A), the appeal shall proceed in this Court as if it had originally been filed here and shall be subject to the deadlines set forth in the Appellate Rules relating to the record and briefing.
For background on this aspect of the case, see this post from Sept. 10th and this one from Sept. 25th. For the entire list, see the category, GA and APRA.

Posted by Marcia Oddi on Tuesday, October 06, 2015
Posted to GA and APRA

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

For publication opinions today (2):

In Jermaine McKinley v. State of Indiana, a 13-page opinion, Judge Robb writes:

Following a jury trial, Jermaine McKinley was convicted of dealing in cocaine as a Class A felony. McKinley appeals his conviction, raising one issue for our review: whether the trial court properly instructed the jury as to the requisite mental state for the offense of possession of cocaine with intent to deliver. Finding no fundamental error in the instruction of the jury, we affirm McKinley’s conviction for dealing in cocaine. * * *

Under of the facts of this case, intent to deliver was the central issue at trial. Although defining “intent to deliver” may have been preferable, terms in common use that can be understood by a person of ordinary intelligence do not always need to be defined. Manley v. State, 656 N.E.2d 277, 279 (Ind. Ct. App. 1995), trans. denied. Reading the jury instructions as a whole and in the context of all the information given to the jury, we cannot say the instructions were misleading regarding the requirement of intent to deliver. Accordingly, we find no fundamental error in the trial court’s instruction of the jury.

In Jill Miller v. Rosehill Hotels, LLC d/b/a Holiday Inn Express; Intercontinental Hotel Group d/b/a Holiday Inn Express, a 21-page opinion in a slip and fall case, Judge Brown writes:
Jill Miller appeals the trial court’s entry of summary judgment in favor of Rosehill Hotels, LLC d/b/a Holiday Inn Express and Intercontinental Hotel Group d/b/a Holiday Inn Express (together, the “Hotel”) and the denial of her motion to correct error. Miller raises one issue which we revise and restate as whether the court erred in entering summary judgment in favor of the Hotel and abused its discretion in denying her motion to correct error. We reverse and remand. * * *

As to whether Miller voluntarily accepted a known and obvious risk of danger as a matter of law, we conclude that a reasonable inference from Miller’s deposition testimony is that she was not aware of the relative slickness of the parking lot and walkways on the Hotel’s property until after she had walked on the parking lot either part or all of the way to her vehicle. To satisfy its burden of making a prima facie showing that it was entitled to summary judgment, the Hotel was required to designate evidence showing that Miller had actual knowledge and appreciation of the specific risks involved and voluntarily accepted those risks. * * * [B]ased on the designated evidence, we cannot say that Miller voluntarily accepted the risk of a known and obvious danger as a matter of law.

In addition, under these circumstances a trier of fact could reasonably determine that the Hotel should have anticipated that Miller would attempt to walk from her vehicle back to the carport or sidewalk despite the obviousness of the risk or danger. * * *

Construing all factual inferences in favor of Miller as the nonmoving party, we conclude that the Hotel failed to carry its burden of establishing that Miller voluntarily accepted a known and obvious risk as a matter of law or that it did not breach its duty to maintain its property in a reasonably safe condition for its invitees as a matter of law. Accordingly, the entry of summary judgment in favor of the Hotel was improper. See Countrymark, 892 N.E.2d at 691-692.

For the foregoing reasons, we reverse the entry of summary judgment in favor of the Hotel and against Miller and remand for further proceedings.

NFP civil decisions today (1):

Grant Johnson, Minor Child, by his Mother and Father, Don Johnson and Janice Johnson v. South Spencer School Corp. and Cliff Hagan's Boys' Club of Owensboro, Kentucky, Inc. (mem. dec.)

NFP criminal decisions today (2):

Jason D. Smith v. State of Indiana (mem. dec.)

William M. Cox v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, October 06, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "State decision on alcohol plan for Dunes Pavilion project looms Tuesday"

Updating yesterday's ILB post, Rob Earnshaw of the NWI Times is now reporting:

INDIANAPOLIS | The Indiana Alcohol and Tobacco Commission followed the recommendation of the Porter County Alcoholic Beverage Board and voted 4-0 on Tuesday to deny the sale of alcohol at the restored pavilion at Indiana Dunes State Park.

Posted by Marcia Oddi on Tuesday, October 06, 2015
Posted to Indiana Government

Courts - "SCOTUS Plans to Highlight Revisions in Its Opinions"

Adam Liptak writes today in the NY Times:

The Supreme Court announced on Monday that it would disclose after-the-fact changes to its opinions, a common practice that had garnered little attention until a law professor at Harvard wrote about it last year.

The court also took steps to address “link rot” in its decisions. A study last year found that nearly half of hyperlinks in Supreme Court opinions no longer work.

And the court said it would bar “line standers” who hold places for lawyers eager to see high profile arguments.

The move on editing is a major development. Though changes in the court’s opinions after they are issued are common, the court has only very seldom acknowledged them.

Many of the changes fix spelling or factual errors. Others are more substantial, amending or withdrawing legal conclusions.

Starting this term, a court statement said, “post-release edits to slip opinions on the court’s website will be highlighted and the date they occur will be noted.”

The court’s website includes sample opinions
to show how all of this will work. “The location of a revision will be highlighted in the opinion,” the statement said. “When a cursor is placed over a highlighted section, a dialogue box will open to show both old and new text.” * * *

It is not clear, Professor Lazarus said, whether the court would take additional steps later in the editing process, which can last five years before authoritative hardcover books are produced, to make all changes public.

The court said it would also address what it called “the problem of ‘link rot,’ where Internet material cited in court opinions may change or cease to exist.” The court will now collect and post the materials it links to on a dedicated page on its site.

The ILB has had a number of posts in the past on how opinions corrections are handled (or not) in the 7th Circuit, and in Indiana appellate courts. See, for example, Oct. 1, 2014 and June 5, 2014.

Posted by Marcia Oddi on Tuesday, October 06, 2015
Posted to Courts in general

Ind. Gov't. - "Bill surcharges charge up electric bills"

Keith Benman of the NWI Times has this long, illuminating (sorry) story on the impact of "trackers" on electric bills. Some quotes:

Consumer groups in Indiana, both residential and industrial, lay much of the blame for the consistent hikes in electric prices imposed by all five of Indiana's large investor-owned utilities on bill surcharges known as “trackers.” They allow utilities to "track" their costs for projects and other expenses -- then pass the cost on to customers.

Those groups say the trackers have essentially replaced traditional rate cases, where utilities open the books on all components of their business in proceedings before the Indiana Utility Regulatory Commission.

“Trackers are just completely out of control in the state of Indiana right now,” said Kerwin Olson, executive director of Citizens Action Coalition. “And that is largely why we have had such a big rise in electricity prices.” * * *

Decades ago, most utilities had just one tracker -- for coal costs -- which were volatile and usually totally out of a utility's control, Olson said. Today, it's not unusual for utilities to have eight or more trackers.

About 13 percent of a NIPSCO residential customer's bill this year was made up of bill surcharges known as trackers. At utilities Duke and IPL, 34 percent and 30 percent respectively of a customers bill is made up of such surcharges.

Trackers are authorized by legislation passed by the Indiana General Assembly. Utilities then apply to the Indiana Utility Regulatory Commission to implement them.

Indiana's large manufacturers, united under the banner of Indiana Industrial Electricity Consumers Inc., have been making the same case to state legislators, saying the increased costs associated with trackers are hurting Indiana's economic competitiveness.

The manufacturers would like to see utilities required to file full-blown rate cases very four years, rather than relying on trackers to pay for major projects, according to Jennifer Wheeler Terry, legislative director for Indiana Industrial Electricity Consumers.

Posted by Marcia Oddi on Tuesday, October 06, 2015
Posted to Indiana Government

Environment - "2nd Circuit orders EPA to revise ship ballast dumping regulations"

The Michigan City News-Dispatch highlights this AP story by John Flesher about a ruling that will impact Lake Michigan and the other Great Lakes. The long story begins:

TRAVERSE CITY, Mich. (AP) — A federal appeals court ordered the government Monday to rewrite its regulations on ballast water discharges from ships, one of the leading culprits in the spread of invasive species across U.S. waterways.

Environmental groups contended in a lawsuit that an industry-wide permit issued by the U.S. Environmental Protection Agency two years ago wasn't tough enough to prevent vessels from introducing additional harmful organisms such as zebra and quagga mussels, which have caused heavy economic and ecological damage in the Great Lakes and spread as far as the West Coast.

The 2nd U.S. Circuit Court of Appeals sided mostly with the environmentalists, saying the EPA erred in numerous ways, including settling for international limits on live organisms in ballast water when technology was available to meet tougher standards.

The court also faulted the agency for failing to consider onshore treatment of ballast water, exempting vessels built before 2009 that operate only in the Great Lakes from the discharge limits, and requiring inadequate monitoring of discarded water to make sure it complies with the rules.

"This decision is welcome news for the millions of families, anglers, hunters, paddlers, beach-goers, and business owners, who have borne the brunt of damages from aquatic invasive species for far too long," said Marc Smith, policy director for the National Wildlife Federation, one of the groups that had sued.

Posted by Marcia Oddi on Tuesday, October 06, 2015
Posted to Environment

Ind. Gov't. - "Carmel narrowly passes LGBT protections"

That is the headline to this Indianapolis Star story by Chris Sikick on last evening's action by the Carmel City Council. Some quotes:

CARMEL — After six weeks of debate, the Carmel City Council narrowly voted Monday to approve an anti-discrimination ordinance that includes protections for sexual orientation and gender identity.

Mayor Jim Brainard once had hoped to fast-track the ordinance, which was sponsored by six of the seven council members when he introduced it Aug. 17. But socially conservative organizations — and lesbian, gay, bisexual and transgender rights groups — quickly made the affluent suburb of Indianapolis a battleground in a statewide fight over LGBT rights versus religious freedom.

A deeply divided council ultimately voted 4-3 in favor of the ordinance after more than six hours of public comment over three meetings.

City Council President Rick Sharp was joined by Ron Carter, Sue Finkam and Carol Schleif in support. Some have said many of the religious arguments used against the ordinance were once used to deny African-Americans and women their rights.

The story links to this great survey article by Stephanie Wang on the "How local LGBT anti-discrimination laws vary in Indiana."

Posted by Marcia Oddi on Tuesday, October 06, 2015
Posted to Indiana Government

Ind. Decisions - 7th Circuit issued one re Indiana appeal yesterday

In Bryana Bible v. United Student Aid Funds, Inc (SD Ind., Pratt), a 6-page (in total) opinion denying rehearing, where "no judge in active service has requested a vote on the petition for rehearing en banc, and all judges on the original panel have voted to deny the petition," Judge Easterbrook writes a 5-page opinion concurring in denial. Some quotes:

Each member of the panel wrote separately. * * *

But Judge Flaum thought that the court is required by Auer v. Robbins, 519 U.S. 452 (1997), to accept the agency’s view that collection costs may not be assessed against borrowers who sign rehabilitation agreements—even though this view was announced in a brief filed as amicus curiae in this suit and contradicts some earlier statements by the Department of Education (although it is arguably consistent with the position taken in one filing in one district court in 2004 but never laid out in the Federal Register or another place the regulated industry might access; compare Judge Hamilton’s conclusion, slip op. 28–29, with Judge Manion’s, slip op. 66–70).

The petition for rehearing en banc asks the court to consider whether Auer supports the Secretary’s current position, when applied to conduct that predates the Secretary’s amicus brief. That is a substantial and potentially important question, but an antecedent issue is whether Auer is sound. In concurring opinions to Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015), three Justices (including Auer’s author) expressed deep reservations about deferring to the position an agency adopts through means other than rulemaking. See also Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012); John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996).

Prof. William Baude ‏@WilliamBaude referenced the Bible denial in a tweet yesterday, asking "Is Judge Easterbrook highlighting a vehicle to overrule Auer v. Robbins?"

ILB: See also this SCOTUSblog post from March 22, 2013.

Posted by Marcia Oddi on Tuesday, October 06, 2015
Posted to Ind. (7th Cir.) Decisions

Monday, October 05, 2015

Ind. Courts - "Granger woman's lawyers submit arguments in neglect, feticide appeal"

Christian Sheckler of the South Bend Tribune has a long story on the Purvi Patel appeal. (Earlier ILB posts, and brief, here.) Some quotes:

Purvi Patel's lawyers Friday laid out their case asking the Indiana Court of Appeals to overturn the 35-year-old Granger woman's conviction on child neglect and feticide charges, arguing that prosecutors relied on faulty evidence and an "absurd" use of the state's feticide law.

Law professors Lawrence Marshall, of Stanford Law School, and Joel Schumm, of Indiana University's Robert H. McKinney School of Law, filed the brief on behalf of Patel, who is serving a 20-year prison sentence after being convicted earlier this year.

Patel's conviction drew national media coverage and sparked outrage among some people who feared the state's feticide law — originally billed as protection against violent attacks on pregnant women — could increasingly be used to prosecute women who have legally questionable abortions.

In the brief, Patel's lawyers acknowledged that the case raised important questions as a potential "bellwether" for people on both sides of the abortion debate, but they focused instead on the argument that prosecutors violated "well-accepted neutral principles of law" in securing Patel's conviction.

In their arguments against the child neglect conviction, Marshall and Schumm wrote that prosecutors failed to prove that Patel knew she had delivered a live baby, that she could have done anything to save the infant, or that her inaction caused the baby's death.

Even if Patel had called 911 immediately, there was no evidence the baby could have survived even a short trip to the hospital, the lawyers wrote, citing testimony by forensic pathologist Dr. Joseph Prahlow, who testified the infant likely would have bled out within a minute.

"Failure to take a futile act does not constitute endangerment," Marshall and Schumm wrote in the brief. * * *

As for the feticide conviction, Marshall and Schumm argued that Indiana's feticide law was never intended to prosecute women who illegally have an abortion. They noted the state already has an unlawful abortion statute that provides penalties for people who provide abortions outside the legal guidelines, though they added that law has never permitted the prosecution of women for their own abortions.

The St. Joseph County prosecutors' interpretation of the law, Patel's attorneys wrote, could allow the state to bring feticide charges against every woman who violates Indiana's abortion laws, knowingly or not, a situation they described as "absurdity."

They also wrote that if, as prosecutors argued, Patel's baby was born alive, she cannot have committed feticide because to "terminate" a pregnancy implies the death of a fetus.

"No husband would ever telephone a relative from the delivery room where his wife was delivering a healthy baby and say, 'Good news, Susan is in the delivery room terminating her pregnancy,'" Marshall and Schumm wrote.

In February, St. Joseph County Prosecutor Ken Cotter told Slate that Patel committed feticide because she intended to terminate her pregnancy, killing the fetus.

According to Indiana code, "a person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus commits feticide."

Posted by Marcia Oddi on Monday, October 05, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 1 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (1):

Ronald C. Weyland v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, October 05, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Appending text of committee reports and motions to bills, or not?

The staff of the Indiana Office of Code Revision is suggesting future major changes to the way bills look, plus changes to the format of amendments, motions and the like.

These changes are outlined in memos distributed at the Sept. 15th meeting of the Code Revision Commission:

The minutes to the Sept. 15th meeting, p. 4, item IX and p. 5, item X, set out the discussion on the proposed changes. Long bills are often made much longer because the text of adopted Committee Reports and Floor Motions is appended to the end. There are reasons for these inclusions, dating back to earlier years. A person examining a bill can use the appended reference material to find out whether, for example, a provision in the current printing was part of the introduced bill, or was added later, in committee or by floor motion.

But appending all that went before really is no longer necessary, as the staff points out in its memo:

The practice of appending to printed bills was approved by the Code Revision Commission before the advent of the Internet. Now, the entire text of Committee Reports and Floor Motions are available to legislators and the public as soon as they are filed in the House or Senate, as appropriate.
ILB: This sounds like a good change to me. My issue now is that when there is a really long bill it is hard sometimes to tell what it is you are reading - i.e. there are no digital markers to tell where the current version of the bill ends and various of the earlier documents begin. This is particularly a problem if you do a search for a specific provision. The search will lead to the language, but then it is sometimes a struggle to tell if you are looking at the current bill, or a long amendment that added pages of new language, for example. Substituting instead a set of links to the earlier documents at the end of the bill seems a good answer, especially once you start visualizing a bill as what it is now -- a digital document, not a collection of paper pages as it was in the last century.

When I started working for the then Legislative Advisory Commission, the predecessor of today's LSA, in the mid-1960s, bills did NOT indicate the changes to the existing law. Instead, the markings simply indicated any changes from the last printing.

In the same session that the Indiana Code passed, 1971, this was changed.

It took everyone, including the contract printers and proofreaders, some getting used to! Particularly since the changes included the addition of the use of stricken text in bills.

Before then, "* * *" was used to indicate deletions, and underlining (in the typewriter version, boldface in the printed versions) was used for insertions. Of course, the deletions indicated by * * * were to the earlier version of the bill (rather than to the existing statute), so one could flip through the pages to the back of the bill to locate what the bill used to say.

Changing the reference point of the markings from the prior version of the bill to the text of the current law worked a paradigm shift of sorts, enabling legislators in the early 1970s to shift their thinking from the narrow focus of "how does this version of the bill change the last version of the bill" to "how would this version of the bill change the current statute"?

The Code Revision Commission is meeting again tomorrow, Oct. 6, at 10 AM.

Posted by Marcia Oddi on Monday, October 05, 2015
Posted to Indiana Government

Ind. Courts - More on "Purvi Patel appeals controversial trial court conviction for feticide, child neglect"

Updating this ILB post from earlier this morning, here is an article that appears in VICE Magazine's October Prison Issue. Reported by Kristen Gwynne, the story is headed "How Personhood Laws Can Land Women in Court for Crimes Against Their Own Fetuses." From the start of the long story:

This March, Patel became the first US woman charged, convicted, and sentenced—to 20 years in prison—for "feticide" related to her own abortion attempt.

Her case immediately became a rallying cry among pro-choice advocates who point out that pro-lifers have long maintained that the criminalization of abortion would target only shady providers, not the women seeking them.

Patel's case may be an anomaly, but it reflects a nationwide climate in which the Supreme Court's Roe v. Wade ruling that fetuses are not separate people with separate rights is routinely challenged. Restrictions to abortion have spiked in recent years.

Posted by Marcia Oddi on Monday, October 05, 2015
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending October 2, 2015

There were no transfer dispositions last week, and hence, there is no transfer list.

Posted by Marcia Oddi on Monday, October 05, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - "State decision on alcohol plan for Dunes Pavilion project looms Tuesday"

Updating what is now a long list of earlier entries, Rob Earnshaw reports today for the NWI Times:

VALPARAISO | The Indiana Alcohol and Tobacco Commission will decide Tuesday if Pavilion Partners LLC can obtain a restaurant liquor license for its operation at Indiana Dunes State Park.

Last month, in front of hundreds of vocal opponents to the permit, the Porter County Alcoholic Beverage Board voted 3-1 to deny the license.

Things will be a little quieter at the meeting in Indianapolis, as no public testimony is allowed at the 10 a.m. (Indianapolis time) meeting.

And it's not out of question that the commission will overturn the local board's recommendation. David Cook, chairman of the commission, said each case is unique and will turn on its facts.

Posted by Marcia Oddi on Monday, October 05, 2015
Posted to Indiana Government

Ind. Gov't. - "Can Indiana compromise on LGBT rights, religious liberty?"

This weekend in the Indianapolis Star, reporter Stephanie Wang reported again on LGBT issues. The long story examines the feasibility of reaching a "balance" of religious liberty and LGBT rights. Really a must read.

Hayleigh Colombo of the IBJ also had a long story, headed "Governor seeks LGBT compromise that keeps state out of spotlight." This story too is excellent and a must read.

Posted by Marcia Oddi on Monday, October 05, 2015
Posted to Indiana Government

Ind. Gov't. - Singleton Quarry controversy continues

Adding to this long list of earlier ILB posts, the NWI Times had an AP story Oct. 1 headed "Illinois AG asks Indiana to rescind Singleton quarry permit."

Carrie Napoleon reported in the Gary Post-Tribune Oct. 2 in a story headed "Indiana, Illinois officials waiting for Singleton quarry hearing." The story begins:

s Illinois officials gear up to fight against the Singleton Stone Quarry currently operating in Eagle Creek Township in south Lake County, Indiana officials say right now the quarry is abiding by its permits.

Illinois Attorney General Lisa Madigan joined U.S. Rep. Robin Kelly, D-2nd, on Tuesday in filing petitions to stop the work at the quarry site until the impact on the Kankakee River Basin in Illinois is considered and input from that state's residents and officials can be considered.

"The purpose of the petition is to allow for time and additional steps to consider the possible impact on the Kankakee River in Illinois," Madigan said in a statement.

The Indiana Office of Environmental Adjudication confirmed it had received both petitions and set a Nov. 5 hearing date and an Oct. 26 pre-hearing conference to address the matter.

India Davidson, legal assistant for the OEA, said the pre-hearing conference will give all parties a chance to discuss how they wish to proceed in the matter.

State Sen. Rick Neimeyer, R-6th, said he understands the concerns of Illinois officials who say they did not have a chance to be heard regarding the impact of the quarry. At this point, he is waiting to see what transpires, he said. No new information or action has occurred in Indiana where the quarry currently is compliant with its permits.

"Hopefully Indiana is looking at the concerns of everybody involved, whether it is Illinois or Indiana," Niemeyer said.

Posted by Marcia Oddi on Monday, October 05, 2015
Posted to Environment | Indiana Government

Ind. Courts - Two senior judges death announcements last week, Indiana COA's Patrick Sullivan, and CA7's Judge Cudahy

Here is the obituary of Judge Sullivan, published this weekend in the Indianapolis Star, including:

Family and friends will gather on Monday, October 5, 2015 from 4 p.m. to 8 p.m. at Feeney-Hornak Keystone Mortuary. Funeral service will be held on Tuesday, October 6, 2015 at 11 a.m. at St. Pius X Catholic Church with a Celebration of Life following at Laurel Hall. Burial will be at Mount Calvary Cemetery in Huntington, IN.
See also this earlier ILB post.

The Chicago Tribune on Oct. 2 had this story by Kate Marshall Dole, headed "Richard Dickson Cudahy, judge for U.S. court in Illinois, dies at 89." Judge Cudahy died Sept. 22nd. A quote from the long story:

Even as a senior judge, Cudahy was prolific and influential: He issued opinions at a faster rate than many of his peers, and his opinions were frequently cited by other judges, according to a 2012 analysis conducted by fellow 7th Circuit Judge Richard Posner.

In addition to his impact on fellow judges and the people and companies that came before him in court, the many clerks who staffed Cudahy's chambers over the years were strongly influenced by his work ethic, principles and his approach to the law. * * *

Five of Cudahy's clerks went on to become judges at different levels around the country, among them David Hamilton, who served with Cudahy on the 7th Circuit. Eighteen of his clerks became professors. One, Steve Koch, is the deputy mayor of Chicago, and another was tapped by Gov. Bruce Rauner to run the Illinois Department of Finance and Professional Regulation, according to Pam Jacob, who was Cudahy's judicial assistant for 16 years.

Posted by Marcia Oddi on Monday, October 05, 2015
Posted to Indiana Courts

Ind. Courts - "Purvi Patel appeals controversial trial court conviction for feticide, child neglect" [Updated]

On Friday, Amy Gastelum of PRI's The World reported:

Today, Patel filed an appeal of that conviction with the Indiana Court of Appeals. She's now represented pro-bono by Stanford Law professor Lawrence Marshall and Indiana University law professor Joel Schumm. Marshall's representation, in particular, shows the precedent-setting importance of her case. Marshall previously founded the Center for Wrongful Convictions at Northwestern University.

“What I generally gravitate toward are cases where it seems like an intense passion has interfered with dispassionate interpretation and application of the law,” Marshall told the South Bend Tribune in April. “It struck me that this case may be a textbook example of that phenomenon.”

The text of their appeal is not yet available. However, national advocacy organizations have authored two amicus briefs in support of the appeal. The first, by National Advocates for Pregnant Women and signed by several reproductive rights groups, states: "Allowing the judicial expansion of Indiana law to prosecute women in relation to their own pregnancies endangers public health and the civil rights of all people who are or may become pregnant." * * *

The National Asian Pacific American Women's Forum and the Center on Reproductive Rights at the UC Berkeley School of Law make a more culturally-based argument against Patel's conviction, pointing to a disconnect between women of color or immigrant women and the healthcare system. Prosecutors had argued that Patel illegally sought to terminate her own pregnancy with abortificants ordered online. She did not seek prenatal care and apparently attempted to keep her pregnancy a secret from her Indian immigrant family.

"The decision to self-administer medication for abortion may stem from a distrust of the conventional US healthcare system, which has a long history of abuses targeting people of color, immigrants, and indigent people," the brief argues.

The ILB has had three earlier posts on this case:
Ind. Decisions - "The case of Purvi Patel: Should a pregnant woman be charged with feticide?"

Jill Disis of the Indianapolis Star takes an excellent, in-depth look today at the facts and issues behind the St. Joseph trial court decision that is now being appealed. The subhead:"A woman’s conviction and 20-year sentence under Indiana’s feticide law...

Posted in The Indiana Law Blog on May 3, 2015 01:58 PM

Ind. Decisions - Purvi Patel feticide and felony neglect convictions to be appealed

On April 2nd the ILB had a post with a brief quote from a NYT Magazine feature story by Emily Bazelon: The prosecution of Purvi Patel began in sorrow and ended in more sadness this week. Patel, a 33-year-old...

Posted in The Indiana Law Blog on April 30, 2015 03:02 PM

Ind. Courts - Another big Indiana story coming up Sunday in NYT Magazine

Emily Bazelon has a feature in the upcoming Sunday NYT Magazine, titled "Purvi Patel Could Be Just the Beginning." Some quotes:The prosecution of Purvi Patel began in sorrow and ended in more sadness this week. Patel, a 33-year-old woman who...

Posted in The Indiana Law Blog on April 2, 2015 09:43 AM
A long, April 30th story by Christian Sheckler in the South Bend Tribune reported:

As a Granger woman fights to overturn her conviction and 20-year prison sentence in a highly publicized child neglect and feticide case, she will have cost-free help from two prominent experts in criminal appeals.

Stanford University law professor Lawrence Marshall and Indiana University law professor Joel Schumm have filed to represent Purvi Patel before the Indiana Court of Appeals, and both are offering their services pro bono, or for free.

Before he began teaching at Stanford, Marshall founded the Center for Wrongful Convictions at Northwestern University, while Schumm founded an appellate clinic at the IU Robert H. McKinney School of Law.

Both lawyers said the case raised many important legal questions, and Marshall added that he was troubled by how Indiana’s feticide law was applied in the case.

“There are issues here, there are errors here that were committed, that in our view justify and compel reversal,” Marshall said. “We will be hopefully showing the appellate court that errors were committed in both interpreting the law and how facts were allowed to be proven.”

Patel was convicted of child neglect and feticide after, authorities said, she illegally used drugs to try to induce her own abortion, then failed to get medical help for her infant son after he was born alive. A judge handed down a 20-year sentence in March. Police found Patel’s baby July 14, 2013, in a Dumpster behind Moe’s Southwest Grill in Mishawaka. * * *

[Co-counsel] Schumm, who said he has worked on about 150 appeals since 2001, many of them on a pro bono basis, said he was interested in raising important legal arguments on Patel’s behalf, but was not motivated by political outrage.

“I’m not taking this case with a political agenda in mind at all,” he said. “I’m taking it with the view that she’s been convicted of a serious crime and she, like everyone else, deserves a defense of those convictions, a zealous defense.”

The St. Joseph Superior Court has 90 days to provide Patel’s lawyers with transcripts of her trial. The lawyers would then have 30 days, with a possible 30-day extension, to file a brief of their case with the Court of Appeals. At that point, the court could hear oral arguments before ruling.

ILB: Here is the appellant's brief in Patel v. State, filed Oct. 2, 2015. [Link updated 10-6-15 to version including p. 50 (p. 61 of pdf), signature page]

Posted by Marcia Oddi on Monday, October 05, 2015
Posted to Indiana Courts

Ind. Gov't. - Brown County veteranarian considers retiring rather than comply with state regulators

One Friday, the Laura Lane reported in the $$$ Bloomington Herald-Times:

A Brown County veterinarian who prides himself on providing affordable health care for pets without costly diagnostic tests and advanced medications may not have to retire instead of complying with state regulations he does not believe in.

People come from around the state to James Brester’s rural Bean Blossom Animal Clinic, where instead of making an appointment, you show up with your animals, sign in and wait – sometimes hours — for your name to be called. He has been a veterinarian 49 years and does not charge an office visit fee.

In a recent letter to patients, Brester penned his frustrations with Indiana Veterinary Licensing Board regulations and the attorney general’s office, saying state regulators gave him a list of changes he needed to make in order to retain his medical license.

“I'd like to continue practicing, but it is going to take a miracle to keep my license," he said in his letter. "I don’t feel I can conform to their request … there is a lot in the settlement that I don’t feel right about.”

Brester said he has spent his career keeping costs down for his clients, many of them low-income people who say they could not afford vaccinations and treatment at a more modern veterinary office. His lawyer, Franklin DeWester, has taken his pets — including current Dachshunds Yogi and Annie – to Brester for 40 years.

DeWester has been negotiating with the attorney general's office on Dr. Brester's behalf, and he said Friday that he has every expectation of a successful outcome soon.

"I'm absolutely confident he'll be able to continue his practice, and Dr. Brewster will be able to accept it," said DeWester of the pending settlement, which he said is in the process of being finalized. The attorney said the attorney general's office has been very understanding and cooperative throughout the negotiations.

DeWester said when his pets needed more advanced care Brester did not provide, he referred him to another vet.

“He has deliberately not focused on high-tech stuff that is so expensive it would cause him to have to charge more money than many people could afford,” DeWester said. “There is no doubt in my mind he has treated literally thousands of animals who otherwise would not have had seen a vet. In the time I have known him, he has treated animals at vastly reduced costs, and when people were very poor, he’d treat their animals for free.”

“He has been distraught and upset by this, but he loves practicing veterinary medicine and being able to treat animals, and by doing that help the animals’ owners.”

Posted by Marcia Oddi on Monday, October 05, 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 10/5/15):

Monday, October 5

Next week's oral arguments before the Supreme Court (week of 10/12/15):

Webcasts of Supreme Court oral arguments are available here.


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

Tuesday, October 6

Next week's oral arguments before the Court of Appeals (week of 10/12/15):

Tuesday, October 13

Wednesday, October 14 ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]

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


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

Posted by Marcia Oddi on Monday, October 05, 2015
Posted to Upcoming Oral Arguments

Friday, October 02, 2015

Ind. Courts - Former Clerk for Judge May now contributing to Huffington Post

From the Huffington Post:

Atif Rehman is a corporate attorney practicing in New York City. Atif graduated with a BBA in accounting and finance and began his career as an accountant in the Financial Services practice of KPMG LLP. He qualified for his CPA designation while at KPMG LLP and then went to Indiana University School of Law where he graduated in 2006 with a JD degree and was admitted to the New York Bar in 2007.

While in law school, Atif served as the Executive Articles Editor of the Indiana International & Comparative Law Review, a journal that also selected his law school note to be published. Throughout law school, Atif was active in moot court, finishing in the top 10% during oral arguments. He was also privileged to have had an opportunity to serve as a judicial clerk to the Honorable Judge Melissa S. May of the Indiana Court of Appeals (4th District), an experience he credits with honing his legal research and writing skills.

Upon graduating from law school, Atif returned to New York City to join the Capital Markets practice of the prestigious Wall Street firm of Cadwalader Wickersham & Taft LLP where he advised many of the countries leading financial institutions on a variety of transactional matters. In 2010 he joined the New York offices of an international investment bank as an in-house counsel where he continues to work today.

Atif also serves as the President of the Muslim Bar Association of New York (MuBANY), an organization devoted to facilitating communication and the sharing of resources among Muslim attorneys. Through his work at MuBANY, Atif promotes education on issues relevant to Muslim attorneys and law students. He is committed to helping the professional development of lawyers and law students in the New York area.

Posted by Marcia Oddi on Friday, October 02, 2015
Posted to Indiana Courts

Courts - "SCOTUSblog Argument preview: Court returns to dispute over forced settlement of class actions"

This first paragraph by Ronald Mann at SCOTUSblog may whet your interest:

Campbell-Ewald Co. v. Gomez is one of those cases in which the Court confronts an issue of great significance, but well might avoid the issue in the course of decision. The issue is so simple it is surprising there is no answer: if a defendant offers to pay the plaintiff everything the plaintiff could get if the plaintiff wins, does the plaintiff have to take “yes” for an answer? Phrased that way, you might think “yes” is the obvious response. But if that is correct, then class action defendants have an easy way to avoid class certification by simply picking off the named plaintiffs as they appear. Moreover, as if that were not enough to fill the argument slot, the same case also will consider the extent to which the government’s broad sovereign immunity extends to government contractors, the so-called “derivative sovereign immunity” doctrine.

Posted by Marcia Oddi on Friday, October 02, 2015
Posted to Courts in general

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

For publication opinions today (1):

In Courtney R. Robbins v. The Trustees of Indiana University and Clarian Health Partners, Inc., a 26-page, 2-1 opinion, Judge Brown writes:

Courtney R. Robbins appeals the trial court’s grant of summary judgment in favor of the Trustees of Indiana University and Clarian Health Partners, Inc. She raises the following two issues, which we revise and restate as:
I. Whether the trial court erred in granting summary judgment in favor of the Trustees and Clarian on the issue of vicarious liability; and
II. Whether the trial court erred in granting summary judgment in favor of the Trustees on the issue of negligent hiring.
We affirm. * * *

[There is much to read in this case ..., including a lengthy footnote on p. 10 re whether the tort of invasion of privacy by public disclosure of private facts is a valid cause of action in Indiana, and a long discussion of Walgreen Co. v. Hinchy beginning on p. 12]

For the foregoing reasons, the trial court did not err in granting summary judgment in favor of the Trustees and Clarian. Affirmed.

Pyle, J., concurs.
Crone, J., concurs in part and concurs in result in part with separate opinion. [that begins, on p. 22] I fully concur in the majority’s affirmance of summary judgment in favor of Clarian and in favor of the Trustees on Robbins’s negligent hiring and intentional infliction of emotional distress claims. I would also affirm summary judgment in favor of the Trustees on Robbins’s claim for invasion of privacy by the public disclosure of private facts, but I would do so on the basis that the Trustees cannot be held vicariously liable for a nonexistent tort. Whether Indiana recognizes this tort is technically an open question, but for all practical purposes the answer is currently no.

NFP civil decisions today (0):

NFP criminal decisions today (4):

Elizabeth Benham v. State of Indiana (mem. dec.)

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

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

Richard W. Robb, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, October 02, 2015
Posted to Ind. App.Ct. Decisions

Not law - "Carmel High School senior wins prestigious $25,000 prize for work in math, science"

Not law, but great to read for what it says about natural curiosity and focus. "Judges were impressed by Sreya Vemuri's research into how light travels through optic fibers" is the subhead to this story by Kris Turner in today's Indianapolis Star. A few quotes:

Sreya Vemuri never expected that her research into how light travels through optic fibers would yield a result, let alone a $25,000 prize.

The 17-year-old Carmel High School student said she was stunned to learn she was named one of the 2015 Davidson Fellows by the Davidson Institute for Talent Development, a national organization devoted to nurturing intelligent youths and providing opportunities for them to develop their talents. * * *

Vemuri, who has had a lifelong interest in math and science, said she is curious about the world, and that inquisitive spirit fueled her project. Vemuri’s work has applications in many areas of optics, such as making lasers, and has important applications in designing computers.

One of the judges who reviewed her work said it was on par with that of a college senior or graduate student, said Tacie Moessner, Davidson Fellows Scholarship program manager.

“One judge said that Sreya’s project is one of the best fundamental projects he’s ever reviewed — he’s been a judge for many years,” Moessner said. “Her application speaks truth about the quantum world, and that is of interest to any civilization, human or otherwise.

“That means it has huge implications for the future.”

Vemuri’s project stood out because of its subject matter, Moessner said. It was extremely complex and was a mathematical feat, she said.

“She was able to focus her research on this one particular problem and not get sidetracked or distracted by other things,” Moessner said. “She was able to have this narrow focus and delve deeply into it.” * * *

“Ever since I was a little kid, I’ve done math competitions, and I’ve been fascinated by how you can solve such complex problems using mathematics,” she said. “I’ve discovered that it’s exciting to solve an unknown problem that no one knows the answer to.

“For a moment, you’re the only person in the world who knows this science and this knowledge.”

Posted by Marcia Oddi on Friday, October 02, 2015
Posted to General News

Ind. Gov't. - Carmel anti-discrimination ordinance voted out of committee, with amendment

Chris Sikich has the story in this morning's Indianapolis Star. Some quotes:

In Carmel, you could get one free pass on discrimination.

That's an amendment a Carmel committee approved Thursday night for the city's proposed anti-discrimination ordinance.

A majority of committee members thought a warning for a first offense would solve most issues. Additional incidents still would be fined up to $500 each day until the act of discrimination was found to be eliminated.

After approving that change, the Carmel finance committee voted to recommend the City Council pass the ordinance, which includes increased protections for sexual orientation and gender identity.

The committee also made it clear that complaints should be taken to and handled by the city attorney's office.

Mayor Jim Brainard and City Council President Rick Sharp told The Indianapolis Star they think they have enough votes to pass the ordinance at Monday's meeting of the full council with no major changes.

Thursday's committee meeting, though, made it clear the council is divided on the issue. Chairwoman Luci Snyder voted to move the ordinance out of committee but might not support it Monday.

She might join Councilmen Kevin Rider and Eric Seidensticker in urging the council to pass a resolution that Carmel is a welcoming community opposed to discrimination.

Brainard, Sharp and several council members, though, say Carmel needs to take a strong stance in the wake of the controversial Religious Freedom Restoration Act to show it's a welcoming community that wants to foster economic development.

Councilman Ron Carter said a resolution wouldn't have enough backbone.

And this is interesting:
City attorney Doug Haney * * * said he thinks much of the displeasure with the ordinance comes from the misplaced belief that it will force churches to perform same-sex marriages.

"People are really upset not about this law at all," he said. "They are upset about the state (Religious Freedom Restoration Act) law. And they also fear, from what I’ve gleaned, that somehow this is all subterfuge to require same-sex marriage. It’s not. It just isn't. It’s not even close." * * *

The committee also discussed changing the $500 daily fine to a fine per occurrence. Haney, though, said that might not be incentive to stop discriminating. He said a business might simply pay $500 and continue to discriminate.

He said the city fines businesses up to $2,500 per day for some minor infractions, and it sometimes takes multiple fines to force compliance.

"You always get one guy who says it’s just the cost of doing business and (in this case) I want to discriminate," he said.

Posted by Marcia Oddi on Friday, October 02, 2015
Posted to Indiana Government

Ind. Courts - 7th Circuit judge hits State of Wisconsin on abortion admitting privileges law"

Yesterday, Oct. 1, the 7th Circuit heard oral argument in Planned Parenthood of Wis. v. Schimel, Wis. AG (15-1736). The panel consisted of Judges Posner, Manion and Hamilton. You may listen to the oral argument here,

Patrick Morley of the Milwaukee Journal-Sentinel reports today in a long story that begins:

Chicago — The presiding judge on a federal appeals panel Thursday ripped into Wisconsin officials for a law — partly blocked by court order — that he said was designed to shut down abortion clinics, along the way singling out Gov. Scott Walker.

"Governor Walker, before he withdrew from the presidential race, said he thought abortion should be forbidden even if the mother dies," Judge Richard Posner said during arguments. "Is that kind of official Wisconsin policy?"

"That perhaps is Governor Walker's personal opinion," but it's not the state's policy, responded Assistant Attorney General Brian Keenan.

More from the story:
At issue in Thursday's case is a law that would have required doctors who provide abortions to have admitting privileges at a hospital within 30 miles of where they perform the procedure.

Republicans and abortion opponents say the measure was aimed at ensuring doctors are properly credentialed and women get the care they need. Democrats and abortion rights supporters say the law doesn't do anything to benefit women's health and is aimed at limiting access to abortion.

U.S. District Judge William Conley in Madison blocked the law almost immediately after it passed in 2013 and struck it down as unconstitutional this March. Posner made clear he largely agreed with that assessment.

"There is not a rational basis for your statute because it doesn't provide any health benefits for women seeking abortion," Posner told Keenan.

Also on the U.S. 7th Circuit Court of Appeals panel are Judges Daniel Manion and David Hamilton, who also asked skeptical questions of the state. Posner and Manion were appointed by Republican President Ronald Reagan; Hamilton was appointed by Democratic President Barack Obama.

The same panel in December 2013 unanimously upheld a temporary block on the law in an earlier stage of litigation.

On Thursday, Hamilton questioned how the state could argue it was acceptable for women to travel to Chicago or Minneapolis if the law resulted in the closure of one of Wisconsin's four abortion clinics. States can't abridge constitutional rights on the assumption people can exercise them somewhere else, he said, citing a Second Amendment case over the right to carry concealed weapons.

Manion noted a significant portion of abortions in Wisconsin are medication abortions, in which the woman takes the final dosage at home. In those cases, complications could occur 100 miles or more away from the hospital where the doctor who gave her the medication has admitting privileges, he said.

But it was Posner who repeatedly needled the state over the law, noting it was approved on a Friday and was to go into effect the following Monday. That didn't give doctors adequate time to get admitting privileges, which can take months even in the best of circumstances.

"That was clearly designed to close down abortion clinics. It had nothing to do with women's health....That was a clear, you know, flouting of Roe vs. Wade," said Posner, referring to the 1973 U.S. Supreme Court decision that gave women the right to seek abortions.

The state contends requiring admitting privileges would improve patient health in the rare instances when complications from abortion occur. But Posner noted when a complication occurs, a woman is sent to an emergency room and treated by a different doctor than the one who performed the abortion. No admitting privileges are needed for the two doctors to consult with each other.

"You don't need admitting privileges to go to the hospital. You just go to the hospital," Posner said.

Posted by Marcia Oddi on Friday, October 02, 2015
Posted to Indiana Courts

Ind. Gov't. - "Indiana's redistricting process under the microscope" Or not?

The new Indiana redistricting panel met yesterday morning. Niki Kelly's story in the Fort Wayne Journal Gazette is headed "Legislators disagree whether redistricting is a problem." Some quotes:

INDIANAPOLIS - An effort to change Indiana's redistricting system got off to a rocky start Thursday as it became clear that not everyone agrees there is even a problem.

"This system has been manipulated in turn for the political benefit of both the Democratic and Republican parties – whichever attained majority rule each decennial election year," said Tom Sugar, a Democrat member of a special committee on redistricting. "It is a corruption as old as America itself, but it now must end here. Gerrymandering must be made illegal in Indiana.

But Republicans Rep. Kathy Richardson and Sen. Brandt Hershman defended the current set of district maps as being compact and keeping communities of interest together. They were both in leadership when the GOP drew them in 2011.

"My fear and my interest in the committee dialogue is we are making some assumptions bolstered with some political rhetoric," Hershman said. "I want to make sure we have the facts." * * *

Indiana has a constitutional provision requiring the legislature to approve maps. So a law could be crafted that would give a commission power to draw and recommend maps but give final approval to lawmakers. To remove the legislature from the process altogether would take a constitutional amendment. The earliest that long process could be finalized would be 2020.

“I will caution you there is a divergence of opinion on this issue,” said Rep. Jerry Torr, R-Carmel, who has pushed redistricting reform since 2006. He is chairing the panel.

He said it remains to be seen whether the group can come together on recommendations.

Torr said experts will be brought in to discuss a variety of related topics, and the bulk of the work will be done next summer.

Several members of the commission said having competitive districts is the most important issue at hand, noting the number of unopposed House and Senate districts in recent years and Indiana’s abysmal voter turnout statistics.

Former Indiana Supreme Court Justice Ted Boehm said the power of computers has allowed skewed districts that look regularly shaped and adhere to county lines “but nonetheless produce districts that are not competitive.”

But Torr pointed out that some people believe keeping communities together is more important than competitiveness.

Some of the details that could make any conclusion more difficult are:

• What powers would an independent redistricting commission have?

• Who would serve on the commission, who would appoint them, and how would political balance be maintained?

• What criteria will be emphasized or banned in drawing maps? For instance, some states don’t allow the addresses of incumbents to be taken into consideration, while others do.

"Indiana's redistricting process under the microscope" is the heading of Dan Carden's story in the NWI Times, which reports:
Could the route toward increasing the competitiveness of Indiana elections and boosting voter participation turn on reforming how legislative district boundaries are drawn?

A special 12-member study committee convened Thursday at the Statehouse to begin a two-year investigation into Indiana's redistricting process. * * *

Critics of legislative redistricting say [current] conditions provide lawmakers a significant opportunity to manipulate district lines in ways that advantage themselves or their political party.

For example, after the Republican-controlled Legislature drew new maps in 2011, the GOP grew its 60-member House majority to a 69-member supermajority in the 2012 elections. Republicans also gained a U.S. House seat in 2012.

Senate Republicans picked up three new members in the two election cycles following the 2011 redistricting and now control 40 of 50 Senate seats, or 80 percent.

"Hoosiers know better than to believe that 80 percent of our citizens share allegiance to one political party," said Tom Sugar, a committee member and former chief of staff to U.S. Sen. Evan Bayh, D-Ind. "Clearly, something is out of whack."

Sugar said both parties have gamed the redistricting process throughout U.S. history. He said ending that practice, known to many as gerrymandering, requires taking politics out of the system.

"Congressional and legislative districts should be drawn based on where people live, not how they vote," Sugar said. "An independent, citizen-led process must fairly and transparently design geographic constituencies and protect the promises of the Voting Rights Act, replacing the backroom deal making and self-serving politics of today."

However, actually deciding how to redraw districts and who should do it is an incredibly complex undertaking, as the committee learned in its review of the redistricting processes used by other states. * * *

The group is set to meet at least one more time ahead of the 2016 legislative session.

It plans to hold multiple meetings during 2016 to hear from national redistricting experts and solicit public input on possible reforms.

Julia Vaughn, policy director for Common Cause Indiana, pleaded with the committee to hold as many hearings as possible across the state to permit maximum Hoosier participation.

"There is intense public interest in this topic," Vaughn said.

Posted by Marcia Oddi on Friday, October 02, 2015
Posted to Indiana Government

Thursday, October 01, 2015

Ind. Courts - Ivy Tech instructor appeals in claim school discriminated against her because of her sexual orientation

From a Lambda Legal Sept. 30 news release:

Today, Lambda Legal urged the U.S. Seventh Circuit Court of Appeals to reverse a lower court ruling and allow Kimberly Hively to present her case alleging that Ivy Tech Community College, where she worked as an instructor for 14 years, denied her fulltime employment and promotions, and eventually terminated her employment, because she is a lesbian.

Last August, Hively filed a lawsuit in U.S. District Court for the Northern District of Indiana against South Bend, Indiana-based Ivy Tech, claiming the school was violating Title VII of the Civil Rights Act by discriminating against her because of her sexual orientation, a form of sex discrimination. Ivy Tech successfully moved the trial court to dismiss Hively’s claim, arguing that Title VII does not protect employees from antigay discrimination.

At today’s hearing, Lambda Legal argued that several court rulings and a recent decision by the Equal Employment Opportunity Commission (EEOC) support Hively’s contention that sexual orientation discrimination is sex discrimination under Title VII and that the dismissal should be reversed. * * *

For years, Lambda Legal has been explaining to courts that Title VII, when properly understood, protects LGBT employees. Three of Lambda Legal’s successful efforts in 2014, in federal courts in Seattle, Chicago, and Washington D.C., were cited by the EEOC in Baldwin v. Foxx.

The case is Hively v. Ivy Tech Community College. Here is the brief submitted to the 7th Circuit. Here is the MP3 of the yesterday's oral argument.

Here is the ND Ind. ruling of March 3, 2015, dismissing plaintiff's complaint with prejudice, signed by Judge Rudy Lozano.

Posted by Marcia Oddi on Thursday, October 01, 2015
Posted to Indiana Courts

Ind. Courts - More on: Sr. Court of Appeals Judge Patrick D. Sullivan dies at 83

Here is a July 21, 2007 ILB post quoting an Indianapolis Star story (headed ""State appeals court's Judge Sullivan saluted for 38-year tenure")on Judge Sullivan's retirement from the Court of Appeals.

This July 24, 2007 ILB post
points to archived Indiana Courts video of the retirement ceremony. However, the video appears no longer to be available.

Posted by Marcia Oddi on Thursday, October 01, 2015
Posted to Indiana Courts

Ind. Courts - Senior Court of Appeals Judge Patrick D. Sullivan dies at 83

From a news replese:

Judge Sullivan was the longest-serving judge in the court’s history and the last serving member to have won popular election to the court, in 1968. He won retention elections in 1972, 1982, 1992 and 2002, and retired from the court on July 31, 2007. From that time until his death, Judge Sullivan served the court as a senior judge.

“Judge Sullivan was a judge’s judge – he loved the law and loved serving the people of the state of Indiana,” Court of Appeals Chief Judge Nancy H. Vaidik said. “He will be greatly missed, but he leaves behind an enormous body of scholarly work that will forever guide future generations of Indiana lawyers and judges.”

Judge Sullivan was born in Huntington, IN, served in the United States Navy during the Korean War and later earned his undergraduate and law degrees at Washington & Lee University, in Virginia. He was a deputy Indiana attorney general from 1958-1961; worked in private practice from 1961-1965; and served as a Marion County Civil Trial Court judge from 1965-1969.

A memorial service is pending.

The NWI Times has an undated photo.

Posted by Marcia Oddi on Thursday, October 01, 2015
Posted to Indiana Courts

Ind. Law - "Valparaiso University Law Clinic going after debt buyers targeting Porter County residents"

Rob Earnshaw reports today in the NWI Times that begins:

VALPARAISO | The Consumer Financial Protection Bureau recently took action against the nation's two largest debt buyers and collectors for using deceptive tactics to collect bad debts.

The Law Clinic at Valparaiso University has been fighting the same battle locally, representing more than 100 defendants in Porter County and resulting in dismissals of more than $250,000 worth of debt in the last four years.

The CFPB found that Encore Capital Group and Portfolio Recovery Associates bought debts that were potentially inaccurate, lacking documentation or unenforceable. They were each ordered to pay millions of dollars in consumer refunds and penalties.

Those same debt buyers file an average of 60 cases per month in Porter County, said Marcia Gienapp, VU professor of law.

The majority of it is credit card debt, and Gienapp realized there was a problem locally and began sending solicitation letters out after combing through public records. Some people already knew of VU's free law clinic and sought help. Gienapp sent letters to other defendants telling them the debt buyers "can be beaten."

The letters told the defendants they need to respond to the lawsuit, that the law clinic was there to help and they would do it for free.

"For about the last four years we've tried to get as many debtors in our office as we could," Gienapp said. "We have been extremely successful. My biggest frustration is about 90 percent of the people who are sued by debt buyers don't respond at all."

Posted by Marcia Oddi on Thursday, October 01, 2015
Posted to Indiana Law

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

Updating this ILB post from Aug. 27 (and earlier links), Alan Stewart reported yesterday in a long story the Corydon Democrat:

A former Corydon attorney learned her sentence Thursday afternoon in Harrison Superior Court.

Special Judge Frank Newkirk Jr. of Salem sentenced Leah Fink to 10 years in the Indiana Dept. of Corrections, with two years suspended, and 100 hours community service. With credit for time already served and assuming good-time credit, she will serve about three years in prison.

Newkirk said he was recommending Fink for Purposeful Incarceration, which is an IDOC program for offenders who have addiction problems. Once the offender is placed at the facility, they will be assessed by the substance abuse staff. If they meet the substance abuse admission criteria, they will be offered the opportunity to enter the PI program. The offender must agree to adhere to all program rules and expectations and to fully participate in all program activities. If an offender successfully completes the program, the judge can choose to modify the offender sentence and return them to the community early.

"You have a lot of family support, and I know it's embarrassing for you today," Newkirk told Fink, adding that he's seen people put similar situations behind them and move on with their lives once they were released from prison. "If you do your part ... and take part in the programs, I think you are going to put this behind you."

Posted by Marcia Oddi on Thursday, October 01, 2015
Posted to Indiana Courts

Law - "Most firms still keep hard copies of old case files and have their lawyers manually track their hours in six-minute increments"

An article in The Atlantic today, by Leigh Gallagher, asks "Why Are So Many Law Firms Trapped in 1995?" A few quotes:

Lawyers, for instance, still manually keep track of their time in six-minute increments, and many firms hold onto voluminous hard copies of old case files.

Even though many firms remain behind the times, they soon may not be. New technologies and increased competition are forcing the legal industry to slowly remake itself.

“The billable hour is the culprit of everything,” explains Ralph Baxter, the former chairman and CEO of Orrick, Herrington & Sutcliffe. Implementing innovations that render billable hours obsolete can be like tugging on a thread that threatens to unravel the basic concept of a law firm. For example, the start-up Lex Machina can speedily mine and analyze litigation data that would take an army of associates months to go through. Suddenly, several associates aren’t billing. And if they aren’t billing, the firm could do without them. And if they could do without those associates, then they could do without the office space they occupy. There goes the business model.

While traditional law firms have been slow to adapt, it is these more overt inefficiencies that a new crop of start-ups and law firms are aiming to exploit. Todd Smithline jettisoned billable hours entirely and operates his San Francisco-based, tech-focused firm, Smithline PC, under a subscription model. Clients pay monthly fees ranging from $8,000 to $25,000, which buys them as much service as they need. He says many were skeptical at first, but he has found that “clients value predictability.”

ILB: I've added some emphasis in the last paragraph above. My question: Are lawyers allowed to bill this way in Indiana?

Posted by Marcia Oddi on Thursday, October 01, 2015
Posted to 21st Century Law

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 1 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (1):

Jason Lee DeGroot v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, October 01, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Government & Elections Handbook"

Take a look at the Twitter "Government & Elections Handbook." From the blurb:

Drawing on lessons learned from campaigns and government offices across the country and around the world, the Twitter Government and Elections team compiled a handbook designed to help you tap into the power of Twitter to connect with your constituents. Download our free handbook to discover strategies and tried-and-true techniques explained for the Twitter beginner and expert alike.

In this handbook, you’ll find:

• Content strategies. Discover new and innovative strategies to grow your Twitter presence and engagement rate, including step-by-step instructions on how to execute a Twitter Q&A and how to make the best use of photos and video.

• Advanced Twitter tools. Maximize the impact of your account by integrating Twitter into your events and leveraging the full suite of Twitter tools such as TweetDeck, Twitter for websites and mobile notifications.

• Twitter basics. Brush up on the fundamentals to set up and build a secure and effective account for your elected official, campaign, agency or initiative.

Whether you read this guide cover-to-cover or use the handy checklists to jump to the most immediate needs, we hope you come away with fresh inspiration for meaningful civic dialogue and some new techniques for listening to and mobilizing your constituents. Be among the first to discover this new resource and download your copy of the Twitter Government and Elections handbook today.

Posted by Marcia Oddi on Thursday, October 01, 2015
Posted to Indiana Government

Environment - "New EPA rules aim to clear air around BP Whiting Refinery"

From the NWI Times this morning, a story by Joseph S. Pete. A few quotes:

WHITING | The U.S. Environmental Protection Agency has toughened air pollution standards on refineries such as the BP Whiting Refinery. * * *

BP and other refinery operators will have to monitor their entire fencelines so they can detect low levels of benzene to ensure they're managing toxic emissions. Monitoring data will be placed on the EMA website, so residents who live around the refinery in Whiting, East Chicago and Hammond can see what's in the air.

Under the rule, BP would have to take corrective action if it were releasing harmful levels of emissions that are above what the regulations allow. The rule will limit emissions reductions from storage tanks and delayed coking units, as well as "virtually eliminate visible flare emissions," according to EPA.

The new EPA rule also strengthens emission controls for flares, pressure-relief devices, storage tanks and delayed coker operations. The EPA says it will reduce toxic air pollutants by 5,200 tons per year, volatile organic compounds by 50,000 tons per year and CO2 by 660,000 tons per year without having a "noticeable impact" on the cost of gas and other petroleum products.

Posted by Marcia Oddi on Thursday, October 01, 2015
Posted to Environment

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

Updating this Sept. 28th post, you can watch the redistricting panel's meeting this morning, which begins at 9 AM, here.

Here is the agenda.

Posted by Marcia Oddi on Thursday, October 01, 2015
Posted to Indiana Government