« October 2015 | Main | December 2015 »

Monday, November 30, 2015

Ind. Decisions - "Change in law costs five Lake County men ability to drive"

Today's 2-1 Court of Appeals decision in BMV v. Gulden (ILB summary here) is the subject of a story this afternoon by Dan Carden of the NWI Times. Some quotes:

Five Lake County men are set to be classified "habitual traffic violators" and lose their driver's licenses for 10 years, after the Indiana Court of Appeals Monday reversed a ruling by Lake Superior Judge Julie Cantrell.

In a 2-1 decision, the appellate court rejected Cantrell's reasoning that a 2012 legislative change in how HTV status is determined should not apply to the men because it unconstitutionally altered the punishment for a crime after the crime had been committed. * * *

The appeals court agreed the change in law does create an ex post facto effect, but determined it merely was a permissible procedural clarification as to how HTV status should be determined and neither changes the elements of the crime, nor enlarges the punishment.

"Even though, as here, where the statutory amendment may work to the disadvantage of a defendant, this hardship does not propel a procedural change into the ex post facto realm," said Judge Patricia Riley, a Rensselaer native.

Judge Elaine Brown dissented from the ruling. She said the change in law as applied to the five defendants clearly is an impermissible ex post facto violation.

Posted by Marcia Oddi on Monday, November 30, 2015
Posted to Ind. App.Ct. Decisions

Courts - More on "What Happens To A Texas Veterinarian Could Make A Difference In What You’re Allowed To Say"

This Nov. 24th ILB post included this quote from Above the Law:

When the United States Supreme Court holds its next conference this Tuesday, November 24, the Justices will consider whether to grant certiorari in the case of Hines v. Alldredge. If SCOTUS agrees to hear the case, the Court’s decision could be one of its most important rulings to date on the legal status of occupational speech — speech performed in the context of one’s occupation or profession.

The petitioner, Ron Hines, is a veterinarian who, after retiring from nearly 40 years of traditional veterinary practice in 2002, began offering advice to pet owners through online articles about pet health, as well as email and phone conversations with individuals who sought his help. He prescribed no medications. He performed no procedures. He made clear on his homepage and in his site’s terms of use that his advice and support should not replace appropriate care by a local veterinarian.

The Texas Board of Veterinary Medical Examiners nevertheless sanctioned Hines.

Today Reuters is reporting in a story by Jim Forsyth that begins:
The U.S. Supreme Court on Monday rejected an appeal filed by a retired Texas veterinarian who argued that a state law barring him from providing pet-care advice online and over the telephone violated his free-speech rights under the U.S. Constitution.

Lower courts had ruled that Brownsville, Texas veterinarian Ron Hines, 72, broke a 2005 state law when he answered questions through an "Ask a Vet" link on his website.

In 2013, the Texas Board of Veterinary Medicine, which regulates veterinary practices in the state, suspended his license for a year, finding he violated the law by providing "advice of a specific medical nature" without actually examining the animal.

Attorney Matt Miller of the Austin office of the Institute for Justice, a public-interest legal group that represents Hines, said the high court's refusal to hear the case has the potential to restrict the fast-growing practice of telemedicine, the use of the Internet by medical doctors to diagnose patients.

"There were no allegations that Ron Hines harmed any animals," Miller said.

"All he was doing was talking to people over email and the telephone about their pets. That is protected free speech, and it is important for people to get this information," Miller said. * * *

This case is over, but there will be a next case," Miller said. "There will be future veterinarians, doctors, other professionals who will be facing these types of protectionist restrictions."

Posted by Marcia Oddi on Monday, November 30, 2015
Posted to Courts in general

Ind. Decisions - "Indiana officials call $31 million judgment in DCS case 'monstrously excessive'"

The ILB posted about this award on October 7: "Couple wrongfully accused of child death settles for $31M", with updates here and here.

This afternoon, Marisa Kwiatkowski of the Indianapolis Star is reporting in a story that begins:

State officials want a federal judge to reduce the $31 million judgment they were ordered to pay to an Indiana family "destroyed" by accusations the parents had caused their 14-year-old daughter's death.

Last month, a federal court jury in Hammond determined three Indiana Department of Child Services employees, an Indiana State Police detective and a doctor had violated the constitutional rights of Roman and Lynnette Finnegan and their children. The officials were accused of falsifying records, sabotaging investigations into the death and retaliating against the couple for complaining about how they were treated.

In a document filed Nov. 6, state officials argued the $31 million judgment was "monstrously excessive, without a rational connection to the evidence." The Indiana attorney general's office, which represents the state in the lawsuit, also argued the jury award was significantly higher than amounts awarded in comparable cases. * * *

U.S. District Court Judge Rudy Lozano has not yet ruled on the motion.

Posted by Marcia Oddi on Monday, November 30, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 14 NFP memorandum decision(s))

For publication opinions today (6):

In In the Matter of S.M., J.M., A.M., H.G., Children in Need of Services, A.M. (Mother) v. The Indiana Department of Child Services , an 11-page opinion, Judge Baker writes:

Far too often, our public resources and agencies are called upon to intercede to protect the most vulnerable in our society—our children. The General Assembly has established a statutory procedure for determining when children are in need of the State’s services and has specified the type of evidence required. In this case, however, the juvenile court found four children to be in need of services when the record is devoid of evidence supporting such a finding.

A.M. (Mother) appeals the juvenile court’s order declaring her four children to be Children in Need of Services (CHINS). She argues that the evidence is insufficient to support the CHINS finding. We find the evidence wholly lacking and reverse. * * *

We are well aware that DCS and the courts are overwhelmed with the growing numbers of CHINS cases statewide. All would be better served if the system focused its time, efforts, and resources on the families who really need them. This one did not. The judgment of the [Marion County] juvenile court is reversed.

In Kent W. Abernathy, Commissioner of the Indiana Bureau of Motor Vehicles and Bernard Carter, Prosecuting Attorney for Lake County v. Eric C. Gulden, Jeremy Crawford, David J. Klahn, et. al., a 19-page, 2-1 opinion, Judge Riley writes:
Appellants-Respondents ... (collectively, BMV), appeal from the consolidated trial court’s denials of the BMV’s motions to correct error, and in one case, the BMV’s motion for relief from judgment, in which the trial court upheld its grant of the (collectively, Appellees), ... petitions for judicial review of the BMV’s determinations that each of them qualified as an habitual traffic violator (HTV). We reverse.

The BMV raises one issue on appeal, which we restate as: Whether Indiana Code section 9-30-10-4(e), which requires the BMV to use the dates of the offenses rather than the dates of the judgments in determining a person’s status as an HTV, violates the ex post facto clauses of the Indiana and United States Constitutions, as applied to Appellees who committed their third HTV-qualifying offense prior to the effective date of subsection 4(e) but whose third judgment was entered after that provision became effective. * * *

Based on the foregoing, we conclude that Indiana Code section 9-30-10-4(e), which requires the BMV to use the dates of the offenses rather than the dates of the judgments in determining a person’s status as a HTV, is a procedural amendment which does not violate the ex post facto clauses of the Indiana and United States Constitutions. Reversed.

Altice, J. concurs
Brown, J. dissents with separate opinion [which begins, at p. 17] I respectfully dissent from the majority’s conclusion that the addition of subsection (e) to the habitual violators statute at Ind. Code § 9-30-10-4 was procedural in nature. The majority concludes that the amendment did not change the elements of the habitual violator offense, but rather sought only to clarify the calculation method used in the habitual violator determination. I disagree.

In Anna Wood v. D.W., Minor Child, by next friend, Rhonda Wood , a 10-page opinion, Judge Crone writes:
Anna Wood appeals the trial court’s grant of a protective order in favor of Rhonda Wood on behalf of her son, D.W. Anna contends that the trial court committed reversible error in admitting certain hearsay and opinion evidence. We agree and therefore reverse and remand with instructions to vacate the protective order against her. * * *

D.W.’s statement and Detective Harris’s opinion were the only probative evidence that Anna committed a sexual offense/domestic violence against D.W.10 Consequently, the trial court’s erroneous admission of this evidence affected Anna’s substantial rights and cannot be considered harmless.
11 Therefore, we reverse and remand with instructions to vacate the protective order against Anna.

In Pamela Marlow v. Better Bars, Inc. , a 24-page, 2-1 opinion, Judge Riley writes:
Appellant-Plaintiff, Pamela Marlow as guardian and next friend of Kenneth Marlow (Marlow), appeals the trial court’s summary judgment in favor of Appellee-Defendant, Better Bars, Inc., d/b/a Bubbaz Bar & Grill (the Bar), in Marlow’s negligence action. We reverse and remand. * * *

Based on the foregoing, we conclude that the trial court erred in granting summary judgment because there are genuine issues of material fact regarding whether the Bar had actual knowledge that Marlow was visibly intoxicated when it served him even one alcoholic beverage and whether the Bar’s conduct was the proximate cause of Marlow’s injuries. We therefore reverse the trial court’s entry of summary judgment and remand the case for further proceedings. Reversed and remanded.

Altice, J. concurs
Brown, J. dissents with separate opinion [which begins at p. 21 and which concludes] The intervening act of Marlow resisting law enforcement by running from the police and into the middle of a four-lane highway at night leads to the single conclusion that the Bar was not the proximate cause of Marlow’s injuries. The Bar was accordingly entitled to summary judgment in its favor. For this reason, I respectfully dissent from the majority’s conclusion to reverse the trial court’s grant of summary judgment in the Bar’s favor, and would affirm the trial court.

In Janet C. Turner (deceased), James R. Turner, and Jan Tee, Inc. v. Nationstar Mortgage, LLC , a 17-page opinion, Judge Barnes writes:
Janet Turner, James Turner, and Jan Tee, Inc., (collectively “the Turners”) appeal the granting of a motion to enforce the parties’ settlement agreement and judgment of foreclosure filed by Nationstar Mortgage, LLC, (“Nationstar”). * * *

The Turners have not established that the trial court erroneously denied their motion to dismiss or that the parties’ settlement agreement should not be enforced as it relates to the forfeiture. We affirm.

In Anthony Lewis v. State of Indiana, a 5-page opinion, Judge Najam writes:
Anthony Lewis was convicted of two counts of resisting law enforcement, one as a Class D felony and one as a Class A misdemeanor, and one count of operating a motor vehicle while license suspended, as a Class A misdemeanor, following a jury trial. Lewis appeals and presents a single issue for our review, namely, whether the two resisting law enforcement convictions violate double jeopardy principles. We reverse and remand with instructions. * * *

As we held in Arthur, a defendant’s fleeing by vehicle and then on foot “constitute one continuous act of resisting law enforcement[.]” 824 N.E.2d at 387. We hereby remand this case to the trial court to vacate Lewis’ conviction for Class A misdemeanor resisting law enforcement.

NFP civil decisions today (2):

In Re Support of J.D. T.F. v. J.J.D. (mem. dec.)

Janet Daugherty v. Dollar Tree Stores, Inc. (mem. dec.)

NFP criminal decisions today (12):

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

Luis Torres-Reynoso v. State of Indiana (mem. dec.)

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

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

Jamie R. Aldred v. State of Indiana (mem. dec.)

Brent D. Sharp v. State of Indiana (mem. dec.)

Troy Belk v. State of Indiana (mem. dec.)

Antwion Carter v. State of Indiana (mem. dec.)

Tracey A. Hardy v. State of Indiana (mem. dec.)

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

Devon Sterling v. State of Indiana (mem. dec.)

Clarence White v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, November 30, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending November 27, 2015

Here is the Clerk's transfer list for the week ending Friday, November 27, 2015. It is two pages (and 26 cases) long.

Two transfers were granted last week:

In addition, there were two cases last week where transfer was denied by a 3-2 vote:

Posted by Marcia Oddi on Monday, November 30, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - "Thieves target university libraries for medical, technology and science books"

This is an important story from Linda Lipp, Greater Fort Wayne Business Weekly, here republished in Indiana Economic Digest. Some quotes:

College textbooks are expensive, particularly in subject areas such as medicine, technology and science. That’s led to the creation of organized theft rings who steal the books from university libraries and resell them online.

The Walter E. Helmke Library at Indiana University - Purdue University Fort Wayne has lost the same collection of mostly nursing materials twice, Library Dean Cheryl Truesdell said.

The Helmke loss was a few thousand dollars, but the library at Indiana University - Purdue University Indianapolis has lost books valued “in the tens of thousands of dollars” said David Lewis, dean of the IUPUI library.

“It’s an organized group stealing in a fairly organized pattern,” Lewis said.

IUPUI campus police apprehended one individual believed to be in the process of taking books. The professionally dressed individual, who had no known connection to the campus, allegedly possessed a shopping list of the textbooks when taken into custody.

“It was clear that this group knows what texts are required at a college somewhere,” Lewis said.

It is believed the thieves sell the stolen books online at Amazon.com or elsewhere. When some of the books cost hundreds of dollars new, “even the resale can be quite lucrative,” Lewis said.

A medical-surgical nursing textbook listed new on Amazon.com for about $130, for example, is also listed as used by a variety of private sellers at prices ranging from $80 to $100.

Truesdell said police believe the thieves may work in teams. One goes in and finds the desired texts, and tips or shifts them slightly out of place so they are easy to spot. The second goes in and is able to more quickly locate the books and make off with them.

Helmke uses a system that buries security tags in the books, deep into the binding in random locations, but the thieves appear to be finding ways to get the books out without triggering alarms.

ILB: Textbooks are way too expensive! Here is the casebook by Orin Kerr that I was really interested in buying to read, until I saw the price, $210! Computer Crime Law (American Casebook Series) 3rd Edition.

Posted by Marcia Oddi on Monday, November 30, 2015
Posted to Indiana Government

Ind. Gov't. - "Indiana's proposed new religious freedom plan draws ire"

That was the headline to this long Nov. 26th story in the Gary Post-Tribune, reported by Michelle L. Quinn and Carrie Napoleon. Some quotes:

While downstate Indiana lawmakers seek to reopen the discussion on civil rights and religious freedom, local municipal leaders aren't happy with some of the proposed changes. * * *

Protections that 20 municipalities have carved out for the LGBT community, meanwhile, would be superseded, a point over which the Lake County Council expressed disbelief. That council passed an LGBT protection ordinance in May.

"Wow, I think it's unfortunate," said Lake County Councilman Jamal Washington, D-Merrillville. "They're taking away power from local government, and (after the Religious Freedom bill debacle in the spring), I think it's ridiculous they're even discussing it at all.

And Sunday the Bloomington Herald-Times' Megan Banta reported in this lengthy $$ story:

Bloomington officials have serious concerns about the harm they think could result from a bill that state lawmakers will consider during the 2016 session.

The bill, released earlier this month and backed by Senate Republicans, would extend state civil rights protections to LGBT people. But it also would carve out broad exemptions for religious institutions and some small businesses that object to working with gay people. If it becomes law, it also would bar local governments from enforcing protections stricter than its statewide protections.

Barbara McKinney, assistant city attorney and director of the city’s human rights commission, said the bill has so many exceptions that they “kind of swallow up the protections.” * * *

Mayor Mark Kruzan said the proposal tries to complicate and create controversy around what should be a simple issue. It would set back Bloomington and other cities that have been ahead of the state in extending protections, he said.

“It would roll back progress the city of Bloomington made many years ago and has continued to make,” Kruzan said. “Whether it’s done out of bigotry or as a strategy to force a compromise, it’s 19th century politics in the 21st century.”

City council member Darryl Neher agrees that the bill goes against the city’s history of leading the way in protecting residents who face discrimination based on sexual orientation and gender identity and said the bill sanctions discrimination in some cases against LGBT Hoosiers.

And on Wednesday, he and his fellow council members will discuss an ordinance that clearly states that that’s something for which Bloomington doesn’t stand, something Neher said is the right thing to do and continues the city’s commitment to protecting the LGBTQ community.

Posted by Marcia Oddi on Monday, November 30, 2015
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next [Revised]

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/30/15):

Thursday, December 3

Next week's oral arguments before the Supreme Court (week of 12/7/15):

Thursday, December 10

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 11/30/15):

Tuesday, December 1

Thursday, December 3

Next week's oral arguments before the Court of Appeals (week of 12/7/15):

Monday, December 7

Tuesday, December 8

Wednesday, December 9

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

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


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

Posted by Marcia Oddi on Monday, November 30, 2015
Posted to Upcoming Oral Arguments

Friday, November 27, 2015

Ind. Courts - More on: 7th Circuit rules on State of Wisconsin abortion admitting privileges law

Supplementing this ILB post from Nov. 23rd, see this Slate article by Dahlia Lithwick, subheaded: "These are the greatest quotes from a ruling that slams the state for feigning an interest in women’s health." Some quotes:

The Wisconsin law was passed on Friday, July 5, 2013 and required compliance by the following Monday, July 8—in effect, affording doctors performing abortions one weekend to obtain admitting privileges at hospitals within a 30-mile radius. Planned Parenthood and Affiliated Medical Services filed suit, claiming that the new rule would force Affiliated’s clinic in Milwaukee to shut down altogether because doctors couldn’t get admitting privileges and that the burden on the remaining clinics would be extreme. An injunction kept the law from going into effect, and this past March, after a trial, U.S. District Judge William Conley found the law unconstitutional, writing that the law served no legitimate health interest. The state appealed, arguing that the statute protects the health of women who experience complications from an abortion. This case was argued at the court of appeals in October. Judge Daniel Manion was the lone dissenter, finding that the law genuinely protects women’s health and doesn’t amount to an undue constitutional burden.

As Posner, writing for himself and Judge David Hamilton, points out in this week’s opinion, the two-day limit on getting privileges was telling: “There was no way an abortion doctor, or any other type of doctor for that matter, could obtain admitting privileges so quickly, and there wouldn’t have been a way even if the two days hadn’t been weekend days. As the district court found, it takes a minimum of one to three months to obtain admitting privileges and often much longer.” Posner goes on to note that the practical effects on the state’s four clinics would have been devastating: Two of the state’s four abortion clinics would have shut down, and the third would have halved its capacity.

Posner then contends that the onerous two-day deadline to obtain admitting privileges suggests the state’s true motive, which “is difficult to explain save as a method of preventing abortions that women have a constitutional right to obtain. The state tells us that ‘there is no evidence the [Wisconsin] Legislature knew AMS physicians would be unable to comply with the Act.’ That insults the legislators’ intelligence. How could they have thought that an abortion doctor, or any doctor for that matter, could obtain admitting privileges in so short a time as allowed?”

Gotta love this:
Finally, because he can, Posner pretty much just pantses the judges on the 5th U.S. Circuit Court of Appeals and others who argue that the real intent of this admitting privileges law is to protect women...
The Slate article also links to this useful survey of state policies prepared by the Guttmacher Institute.

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

Wednesday, November 25, 2015

Environment - "First EPA chief accuses Republicans of ignoring science for political gain"

"William Ruckelshaus, who this week will receive the presidential medal of freedom, says candidates are harming US’s reputation ahead of Paris climate talks" is the subhead to this long article in The Guardian, reported by Oliver Milman, and dated Nov. 23rd. It begins:

The man considered the father figure of environmental protection in the US has attacked Republicans for “going through all the stages of denial” over climate change, accusing leading presidential contenders Donald Trump and Marco Rubio of ignoring science for political gain.

William Ruckelshaus, who on Tuesday is to receive the nation’s highest civilian honor, the presidential medal of freedom, told the Guardian that leading Republicans are harming the US’s reputation by attempting to stymie efforts to tackle climate change.

The criticism is particularly stinging as Ruckelshaus previously ran for election as a Republican and was appointed by Richard Nixon as the first head of the Environmental Protection Agency in 1970. Ronald Reagan appointed him to a second term at the federal regulator in 1983.

“The [Obama] administration is trying to lead on climate change but they aren’t getting much support from the Republicans who have turned it into a partisan issue, which is too bad,” Ruckelshaus said. “If they are successful, that will set us back a fair bit. It won’t look good to the world and it won’t be good for the US.” * * *

“The Republicans aren’t helping, they are just responding to the convictions of the base that climate change isn’t a real problem and feeding that back to them – it’s a vicious cycle,” he said. “Instead of treating it as a serious problem they are going through all the stages of denial. They are now at the stage of saying that it’s too expensive to do anything about climate change, which is no solution at all, they may as well just deny it’s a problem.

Posted by Marcia Oddi on Wednesday, November 25, 2015
Posted to Environment

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 14 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (3):

Gary Pennington and Sherry Pennington v. U.S. Bank National Association, as Trustee for Master Asset Backed Securities Trust 2005-WF1 (mem. dec.)

Aaron Isby v. Bruce Lemmon, as Commissioner of the Indiana Department of Correction, and the Indiana Parole Board (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: P.W. (Minor Child) and M.W. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (11):

Bryant Lamonte White v. State of Indiana (mem. dec.)

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

Jon Omstead v. State of Indiana (mem. dec.)

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

Cody A. German v. State of Indiana (mem. dec.)

Daniel L. Preston v. State of Indiana (mem. dec.)

John A. Hawkins v. State of Indiana (mem. dec.)

Enzert G. Lewis v. State of Indiana (mem. dec.)

Derrick Hicks v. State of Indiana (mem. dec.)

Austin M. Ferguson v. State of Indiana (mem. dec.)

Shannon Scott Clevenger v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, November 25, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still no transfer list info issued for week ending Nov. 20th

As this short State of Indiana work week, ending November 25, draws to a close, there is still no word re whether any cases were granted or denied transfer to the Indiana Supreme Court in the prior week, ending November 20th.

Posted by Marcia Oddi on Wednesday, November 25, 2015
Posted to Indiana Transfer Lists

Ind. Decisions - Plaintiffs granted $50 million default judgment in environmental nuisance case. WOW!

From the 20-page opinion and order yesterday by ND Ind. Chief Judge Simon granting plaintiffs' motion for default judgment against defendants Kenneth Will, VIM Recycling, and K.C. Industries:

This lawsuit was filed by 140 people who live in close proximity to a waste dump and processing facility that was built, owned, controlled, and operated by the VIM Defendants beginning in early 2000 through July 25, 2011, when the VIM Defendants sold the facility and operations to Soil Solutions Co. and its subsidiary Soil Solutions of Elkhart, LLC. [DE 1 and DE 152.] Plaintiffs subsequently amended their complaint to name the Soils Defendants and pled allegations in support of class certification. [DE 152.] * * *

Following class certification proceedings, Plaintiffs and the Soils Defendants reached a settlement whereby Soils agreed, among other things, to wind down and cease operations at the facility within five years, clean up all wastes from the site, and file a deed restriction preventing such operations at the site in the future. [DE 207.] The settlement fully resolved the claims against the Soils Defendants.

The VIM Defendants are a different story. Each of those defendants failed to plead or otherwise defend, and an entry of default was made against them. [DE 126 and 162.] Plaintiffs now seek a default judgment against the VIM Defendants. * * *

III. The Nuisance Claim in Count III * * *

So activities on property which create noxious odors and emissions that interfere with a neighboring landowner's comfortable use of his property are exactly the sort of activities that Indiana's nuisance statute is meant to address. See Stickdorn v. Zook, 957 N.E.2d 1014, 1023 (Ind. App. 2011) (finding that odors from the Defendants' “repeated manure spills, improper spreading of the waste on their fields, and the refusal to put a cover on their manure pit amount[ed] to an intermittent, abatable nuisance.”); Bonewitz v. Parker, 912 N.E.2d 378, 382 (Ind. App. 2009) (finding that emissions, gases and odors that permeated plaintiffs’ home and precluded the use of their yard from defendant's saw-dust burning furnace located approximately 100 to 150 feet away from plaintiffs' home were not mere annoyances or inconveniences, but nuisance conditions “greater than they should be required to bear.”)

“The principal elements of damages [for a private nuisance] are the value attached to the use or enjoyment of property of which [a Plaintiff] has been deprived” and “the value of any personal discomfort or inconvenience which the plaintiff has suffered, or of any injury to health or other personal injury sustained by the plaintiff, or by members of his family so far as they affect his own enjoyment of the premises, as well as any reasonable expenses which he has incurred on account of the nuisance.” Lesh v. Chandler, 944 N.E.2d 942, 955 (Ind. App. 2011). So Plaintiffs’ damages for nuisance include the loss of use and enjoyment of their properties and the personal discomfort and inconvenience caused by VIM Defendants' operations from October 28, 2003 to July 25, 2011. * * *

Complaints such as having "to keep all of the windows and doors closed tight in an effort to escape the rancid smells and filth,” not being able to invite family and friends due to the “unbearable” smell, and having guests leave abruptly due to horrific odors were made by many Class members. [See e.g., DE 214-5 at 101, 278, 307 and 378.] So terrible were the conditions that some Class members had to leave their homes for weeks at a time. [DE 214-5 at 200.] Others attempted to sell, but could not find a buyer or owed more on their home than it was worth. [DE 214-5 at. 79, 352.] * * *

All the evidence supports with reasonable certainty that Plaintiffs and Class Members suffered a loss of use and enjoyment of their properties and experienced personal discomfort and inconvenience due to the VIM Defendants' conduct such that a damages award for nuisance is appropriate. Assessing the appropriate amount of damages to award, I find the Survey of Jury Verdicts and Settlements submitted by Plaintiffs [DE 214-9] to be instructive. Plaintiffs have presented information on 19 cases presenting at least roughly similar scenarios of loss of use and enjoyment of property. The cases surveyed present a median award of $14,330 per plaintiff per year and an arithmetic mean of $29,064 per plaintiff per year. * * *

IV. Liability for Litigation Costs under RCRA (Count I) * * *

Plaintiffs’ Motion for Default Judgment against the VIM Defendants [DE 214] is hereby GRANTED as to Counts I and III of the Second Amended Class Action Complaint.

The Clerk shall enter default judgment in favor of Plaintiffs and Class Members and against defendants VIM Recycling, Inc. and K.C. Industries, LLC, jointly and severally, in the amount of $50,568,750.00, based on the following distribution:

Under 28 U.S.C. §1961, VIM Recycling and K.C. Industries are ordered to pay postjudgment interest on the damages award from the date of the Judgment until it is paid in full.

All remaining counts are dismissed and this matter is to be CLOSED with the entry of the default judgment.

ILB: In addition, plaintiffs were awarded their requested attorneys fees:
Clerk DIRECTED to include in the default judgment that Plaintiffs and Class Members are AWARDED litigation costs in the amount of $273,339.85 against Defendant

Posted by Marcia Oddi on Wednesday, November 25, 2015
Posted to Environment | Ind Fed D.Ct. Decisions

Tuesday, November 24, 2015

Law - "Does the case for encrypted communication change in the wake of the Paris attacks? "

That is the topic of the Nov. 20th edition of Denise Howell's longtime podcast, This Week in Law. You may listen to the podcast; but the above link leads to the videocast. There is a lot of good information provided in this 45-minute show.

Posted by Marcia Oddi on Tuesday, November 24, 2015
Posted to General Law Related

Ind. Gov't. - William D. Ruckelshaus to receive Presidential Medal of Freedom today [Updated]

Hoosier native, Indiana attorney, former Indiana House Speaker, candidate for U.S. Senate in 1968, head of the Civil Division of John Mitchell's Dept. of Justice under Nixon, first head of U.S. EPA, resigned rather than obey order to fire the special prosecutor in Nixon's infamous "Saturday Night Massacre" -- all this marks only the first part Ruckelshaus' career, his service in the state and federal government.

In a story today in the Washington Post, Juliet Eilperin writes:

William D. Ruckelshaus, another 2015 awardee, is being honored in part because he refused to bow to pressure from Nixon as deputy attorney general and fire the Watergate special prosecutor in what became known as the Saturday Night Massacre. But 42 years later, he is also being honored because the lifelong Republican helped launch the Environmental Protection Agency, headed the EPA twice and brokered critical bipartisan conservation agreements long after leaving public office.

“It’s a very important thing to remind the country, and remind the party, that they have a stake in” environmental protection, said William K. Reilly, one of five former EPA administrators who urged Obama to recognize Ruckelshaus with the medal. The Obama administration’s two Cabinet members with chief responsibility for the environment, EPA Administrator Gina McCarthy and Interior Secretary Sally Jewell, also wrote letters on Ruckelshaus’s behalf.

Here is the bio in the White House news release:
William D. Ruckelshaus is a dedicated public servant who has worked tirelessly to protect public health and combat global challenges like climate change. As the first and fifth Administrator of the Environmental Protection Agency, under Presidents Nixon and Reagan, he not only shaped the guiding principles of the agency, but also worked diligently to bring the public into the decision making process. Among the EPA’s key early achievements under his leadership was a nationwide ban on the pesticide DDT and an agreement with the automobile industry to require catalytic converters, which significantly reduced automobile pollution. He also demonstrated his commitment to public service and integrity as Deputy Attorney General. During the Watergate crisis, Ruckelshaus and Attorney General Elliot Richardson chose to resign rather than fire the Watergate special prosecutor. Their principled stance was a pivotal moment for the Justice Department and galvanized public opinion for upholding the rule of law. He continues to advance his legacy of collaborative problem solving in his current role at the University of Washington and Washington State University.
[Updated] Here is William D. Ruckelshaus with President Obama, at the Medal of Freedom ceremony yesterday.

Posted by Marcia Oddi on Tuesday, November 24, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 3 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

Amit Shah and Tim Dugle v. Apex Pallet, Inc., Duro, Inc. d/b/a Recycled New Pallets, Duro Realty, Inc., Duro Transport, Inc., and Terry Rodino (mem. dec.)

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

NFP criminal decisions today (1):

Daniel Hoskin v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, November 24, 2015
Posted to Ind. App.Ct. Decisions

Courts - Who speaks for Illinois? AG or Guv?

Following up on this Oct. 27th ILB post (and this follow-up) re "a dispute between the Illinois attorney general, Lisa Madigan, a Democrat, and the Republican Illinois governor, who took office earlier this year, Bruce Rauner," SCOTUSblog had a post yesterday by Stephen Wermiel, titled "SCOTUS for law students: Who speaks for Illinois?" It begins:

The fight in the Supreme Court over public employee unions and the First Amendment is expected to be one of the most divisive of the Term. That was true even before the state of Illinois weighed in on both sides of the case

Call it a sideshow, or a play within the play. Whatever the label, it is unusual for the Court to find itself, as it does now, in the middle of a dispute between state leaders over which official’s view from Illinois should count – the governor’s or the attorney general’s.

The dispute offers important insights into the intersection between state law and politics, as well as advocacy and decision-making in the Supreme Court.

Posted by Marcia Oddi on Tuesday, November 24, 2015
Posted to Courts in general

Courts - "What Happens To A Texas Veterinarian Could Make A Difference In What You’re Allowed To Say"

Remember this Oct. 5th ILB post, "Ind. Gov't. - Brown County veteranarian considers retiring rather than comply with state regulators"? Laura Lane's great story in the Bloomington Herald-Times began:

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.
Now read this long post at Above the Law, by Tamara Tabo, about a cert petition the SCOTUS may consider in conference today. A few quotes:
What happens to one Texas veterinarian could make a big difference in the lives of licensed professionals across the country, including attorneys.

When the United States Supreme Court holds its next conference this Tuesday, November 24, the Justices will consider whether to grant certiorari in the case of Hines v. Alldredge. If SCOTUS agrees to hear the case, the Court’s decision could be one of its most important rulings to date on the legal status of occupational speech — speech performed in the context of one’s occupation or profession.

The petitioner, Ron Hines, is a veterinarian who, after retiring from nearly 40 years of traditional veterinary practice in 2002, began offering advice to pet owners through online articles about pet health, as well as email and phone conversations with individuals who sought his help. He prescribed no medications. He performed no procedures. He made clear on his homepage and in his site’s terms of use that his advice and support should not replace appropriate care by a local veterinarian.

The Texas Board of Veterinary Medical Examiners nevertheless sanctioned Hines.

The Vet Board had tightened its rules in 2005, arguably in order to squeeze out online resources for pet owners that had begun drawing away business from brick-and-mortar vet clinics. The new rules stipulate that vets can only practice if they have recently examined an animal or visited its home. Section 801.351(c) of the Texas Occupations Code now expressly states, “A veterinarian-client-patient relationship may not be established solely by telephone or electronic means.” * * *

In order to appreciate the potential impact of the ruling, bear in mind that this case is fundamentally about what level of scrutiny courts must use when reviewing laws limiting occupational speech. Hines argues that courts should apply First Amendment scrutiny to restrictions on occupational speech. On the other hand, the Vet Board contends that its restriction need only survive the rational basis test. That standard is low enough to allow state bodies to restrict much more speech than is necessary.

In Hines, the Vet Board offers no evidence that this restriction on veterinarians’ speech is necessary to protect pet patients or human clients. Notably, in Dr. Hines’s particular case, no client filed complaints, and the Board alleged no other professional violations committed in the course of his online service. No one claims that Hines offered advice outside the scope of his expertise or that he took advantage of the people who sought his help.

Speech restrictions that protect clients or patients from unethical or incompetent professional service can be crafted so that they meet the First Amendment’s standards of heightened scrutiny. For example, licensing bodies can still restrict a professional’s speech involving fraud without having the virtually unfettered leeway of a rational basis standard.

The speech we need to worry about under the Hines rule is not the sort of speech that most of us expect could and would be limited by law — speech by professionals that poses a significant risk to the public. What’s worrisome is how much farther licensing bodies could go.

Posted by Marcia Oddi on Tuesday, November 24, 2015
Posted to Courts in general

Courts - Korematsu and Minoru Yasui, before and after Paris 2015

I've been recording C-SPAN's Landmark Cases series and watching them when I have time. Last evening I planned to watch Youngstown Sheet & Tube Co. v. Sawyer, re President Truman’s seizure of steel mills during the Korean War. But when I turned on the recording, it turned out that C-SPAN had moved the Youngstown discussion to its C-SPAN 3 channel, because at Mon., Nov. 16th at 9 pm the U.S. Senate was still hearing "General Speeches." Many of them were about the Paris terrorist attacks, which had happened Nov. 13th.

So I switched to my recording made the week before, of the C-SPAN discussion of Korematsu v. United States: the background, the status of public opinion at the time. From the summary:

In Korematsu v. United States (1944), the Supreme Court, in a 6-3 vote, upheld the government’s forceful removal of 120,000 people of Japanese descent, 70,000 of them U.S. citizens, from their homes on the West Coast to internment camps in remote areas of western and midwestern states during World War II.

Japan’s attack on Pearl Harbor, Hawaii in December 1941 prompted anti-Japanese sentiment across the country and fears that Japanese Americans on the West Coast were still loyal to Japan. In response to these fears, President Franklin Roosevelt authorized the War Department to remove persons of Japanese ancestry from their homes and confine them to internment camps. American-born Fred Korematsu refused to leave his home in California. He tried to avoid capture and relocation, but when he was eventually caught, he challenged his conviction, arguing that internment was a violation of his constitutional rights. In the Court’s 6-3 decision, Justice Hugo Black acknowledged that racial discrimination is “immediately suspect” but said that interning Japanese Americans was within the war powers of Congress and the president. Fred Korematsu’s conviction was eventually overturned in 1983, and in 1998, he received the Presidential Medal of Freedom from President Bill Clinton.

The show was taped a few days before Paris and the tone was wonder at how this massive internment could have happened in America. I urge you to watch it and ponder upon how much public perspective can change in only a few days. I found it riveting.

Korematsu unsuccessfully challenged internment. Two other cases, Minoru Yasui v. United States, and Hirabayashi v. United States, decided in 1943, had unsuccessfully challenged curfews. Today, Minoru Yasui, posthumously, is one of 17 being granted the Presidential Metal of Freedom.

Posted by Marcia Oddi on Tuesday, November 24, 2015
Posted to Courts in general

Ind. Courts - "ACLU Lawsuit against Indiana Governor Seeks Relief for Syrian Refugees"

The case, Exodus Refugee Immigration, Inc. v. Mike Pence, et al., Case 1:15-cv-01858-TWP-DKL, was filed in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on November 23, 2015.

Here is a copy of the 13-page complaint.

Here is the ACLU of Indiana news release:

Indianapolis – The American Civil Liberties Union of Indiana and attorneys from the national office of the American Civil Liberties Union, on behalf of Exodus Refugee Immigration, filed suit today against Governor Mike Pence and the Secretary of the Indiana Family and Social Services Administration to stop attempts by the governor to suspend resettlement of Syrian refugees, claiming the governor's actions violate the United States Constitution and federal law.

"There is no border around the state of Indiana that prevents people from entering our state who may move freely within the United States," said ACLU of Indiana legal director Ken Falk. "Decisions concerning immigration and refugee resettlement are exclusively the province of the federal government, and attempts to pre-empt that authority violate both equal protection and civil rights laws and intrude on authority that is exclusively federal."

The lawsuit, brought on behalf of Exodus Refugee Immigration, Inc., seeks an injunction to stop the governor from taking any actions to suspend, block or withhold aid from refugees or from Exodus. Exodus is a nonprofit corporation that receives federal money through the state's Office of Refugee Programs, located within the Family and Social Services Administration, to assist in resettlement of federally approved and screened refugees. The funds are used to assist with employment training, English language education and other services.

Exodus has settled 892 refugees, including some from Syria, in the past fiscal year, and is projected to settle approximately that number in 2016, including 19 Syrians approved for refugee status by the federal government that have been placed with Exodus and who are expected to arrive in Indiana in the next few weeks or months.

"The actions taken by Governor Pence to block Syrian refugees from entering the State of Indiana are not in line with Hoosier or American values," said Carleen F. Miller, Exodus Refugee Immigration Inc. executive director. "Indiana is a welcoming state known for our hospitality. History will judge us in this moment – whether we take the moral stand for victims of war and persecution in their time of need or reject our core principles by giving in to fear and terror."

"We urge the governor to affirm the American value of protecting refugees who seek sanctuary from the brutality of terrorism," said Jane Henegar, ACLU of Indiana executive director. "These refugees are fleeing violence and oppression and should not be blamed for the very terror they are fleeing."

"This lawsuit is calling out Governor Pence on his unconstitutional bluff," said Judy Rabinovitz, deputy legal director of ACLU's immigrants' rights project. "He does not have the power to pick and choose between which lawfully admitted refugees he is willing to accept. Singling out Syrian refugees for exclusion from Indiana is not only ethically wrong, it is unconstitutional. Period."

Posted by Marcia Oddi on Tuesday, November 24, 2015
Posted to Indiana Courts

Monday, November 23, 2015

Ind. Courts - 7th Circuit rules on State of Wisconsin abortion admitting privileges law

The oral argument was on Oct. 1st, the ILB wrote about it here. The case was mentioned again in this Nov. 16th post.

This afternoon, in a 2-1 opinion, the 7th Circuit decided Planned Parenthood of Wisconsin v. Brad D. Schimel. Judge Posner authored the opinion affirming the permanent injunction granted by the district court, Judge Manion dissented (beginning on p. 30).

[More] How Appealing links to coverage of the ruling.

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

Courts - "At End of Sheldon Silver’s Corruption Trial, the ‘Law Guys’ Take Over"

Benjamin Weiser had this interesting story this weekend in the NY Times on the crafting of jury instructions in public corruption cases. The defendant here is Sheldon Silver, Speaker of the New York State Assembly from 1994 until earlier this year, when he was arrested on federal corruption changes. The long story begins:

As the public corruption trial of State Assemblyman Sheldon Silver heads to closing arguments on Monday, the clash in the courtroom has been handled largely by well-staffed government and defense legal teams, each with a wealth of experience in handling corruption cases.

But on Thursday, two unfamiliar lawyers took the stage to try to shape the instructions that the judge will give to the jury before deliberations.

In a case in which no witness testified directly to knowledge of an illegal quid pro quo, how Judge Valerie E. Caproni tells jurors to interpret the evidence as it relates to the law could sway deliberations — a fact certainly not lost on the government or the defense.

The two lawyers had largely disappeared during Mr. Silver’s three-week trial in Federal District Court in Manhattan; James M. McDonald sat quietly at the end of the prosecution table, while Robert K. Kry, a defense lawyer, did not even show up in court.

But it was clear late on Thursday, with the parties and the judge seated around a conference table and the jury not present, that Mr. McDonald and Mr. Kry had critical roles as legal specialists in the case — “the law guys,” as several experts put it — a role the public rarely hears about.

Posted by Marcia Oddi on Monday, November 23, 2015
Posted to Courts in general

Courts - Penn. Court says porn emails aren't public records under Penn law

From the story by Brad Bumsted in the Pittsburgh Tribune-Review that begins:

HARRISBURG — Pornographic emails on Attorney General's Office computers are not public records under Pennsylvania's Right-to-Know Law, but nothing stops Attorney General Kathleen Kane from releasing them, an appeals court said Thursday.

A seven-member Commonwealth Court panel ruled 5-2 against The Philadelphia Inquirer's request in August 2014 to release the emails, saying the communications were “personal emails” that don't qualify as public records under the state's open records law because they don't document an agency transaction or activity.

Judge Dan Pellegrini, writing the majority opinion, said, “What makes an email a ‘public record,' then, is whether the information sought documents an agency transaction or activity, and the fact whether the information is sent to, stored on or received by a public or personal computer is irrelevant in determining whether the email is a ‘public record.' ”

That runs counter to the Office of Open Records' earlier finding that though the emails don't provide evidence of the agency's activity, “the use of e-mails to transmit pornographic material is an ‘activity' documenting an employee's improper use of an agency's time and resources making it a ‘record' within the meaning of the RTKL.”

Pellegrini, a former city of Pittsburgh solicitor, said the fact that emails were “sent, received or retained in violation of (office) policy does not transform what was not a public record to a public record under the Right-to-Know Law.”

The Inquirer and its lawyers will decide whether to appeal to the Supreme Court, attorney Terry Mutchler said. She said the newspaper “and much of the public have always believed that the emails are public record.”

ILB: There is a larger story, involving this pornography and a member or members of the Penn. Supreme Court itself, but it is too complex to go into here.

Posted by Marcia Oddi on Monday, November 23, 2015
Posted to Courts in general

Ind. Gov't. - "How much do contractors charge St. Joseph County taxpayers?"

That is the headline to this Sunday South Bend Tribune story by Jeff Parrott. The story looks at fees for legal services charged to St. Joseph County by various law firms, and how at least one of them appears to have failed to disclose its hourly rates or time spent. From the story:

St. Joseph County government has paid Barnes & Thornburg about $320,000 for legal services over the past three and a half years, but the time the law firm spent doing that work remains a mystery.

County commissioners last week vetoed a county council bill that would have required public disclosure of such information before any firm is allowed to provide professional services, legal or otherwise, to the county. The bill’s author, council member Jamie O’Brien, said taxpayers have the right to know how much time is spent performing legal work, accounting, consulting and engineering services, even if the firm is paid on a fixed-fee basis.

A Tribune review of the county’s expenditures for legal services, from documents obtained through a public records request, revealed that eight of the county’s 10 contracted firms from 2012 through June of this year disclosed their hourly rates on invoices given to the county. Those eight firms each billed the county at a $125 hourly rate.

The two firms that did not specify time spent on all of their invoices were Barnes & Thornburg, which was paid the most among the 10 firms, and attorney Kathleen Cekanski-Farrand, who was paid $14,375. She told The Tribune she billed the county either $95 an hour or $105 an hour, but mostly $105.

Barnes & Thornburg did detail time on an invoice for $177,000 it was paid for work done on the 911 center consolidation project. In that invoice, Barnes & Thornburg attorney Phillip J. Faccenda Jr. billed the county for the most work, totaling 242.2 hours. His $450 hourly rate amounted to his payment of $108,990, for a period of time equivalent to about six 40-hour work weeks.

Nine other Barnes & Thornburg attorneys were paid a combined $176,622 for 388.5 hours of work on the project, for a combined average hourly rate of $455.

O’Brien, an attorney and certified public accountant, said he realizes that bond work, such as that performed by Barnes & Thornburg in the 911 center consolidation project, is highly specialized and can cost more than typical legal work.

Barnes & Thornburg did not disclose time its attorneys spent on invoices for the remaining $142,473 it was paid for other legal work, according to copies of the invoices. The work included $52,448 billed in June to refund bonds on the jail building, $39,248 to refund bonds from the Logan Street Bridge rehabilitation project; and $6,695 on the 911 center.

Barnes & Thornburg officials did not return messages left over two days seeking comment.

The story includes a chart.

Posted by Marcia Oddi on Monday, November 23, 2015
Posted to Indiana Government

Ind. Courts - "Justice Dickson reflects on judges, judging, growing up in Hobart"

Dan Carden reports this weekend for the NWI Times that he:

... spoke with Dickson a few hours after his retirement announcement about his tenure on the Supreme Court, the role of judges and what impact growing up in Northwest Indiana had on his life. * * *

What is your proudest accomplishment during your tenure?

"It's not so much what I've accomplished, it's what the court has accomplished. We've had a marvelous run of wonderful people working together very well. The court is known nationwide for its collegiality, for the fact that we are able to get along even when we disagree, and do it respecting each other, and hopefully sending out signals to the bar that lawyers can be very civil to each other and still be passionate about what they believe. That's probably the thing that I'm most proud about." * * *

What is your approach to interpreting the Constitution?

"It should be interpreted as written. My view is that it was written with a capacity to be amended and if citizens want to change it, we can amend it. That's the magic of it. But it shouldn't be interpreted and changed by judges. It should only be changed by the citizens that enacted it and there's a process to do that. I think that's the more reliable way. It makes the laws of society based upon not what an individual judge here or there thinks is more fair or better or better social policy, it says we follow the law. If we need to change the law to fit a changing perspective on social policy, then change the law."

How do oral arguments affect court decisions?

"It is rare that the performance of the lawyer makes or breaks a case. It is mostly the facts of the case and the client's situation that determines what we do. It's not whether the lawyer makes a mistake on argument. But I can say there are many times where we come out of argument and we'll go back into the conference room and somebody will have their mind changed by something that came up during the argument.

"One of the things we like to do, especially as a court of last resort, is to ask lawyers to help us look into the future. If we decide the case the way they want, how will it happen in the future with other people's cases? How will it affect the law? How will it affect the Legislature? We often ask questions exploring these kinds of issues. It's usually those kinds of questions that give us pause when we get back in the conference room, and things may be not quite as clear as they were when we walked into that oral argument."

What qualities do you want in your replacement on the Supreme Court?

"I hope that whoever succeeds me is someone who brings a high degree of collegiality and respect for their colleagues, somebody for whom the process and how we do things is just as important as the result. Somebody who doesn't have a take-no-prisoners ideological world view, but instead has a principled, and hopefully a faith-based view, but one that is willing to interact with their colleagues and be respectful and be collegial. We sit around the table and are extremely open to each others' ideas.

"I also hope we have somebody who is really aware of how the law and the courts affect the citizens of Indiana. For me, it was valuable to come right from private practice where I was interacting with clients all the time and seeing how our statutes and our laws and our case decisions sometimes had good, sometimes had bad, effects on people's lives. Bringing that experience to bear as a member of the court of last resort is, I think, crucial, and I hope my successor has that. I hope they're somebody who trusts juries and believes in juries and our jury trial system — they get it right 99 percent of the time."

Do you support Indiana's merit selection process (instead of elections) for new justices?

"It's a terrific system. ... Every 10 years you don't spend the last year campaigning. People who come into court don't have to worry that their opponent has given more money to the judge than they have. People can have confidence in the judiciary. Judges don't have to appeal to lawyers to finance their campaign. In every way you look at it, in terms of public confidence in the judiciary and fair and unbiased decision-making, it's the best system we've come up with so far.

"And yet every 10 years, there's an opportunity to get rid of a bad apple if you've got someone you need to get rid of. They're not in for life necessarily."

How did growing up in Northwest Indiana shape your point of view as a lawyer and judge?

* * * I went to Purdue to be a nuclear physicist, not to be a lawyer. I tell people the most influential course I took was integral calculus, because it taught me the limitations of my mental abilities, and so I became a lawyer."

Posted by Marcia Oddi on Monday, November 23, 2015
Posted to Indiana Courts

Ind. Courts - Charles L. Berger elected JNC district 1 representative [Updated]

The Indiana Court has tweeted Charles L. Berger's election as District 1 representative to the Judicial Nominating Commission. Not yet available is the information on the vote totals and names of all the contenders. (Here is the data in 2014 for District 3.)

This is Mr. Berger's second term on the JNC. As this chart shows, he last served from 1998-2000.

For background on the JNC, see this Sept. 28, 2010 ILB post.

[Updated at 1:27 PM]

Here now is the tally:

Posted by Marcia Oddi on Monday, November 23, 2015
Posted to Indiana Courts

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

For publication opinions today (2):

In In the Matter of the Term. of the Parent-Child Relationship of J.E., and K.E. v. The Ind. Dept. of Child Services, a 12-page opinion, Judge Crone writes:

K.E. (“Father”) appeals a trial court order terminating his parental relationship with his one-year-old son J.E. He challenges only the trial court’s denial of his motion for continuance and motion for order to transport. Finding that the trial court acted within its discretion in denying Father’s motions, we affirm.
In Ralph Jackson v. State of Indiana , a 6-page opinion, Judge Bailey writes:
Ralph Jackson (“Jackson”) challenges his twenty-year sentence imposed upon his plea of guilty to Dealing in a Schedule II Controlled Substance, as a Class B felony. He presents the sole, consolidated issue of whether he was properly sentenced. We reverse and remand with instructions. * * *

On appeal, Jackson contends that the maximum sentence was imposed upon him as punishment for his unsuccessful completion of the drug court program.[2] * * *

Although a sentencing court has options vis-á-vis the execution of a sentence, including such things as community placements, work release, home detention, drug court participation and the like, the trial court does not have the option of selecting a sentence based solely on the defendant’s conduct apart from the circumstances of the crime. Because the trial court did not issue an adequate sentencing statement, it abused its sentencing discretion. Anglemyer, 868 N.E.2d at 490.

Conclusion. We reverse the twenty-year sentence and remand with instructions to the trial court to sentence Jackson for the offense to which he pled guilty, accompanied by a sentencing statement that is adequate to facilitate appellate review.
___________
[2] Jackson makes the troubling assertion that retaliatory sentencing for failure to successfully complete a drug court program is commonplace. However, the limited record before us contains no evidence of systemic problems of this nature. At this juncture, we have no reason to believe that the instant sentence is anything other than an aberration.

NFP civil decisions today (0):

NFP criminal decisions today (2):

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

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

Posted by Marcia Oddi on Monday, November 23, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/23/15):

Wednesday, November 25

Next week's oral arguments before the Supreme Court (week of 11/30/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 11/23/15):

Next week's oral arguments before the Court of Appeals (week of 11/30/15):

Tuesday, December 1

Thursday, December 3

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, November 23, 2015
Posted to Upcoming Oral Arguments

Friday, November 20, 2015

Ind. Decisions - Tax Court posts one today

In J.S. Marten, Inc., Janice S. Marten, and Christopher M. Marten v. Indiana Department of State Revenue, a 7-page opinion, Sr. Judge Fisher writes:

J.S. Marten, Inc., Janice S. Marten, and Christopher M. Marten (the Martens) have appealed the Indiana Department of State Revenue’s denial of their claim for a refund of sales tax remitted for the 2004, 2005, and 2006 tax years (“the years at issue”). The matter, currently before the Court on the Department’s Motion to Dismiss, presents two issues: 1) whether the Court has subject matter jurisdiction over the Martens’ appeal; and, if so, 2) whether the Martens have failed to state a claim upon which relief can be granted. * * *

The facts alleged in the Martens’ petition do not rebut the fact that their refund claim was not timely filed nor do they raise an alternative basis for relief. Accordingly, the Department’s Motion to Dismiss on the basis that the Martens failed to state a claim upon which relief can be granted is hereby GRANTED.

Posted by Marcia Oddi on Friday, November 20, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Courts - Applications available for St. Joseph County superior court opening

From a news release issued today:

St. Joseph County announces opening on superior court

The St. Joseph County Judicial Nominating Commission announced today that it will conduct public interviews on Tuesday, December 22, 2015, of candidates to fill the vacancy created by the impending retirement of Judge Jerome Frese. The deadline for submitting applications to the St. Joseph County Clerk’s Office is 4:30 p.m. on Friday, December 11, 2015. The interviews will be held starting at 8:00 a.m., in the conference room of the St. Joseph County Commissioners on the 7th Floor of the St. Joseph County-City Building.

Pursuant to state statute and appointment of the Chief Justice of the State of Indiana, Justice Mark S. Massa will chair the Judicial Nominating Commission, which is comprised of three lawyers elected by the St. Joseph County Bar Association and three non-lawyers appointed by a committee comprised of the St. Joseph County Circuit Judge, the President of the St. Joseph County Board of Commissioners, and the mayors of South Bend and Mishawaka.

Following the public interviews, the Judicial Nominating Commission will deliberate in executive session for purposes of selecting five names to submit to Governor Pence for his consideration and appointment. Under the statute, only attorneys domiciled in St. Joseph County are eligible to be considered by the Commission for nomination. Applications are available on the Supreme Court’s website and in the St. Joseph County Clerk’s Office.

Posted by Marcia Oddi on Friday, November 20, 2015
Posted to Indiana Courts

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

For publication opinions today (1):

In Tyrone Causey v. State of Indiana, a 9-page opinion, Judge Baker writes:

Tyrone Causey appeals his conviction for Intimidation,1 a Class D felony. Finding insufficient evidence to support this conviction, we reverse. * * *

As a general matter, we agree that one should not threaten a police officer. However, such behavior, in and of itself, does not constitute intimidation as defined by the statute. Here, the State has not clearly identified what it believes Causey’s threat to be, nor has it pointed to evidence indicating that this threat was made with the required intent. “Due process requires that a penal statute clearly define the prohibited conduct so that it provides adequate and fair notice as to what precisely is proscribed.” George v. NCAA, 945 N.E.2d 150, 154 (Ind. 2011). Accordingly, penal statutes are to be strictly construed. Id. The State’s argument that we must look to the totality of the circumstances in this case appears to be little more than a request that we ignore this principle.

NFP civil decisions today (2):

M.B. v. Review Board of the Indiana Department of Workforce Development, and Company (mem. dec.)

James L. Bullock v. Natasha Bullock (mem. dec.)

NFP criminal decisions today (8):

Davon Crenshaw v. State of Indiana (mem. dec.)

Shyheem Jones v. State of Indiana (mem. dec.)

Kenneth D. Robinson v. State of Indiana (mem. dec.)

Ryan A. Phelps v. State of Indiana (mem. dec.)

Timothy R. Blazier v. State of Indiana (mem. dec.)

Orlando D. Lynch v. State of Indiana (mem. dec.)

Donald Lee Weidenburner v. State of Indiana (mem. dec.)

Larry J. Truesdale v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, November 20, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Senate Bill 100 is just a starting point, they say. But in that mess of exemptions, is this really about equal rights?"

Re the proposed "civil rights" bill unveiled by the Senate majority on Tuesday, here is a snippet from Dave Bangert's column today in the Lafayette Journal & Courier:

Is this about optics — or barnyard stink — after last year’s national disaster surrounding the passage of RFRA and then the attempts to cover it up? Or is it about a genuine effort to be a state committed to equal rights when it comes to public accommodations, housing and job security?

Senate Bill 100 — 21 pages of exemptions cobbled together around the vague assurance that gays and lesbians should be full Indiana citizens, sort of — makes it clear that the Senate, at least, isn’t quite sure.

If it was, Senate Bill 100 wouldn’t go out of its way to trump the work local governments have been pioneering in the field — or better yet, have been risking their political necks to get done, absent support or, really, any degree of recognition from the General Assembly.

If there’s one thing the General Assembly loves, it has to be attempts to trample home rule. And Senate Bill 100 has that covered with a provision that would essentially override the city, county and town human relations ordinances dealing with sexual orientation or gender identity.

That was a big concern last spring for Lafayette Mayor Tony Roswarski and West Lafayette Mayor John Dennis, who spent time trying to figure out whether the original version of Indiana’s RFRA was going to wipe out gay and lesbian protections that had been in their cities’ human relations ordinances since the mid-‘90s. (Bandwagon late-comers to this equal rights party, Greater Lafayette ain’t.)

Why would the Greater Lafayette delegation tolerate a bill that proposes a step backward into equal rights for some and negotiated rights for others? Why would the Greater Lafayette delegation allow compromise on things this community has lived with for more than 20 years?

Posted by Marcia Oddi on Friday, November 20, 2015
Posted to Indiana Government

Ind. Gov't. - "Five Lake officials await ruling on state conflicts law"

In 2012 the General Assembly passed a law, commonly referred to as the "anti-nepotism law," generally prohibiting local government employees from serving as elected officials of governments they work for and banning relatives from supervising relatives in local government jobs. The ILB has had a number of posts on this issue, but not recently.

As it turns out, the law remains a big issue in Lake County. This story dated Feb. 10, 2015 by Sarah Reese in the NWI Times reported:

HAMMOND | Seven region residents asked a federal judge Tuesday to overturn an Indiana law that bars them from working for the municipalities in which they're seeking public office.

A complaint filed in U.S. District Court says Indiana's anti-nepotism law, which was passed in 2012, violates their rights under the Indiana and U.S. constitutions.

Matthew C. Claussen, Donald Huddleston, John McDaniel, Michael Opinker, Susan Pelfrey, Juda Parks and Scott Rakos have each filed to run for public office in the municipalities that employ them.

If elected in November, the candidates would be considered to have automatically quit their jobs upon taking office.

Attorney Adam Sedia wrote in the complaint that Indiana's anti-nepotism law in part deprives the candidates of their constitutional rights to free speech and due process of the law.

"The threat of being automatically divested of their primary means of financial support should they win election and serve in public office beginning on Jan. 1, 2016, has caused all plaintiffs to have doubts about whether they wish to continue with their respective candidacies and whether they wish to serve if elected to the positions for which they are candidates," Sedia wrote in the complaint. * * *

The lawsuit states Opinker is employed as a Hammond police officer. However, Opinker serves as chief fire inspector for the Hammond Fire Department.

East Chicago City Councilman Parks also is employed as an East Chicago police officer, according to the lawsuit.

Claussen, a Hobart police officer, also serves on the Hobart City Council.

Huddleston, a Lake Station police officer, and McDaniel, an employee of that city's Public Works Department, serve on the Lake Station City Council.

New Chicago Councilwoman Pelfrey works for that town's Water Department.

Hammond firefighter Scott Rakos recently filed for a seat on the Hammond City Council.

The candidates are asking the anti-nepotism law be declared unconstitutional. They're also seeking an order barring the state from considering them terminated from their jobs if they assume office Jan. 1. If a federal judge rules the law constitutes an illegal taking under the U.S. and state constitutions, the plaintiffs want compensation from the state.

Times columnist Doug Ross wrote on May 10th, after the primary:
Seven Democratic candidates on the ballot in Lake County on Tuesday put their names there in defiance of a 2012 state law that forbids them from working in the municipalities in which they hold public office.

They were given two choices: Give up your day job, or don’t seek re-election. They created a third option: File a federal lawsuit that claims Indiana’s anti-nepotism law violates their rights under the Indiana and U.S. constitutions.

That lawsuit, filed in February, is pending in U.S. District Court in Hammond. Nothing new there.

What’s new is the outcome of Tuesday’s election in which those seven plaintiffs were candidates. [ILB: the column thenreports the election results...]

So out of seven candidates who want to be their own bosses, only two were defeated, and that was in a major anti-incumbent wave in Lake Station that took out Mayor Keith Soderquist, who is under federal indictment on public corruption charges.

I’ve said all along that having public employees serve on the governing body of that same community is a terrible idea. It creates a built-in conflict of interest.

If the elected official recuses himself or herself from an actual vote, that deprives the constituents from representation. And if the elected official is involved in the discussion, that’s still unethical. But for decades, voters have been electing public employees to be their own overseers.

Is the 2012 state law necessary? From the looks of Tuesday’s election, I’d say the answer is yes.

Nov. 5th, following the municipal elections, Bill Dolan reported in the Times:
Six Lake County Democrats won the voters' hearts Tuesday -- and put themselves one step closer to being fired from their government jobs.

Hobart Councilman Matthew D. Claussen; New Chicago Councilwoman Susan Pelfrey; Hammond Councilman Michael Opinker; Hammond Councilman-elect Scott Rakos; and East Chicago Councilman Juda Parks are suing in federal court to preserve tens of thousands of dollars in salaries and benefits now in jeopardy.

The Indiana General Assembly passed a law in 2012 forbidding individuals from being both elected officials and employees of the same government unit. The double-dipping ban now gives them until Dec. 31 to resign what, for them, is their most lucrative job, in some cases more than three times their elected salary. * * *

The lawsuit claims the new law unconstitutionally denies municipal employees their First Amendment right to run for and hold public office and "overrides the decision of the voters." The six officials received more than 7,000 votes Tuesday in East Chicago, Hammond, Hobart and New Chicago.

Bryan Corbin, a spokesman for the Indiana Attorney General's office, said Wednesday the office is seeking dismissal of the lawsuit. * * *

U.S. District Court Chief Judge Philip P. Simon in Hammond has yet to rule on the dispute.

"The case is in the judge's hands. We are just waiting to hear from the court," Opinker said Wednesday.

Sedia said he is prepared to ask the judge to stop any attempt to fire his five clients if the judge doesn't rule before the end of the year. He said he expects both sides to appeal an unfavorable ruling.

Today reporter Dolan has another story; some quotes:
HAMMOND | What's wrong with Indiana not allowing local elected officials to draw a second public salary as a government employee?

That question was posed Thursday by U.S. District Court Judge Philip Simon after five newly elected Lake County city and town council members —who are also employees of those municipalities — asked him to declare the law unconstitutional. * * *

Simon didn't say how he would rule or when, but did ask how the new state law differs from federal restrictions on political activities by federal or local government employees being paid by the federal government.

Sedia said his clients had been working as employees and holding public office for many years and are now being forced to "give up their primary means of support."

He said the law discriminates against many in small communities where the municipal employees are not only the best qualified to hold public office but sometimes the only one interested in running.

Brian L. Park, a deputy attorney general, said the law is meant to prohibit "self-dealing" by municipal employees who are their own bosses.

Simon asked if there is any evidence of wrongdoing the Legislature based the law on. Sedia said Lake County has a reputation for public corruption, but his clients have done nothing wrong.

Simon said, "People could say they are feathering their own beds. I'm not saying they are, but I'm viewing it from the legislature's perspective."

He also questioned how far the law's prohibition should extend; asking why employees from one branch of government, such as the courts, can't run for a legislative job like a county council member.

Simon said other state laws are considered constitutional even though they place restrictions, such as requiring a mayor to be a resident of the community or a state law forbidding felons from holding office.

Posted by Marcia Oddi on Friday, November 20, 2015
Posted to Indiana Government

Thursday, November 19, 2015

Ind. Decisions - "Indiana drops fines against Walsh Construction in Milton-Madison Bridge death"

Marcus Green reports for WDRB Louisville in a story that begins:

LOUISVILLE, Ky. (WDRB) – An Indiana judge has dismissed $10,000 in penalties levied against Walsh Construction, ruling that a worker killed while building the Milton-Madison Bridge was “trained and competent” to operate the aerial lift in which he was found unconscious.

Roger Cox, 50, died on May 4, 2012, four days after he was pinned between a steel beam and a lift during construction of the Ohio River bridge between Madison, Ind., and Milton, Ky.

The Indiana Department of Labor issued three safety violations that resulted in the proposed fines, alleging that Walsh didn’t adequately train Cox, a carpenter and welder, to operate the lift and understand the hazards involved in using scaffolding. The Chicago-based company contested the penalties.

Based on testimony from Walsh employees, an administrative law judge found that Cox had participated in safety briefings, received classroom training and used the lift properly more than 100 times before the 2012 incident, according to documents obtained under Indiana’s public records law.

The labor department’s evidence “did not establish that Mr. Cox was inadequately trained to operate and perform work in the aerial lift as alleged,” judge Danny Deighton wrote in his Jan. 15 order.

More than two months later, Deighton presided as chairman of the Indiana Board of Safety Review when it voted 4-0 on March 19 to accept Deighton’s order. Under Indiana law, an agency’s chair also can serve as an administrative law judge.

The case was closed in April, according to an U.S. Occupational Safety & Health Administration database.

ILB: Actually, the ILB does not know why this is being reported now, if the case closed in April ...

Posted by Marcia Oddi on Thursday, November 19, 2015
Posted to Ind. Adm. Bd. Decisions

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

For publication opinions today (1):

In Mary K. Patchett v. Ashley N. Lee , a 26-page opinion, Judge Brown writes:

In this interlocutory appeal, Mary K. Patchett appeals the trial court’s order granting a motion in limine filed by Ashley N. Lee, and ordering that evidence of payments made by the Healthy Indiana Plan (“HIP”) to reimburse Lee’s medical providers in full satisfaction of Lee’s hospital bills, was barred by the collateral source statute, Ind. Code § 34-44-1-2, and is not admissible under Indiana caselaw. Patchett raises one issue, which we revise and restate as whether the court abused its discretion in ruling that such evidence was inadmissible. We affirm. * * *

The issue is whether the trial court abused its discretion in ruling that evidence of the amount HIP paid to reimburse Lee’s medical providers was inadmissible under the collateral source statute and caselaw. Evidentiary rulings such as in this case lie within the discretion of the trial court, and we may reverse such decisions only if a trial court abuses its discretion. * * *

We find the facts and reasoning in Butler to be distinguishable, and we do not believe that the Court’s mere reference to the collateral source statute in a footnote and the pending Stanley decision has an impact on the outcome of this case.

Finally, even if evidence of the HIP payment amounts are admissible under the collateral source statute and Stanley, such would not preclude the court, in its discretion, from excluding said amounts under Ind. Evidence Rule 403, which states that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” “A trial court decision regarding whether any particular evidence violates Evidence Rule 403 will be accorded a great deal of deference on appeal; we review only for an abuse of discretion.” Tompkins v. State, 669 N.E.2d 394, 398 (Ind. 1996). Here, the court examined the dollar figure associated with the HIP payments and ruled that such amount “would only cause confusion to the jury on how such amounts should be used or considered.” Appellant’s Appendix at 14. To the extent Patchett suggests that the court abused its discretion because it misinterpreted the law in Stanley, we disagree. The court invoked Rule 403 in the alternative when it “further” found that evidence of the HIP payments would cause confusion, and we cannot say that the court abused its discretion in that regard.

NFP civil decisions today (3):

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

Roger Tolentino and Repto, Inc. v. Sheldon J. Hermann and Cheryl A. Hermann (mem. dec.)

Kansas City Services, Inc. v. Bryan Connan, individually, Julie Connan, individually, and Connan's Zionsville Investore, LLC (mem. dec.)

NFP criminal decisions today (4):

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

Telly S. Bracey v. State of Indiana (mem. dec.)

Zachary L. Ray v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Thursday, November 19, 2015
Posted to Ind. App.Ct. Decisions

Ind. Law - Last day nearing for tenant farmers wanting to renegotiate farmland leases for 2016

Updating earlier ILB posts re farmland leases, see this notice from Purdue Extension headed "Deadline nearing to renegotiate farmland leases" that begins:

Tenant farmers wanting to renegotiate farmland leases for 2016 may need to deliver written notification to their landlord before Dec. 1, a Purdue expert on agricultural law advises.

The Indiana notification deadline is three months before the end of the current crop year unless the two sides have agreed on a different date, said Gerald Harrison, professor of agricultural economics and a member of the Indiana State Bar Association.

By custom in Indiana, crop years end on the last day of February. Accordingly, the current crop year ends on Feb. 29, 2016 for the purpose of setting the notification deadline, providing the existing lease has no other stipulation.

If no changes are made to the lease, the existing terms remain in place for the next year.

“With many farmers feeling the financial pinch of lower grain prices, landowners and property managers might be more likely to consider reducing cash rents for next year,” Harrison said. “Since land values and rents have been relatively high in recent years, landowners might be more understanding if tenants ask for a reduction in the 2016 cash rent or modification in other lease terms.”

The Indiana Court of Appeals has ruled that notification to terminate or change a farmland lease must be made in writing and properly identify the property.

For more on the COA opinion, see the latter part of this ILB post from Nov. 12, 2012.

Posted by Marcia Oddi on Thursday, November 19, 2015
Posted to Indiana Law

Ind. Courts - "Floyd Co. Veterans Court expanding through partnerships with neighboring counties"

Elizabeth DePompei reports in the New Albany News & Tribune in a story that begins:

CLARK COUNTY — A Floyd County-based court program that serves veterans going through the criminal justice system is widening its reach thanks to partnerships with neighboring counties.

Floyd Co. Superior Court No. 3 Judge Maria Granger oversees the Veterans Court that was founded in 2011, the first of its kind in Indiana. The court works with the Department of Veterans Affairs and is designed to help veterans, including those who served multiple deployments, go through the court process and, if needed, get mental health or substance abuse treatment.

Next week, Granger and Clark County officials, including Clark County Prosecutor Jeremy Mull, will announce more details about how veterans in Clark County can now access the Veterans Court in Floyd County.

"We have been working out how we can make the referrals happen and how to make sure that we have adjusted our district court rules to allow for the sharing of those cases," Granger said of partnering with other counties, including Scott County. "We have been doing that now and we've gotten it to where it's about perfect."

Posted by Marcia Oddi on Thursday, November 19, 2015
Posted to Indiana Courts

Wednesday, November 18, 2015

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

For publication opinions today (2):

In Ada Brown v. Indiana Family and Social Services Administration, a 13-page opinion, Chief Judge Vaidik writes:

Ada and Roy Brown transferred their home to a trust in 2000 and shortly thereafter made the trust irrevocable. Ten years later, and two years after Ada moved to a nursing home, the trust sold the home for $75,000. In 2012 Ada applied for Medicaid benefits and submitted documentation that the house had sold for $75,000. The Indiana Family and Social Services Administration (“FSSA”) found Ada eligible for Medicaid benefits; however, it imposed a transfer penalty based on the sale of the home in 2010. In calculating the penalty, the FSSA valued the home at $91,900 based on a tax assessment. Ada appealed the imposition of the penalty, the ALJ affirmed, and Ada appealed to this Court. Because the evidence shows that the proceeds from the sale of the house were placed back in the trust, and that the fair market value of the house was $75,000, we reverse the imposition of the transfer penalty. Further, although the FSSA asks us to remand to the agency to redetermine eligibility, we decline to do so as eligibility was never an issue with the FSSA, the ALJ, or the trial court. * * *

Here, the evidence reveals a willing buyer and seller, albeit with a family relationship, and no evidence that either was under any compulsion to consummate the sale. The evidence further shows that the price of the house was reduced because the sewer system needed to be replaced. In light of this testimony regarding the buyer and the seller, as well as the need for a new sewer system, we find substantial evidence that the house’s fair market value was $75,000 at the time of the sale. Accordingly, the transfer penalty was improperly assessed.

Reversed and remanded with instructions to vacate the transfer penalty.

In Robert Scott Hilligoss v. State of Indiana, a 9-page opinion, Judge Najam writes:
Robert Hilligoss appeals from the trial court’s revocation of his probation. Hilligoss presents two issues for our review which we restate as the following three issues:
1. Whether his probationary period had expired at the time of the violation alleged in the State’s January 7, 2015, petition to revoke his suspended sentence.
2. Whether the trial court denied him his right to due process when it accepted his admission that he had violated the terms of his probation without first advising him of his constitutional rights.
3. Whether the trial court erred when it extended the term of his probation by more than one year beyond the original term of probation.

We reverse and remand with instructions. * * *

[Due process] Thus, we hold that a trial court’s failure to ensure that a probationer who admits to a probation violation has received the advisements as required under Indiana Code Section 35-38-2-3(e) constitutes a fundamental violation of the probationer’s due process rights. Accordingly, we reverse the trial court’s revocation of Hilligoss’ probation. On remand, the trial court shall hold an evidentiary hearing on Hilligoss’ alleged probation violation or, if Hilligoss admits to the violation, the trial court shall make a record to reflect that Hilligoss has been properly advised of his rights in accordance with Indiana Code Section 35-38-2-3(e). * * *

[Term extensions] Finally, we address Hilligoss’ contention that the trial court erred when it extended the term of his probation by more than one year beyond the original term of probation in violation of Indiana Code Section 35-38-2-3(h)(2) * * *

Because those two extensions, taken together, extend Hilligoss’ probationary period by more than one year beyond the original probationary period, they violate Indiana Code Section 35-38-2-3(h)(2). On remand, we instruct the trial court to reduce Hilligoss’ period of probation by six months to bring it in compliance with the statute.

NFP civil decisions today (2):

John D. May v. Greene County Sheriff's Department, Greene County Jail, Sheriff Michael Hasler and Jail Commander Darrin MacDonald (mem. dec.)

Maria Bonner v. Elena Magana (mem. dec.)

NFP criminal decisions today (3):

Kezalis Harris v. State of Indiana (mem. dec.)

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

John Paul Garcia v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, November 18, 2015
Posted to Ind. App.Ct. Decisions

Courts - More on "For-Profit College Operator EDMC Will Forgive Student Loans"

Supplementing this ILB post from yesterday, the NY Times today has this story by Stephanie Saul that reports:

The Department of Education announced Tuesday that it would expand its program to forgive federal student loan debt to thousands more students who attended programs of Corinthian Colleges, once one of the nation’s largest for-profit education companies.
But what caught my eye was this section further down in the story:
On Monday, the Justice Department entered a $95.5 million settlement with another for-profit college provider, the Education Management Corporation, saying the company had used high-pressure tactics to enroll students, then lied to the government about it.

That settlement, however, does not include any provision for forgiveness of federal student loans. But a separate agreement the company entered with state attorneys general provides that about 80,000 former Education Management students will be forgiven private company loans valued at $102.8 million.

In reaching the settlement, Education Management did not acknowledge wrongdoing, a fact that makes it more difficult for students to prove fraud, said Stephen Burd, a senior policy analyst on education policy with the New America think tank — and to obtain forgiveness of any federal loans they may have.

“It has served the industry that they’ve been able to say they don’t admit guilt,” Mr. Burd said.

The Education Department nevertheless left open the possibility on Tuesday that some Education Management students might be eligible for federal debt relief. “Borrowers still retain the right to come forward and claim borrower defense,” said Under Secretary Ted Mitchell, noting that nothing in the settlement agreement took away that right.

In announcing the Education Management settlement on Monday, Education Secretary Arne Duncan said the findings related to that company involved misrepresentations to the government, not to students. “If there is evidence of misrepresentation to students, we want to hear that,” he said. “We will continue to look and investigate.”

Education Management operates in 32 states under the names Art Institute, Argosy University, Brown Mackie College and South University. A number of former students complained Tuesday that the settlement with Education Management did not go far enough to assist them.

See also this FWJG editorial.

Posted by Marcia Oddi on Wednesday, November 18, 2015
Posted to Courts in general

Ind. Gov't. - "Gay rights law? End the charade"

That is the heading to Dan Carpenter's article, posted late last evening at Indiana Forefront. It begins:

On the principle that anything that’s worth doing is worth doing well, the Indiana General Assembly needs to drop this idea of expanding the state’s civil rights statutes to include gender orientation.

As if any new evidence were needed, the bill unveiled on Organization Day this week established for a fact that our legislature — aka, the Indiana Republican Party — just has no knack for this human rights thing.

To make public, in 2015, a measure that offers more license to discriminate than minority protection, and voids genuine gay rights ordinances on the local level in the process, is to announce to the world that equality is a foreign concept and embarrassment is beyond your genetic capacity.

And Zack Ford of ThinkProgress, a national publication, takes the bill apart in this long article headed "Why Indiana Republicans’ LGBT Rights Bill Is Actually A ‘Road Map To Discrimination.’" A few quotes:
After last spring’s disastrous “religious liberty” legislation and months of chatter, Indiana Republicans have cooked up some new legislation to protect LGBT people from discrimination. Unfortunately, a draft of the new bill reveals that it is designed to accomplish the complete opposite.

The bill, which will be known as Senate Bill 100, does add “sexual orientation” and “gender identity” to the state’s nondiscrimination laws as it claims to. However, it expends far more words to limit the extent of those protections, making them all but worthless to most plaintiffs. Here are some of the many “religious liberty” compromises the bill demands:

The long article continues under five subheads:Worth reading.

Posted by Marcia Oddi on Wednesday, November 18, 2015
Posted to Indiana Government

Ind. Gov't. - "Senate Republicans file LGBT bill with religious exemptions"

Maureen Hayden, CNHI State Reporter, had this good story today in the Anderson Herald-Bulletin. Some quotes:

INDIANAPOLIS — On a day when the Statehouse was filled with conflicting groups rallying for and against civil rights for gay and transgendered Hoosiers, Indiana Senate Republicans introduced what they hope is a blueprint for moving forward.

The proposed legislation would add sexual orientation and gender identity protections to the state’s civil rights law while also carving out exemptions for those who claim religious reasons as a basis to discriminate. It would put new language in state law to expand the nondiscrimination protections that already cover race, gender and age in such areas as housing, employment and public accommodations.

But it would also exempt some small businesses — plus churches and faith-based institutions, including private universities — from having to abide by those new protections.

The bill’s author, state Sen. Travis Holdman, R-Markle, unveiled details to the media Tuesday afternoon, saying that if it passed “it would become the law of the land in Indiana.” * * *

Holdman said that in crafting the legislation, he opted in favor of religious liberty over blanket protections covering sexual orientation and gender identity.

An example: Holdman’s bill would negate local human rights ordinances that 17 Indiana communities — including New Albany — have adopted to protect their gay and transgendered residents. Holdman said many of those local ordinances don’t contain enough exemptions for people who object based on their religious beliefs.

He also built in a $1,000 penalty for anyone who files what he called a "frivolous" discrimination complaint with the Indiana Civil Rights Commission.

And the legislation would require transgender people to live as their preferred gender for at least one year, or provide medical verification of their status, before filing a discrimination complaint. It also takes on an issue that’s emerged in other states and communities that have moved to include gender identity in their civil rights law: It addresses the use of public bathrooms.

In the legislation, the state’s schools and businesses would be allowed to write their own policies on the use of bathrooms or showers based on sex, sexual orientation or gender identity. They also could decide for themselves what dress code to impose on students and workers.

Under the bill, those rules wouldn’t count as discriminatory.

House and Senate Democrats have called for simpler solution, saying a fix could be had by adding four words and a comma: “sexual orientation, gender identity” to the Indiana's civil rights law.

Posted by Marcia Oddi on Wednesday, November 18, 2015
Posted to Indiana Government

Ind. Gov't. - "LGBT bill draws swift criticism: State Senate to tackle religious liberty, discrimination"

That is the headline to Niki Kelly's story today in the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – Senate Republicans unveiled a bill (draft bill available here) Tuesday that would provide some discrimination protections for people who are lesbian, gay, bisexual and transgender, but with carve-outs and language sure to rile both sides of the contentious issue.

“We’ll roll up our sleeves and deal with the issue of religious liberty and discrimination,” said Senate President Pro Tem David Long, R-Fort Wayne.

The bill was filed on the General Assembly’s Organization Day – the procedural kickoff to the session that starts in earnest Jan. 5. The issue is sure to dominate the 2016 session following a damaging fight over religious freedom this year.

Long called the initial proposal solid and said it attempts to find common ground in a changing world.

The bill immediately drew criticism from the conservative right – hundreds of whom gathered Tuesday in the Statehouse to pray and rally for religious liberty.

Monica Boyer said she is surprised and disappointed that Senate Republicans would allow the words “sexual orientation” and “gender identity” to be placed in the civil rights code at all. “They come to our churches and our homes and ask for our vote and tell us they will stand and then come here and compromise,” she said.

Boyer is a tea party leader from Kosciusko County who brought several hundred Hoosiers from northeast Indiana to the Statehouse on Tuesday. “We all have individual rights. There is no need to protect a group of people based on what happens in the bedroom,” she said.

LGBT supporters want to add sexual orientation and gender identity to the state’s civil rights statute, which already protects against discrimination based on race, gender, national origin and more in hiring, housing and public accommodations.

The public accommodations part of the proposal seems to be causing the most heartburn for religious Hoosiers who own businesses and don’t want to provide services for gay weddings.

Some communities in the state have these protections in local ordinances, with varying levels of enforcement. There is no statewide ban on discriminating against gays and lesbians.

Long has promised a hearing on the bill, which he said tries to balance religious freedom and discrimination protections. House Speaker Brian Bosma has been much more detached on the issue, saying it’s probably worth a conversation but is up to the members of the House and Senate.

The proposed legislation – Senate Bill 100 – would generally bar discrimination based on sexual orientation and gender identity in housing and employment.

But it allows businesses that provide marriage-related accommodations – and that have fewer than four full-time employees – to refuse service for reasons related to sexual orientation and gender identity. Long said larger businesses would not be exempt because they would have other employees available to do the work.

But there is no requirement in the exemption for the business owners or employees to have deeply held religious beliefs. “They could just not like certain people,” Senate Democratic leader Tim Lanane said. “They don’t have to step one foot in church.”

The gender identity language also could be problematic. Under the bill, people claiming discrimination on grounds of gender discrimination would have to show medical history, care or treatment relating to gender identity in the past year. If that is not possible, they would have to show consistent and uniform assertions of one’s gender identity for at least one year.

Long said it is necessary to draw a line so that not everyone can wake up one day and demand protections.

The bill also delves into the issue of restroom usage in schools and public places by stating that it is not discriminatory or unlawful segregation to have restroom and shower policies, as well as dress codes, based on sex, sexual orientation or gender identity.

“This bathroom issue is contentious,” Long said. “It has people’s heads exploding.” * * *

The bill would invalidate all those local ordinances so that Indiana would have one statewide civil rights code.

"Republicans’ LGBT protections bill draws criticism on both sides" is the headline to the very long Indianapolis Star story today, reported by Tony Cook, Stephanie Wang and Chelsea Schneider. Some quotes:
In the opening salvo of what is likely to be a long and arduous debate, Indiana Senate Republicans introduced legislation Tuesday that would add sexual orientation and gender identity to the state's civil rights laws while carving out several exemptions for those with strong religious objections.

The measure would protect gay, lesbian, bisexual and transgender people against discrimination in housing, employment and public accommodations.

But exemptions would allow schools, employers and others to determine their own restroom policies for transgender people; businesses with fewer than four employees to refuse wedding services to same-sex couples; and religious-affiliated adoption agencies to reject prospective same-sex parents.

"This bill is an attempt to balance civil rights and religious liberty," Senate President Pro Tempore David Long, R-Fort Wayne, said in announcing the proposal.

Several legal experts who reviewed the proposed legislation described it as a serious attempt to balance religious interests and LGBT rights, but the measure immediately drew criticism from advocates on both sides of the issue. * * *

Some LGBT advocates said the proposal's religious exemptions treat sexual orientation and gender identity differently than other protected classes.

“This bill is a wolf in sheep’s clothing, This doesn’t protect LGBT people — it is a road map for discrimination against LGBT people," said Jennifer Pizer, law and policy project director at Lambda Legal. “It aims to guarantee the right of some medical, social services and other institutions to discriminate against married same-sex couples, and to do so with taxpayer dollars. It aims to write separate, lesser protections for LGBT people into state law."

But the proposal also drew the ire of religious conservatives, who fear any protections for LGBT Hoosiers would interfere with their Christian beliefs. * * *

[The bill] includes exceptions for churches and religious-affiliated institutions such as private universities, adoption agencies and day care providers.

Transgender people would be required to live as their preferred gender for a year or receive a medical opinion before filing a discrimination complaint.

The measure would also create a $1,000 penalty for "frivolous" discrimination complaints and prohibit local governments from enacting stricter non-discrimination ordinances.

"Lawmakers: Balance LGBT civil rights, religious liberty" reads the heading to Dan Carden's story in the NWI Times. Some quotes:
The Statehouse was alive Tuesday with mid-session fervor as supporters and opponents of a proposal to ban discrimination based on sexual orientation and gender identity held competing rallies at opposite ends of the 127-year-old building.

In the middle, the 100 state representatives and 50 senators attended to the ceremonial Organization Day traditions for the 2016 legislative session, so lawmakers can get right to work when the 10-week regular meeting of the General Assembly convenes Jan. 5. * * *

In the Senate, state Sen. Travis Holdman, R-Markle, released a draft of his proposed civil rights legislation aimed at balancing anti-discrimination with religious liberty.

Senate Bill 100, which Senate President David Long, R-Fort Wayne, has promised will receive a committee hearing, adds sexual orientation and gender identity to the state's civil rights law — but also includes a five-page list of exemptions for organizations claiming a religious affiliation.

In particular, religious entities would be permitted to receive government contracts even if they discriminate in hiring based on religion, or require their employees to follow a lifestyle dictated by claimed religious beliefs.

Local civil rights ordinances also would be superseded by the state law, business and other entities could restrict bathroom use based on sexual orientation or gender identity, and any person making a false discrimination claim could be fined up to $1,000.

Posted by Marcia Oddi on Wednesday, November 18, 2015
Posted to Indiana Government

Ind. Law - Legendary IU-Maurer professor Douglass George Boshkoff dies at 85

Here is the obituary from today's Indianapolis Star.

Here is Professor Boshkoff's biography page from the IU-Bloomington Maurer School of Law.

Posted by Marcia Oddi on Wednesday, November 18, 2015
Posted to Indiana Law

Tuesday, November 17, 2015

Ind. Gov't. - Here is the Senate Republicans' proposed civil rights compromise

Access it here, via the Indiana Senate Republicans' website.

Posted by Marcia Oddi on Tuesday, November 17, 2015
Posted to Indiana Government

Courts - "For-Profit College Operator EDMC Will Forgive Student Loans"

That is the headline to a NY Times story by Stephanie Saul on a nation-wdie settlement that includes Indiana. Some quotes:

The for-profit college operator Education Management Corporation will forgive loans to about 80,000 former students nationwide as part of an agreement with state attorneys general resulting from a multiyear investigation of the company’s aggressive recruitment practices.

The $102.8 million loan forgiveness program was announced on Monday in Washington along with a separate $95.5 million civil settlement with the Department of Justice, the result of a whistle-blower lawsuit accusing the company of using boiler-room tactics to enroll students who had little chance of succeeding in college.

“EDMC wasn’t interested in playing by the rules,” said Education Secretary Arne Duncan in announcing the federal settlement. “The company seemed to care only about revenue at significant cost to students and taxpayers.”Under the settlement with the states, students nationwide who were enrolled for 45 days or fewer and who had transferred fewer than 24 credit hours from another university will see their private loans automatically forgiven by the company, said Nathan Blake, an assistant attorney general in Iowa, one of the lead states involved in negotiations with the company. The average student eligible for the program will receive about $1,370 in loan forgiveness. * * *

In a news release, Education Management said it would soon notify students whose loans have been forgiven. * * *

The federal government will share proceeds of the settlement with the whistle-blowers and the states that participated in the case.

The Massachusetts attorney general, Maura Healey, said her state’s $75,000 share of the settlement would be used to assist students there who took out state loans to go to the New England Institute of Art, an Education Management school. Ms. Healey urged the federal government to use its $52.62 million share of the settlement to pay down federal loans taken out by the Education Management students.

In Indiana,5,530 are eligible to $5,729,910 in loan forgiveness.

Indiana Attorney General Zoeller issued a long news release yesterday headed "Parent company of Brown Mackie College and The Art Institutes settles federal whistleblower suit and multistate suit."

As for what will happen to Indiana's share of the settlement, it looks like, per the Zoeller news release, that amount will go directly to the state General Fund:

EDMC will pay Indiana, four other states and the federal government a combined $95.5 million over a period of years to settle whistleblower lawsuits alleging EDMC illegally paid incentives-based compensation to its admissions recruiters, tied to the number of students they recruited. Indiana will receive a net $1.2 million to reimburse the public treasury for costs associated with EDMC’s fraudulent practices.
Some readers may recall a Feb. 20, 2015 ILB post headed "When States Win Lawsuits, Where Does the Money Go?" And this earlier post, from Feb. 4, 2015, headed "What will become of Indiana's $21.5 million share of the S&P settlement?"

Posted by Marcia Oddi on Tuesday, November 17, 2015
Posted to Courts in general | Indiana Government

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 3 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (0):

In re the Adoption of C.F., J.F. v. A.R. (mem. dec.)

NFP criminal decisions today (0):

Luis Fuerte v. State of Indiana (mem. dec.)

Andrew W. Carie v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, November 17, 2015
Posted to Ind. App.Ct. Decisions

21st Century Law - "LegalZoom Fought the North Carolina Bar — And LegalZoom Won"

That is the heading of this Bloomberg BNA article by law professor Ben Barton. It begins:

LegalZoom has settled its twin law suits against the North Carolina Bar. LegalZoom has basically won the battle and the war.

According to Forbes, LegalZoom agreed to have a licensed North Carolina attorney review its online forms and to inform potential customers that its forms are not a substitute for advice from a live attorney. LegalZoom says it was already doing that anyway. In return the State Bar Association appears to be rolling over on the unauthorized practice of law (“UPL”) fight, going so far as to support a change in North Carolina law to make LegalZoom and other forms providers 100 percent street legal. So what does it all mean?

Here is a quote from the Forbes story:
LegalZoom filed a $10.5 million antitrust suit against the North Carolina Bar earlier this year after failing to convince officials there to register its service within the state. In a proposed consent agreement, LegalZoom agreed to several terms including providing the full text of blank document templates before customers have to pay for a final version, having licensed North Carolina attorneys review each template, and informing potential customers that its forms aren’t substitutes for advice from a real, live attorney.

Posted by Marcia Oddi on Tuesday, November 17, 2015
Posted to 21st Century Law

Ind. Gov't. - Still more on: This is a disaster! Court fenced hunting decision

Updating yesterday's ILB post, which quoted from stories in the Sunday Bloomington Herald-Times, the same paper today has published this column, headed "Court upsets 150 years of Indiana animal protection and management":

This guest column was submitted by Barbara Simpson of the Indiana Wildlife Federation, and was also signed by members of the Indiana Deer Hunters Association, the Indiana Sportsmen’s Roundtable, the Indiana Quality Deer Management Association and the Indiana Division of the Izaak Walton League of America.

The Indiana Court of Appeals handed down a flawed decision Feb. 2, 2015, suggesting that the Department of Natural Resources (DNR) does not have authority to regulate any privately owned wild animals. The case was part of the decade-long fight over whether “canned hunting” of captive white-tailed deer should be legalized in Indiana. The appeals court was to decide whether current laws prohibit high-fenced hunting, “canned hunting,” after two lower courts issued conflicting decisions.

In a surprisingly broad decision, the court ruled in a 2-1 vote that DNR has no authority to regulate captive-raised white-tailed deer and further asserted that the DNR does not have authority over any wild animal that is privately owned.

The court’s analysis flies in the face of decades of wildlife management practice in Indiana and is counter to the wildlife-management principles of the North American Model of Wildlife Conservation that have been in practice across the United States for over 150 years. It undermines DNR’s ability to assure ethical treatment and secure containment of privately-owned wild animals, puts the public safety at risk, threatens the environment and hinders the preservation of Indiana’s wild animals for future generations.

What began as a case about whether current Indiana law prohibits canned hunting of captive-raised deer has ended with a court assessment that eviscerates DNR’s ability to enforce its protective regulations as to any privately owned wild animal, including tigers and lions, bears, venomous snakes, and threatened and state endangered wild animals. The court proposed that the DNR may not regulate how a privately owned wild animal is treated, fed, handled, secured or used.

Out-of-state animal buyers and traders now see Indiana as an easy source of supply since DNR’s ability to enforce its protective restrictions has been eroded. The public can no longer be certain that DNR will protect them or prevent and prohibit unethical treatment.

The court’s opinion clearly has “unintended” consequences. This “anything goes” approach is not what anyone in Indiana wants, regardless of where you stand on the canned hunting issue, and it needs to be addressed. The governor should ensure that the Department of Natural Resources continues asserting its authority over all wildlife, including privately owned wild animals, and the Legislature should pass clarifying language to reinforce what has always been Indiana’s wildlife management approach conservation of all wildlife resources, both publicly and privately owned.

The State Court of Appeals wrongly decided this case. Gov. Mike Pence and the General Assembly must fix it.

Posted by Marcia Oddi on Tuesday, November 17, 2015
Posted to Indiana Government

Monday, November 16, 2015

Ind. Gov't. - More on: This is a disaster! Supreme Court fenced hunting decision leads to DNR deregulating possession of many wild animals

That was the heading to this July 1st ILB post, quoting from a still-accessible story by Niki Kelly of the Fort Wayne Journal Gazette, as well as looking back at a 2011 Ohio story the WSJ headlined as "One Man's Zoo Turns Into a Killing Field in Ohio." Kelly's story began:

INDIANAPOLIS - More than 30 wild animals around the state - from alligators to bears and bobcats - will no longer be regulated by the Indiana Department of Natural Resources.

The agency recently sent letters to anyone with a wild animal possession permit saying an appellate court ruling - and the Supreme Court's refusal to review the case last month - means they have no authority to impose rules, restrictions or permits on legally-owned wild animals.

This June 5th ILB post explains what happened, including:
Chief Justice Rush and Justice Dickson voted for transfer, Justices Rucker and David voted to deny, and Justice Massa did not participate. So it was a 2-2 split and when the Court is evenly divided, transfer is deemed denied by virtue of App. Rule 58(C).
The 2-1, Feb. 2, 2015 COA opinion is DNR v. Whitetail Bluff.

So this Sunday, Nov. 15th, the Bloomington Herald-Times published a long paywalled story by Carol Kugler, headed "Court ruling removes state jurisdiction over captive wildlife." Some quotes:

It’s the result of a ruling earlier this year by the Indiana Court of Appeals that states the Indiana Department of Natural Resources does not have authority “to protect and manage wild animals that are legally owned or being held in captivity under a license or permit.” The ruling was meant to deal with high-fenced deer farms in Indiana, but the wording affects all captive-held wild animals in the state.

The Feb. 2 ruling has totally changed what Linnea Petercheff, operations staff specialist for the Department of Natural Resources Division of Fish and Wildlife, and others do daily. “It changed what I do as far as not issuing a bunch of permits,” she said.

“There’s nobody regulating venomous snakes or other wild animals unless a local entity has an ordinance prohibiting the possession of these animals,” Petercheff said. “We’re not allowed to issue game breeder licenses and wild animal possession permits.” State officials can no longer issue reptile captive breeder permits, bait dealer permits and fish hauler and supplier permits.

That means there is no longer a state agency in charge of making sure every privately owned wild animal is properly contained, cannot escape and is well taken care of.

“We did have regulations in place and some fairly strict housing requirements,” Petercheff said.

Regulations do allow the state Board of Health to check the health of captive deer. And the U.S. Department of Agriculture regulates the breeding and selling of wild animals, but not the purchasing or possession of them as pets. Also, animals listed as “endangered” receive attention from federal agencies, including the U.S. Fish and Wildlife Service.

“There are now venomous snakes being sold at reptile shows in Indiana,” Petercheff said, adding that she has received calls from people who are concerned that there are wild animals at people’s homes without permits.

Petercheff said the ruling also is causing problems for some breeders. In many instances, Hoosiers needed state-issued permits so they could sell wild animals in other states. Without those permits, it will be more difficult for breeders to sell game birds and fish in other states. “They want proof that person is legally able to have those animals,” she said. It’s something the state can no longer provide.

Petercheff is also concerned about people who have obtained raccoons, skunks, coyotes and foxes — animal species that are most likely to contract and spread rabies. She is concerned that bites from these animals could become more common, causing problems for people and other animals.

“I’m just concerned about more people having these animals and not having the proper care for them,” Petercheff said.

That concern is shared by state Sen. Michael Crider, R-Greenfield, who plans to file a bill in this coming session of the Indiana Legislature that “will reassert DNR authority over native wildlife.” The bill will not deal with captive deer and elk, Crider said, but will restore state regulation of wild animals — from rabbits and squirrels up to the Class 3, or dangerous, animals that include lions, tigers and bears.

Crider said stripping the Indiana Department of Natural Resources of its authority to issue permits and regulations over captive-held wild animals was an “unintended consequence” of the appeals court ruling, “but it’s a consequence nonetheless, and it needs to be fixed.”

Crider believes the court’s ruling in favor of high-fenced hunting of captive deer will not be taken away. Other state senators may file bills to regulate what happens on farms that house captive deer, but he is not planning any such action. “My ultimate goal now is to get some oversight on these other animals,” he said.

Another, equally long companion story Sunday by reporter Kugler is headed "On the fence: Legislature likely to address captive deer hunting issue." Some quotes:

“They went way beyond dealing with just canned hunting,” Barb Simpson, conservation policy director with the Indiana Wildlife Federation, said of the appellate court. “This reversed decades of wild animal management in Indiana.”

Simpson echoed what many hunters and sportsmen and women in her organization believe: All people have the right to hunt, fish and enjoy wildlife. But that doesn’t mean people can fence in some of that wildlife and then allow others to pay them for the right to hunt and kill them on their property, she said.

Simpson said the dissenting judge in the appeals court 2-1 ruling shared much of the same beliefs toward high-fence hunting. Judge Nancy H. Vaidik said in her dissent: “This case involves high-fence hunting of white-tailed deer. This is also known as canned hunting — the shooting within high-fence enclosures of farm-raised deer that are bred for unnaturally massive antlers. The dangers of canned hunting include infection — specifically, chronic wasting disease (CWD) — and unethical hunting practices, such as the concept of fair chase.”

That view was not shared by the other two judges. But many Hoosiers hope state legislators will view the issue differently and, unlike in past years, make a decision.

Here is a very long list of earlier ILB posts on this topic.

Posted by Marcia Oddi on Monday, November 16, 2015
Posted to Indiana Government

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

For publication opinions today (1):

In John Belork v. Robin Latimer, Davis Township Trustee and DMK&H Farms, Inc., a 23-page opinion, Judge Brown writes:

John Belork appeals the trial court’s order granting a motion for judgment on the evidence by Robin Latimer as the Davis Township Trustee and DMK&H Farms, Inc. (“DMK&H” and, together with Latimer, the “Appellees”) with respect to Belork’s claim under Indiana’s Partition Fence statutes found at Ind. Code §§ 32-26-9. Belork raises three issues which we consolidate and restate as whether the court erred in entering judgment on the evidence in favor of the Appellees. We affirm. * * *

Belork asserts that the legislature amended the Indiana Fence Law in 2003 by adding Ind. Code § 32-26-9-0.5 to define agricultural land and that, if the legislature “intended to limit the Indiana Fence Law to situations where both adjoining landowners ‘used’ the partition fence, i.e. owned livestock, surely the legislature would have provided an alternative definition to ‘agricultural land’ or directly stated that the Indiana Fence Law only applies when all adjoining owners raise livestock.” Appellant’s Brief at 16.

Latimer argues that Indiana common law places a duty upon the owner of an animal to confine it, that this principle is codified at Ind. Code § 32-26-2-2,4 that Belork conceded that the intention of the fence is to contain his cattle on his property, and that he is solely responsible for the containment of his livestock. Latimer further argues that the statute requires that the adjoining property owners “use” the fence “as a partition fence,” that this “implies that not all fences are partition fences,” and that “this implication is borne out by I.C. § 32-26-2-15.” Appellee Latimer’s Brief at 5. She also argues that no testimony or evidence suggested that fences are helpful to modern grain farming operations and that nothing in the statute even remotely suggests that one of the purposes of the law is wind erosion control.

DMK&H maintains that the evidence presented by Belork was not whether a partition was needed to divide the properties but rather was a request to use Ind. Code § 32-26-9-1 to force his neighbors into rebuilding a fence his cattle had destroyed and to stop his cattle from trespassing on DMK&H’s lands. * * *

Based on Ind. Code §§ 32-26-9 and the evidence, we conclude that the fences Belork desires along the southern and eastern boundaries of his property would not constitute partition fences under Ind. Code §§ 32-26-9. We do not disturb the trial court’s order denying Belork’s petition for writ and granting the Appellees’ motion for judgment on the evidence.

NFP civil decisions today (1):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of: J.P. & A.P., Minor Children and Their Mother, L.P., L.P. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Monday, November 16, 2015
Posted to Ind. Adm. Bd. Decisions

Ind. Decisions - Transfer list for week ending November 13, 2015 [Updated at 3:30 PM]

Here is the Clerk's transfer list for the week ending Friday, November 13, 2015. It is one page (and 10 cases) long.

Two transfers were granted last week:

[Updated] Among the cases denied transfer last week was John R. Myers, II v. State of Indiana, pointed out in this AP story that begins:
The Indiana Supreme Court has decided against considering an appeal from the man convicted of killing an Indiana University student who vanished during a 2000 bike ride. A unanimous order from the court denied a request from John Myers II that it review his murder conviction and 65-year prison sentence in the death of 19-year-old Jill Behrman. The IU freshman disappeared during a May 2000 bike ride near Bloomington.

Posted by Marcia Oddi on Monday, November 16, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - How our government helps investors profit from neigborhood decay

This lengthy, front-page Sunday Indianapolis Star story by Brian Eason was the first of a series this week on urban blight. A few quotes:

The story of urban blight is all too familiar. Indianapolis is pockmarked with 6,800 abandoned homes that stunt property values, attract crime and destabilize neighborhoods. But one of the primary causes is mostly hidden. And it is, in large part, enabled by our own government.

An Indianapolis Star investigation has found that, increasingly, the empty house next door is not owned by a bank or an individual, but by one of many investors, often from out of state, who are enticed by the prospects of cheap homes that can be purchased — sight unseen and in bulk — at government tax sales.

A few big companies such as Mt. Helix have amassed hundreds of houses in Indianapolis’ poorest neighborhoods by taking advantage of government sales that have destructive, if unintended, consequences.

The Star found that oftentimes these companies don’t make the needed improvements or even maintain their homes. Many of the houses languish neglected and empty for years. Some for as long as a decade. And the system makes it easy for investors to walk away without paying their taxes. In some instances, homes go to tax sale again, and again, and again.

As the houses cycle in and out of the system, neighborhoods decline, and taxpayers pick up the costs.

The Star’s examination of eight years of tax sale data showed investors walked away from more than 6,000 properties and stiffed Marion County for at least $28 million in uncollected taxes. Meanwhile, our government spends millions every year cleaning up trashed properties, issuing code violations, subsidizing redevelopment and responding to emergency calls to unsecured empty homes. * * *

[E]xperts in the fields of law, property taxation and redevelopment told The Star that tax sale systems like Marion County’s actually create disincentives to responsible behavior.

Investors are now responsible for at least 40 percent of the abandoned home problem, the Star found, and their influence is growing. While 57 percent of the properties at tax sale were last owned by an individual, more than 9 out of 10 buyers were investors.

Other cities and states across the nation have acknowledged the corrosive effects of the tax sale system, and been far more aggressive about seeking remedies. In many cases, experts told The Star, even those measures don’t go far enough. Some who have studied the problem nationally say the system’s use of tax liens — its key feature — has such a perverse effect on real estate markets it should be abolished.

Yet here, county treasurers have resisted relatively modest reforms. And stronger proposals have been stymied in the legislature under pressure from investor lobbying groups. Even the city, which has recognized the need for neighborhood revitalization and advocated for reforms, has failed to use all the weapons available. And it budgets far less for blight reduction than any major city in the region.

We’ve all heard the story of urban blight, of fear and frustration in our neighborhoods.

But it’s also a story of our government and the exploitation of a flawed tax collection system. It’s the story of how, with the government’s help, irresponsible investors are chipping away at our quality of life, one abandoned house at a time.

Posted by Marcia Oddi on Monday, November 16, 2015
Posted to Indiana Government

Courts - SCOTUS decision re Texas abortion ruling to have broad impact in states

Lawrence Hurley reported this weekend for Reuters:

The U.S. Supreme Court's decision on Friday to hear a challenge to tough abortion restrictions in Texas raises questions about the legal fate of similar laws in more than a dozen other states.

The court's ruling, due by June, could spell out the extent to which states can impose clinic regulations likely to restrict access to abortion as an outpatient procedure. If the court upholds the Texas law, similar laws would also fall. But if the court rules in favor of the state, then more states would be able to follow suit.

"Broadly speaking, the rule the Supreme Court crafts will impact all different types of regulation," said Steven Aden, a lawyer with the Alliance Defending Freedom, a conservative legal group that supports abortion restrictions. * * *

The case before the Supreme Court focuses on two provisions of a 2013 Texas law. One requires clinics providing abortions to have costly hospital-grade facilities and the other requires abortion clinic physicians to have admitting privileges at a hospital within 30 miles (50 km).

Ten of the 50 U.S. states have imposed admitting-privilege requirements similar to those in Texas, while six have enacted laws requiring hospital-grade facilities that mirror the Texas law, according to the Center for Reproductive Rights, which represents abortion providers in the case before the Supreme Court.

In total, 22 states have specific licensing standards for abortion clinics, although not all are as strict as Texas', according to the Guttmacher Institute, a research group that supports the right to an abortion, but whose research is cited by both sides in the debate.

Where is Indiana? This Tim Evans USA Today story dated Jan. 29, 2015 is headed "Trial for a lawsuit that challenges the definition of abortion clinics is set for June 1, 2015.." The ILB had a post June 11, 2015 re "Renewed fights expected over Indiana abortion rules."

An Oct. 2nd, 2015 ILB post is headed "7th Circuit judge hits State of Wisconsin on abortion admitting privileges law."

Here is a current survey of state abortion laws from the Guttmacher Institute.

Posted by Marcia Oddi on Monday, November 16, 2015
Posted to Courts in general

Ind. Gov't. - More on: Appellants file Supreme Court brief in CAC v. Koch

Updating this ILB post from Nov. 9th re the Indiana House public records case, here is an 11-page amicus brief filed the same day by the Indiana Coalition for Open Government (ICOG).

Posted by Marcia Oddi on Monday, November 16, 2015
Posted to GA and APRA

About the ILB - Organizing the e-filing posts

Because of the interest in the e-filing rollout in Indiana, the ILB has created a new category for that topic. All future relevant posts will have that categorization. I have also gone back and added the link to relevant 2015 posts - by clicking the e-filing category link you can a list of the earlier posts from this year.

Posted by Marcia Oddi on Monday, November 16, 2015
Posted to About the Indiana Law Blog | E-filing | Indiana Courts

Law - "Ruth Bader Ginsburg and Gloria Steinem on the Unending Fight for Women’s Rights"

The Sunday NY Times style section has a great, long feature ("Table for Three" Two celebrities join Philip Galanes for a meal and conversation) with some wonderful photos, that begins:

The room went still when the women hugged. All of the staff, bustling in preparation just moments before, paused when Ruth Bader Ginsburg emerged quietly from her private chambers at the Supreme Court last month and embraced her old friend Gloria Steinem.

And just as quickly, life resumed. Justice Ginsburg, 82, led Ms. Steinem, 81, into her wood-paneled chambers, with its stately traditional furniture and blue-chip modern art by Mark Rothko and Josef Albers (on loan from the National Gallery of Art and the Hirshhorn Museum and Sculpture Garden). “What a magical place, Ruth,” Ms. Steinem said.

Justice Ginsburg gestured to an immaculately set table in the corner, tucked beside shelves of mementos and personal photographs — including one of the two women together. She offered tea, cookies and chocolates she had brought back from a recent trip to Zurich.

These women have a history. Long before she was crowned “Notorious R.B.G.” — a nod to the tough-guy rapper Notorious B.I.G. — for her fierce intellect, Justice Ginsburg was a trailblazing litigator for women’s rights. Beginning in the early 1970s, as a professor at Columbia Law School, its first tenured woman, and as a founder of the American Civil Liberties Union’s Women’s Rights Project, she successfully argued five cases before the Supreme Court, focusing on laws and government policies built on gender stereotypes.

Posted by Marcia Oddi on Monday, November 16, 2015
Posted to General Law Related

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/16/15):

Next week's oral arguments before the Supreme Court (week of 11/23/15):

Wednesday, November 25

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 11/16/15):

Next week's oral arguments before the Court of Appeals (week of 11/23/15):

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

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


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

Posted by Marcia Oddi on Monday, November 16, 2015
Posted to Upcoming Oral Arguments

Friday, November 13, 2015

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (4):

In Jay Classroom Teachers Association v. Jay School Corporation and Indiana Education Employment Relation Board, a 21-page opinion, Chief Judge Vaidik writes:

The Jay Classroom Teachers Association (“the Association”) appeals from the trial court’s determination that the Association did not meet its burden to overturn the order of the Indiana Education Employment Relations Board (“the Board”) adopting, in part, the Last Best Offer (“LBO”) of the Jay School Corporation (“the School”), after the parties attempted to negotiate a Collective Bargaining Agreement for 2013-14, but reached an impasse. We find that under both statutory law and Nettle Creek a teacher can receive additional compensation for ancillary duties, and that covering another teacher’s class during the normal workday can be a compensable ancillary duty outside the scope of normal teaching duties—where both parties agreed to the same additional-compensation provision and included it in their respective LBOs. We conclude, therefore, that it was reversible error for this provision to have been stricken by the Board from the School’s LBO. Further, because the Association has the statutory right to bargain to establish salaries, we also conclude that the Board erred in finding that the provision giving the Superintendent the authority to establish the salaries of teachers hired after the start of the school year did not violate Indiana law. Accordingly, we reverse the trial court’s affirmance of the Board’s order and remand to the Board. * * *

In conclusion, we find that the additional-compensation provision was not impermissible and should not have been stricken by the Board, whereas the Superintendent provision was impermissible and should have been stricken by the Board. Accordingly we reverse the trial court’s decision affirming the Board’s order, and remand to the Board for further proceedings consistent with this opinion. Reversed and remanded.

In William C. Elliott and Mary Kay Elliot v. Dyck O'Neal, Inc., Successor in interest to Fifth Third Mortgage Company, a 32-page, 2-1 opinion that includes starting at p. 26 a copy of the "Default Judgment of Foreclosure," Judge Pyle writes:
This appeal stems from an in rem mortgage foreclosure default judgment against William C. Elliott (“William”) and Mary Kay Elliott (“Mary Kay”) (collectively “the Elliotts”) and post-judgment proceeding supplemental—which was initiated by Dyck O’Neal, Inc. (“Dyck O’Neal”) as successor in interest to Fifth Third Mortgage Company (“Fifth Third”)—to collect on the deficiency from that in rem foreclosure judgment. After the trial court entered a garnishment order for the deficiency, the Elliotts, who were not represented by counsel, agreed to pay and began paying $50.00 per week toward the foreclosure deficiency. More than four years later, the Elliotts, then represented by counsel, filed a motion for a refund for the money paid toward the deficiency, arguing that the foreclosure order included only an in rem judgment against them. Thereafter, Dyck O’Neal filed a motion to amend the foreclosure order to add an in personam judgment. The trial court denied both motions.

On appeal, the Elliotts argue that the trial court erred by denying its motion for refund from payments made pursuant to the garnishment order because the foreclosure order, which did not contain an in personam judgment, provided no basis for such payments. Dyck O’Neal cross-appeals the trial court’s denial of its motion to amend the foreclosure judgment, arguing that the omission of an in personam judgment in the foreclosure order was a clerical error. Concluding that the trial court did not err by denying Dyck O’Neal’s motion to amend the foreclosure judgment, we affirm the trial court’s ruling on that motion. However, based on the specific facts in this case, including the lack of an in personam judgment in the original default foreclosure order, we conclude that the Elliotts are entitled to the equitable relief of a refund of their payments made pursuant to the garnishment order. Accordingly, we reverse the trial court’s ruling on the Elliotts’ motion for refund and remand to the trial court. * * *

Crone, J., concurs.
Brown, J., dissents with opinion. [that begins, at p. 23, and concludes] The Elliotts did not file a notice of appeal of the September 2009 garnishment order, and their appeal essentially amounts to a collateral attack on a previously issued final judgment. See JPMorgan Chase Bank, N.A. v. Brown, 886 N.E.2d 617, 621 n.5 (Ind. Ct. App. 2008) (explaining that a garnishment order is a final judgment). Even assuming that the analysis in O.R. applied, I would find no such extraordinarily compelling reasons exist in this case, especially given the long delay in the challenge to the propriety of the garnishment order. Furthermore, even if we were to consider the Elliotts’ motion for refund as a motion for relief from the September 2009 garnishment order pursuant to Trial Rule 60(B), it would still be untimely. A Rule 60(B) motion must be filed “not more than one year after the judgment” if based on reasons (1), (2), (3), or (4), or it must be filed “within a reasonable time” if based on reasons (5), (6), (7), or (8). T.R. 60(B). “The determination of what constitutes a reasonable time varies with the circumstances of each case.” Levin v. Levin, 645 N.E.2d 601, 605 (Ind. 1994). “Relevant to the question of timeliness is prejudice to the party opposing the motion and the basis for the moving party’s delay.” Id. Here, the Elliott’s motion for refund was not filed within one year nor a reasonable time after the entry of that judgment. The Elliotts waited over four and a half years to seek relief from the September 2009 garnishment order, and such period of time is not reasonable. See id. (holding that a husband’s delay of five years from the dissolution order to challenge his support obligation did not constitute a reasonable time and holding that his excuse that he was unaware of his legal actions because he was not represented by counsel was insufficient to justify the length of the delay).

In Jeremy Darringer v. State of Indiana , a 24-page opinion, Judge Brown writes:
Jeremy Darringer appeals his conviction for operating while intoxicated. Darringer raises one issue which we revise and restate as whether the trial court abused its discretion in admitting certain evidence. We reverse. * * *

While Deputy Hibschman testified that he did not see a plate on the vehicle, he also repeatedly stated that he did not look in the rear window and did not look anywhere else other than the bumper. Accordingly, we cannot say that the facts known to Deputy Hibschman would have otherwise provided a basis for the stop based upon the idea that the interim plate in the rear window was not clearly visible, where Deputy Hibschman specifically testified that he did not look in the rear window. Under the circumstances, we conclude that the trial court abused its discretion when it admitted evidence obtained pursuant to an illegal traffic stop. Accordingly, we reverse Darringer’s conviction for operating while intoxicated as a class A misdemeanor. * * *

Altice, J., concurs.
Riley, J., concurs in result without opinion.

In Joshua T. Trammell v. State of Indiana, a 10-page opinion, Judge Robb writes:
Joshua Trammell entered into a plea agreement to resolve two pending cases against him, Class D felony resisting law enforcement under Cause Number 24C02-0904-FD-158 (“Cause 158”) and Class D felony theft under Cause Number 24C02-0907-FD-401 (“Cause 401”). Trammell was sentenced to two years with nine months suspended to probation in each case, to be served concurrently. Trammell was ultimately found to have violated his probation in Cause 401 and was ordered to serve five months of his previously suspended sentence. Trammell now appeals, raising the sole issue of whether the trial court abused its discretion in revoking his probation. Concluding there was insufficient proof that Trammell’s alleged violation occurred during his probationary period, we reverse.
NFP civil decisions today (2):

In Re: the Termination of the Parent-Child Relationships of L.B., S.F., and E.F.; R.F. and A.H. v. The Indiana Department of Child Services (mem. dec.)

Lester Spoon v. ATF Logistics, LLC (mem. dec.)

NFP criminal decisions today (4):

Keywon Dortch v. State of Indiana (mem. dec.)

Lamont Hudgins v. State of Indiana (mem. dec.)

Allen L. Ruffin v. State of Indiana (mem. dec.)

Harry Spicer v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, November 13, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court posts two today, filed Nov. 12th

ILB: Both these opinions have not only the same name, but also the same case # - 71T10-1301-TA-2. But the link to the first is 11121501mbw, and the link to the second is 11121502mbw.

Notable also is the admonition at the end of "502" that begins;

... the Court notes that this case demonstrates yet another instance where infirmities in the DLGF’s fact-finding process have hindered the Tax Court’s review of the final determination and certified administrative record.

In Union Township, St. Joseph County v. State of Indiana, Department of Local Government Finance, a 6-page opinion, Judge Wentworth writes:

On January 8, 2013, Union Township, St. Joseph County filed an original tax appeal challenging the two final determinations of the Department of Local Government Finance (DLGF) that denied its two excess property tax levy appeals made in 2012. On June 18, 2013, the DLGF filed a Motion to Dismiss Union Township’s appeal, asserting that it was moot. The Court, being duly advised, denies the DLGF’s Motion. * * *

The DLGF contends that Union Township’s original tax appeal was rendered moot with the enactment of Indiana Code § 6-1.1-18-18. (See Resp’t Br. at 3-4.) Specifically, it asserts that once Union Township (as the “provider unit”) submitted a petition to increase its maximum permissible property tax levy under Indiana Code § 6-1.1-18-18 for purposes of maintaining the Union-Lakeville Fire Protection Territory, the DLGF was required to grant it “for 2014 and beyond.” Thus, the DLGF maintains that the ultimate relief Union Township seeks in its original tax appeal – the ability to recoup lost property tax revenue through an excess property tax levy – has already been provided through the application of Indiana Code § 6-1.1-18-18. (See, e.g., Hr’g Tr. at 50-51 (asserting that through the application of Indiana Code § 6-1.1-18-18, Union Township had been made whole).) The Court, however, disagrees.

Indiana Code § 6-1.1-18-18 was an obvious legislative response to a budgetary crisis that existed in Union Township. Nonetheless, the Legislature limited the provision of budgetary relief through that statute solely to the Union-Lakeville Fire Protection Territory. See I.C. 6-1.1-18-18. Thus, the revenue generated through a levy increase permitted under Indiana Code § 6-1.1-18-18 is to be placed in Union Township’s fire protection territory fund and to be used exclusively for the benefit of the Union-Lakeville Fire Protection Territory. * * *

Because Union Township’s original tax appeal seeks relief beyond what was provided to the Union-Lakeville Fire Protection Territory under Indiana Code § 6-1.1-18-18, it is not moot. The Court therefore DENIES the DLGF’s Motion to Dismiss.

In Union Township, St. Joseph County v. State of Indiana, Department of Local Government Finance, a 13-page opinion, Judge Wentworth writes:
Union Township challenges the two final determinations of the Department of Local Government Finance (DLGF) that denied the two excess property tax levy appeals it made in 2012. Upon review, the Court reverses those final determinations.

Union Township is a civil taxing unit located in St. Joseph County, Indiana. In July of 2012, Union Township, together with the Union-Lakeville Fire Protection Territory, requested the DLGF’s permission to impose an excess property tax levy. (See Cert. Admin. R. at 14-17.) Their appeal documentation asserted that due to a $40 million “error” in calculating Union Township’s 2010 net assessed valuation, they each suffered a property tax revenue shortfall in 2011. (See Cert. Admin. R. at 15.) More specifically, they explained that the error was the result of the DLGF certifying Union Township’s 2011 budget based on a net assessed valuation of $159,424,430, but St. Joseph County subsequently issuing the tax bills using a lower net assessed valuation of $119,968,732. * * *

For the above-stated reasons, the Court REVERSES the final determinations of the DLGF. The matter is REMANDED to the DLGF so that it may determine whether an error caused the $40 million discrepancy between the net assessed valuation used to certify Union Township’s 2011 budget and the net assessed valuation the St. Joseph County Auditor used in issuing the property tax bills related to that budget. If an error did in fact occur, the DLGF shall order “[a] correction . . . to be applied to [Union Township’s] levy limitations, rate, and levy for the ensuing calendar year to offset the cumulative effect that the error caused[.]” See IND. CODE § 6-1.1-18.5-14(b) (2015).

As an aside, the Court notes that this case demonstrates yet another instance where infirmities in the DLGF’s fact-finding process have hindered the Tax Court’s review of the final determination and certified administrative record. See also, e.g., City of Greenfield v. Indiana Dep’t of Local Gov’t Fin., 22 N.E.3d 887, 892 (Ind. Tax Ct. 2014); Gary Cmty. Sch. Corp. v. Indiana Dep’t of Local Gov’t Fin., 15 N.E.3d 1149, 1150 n.3 (Ind. Tax Ct. 2014). The Court strongly encourages the DLGF to correct these infirmities so that its adjudicatory process can develop all the relevant facts and legal arguments for possible review by the Court.

Posted by Marcia Oddi on Friday, November 13, 2015
Posted to Ind. Tax Ct. Decisions

Thursday, November 12, 2015

Indiana Courts - "Martin County receives grant for e-filing equipment"

Lindsay Owens reports today for the Washington Times Herald:

SHOALS - Thanks to a grant from the Indiana Supreme Court Division of State Court Administration, the Martin County Clerk's office will receive six new document scanners, as well as a new server. The new equipment will be used to help with the electronic or e-filing process for the county.

"When we applied for the grant, we weren't sure if we would get all the items we requested, but we did," said Martin County Clerk Gerald Montgomery, adding according to the information he received, the new equipment will hopefully be arriving sometime soon.

"We had some equipment that was getting pretty old, so we're really happy we are going to be able to get everything we asked for."

Montgomery said while he didn't know the exact monetary amount for the grant, he did know the server alone cost about $8,000.

The Supreme Court set aside $800,000 to help those successful in applying for the grant get the technology needed to do e-filing. The Division of State Court Administration was responsible for ordering the necessary equipment in bulk and then distributing the items to the recipients. The new equipment received by the qualifying courts will all be the same or similar models. The grant could not be used to purchase software. * * * The state hopes to have e-filing implemented in every county by the end of 2018.

Court documents can be filed using one of many certified e-filing providers, including one provided at no cost by the state. After the filing is complete, notification will be received via email after the documents were filed, when an opposing party e-files a document, or when the court issues an order among other things.

Posted by Marcia Oddi on Thursday, November 12, 2015
Posted to E-filing | Indiana Courts

Ind. Gov't. - "Rochester's nosy pharmacists frustrate meth-makers"

Maureen Hayden, CNHI, reports today in the Bluefield, West Virginia Daily Telegraph - the long story begins:

INDIANAPOLIS – Cold medicine sales were on the rise in the small town of Rochester a year ago. So were discoveries of illicit meth labs.

Now, pharmacists are asking more nosy questions of sniffling customers who come looking for products that contain pseudoephedrine – the essential ingredient in homemade methamphetamine.

“The people who wanted it for meth would just walk away when we’d start questioning them,” said pharmacist Harry Webb. “They knew we were on to them.”

Webb, owner of two independent pharmacies in Rochester, hopes to convince lawmakers to give pharmacists throughout the state enough legal cover to refuse people whom they suspect of wanting pseudoephedrine for the wrong reasons.

He and other community leaders are working with Sen. Randy Head, R-Logansport, who as chairman of the Indiana Abuse and Child Safety Task Force has held hearings on the issue.

“They’ve been looking to us for relief from the misery caused by these meth labs,” said Head. “And when they didn’t get it, they took action themselves.”

In Rochester, the push to squeeze supplies of pseudoephedrine came as local leaders realized that lawmakers weren’t ready to take a tougher, more controversial step of requiring prescriptions for cold remedies. Only two states - Oregon and Mississippi - have done that.

Facing tough opposition from drug lobbyists, prescription proposals have failed at the Statehouse every year for at least the past five years. Legislative leaders predict a similar stalemate for the new session that begins in January.

[More] See photo here.

Posted by Marcia Oddi on Thursday, November 12, 2015
Posted to Indiana Government

Ind. Decisions - Supreme Court suspends Merrillville attorney without automatic reinstatement

In In the Matter of: Michael E. Halpin, a 2-page, Nov. 10th order, the Court writes:

In several written communications between August 7, 2012 and April 12, 2013, Respondent accused Father’s counsel of having arranged venue in Tippecanoe County by fraud, deceit, and trickery; of intentionally violating Mother’s rights as a disabled person in refusing to transfer venue to Lake County; and in engaging in other unprofessional and unethical conduct. Respondent also wrote to Father’s counsel, “[y]our possibly homophobic, racist, sexist clients should not be using the Courts to further that agenda.” In some of these communications, Respondent threatened to file a disciplinary complaint against Father’s counsel unless counsel would accede to Respondent’s demands that venue be transferred to Lake County. Respondent also accused Father of having stolen money from his client and proposed that Respondent and Mother would not press criminal charges if opposing counsel would agree that the paternity case should be transferred to Lake County.

In April 2013, Respondent filed a motion to correct error in the paternity action with respect to the denial of Mother’s motion for change of venue to Lake County. In the motion to correct error, Respondent accused the judge of taking a “stubbornly injudicious attitude” toward the court proceeding, and further accused the judge of "taking off on detours and frolics that ignore the fact that there are laws in Indiana that the court is supposed to follow and uphold.” Respondent withdrew his appearance in the paternity case shortly thereafter.

The hearing officer found Respondent’s lack of remorse as a fact in aggravation, and Respondent’s lack of prior discipline as a fact in mitigation.

Violations: After a careful review of the parties’ arguments and the evidence, the Court finds that Respondent violated Professional Conduct Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice, and that Respondent failed to comply with Admission and Discipline Rule 22 (Oath of Attorneys) by acting in an offensive manner.

Discipline: For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 60 days, without automatic reinstatement, beginning December 21, 2015.

Posted by Marcia Oddi on Thursday, November 12, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Madison County Board of Commissioners and Madison County Highway Department v. American Federation of State County and Municipal Employees Local 3609, a 15-page opinion, Judge Crone writes:

Two employees of the Madison County Highway Department (“the Department”), who were also members of the American Federation of State County and Municipal Employees Local 3609 (“the Union”), loafed on the job for two consecutive days and took an excessively long lunch break on the third day. The Union has a collective bargaining agreement (“CBA”) with the Madison County Board of Commissioners (“the County”)that mandates progressive discipline for minor infractions such as those committed by the employees. Commission of a third minor infraction results in the employee being subject to discharge. By contrast, commission of a single major infraction, such as theft, results in the employee being subject to discharge.

The County did not initiate disciplinary proceedings against the employees until the end of the third day. The County initially alleged that the employees committed minor infractions and ultimately discharged them for what it claimed were major infractions. The matter was submitted to arbitration pursuant to the CBA, and the Union represented the employees at the hearing. The arbitrator determined that the employees had not committed major infractions and, based in part on what he characterized as “procedural and substantive due process concerns raised by the County’s failure to promptly notify [the employees] of the wrongful nature of their workplace behavior,” concluded that the appropriate punishment for the employees’ misconduct was a five-day unpaid layoff.

The County asked the trial court to correct or vacate the arbitrator’s award. In response, the Union filed an answer and counterclaim. The Union and the County filed cross-motions for summary judgment. The trial court granted the Union’s motion and denied the County’s motion.

On appeal, the County argues that the arbitrator exceeded his authority under the CBA by basing his award on due process concerns and by reducing the employees’ punishment. We disagree. The County circumvented the CBA’s progressive discipline scheme, and the CBA does not require discharge for the infractions committed by the employees or prohibit the arbitrator from reducing an employee’s punishment. Therefore, we affirm summary judgment in favor of the Union. * * *
___________
[8] This is not to suggest that the County must take disciplinary action against an employee immediately after an incident is reported, or that an employee may not be discharged for committing three class B minor infractions within a short period of time. But the County should be mindful of the purpose of the progressive discipline scheme mandated by the CBA and the risks of delaying disciplinary action or circumventing that scheme.

NFP civil decisions today (3):

In the Matter of the Supervised Administration of the Estate of Gary Lee Shue, Deceased, Kaylie Marie Schriber, Personal Representative v. Heather Shue, James Weddle, and Larry Shue (mem. dec.)

Jo Ann Vance and Paul Vance, as Co-Personal Representatives of the Estate of Ricky L. Vance, Deceased v. Robert a. Phillips d/b/a Krueger's Korner Klub, and Risner's Oasis, Inc., et al. (mem. dec.)

Robert A. Phillips d/b/a Krueger's Korner Klub v. Melanie Mills, as Personal Representative for the Estate of Stephen F. Mills, Deceased, Risner's Oasis, Inc., Jo Ann Vance, et al. (mem. dec.)

NFP criminal decisions today (3):

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

Robert J. Fugate, Jr. v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Thursday, November 12, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - A Letter from the Chief Justice of Indiana

Re the upcoming vacancy on the Supreme Court, Chief Justice Loretta H. Rush writes this letter:

Dear Judicial Officers and Bar Members:

After a stellar 30 year judicial career and nearly 50 years in the law, Justice Brent Dickson has announced that he will step down from the bench in the spring of 2016. He has been the second longest serving justice in state history, authoring 884 civil and criminal opinions. Besides that remarkable body of work, he has forged a legacy of professionalism and civility.

There is no replacing Indiana’s 100th Supreme Court Justice—but there is also no doubt that Indiana’s 109th justice will leave their own mark of excellence on our profession. Perhaps that person is you.

The Judicial Nominating Commission (JNC) will be searching for a successor to fill the vacancy. It is an opportunity for a new Court leader to step forward in service to the state. My colleagues and I urge you to consider applying. Applications for the position are online and are tentatively due January 25. If you have questions about the application process, please contact JNC Counsel Adrienne Meiring.

Thank you,

Loretta Rush signature
Loretta H. Rush
Chief Justice of Indiana

Posted by Marcia Oddi on Thursday, November 12, 2015
Posted to Vacancy on Supreme Court - 2016

Ind. Courts - Applications available for 109th Supreme Court justice

From the Court:

Applications for an upcoming vacancy on the state’s highest court are available online. The applications are tentatively due January 25, 2016. Chief Justice Loretta Rush encourages attorneys to consider applying to be the state’s 109th justice, “Indiana has many qualified lawyers who should seriously consider this public service opportunity. Justice Brent Dickson’s 30-year career exemplified civility and professionalism. One enduring legacy will be to fill his seat with an equally talented attorney.”

Justice Dickson will step down from the bench in the spring of 2016. The exact date is not determined; however, he intends to leave prior to July 2016 mandatory retirement. The Judicial Nominating Commission (JNC) will search for his successor.

The JNC is a seven-member constitutionally created body chaired by Chief Justice Rush. It includes three lawyers (elected by their peers) and three citizens (appointed by the Governor). Two of the seven members have terms that expire December 31, 2015. On November 20, attorneys will elect a member to represent the first district (mail-in ballots are tallied by the Appellate Clerk of Courts). The Governor will appoint a member to fill the second district seat.

The JNC will review applications and interview qualified candidates after the first of the year. The public interviews will be held in Indianapolis (exact dates yet to be determined). After interviews and deliberations in an executive session, the Commission will publicly vote to send the three most qualified names to Governor Mike Pence. The Governor selects Indiana's next justice.

More information, including a link to the application, is available here. A candidate must be an Indiana resident and a member of the Indiana bar for ten years or an Indiana judge for five years. Those interested in applying may contact JNC Counsel, Adrienne Meiring, at 317-232-4706 or adrienne.meiring@courts.in.gov.

Tentative Deadline – 12:00 p.m., January 25, 2016.

The Nominating Commission will conduct public interviews in Indianapolis on a date to be determined in the future, after which the Commission will select a number of candidates for second interviews. Upon the conclusion of the second round of interviews, the Nominating Commission will deliberate in executive session, then vote in a public session to nominate to the Governor the three most highly qualified candidates. I.C. § 33-27-3-2.

Candidates must be available on the interview dates, including evening hours.

After the Commission has evaluated each application and determines whether to interview all or some of the applicants, the applications of the candidates to be interviewed become public records and may be posted on the Indiana Supreme Court’s website. I.C. § 33-27-3-2(d)(1).
Letters of Recommendation

The Nominating Commission will consider on behalf of each applicant a reasonable number of letters of recommendation.

Posted by Marcia Oddi on Thursday, November 12, 2015
Posted to Vacancy on Supreme Court - 2016

Ind. Gov't. - "The Knox County Council is trying to get a handle on pauper attorney fees"

The Nov. 11th story from WVUT, Vincennes University, continues:

This year alone the Council has received requests for an additional 250 thousand dollars above what was originally budgeted in the pauper defense budget.

Bob Slayton with the County’s Pauper Defense Board says over the years the system had drifted into what he described as benign neglect.

Meaning there was plenty of money to cover the costs and there was no need to change the status quo until the past two years.

According to Slayton it appears some of the claims being submitted are excessive and need to be reigned in.

Slayton says they are going to be working with local attorneys to create greater oversight and create fee structures and contracts.

And from a WZDM 92.1 Vincennes report:
The Knox County Council is reviewing excessive spending by the county’s Public Defender Board. The board was budgeted $800,000 for spending in 2015. They were awarded $150,000 in October, and another $100,000 last night, to balance their budget for the rest of the year.

Public Defender Board representative Bob Slayton came before Council Tuesday. He called the increased rate of spending unsustainable, and is seeking a revamp in procedural billing. County Council president Bob Lechner says the increased spending is due in part to an increased case load with two new County judges and a new prosecutor on the job. Lechner believes much of the problem will work itself out within the next year, as the number of cases filed begins to level off.

Even with the expected lighter caseload, an added layer of oversight in the Public Defender billing process will likely be in place by the first of the year.

Posted by Marcia Oddi on Thursday, November 12, 2015
Posted to Indiana Government

Wednesday, November 11, 2015

About the ILB - think about using Twitter, if you don't already

Do you follow the ILB on Twitter, in addition to following the blog itself? If not, you may be missing out on some good information.

A few years ago (actually 9 years ago), the ILB first posted an entry titled "How to Read a Blog." It is still useful today.

But today the ILB also uses Twitter, tweeting and linking to every new ILB post. For those of you familiar with RSS feeds, this serves as a similar tool.

The ILB also follows a number of other lawyers and reporters (currently over 200), and "retweets" the tweets that I feel may be of interest to ILB readers. Because of this, the Twitter ILB combined with the Blog ILB can provide a richer variety for the reader. Take a look for yourself, here, by scrolling down the long list of recent ILB tweets (12,610 right now).

The ones with the ILB logo are my tweets, the ones with another logo are others' tweets I felt may of interest to ILB readers.

The ILB tries very hard not to overload you with tweets and to stick to the central focus of the ILB: Indiana law and government, and other information that may impact Indiana law and government.

The Twitter ILB does not replace the Blog ILB, of course, but supplements it.

If you decide to join Twitter, there is no requirement that you yourself tweet. You can elect to simply use it as a tool to keep track of whatever you are interested in.

There is no requirement that you follow a number of other twitters, for starts you can choose to follow just @indianalawblog, for instance. I'd suggest also following @SCOTUSblog.

[More] Ordinarily if you just read the ILB, you can miss some items the ILB highlights on Twitter. For instance, just this morning, I retweeted for ILB Twitter followers this tweet:

With this accompanying ILB tweet:

Posted by Marcia Oddi on Wednesday, November 11, 2015
Posted to About the Indiana Law Blog

Ind. Courts - More on "Supreme Court orders Zionsville and Whitestown to work together on map"

Updating this ILB post from Nov. 6th, quoting from a story from the Zionsville Times Sentinel:

The Indiana Supreme Court Justices want a single, clear map of the reorganization area before determining if they will take the case between Zionsville and Whitestown.

Chief Justice Loretta Rush issued an order Thursday mandating the two sides “to work together to select a single map” that will show the borders of Zionsville, Whitestown, Perry Township, and the former Union and Eagle townships.

Now this Nov. 10th story in Current in Zionsville, by Ann Marie Shambaugh, reports:
Last month the Indiana Supreme Court asked Zionsville and Whitestown to “work together” to submit a single map to help the state’s highest court decide if it will accept jurisdiction on the towns’ boundary dispute.

The two sides were unable to do so.

Chief Justice Loretta H. Rush asked for a single map “that displays the common borders of Zionsville, Whitestown, Perry Township, and the former Union and Eagle Townships, and shows the major highways traversing the area.”

Both sides submitted their own maps after disagreeing on whether or not the court wanted a higher quality version of an existing map – which is what Whitestown submitted – or a new, simplified map, as Zionsville submitted.

The story includes photos of several maps, but it is unclear whether they are post-order submissions. But the story is headed "Zionsville, Whitestown send separate maps to Supreme Court after being asked to ‘work together.’"

Here is the case docket.

Posted by Marcia Oddi on Wednesday, November 11, 2015
Posted to Indiana Courts

Tuesday, November 10, 2015

Ind. Decisions - Supreme Court issues another opinion today, involving spousal maintenance

In Kevin Gertiser v. Anne Stokes f/k/a Gertiser, a 12-page, 5-0 opinion, Chief Justice Rush writes:

A trial court may modify or revoke a spousal maintenance award under Indiana Code section 31-15-7-3(1) if it determines that there have been “changed circumstances so substantial and continuing as to make the terms unreasonable.” In making that determination, the trial court has broad discretion in weighing evidence of the parties’ financial circumstances. Here, the trial court concluded that the disabled former wife’s remarriage had changed her finances, but not substantially enough to warrant revoking maintenance. The Court of Appeals reversed, concluding that the trial court had disregarded undisputed evidence that her total marital assets had substantially increased.

We disagree. Even though the change in the former wife’s finances could appear substantial at first blush, the evidence in the light favorable to the judgment supports the trial court’s findings, and those findings support its refusal to revoke maintenance. And because we affirm the trial court as to maintenance, we also affirm its award of attorney fees in the former wife’s favor. * * *

Even though the trial court would have had authority under Indiana Code section 31-15-7-3 to revoke maintenance, the evidence supports its findings, and its findings support its judgment that Anne’s finances had not changed so substantially that revocation was warranted. Because we affirm the trial court as to maintenance, we likewise affirm its award of attorney fees.

Posted by Marcia Oddi on Tuesday, November 10, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Appellate E-filing is terrific! — except for one thing

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

I don't believe I've ever included an exclamation mark in a blog post title, but this is truly exciting news. Beginning yesterday, lawyers with the Indiana Attorney General's office, Marion County Public Defender Agency, and State Public Defender are filing all briefs and motions electronically as part of a pilot project; other lawyers may use the new Indiana E-filing System (IEFS) for appellate filing. (Only the notice of appeal will be filed in hard copy.) Unlike in many appellate courts, no paper copies will need to be filed after the electronic filing.

New Rules

The Supreme Court has created new Interim Appellate Rules, which were posted on Friday. A new rule, Appellate Rule 68, has been added. Existing rules have been amended to require a header on each page, somewhat different page numbering (the cover is now page 1, table of authorities page 2, and so on), electronic signatures, and new certificate of service language. Of course, language on binding and color of covers is no longer relevant.

Training on E-Filing

I attended a training session on Friday, October 30, for lawyers from the three agencies. (Most of my appeals come from the Marion County Public Defender.) Many sessions have been scheduled in the days since, and in the matter of a few minutes, Bob Rath, the Indiana Supreme Court’s Director of Appellate Court Technology, demonstrated how to file and serve a brief in an appellate case. The E-file site may be accessed through this link. Instructional videos are also available.

Smooth Experience

I e-filed a reply brief yesterday in an Appellate Clinic case. Changing the format from the conventional brief format was easy, and the document was then saved as a PDF. Accessing the E-filing site, locating the lawyers to serve, completing the form, and uploading the document takes a matter of seconds—or at most a couple of minutes if the first time around you mistakenly select “Efile” instead of “EfileAndServe,” as I did.

Unlike the A/V pilot project, which I believe was met with universal disappointment among appellate practitioners, I suspect this project will be greeted with broad-based enthusiasm by those participating in the pilot and anticipation by those who will e-file when it becomes broadly available and eventually required later in 2016.

One Big Disappointment

Now that all these motions and briefs exist in electronic format, one would expect easy access by other lawyers, trial judges, the public, and the press. Unfortunately, that is not part of the pilot project.

For the past several months, court opinions and orders have been linked to the online docket; a simple click on a hyperlink takes any interested person there. E-filed motions and briefs, however, will not be hyperlinked through the online docket or otherwise available. When I asked about this at the training session, I was told this was a “policy decision” — not one related to technology.

I hope that decision is revisited. Each E-filed document requires the user to specify whether it is “public” or “confidential.” Nothing appears on the online docket until personnel in the Clerk’s office review and accept the filing. Every “public” document should truly be public, which with today’s technology and expectations means accessible through a click of the docket.

Although some briefs end up on Westlaw, many do not and many Indiana lawyers, not to mention nearly every member of the media or public, do not have access to Westlaw. Lawyers and judges may be interested in the arguments made by counsel in a similar case; they should be able to read those arguments without paying the Clerk’s office for a photocopy or tracking down counsel to request the document be emailed to them. Nor should that burden be imposed on the public or press whenever they are interested in an E-filed public document.

The Indiana Supreme Court has generally been very good on transparency issues, including the webcasting of oral arguments well before most other courts. I hope that commitment to transparency continues by linking all public E-filed documents.

Posted by Marcia Oddi on Tuesday, November 10, 2015
Posted to E-filing | Schumm - Commentary

Ind. Decisions - Supreme Court issues one opinion today, involving defense of necessity instruction

In John Hernandez v. State of Indiana, a 10-page, 5-0 opinion, Justice David writes:

Oliver Gray was pulled over by Indianapolis Metropolitan Police for not having a properly displayed license plate on the vehicle he was driving. John Hernandez was the only passenger in the vehicle when the traffic stop occurred. Upon discovering that Gray was also driving with a suspended license, he was placed under arrest. Although Hernandez was not under arrest, the police requested that he exit the vehicle so an inventory search could be conducted and the vehicle could be towed. Immediately upon exiting the vehicle, Hernandez put his hands up and informed police he had a handgun in his pocket. The handgun was safely retrieved by police. Because Hernandez was not licensed to carry a handgun, he was also placed under arrest.

Hernandez was charged with carrying a handgun without a license and went to trial. At trial, Hernandez repeatedly testified that during the traffic stop Gray had been in possession of the handgun but threatened Hernandez into taking the gun from him. Gray told Hernandez he would not go back to jail and instructed him to take the gun “or else.” Hernandez knew of Gray’s criminal history and was fearful that he would be shot if he refused to take the handgun. He also feared that Gray may start shooting others if Gray maintained possession of the gun. Therefore, Hernandez took the handgun, but asserted at trial that he had done so only out of necessity. At the conclusion of the evidence, the trial court denied giving Hernandez’s tendered final jury instruction on the defense of necessity. Hernandez was found guilty and was convicted of carrying a handgun without a license.

Because Hernandez presented some evidence to support the defense of necessity instruction, we now hold that it was error for the trial court to have refused giving the instruction. * * *

Because Hernandez presented sufficient evidence to have the jury instructed on his defense of necessity, and the error impacted Hernandez’s substantial rights, we reverse the trial court, vacate Hernandez’s conviction, and remand for a new trial.

Posted by Marcia Oddi on Tuesday, November 10, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (2):

In In the Matter of the Guardianship of B.W.; E.W. v. L.G., a 15-page opinion, Judge Robb concludes:

In a custody dispute between a natural parent and a third party, we recognize a strong presumption that a child’s best interests will be served by placement with his or her natural parent. In the present case, the trial court’s findings fail to support the judgment that Great Aunt has clearly and convincingly overcome the presumption in favor of Mother. We therefore reverse and remand, with instructions to vacate the order awarding Great Aunt custody of B.W.
In State of Indiana v. Justin Bazan, a 7-page opinion, Judge Barnes writes:
In this interlocutory appeal, the State of Indiana appeals the trial court’s grant of a motion to dismiss filed by Justin Bazan regarding the charges of Level 6 felony operating a vehicle while intoxicated endangering a person with a prior conviction within five years and Level 6 felony operating a vehicle while intoxicated with a prior conviction within five years. We affirm. * * *

We conclude that, unlike in Akins, the New York statute here is not substantially similar to the elements of a crime described in Indiana Code Sections 9-30-5-1 through 9-30-5-9. The New York statute under which Bazan was convicted requires only some extent of impairment due to the consumption of alcohol. On the other hand, Indiana Code Section 9-30-5-2(a), upon which the State relies, requires a showing of an impaired condition of thought and action and the loss of normal control of a person’s faculties. The Indiana statute requires a greater showing of impairment than the New York statute. The two statutes have markedly different thresholds for establishing a violation. Consequently, the two statutes are not substantially similar, and we conclude that the trial court properly dismissed the enhanced charges in this case.

NFP civil decisions today (0):

NFP criminal decisions today (13):

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

Scott D. Hartman v. State of Indiana (mem. dec.)

Payton Jarrard v. State of Indiana (mem. dec.)

Lennard Coleman, Sr. v. State of Indiana (mem. dec.)

Donald S. Adcock v. State of Indiana (mem. dec.)

Kevin L. Simons v. State of Indiana (mem. dec.)

Artie Pence v. State of Indiana (mem. dec.)

Stacey Yuron Hart v. State of Indiana (mem. dec.)

Garrick J. Troupe v. State of Indiana (mem. dec.)

Sean R. Schaffer v. State of Indiana (mem. dec.)

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

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

Nathan Scott Davis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, November 10, 2015
Posted to Ind. App.Ct. Decisions

Courts - "The 'Administrative Side' of Chief Justice Roberts"

Harvard Law Professor Richard J. Lazarus has a 61-page, fascinating article in the current Harvard Law Review Forum, headed "'Back to “Business' at the Supreme Court: The 'Administrative Side' of Chief Justice Roberts." It begins with a history of the Review's changing approach to covering the statistics of the Supreme Court, concluding:

The purpose of this article is to take a turn back toward Justice Frankfurter’s original vision of the significance of the Court’s “Business.” * * * As Justice Frankfurter explained: “Perhaps no aspect of the ‘administrative side’ that is vested in the Chief Justice is more important than the duty to assign the writing of the Court’s opinion.” "[I]f the duty is wisely discharged,” it is “perhaps the most delicate judgment demanded of the Chief Justice.”
Today in the NY Times, Adam Liptak looks at the Lazarus article, and the assignment process, in a column headed "Locking in Votes and Doling Out ‘Dogs’: How Roberts Assigns Opinions."

Posted by Marcia Oddi on Tuesday, November 10, 2015
Posted to Courts in general

Ind. Law - "Prosecutors push to restore tougher drug sentences"

Maureen Hayden, CNHI Statehouse Bureau Chief, reports in a long story in the Herald Bulletin (here via Indiana Economic Digest)- some quotes:

INDIANAPOLIS – As heroin use surges, local prosecutors are pressing to restore tough penalties for drug dealers and users, less than two years after sentencing laws were relaxed to clear prisons of drug offenders.

Dustin Houchin, prosecuting attorney in Washington County, cited cases across the state where some people charged with dealing heroin now face just a year in prison – not enough, he said, to set them straight.

“That just strikes me as fundamentally too low for someone selling poison to people in my community,” said Houchin. His rural county, like other areas, has seen a surge in heroin overdoses in the past two years.

Last year, lawmakers reformed sentencing laws to toughen penalties for violent crimes but reduced punishment for most drug offenses.

That came after decades of ratcheting up prison terms in response to concerns over drugs -- a trend that inflated the state's prison population. Before last year, for example, someone caught with three ounces of cocaine faced more time in prison than someone convicted of rape or armed robbery.

Proponents of reform said it restored sentencing to fit the crime.

“The penalties were so far out of whack, they made no sense,” said Larry Landis, who advocated for the changes as head of the Indiana Public Defender Council.

Even then, prosecutors worried the reform went too far. They objected to giving judges more discretion over sentences and ending mandatory terms for certain crimes. * * *

[P]rosecutors say shorter sentences rob them of leverage - the threat of longer sentences - in plea negotiations that force drug users into treatment.

“We’ve got addicts who’d rather be incarcerated than go into treatment,” said Bruce Embry, the Miami County prosecuting attorney. “They say, ‘I’ll take my jail time.’”

Embry and other prosecutors say public safety is at stake. Watered-down penalties don't take dealers off the streets, they argue, leading to more violence and crime.

Landis rejects that notion, citing research from the Pew Charitable Trusts and other sources that finds tougher penalties do little to reduce drug use or crime.

“Putting people in prison for their drug use doesn’t work,” he said.

How lawmakers react to the pressure from prosecutors remains to be seen.

They return to the Statehouse in January, for a 90-day “short session,” with an already full agenda. And some may be reluctant to tamper with last year's sentencing reform bill, which was five years in the making and runs more than 500 pages.

Portions of it, including a piece that keeps the lowest level drug offenders out of prison, are still being rolled out. * * *

In September, Gov. Mike Pence called for tougher penalties when he appointed a task force to combat drug abuse. He cited rising heroin deaths and drug-related cases of child abuse and neglect.

On the House side, one of sentencing reform's biggest champions is now gone. Former House majority leader, Rep. Jud McMillin, R-Brookville, who chaired the Courts and Criminal Code Committee up until late last year, resigned in late September after the release of a sex video from his stolen phone.

The current committee chairman, Rep. Tom Washburne, R-Princeton, is now the key gatekeeper for sentencing laws in the House.

Washburne said he's reluctant to predict what will happen, but he foresees a “surgical strike” to toughen penalties for those caught dealing heroin.

Such a measure has already been promised by state Sen. Jim Merritt, R-Indianapolis, an advocate of more treatment for heroin users and tougher penalties for dealers.

But Washburne noted that lawmakers, in overhauling the criminal code, strongly signaled a new approach in fighting drug abuse.

“There are some problems that a change in the criminal sentencing code can’t fix,” he said. “In the drug realm, the rationale used to be, if we make drug penalties harder, you make the drug problem go away. We’ve learned that’s not true.”

Posted by Marcia Oddi on Tuesday, November 10, 2015
Posted to Indiana Law

Ind. Gov't. - Story shows difference between night and day in electric generation; plus more

The first story, dated Nov. 8, is out of Texas, headed "A Texas Utility Offers a Nighttime Special: Free Electricity." Clifford Krauss and Diane Cardwell of the NYTimes report:

DALLAS — In Texas, wind farms are generating so much energy that some utilities are giving power away. * * *

TXU’s free overnight plan, which is coupled with slightly higher daytime rates, is one of dozens that have been offered by more than 50 retail electricity companies in Texas over the last three years with a simple goal: for customers to turn down the dials when wholesale prices are highest and turn them back up when prices are lowest.

It is possible because Texas has more wind power than any other state, accounting for roughly 10 percent of the state’s generation. Alone among the 48 contiguous states, Texas runs its own electricity grid that barely connects to the rest of the country, so the abundance of nightly wind power generated here must be consumed here.

Wind blows most strongly at night and the power it produces is inexpensive because of its abundance and federal tax breaks. A shift of power use away from the peak daytime periods means lower wholesale prices, and the possibility of avoiding the costly option of building more power plants.

“That is a proverbial win-win for the utility and the customer,” said Omar Siddiqui, director of energy efficiency at the Electric Power Research Institute, a nonprofit industry group.

For utilities, the giveaway is hardly altruistic. Deregulation in Texas has spurred intense competition for customers. By encouraging energy use at night, utilities reduce some of the burdens, and costs, that the oversupply of wind energy places on the power grid.

The story goes on to describe some similar experiments underway elsewhere.

A second story, "Indiana Legislature unlikely to power up new energy rules this session," reported by Keith Bednman, appears in today's NWI Times. Some quotes:

A General Assembly interim committee on energy has offered no recommendations in its final report after hearing large manufacturers square off against the state's utilities on Sept. 2 at the statehouse.

The large manufacturers want more options to control spiraling energy costs that hurt their competitiveness, while the state's utilities say some of those options would hike electric bills for everyone else.

The chairman of the interim committee, Sen. James Merritt, R-Indianapolis, said last week so much remains unsure about federal clean air rules that making big changes in state utility regulations in the upcoming legislative session does not make sense.

However, he said the General Assembly might be able to help manufacturers like Subaru of Indiana, in Lafayette, which have expressed an interest in producing their own electricity, by allowing pilot co-generation projects.

"We will go project by project and see how we might be able to help industrials with a clean power plant," he said in speaking about setting up such a program.

Co-generation plants, also called combined heat and power, are considered clean and efficient because they recycle the heat produced in generating electricity for other industrial purposes.

Indiana's competitiveness when it comes to industrial electricity rates has slipped markedly in the last decade. From 2003 to 2014, industrial electricity prices increased 75 percent in Indiana, while only increasing 37 percent in the nation as a whole, according to U.S. Energy Information Administration data.

And story today in the San Diego Union-Tribune, "U.S. Nuclear retirements challenge clean-energy dream," deserves careful reading.

Posted by Marcia Oddi on Tuesday, November 10, 2015
Posted to Indiana Government

Monday, November 09, 2015

Ind. Courts - More on: Justice Brent E. Dickson will step down from the bench in the spring of 2016

Updating this ILB post from earlier today, Brandon Smith of Indiana Public Media writes:

He says he hopes he’ll be remembered for his focus on fair jury trials and lawyer civility. He says of the nearly 900 opinions he’s written, he’s proud of the work he’s done interpreting the Indiana Constitution.

“Some of the cases that I’ve enjoyed working the most on are ones in which the Court was trying to put flesh on the bones of the 1851 Constitution and understanding what the ideas are to mean today,” he says.

Dickson says during his two years as Chief Justice – before handing over the reins to Rush – he sought to engage all of his fellow justices in some of the duties leading the judicial branch.

“I didn’t know who my successor would be,” Dickson adds. “I wanted to get everyone’s feet wet as quickly as possible and so we spent a lot of conference time talking about things that maybe a Chief Justice would handle on their own.”

Smith also had several good tweets from an J. Dickson interview this morning:
ickson says Chief Justice Rush, his successor, expertly manages all her responsibilities. Calls her a brilliant and "careful" writer.

Dickson plans to become senior judge in retirement but not hearing cases; wants to do administrative work on initiatives he's interested in.

Dickson as a child trained in classical piano. Played summer cocktail lounges before college and was part of a Dixieland band at Purdue.

Indianapolis Star reporter Kristine Guerra writes:
Among the significant contributions he is proud of was the court's adoption of a rule that kept police interrogations of suspects from being presented in court unless they were recorded. Dickson said it was a big step for Indiana and made sure that an accused person's story was accurately told to jurors. Electronic recordings allowed jurors to see the suspect and the interrogator's facial expressions and body language and are meant to lessen factual disputes in court. * * *

Former Justice Frank Sullivan, who left the bench in 2012, said Dickson will be remembered for his "many precedent-setting opinions" on the Supreme Court, especially in the area of Indiana constitutional law, and for his "unflagging commitment to promoting civility" in the legal community. Gov. Mike Pence said Dickson's opinions have shaped Indiana law and judicial practice to benefit Hoosiers.

Dickson authored opinions that led to major reforms of Indiana's property tax system and upheld the state's school voucher program. In 2009, he wrote the ruling that overturned the second murder conviction of former State Police Trooper David Camm. More recently, Dickson authored a ruling that declared personal license plates as government speech.

ILB: Justice Dickson also stressed, in the first paragraph of his news release today:
I sincerely hope Indiana attorneys and judges will take a moment to reflect on the possibility that my upcoming vacancy is meant for them or someone they know.

Posted by Marcia Oddi on Monday, November 09, 2015
Posted to Vacancy on Supreme Court - 2016

Ind. Courts - Court posts appearance form for E-Filed cases

Trial Rule 86, Electronic filing and electronic service, has been amended, eff. Nov. 9, by adding a new subsection O, Appearance Form in E-Filed Cases.

Posted by Marcia Oddi on Monday, November 09, 2015
Posted to Indiana Courts

Ind. Courts - Who else on the appellate bench may be retiring soon? [Updated]

Justice Brent Dickson announced his upcoming retirement this morning. Per the news release: "[H]e faces a mandatory retirement in July 2016 and intends to leave prior to summer."

It has been an ILB gripe for years that although by state law an Indiana appellate judge must step down at age 75, many of the jurists do not make their birth days, or even their year of birth, public. As the ILB wrote earlier this year:

[S]o many of the jurists have not made their ages publicly available, despite that fact that the age limit is a part of the law. Three of the current justices [Rush, Dickson and Massa] provide their year of birth in their official biographies; none of the court of appeals judges currently do so.
The same Jan. 8th post also has a useful set of charts.

[Updated] A reader has helpfully pointed out that (even though the ages are not listed in the Court biographies) the ILB's speculation on who else may be retiring in the next few years on the basis of age is likely incorrect. It has been removed.]

Posted by Marcia Oddi on Monday, November 09, 2015
Posted to Indiana Courts

Ind. Courts - "Supreme Court scrutinizes sex offender registration requirement"

Dan Carden of the NWI Times reported Nov. 5th on two of the oral arguments heard that day by the Supreme Court:

(The links lead to the videocasts.)

A few quotes from the story:

Indiana law, since 2006, has required sex offenders who must register in their home states to also register in Indiana if they relocate to the Hoosier State.

But does a new Hoosier who committed a sex crime elsewhere prior to 2006 still have to register in Indiana? Or is that an unconstitutional "ex post facto" law that imposes a punishment that didn't exist when the crime was committed?

The Indiana Supreme Court wrestled with those questions during oral arguments in two cases Thursday, including one that could put a Merrillville man at risk of three years in prison for failing to register as a sex offender.

Posted by Marcia Oddi on Monday, November 09, 2015
Posted to Indiana Courts

Ind. Gov't. - Appellants file Supreme Court brief in CAC v. Koch

The last post in the ILB's long list of entries in the Indiana House public records case was dated Oct. 6th and headed: "Supreme Court grants emergency transfer in House public records case, bypassing COA review."

Filed today, 30 days later, is the Appellants' Brief in CAC v. Koch.

The 51-page brief states the issue as:

Did the trial court err in its August 11,2015, Order by dismissing as nonjusticiable Requesters' claims for declaratory and injunctive relief under the Access to Public Records Act, Ind. Code § 5-14-3-1 et seq. (hereinafter "APRA"), based entirely upon this Court's decision in State ex rel. Masariu v. Marion Superior Court No.1, 621 N.E.2d 1097 (Ind. 1993)?

Posted by Marcia Oddi on Monday, November 09, 2015
Posted to GA and APRA

Ind. Decisions - Transfer list for week ending November 6, 2015

Here is the Clerk's transfer list for the week ending Friday, November 6, 2015. It is two pages (and 24 cases) long.

One transfer was granted last week, and it was with opinion: Latoya C. Lee v. State of Indiana. You may read the Nov. 5th ILB summary here.

There was two cases last week where transfer was denied by a 3-2 vote. Both were opinions by Judge Bradford. In both cases the record shows: "Transfer Denied - All Justices concur, except Rucker and David, JJ., who vote to grant the petition to transfer."

Posted by Marcia Oddi on Monday, November 09, 2015
Posted to Indiana Transfer Lists

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

For publication opinions today (0):

NFP civil decisions today (1):

In the Matter of the Termination of the Parent-Child Relationship of C.K., Mother, J.E., Father, and A.K. and E.K., Children, J.E. v.Indiana Department of Child Services, et al. (mem. dec.)

NFP criminal decisions today (4):

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

Robert L. Woods v. State of Indiana (mem. dec.)

Nicholas William Laskarin v. State of Indiana (mem. dec.)

Donald G. Huntington v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, November 09, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Secrecy, corruption and conflicts of interest pervade state governments"

That is the heading to this lengthy story in USA Today by Nicholas Kusnetz, Center for Public Integrity. There is much of note in the story (Indiana received a grade of D), including several references to abuse of email:

[I]n New Mexico, lawmakers passed a resolution in 2013 declaring that their emails are exempt from public records laws — a rule change that did not require the governor’s signature. * * *

In January, The Wichita Eagle reported that Kansas Gov. Sam Brownback’s budget director had used his private email address to send details of a proposed budget to the private email accounts of fellow staff members and to a pair of lobbyists. He later said he did so only because he and the rest of the staff were home for the holidays. In May, Brownback acknowledged that he, too, used a private email account to communicate with staff, meaning his correspondence was not subject to the state’s public records laws. A state council is studying how to close the loophole. Court cases in California are examining a similar question.

Cuillier said that in most states, courts or others have determined that discussions of public business are subject to disclosure, no matter whether the email or phone used was public or private. But the debate is indicative of a larger problem, and it reveals public records laws as the crazy old uncle of government statutes: toothless, antiquated appendages of a bygone era.

Here is the Indiana grading.

Here is the Investigation's homepage.

Posted by Marcia Oddi on Monday, November 09, 2015
Posted to Indiana Government

Ind. Courts - Justice Brent E. Dickson will step down from the bench in the spring of 2016

From a news release:

Indiana Justice Brent E. Dickson will step down from the bench in the spring of 2016 after 30 years as a judicial branch leader. He is Indiana’s 100th Supreme Court justice and the second-longest-serving justice in state history. “During my 17 years of general and trial practice as a lawyer in Lafayette, it had never occurred to me to seek appellate judicial service. But at the suggesting and urging of others, I applied. Three decades later I am immensely gratified to have been able to serve the citizens of Indiana for so many years. I sincerely hope Indiana attorneys and judges will take a moment to reflect on the possibility that my upcoming vacancy is meant for them or someone they know.”

Justice Dickson was appointed to the Court by Governor Robert D. Orr in 1986. During his tenure, he has served with twelve other justices (Givan, Pivarnik, DeBruler, Shepard, Krahulik, Selby, Sullivan, Rucker, Boehm, David, Massa, and Rush). In May 2012, at the urging of colleagues and state leaders, he accepted the position of Chief Justice to provide stability to a changing Court. He served as Chief Justice for over two years, stepping down in August 2014 and remaining on the Court.

During his judicial career, he has authored 884 civil and criminal opinions (718 majority and 166 non-majority) and several law review articles. Justice Dickson chaired the Supreme Court's Records Management Committee, Judicial Data Processing Oversight Committee, the Task Force for Public Access to Court Records, and several other committees. He also served many years as the Court's liaison to the Disciplinary Commission and Board of Law Examiners. For ten years, he taught evening law school courses in Indiana Constitutional law. Justice Dickson is known for his efforts to enhance attorney civility, increase lawyer pro bono legal services, encourage mediation, and support the jury trial system. He is co-founder of the Sagamore Chapter of the American Inns of Court in Indianapolis, an organization that promotes lawyer civility and professionalism. He is also a registered mediator, an elected member of the American Law Institute, and serves on the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States.

Justice Dickson is married to Jan Aikman Dickson, and they have three adult sons and nine grandchildren. He was born in Gary, Indiana in 1941 and educated at Hobart, Indiana public schools. He graduated from Purdue University (B.S. 1964) and Indiana University Robert H. McKinney School of Law (J.D. 1968), and he received an honorary doctor of letters degree from Purdue University in 1996. A more complete biography can be found online http://courts.in.gov/citc/2829.htm.

The exact date Justice Dickson will step down from the bench in spring 2016 is not yet known; however, he faces a mandatory retirement in July 2016 and intends to leave prior to summer. The Judicial Nominating Commission will search for a successor to fill the vacancy; applications for the position will be made available on the Court’s website on November 12.

Posted by Marcia Oddi on Monday, November 09, 2015
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/9/15):

Next week's oral arguments before the Supreme Court (week of 11/16/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 11/9/15):

Next week's oral arguments before the Court of Appeals (week of 11/16/15):

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

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


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

Posted by Marcia Oddi on Monday, November 09, 2015
Posted to Upcoming Oral Arguments

Friday, November 06, 2015

Ind. Decisions - Senior judge as writing judge? [Updated]

The ILB commented after the summary of the Sasso opinion today, where the opinion was authored by Judge Baker, with "Robb, J., and Shepard, S.J.", concurring:

[ILB: Interesting, Sr. Judges have always served as opinion authors, in my experience.]
Just received this note from a reader:
The Andre Wells case [April 29th] out of Monroe County, decided back in April, is another case where a senior judge (Senior Judge Barteau) on the panel was not the writing judge (Judge May). Before that, I too had thought that senior judges were always the writing judges when they were in the majority.
ILB: And I don't believe I have ever seen an opinion with a senior judge in the dissent ...

[More] Another reader points out that the oral argument in Sasso was held at Purdue and that "When a case is set for a roadshow argument, the writing judge will sometimes ask other judges than those on the assigned panel to participate."

[Updated] The ILB has been advised that the Wells case was also a traveling case.

Posted by Marcia Oddi on Friday, November 06, 2015
Posted to Indiana Decisions

Ind. Courts - Supreme Court expands electronic filing project in appellate courts

From a 10-page order filed today, titled "Order initiating electronic filing in Indiana Supreme Court and Court of Appeals":

1. In appeals in which: (a) either the Indiana Public Defender or the Marion County Public Defender, on one side, and the Attorney General of Indiana, on the other side, represent the parties to the appeal; and (b) the Notice of Appeal has already been conventionally filed, all party filings shall be filed through the Indiana E-filing System (“IEFS”).
2. In all other appeals in which the Notice of Appeal has been conventionally filed, all party filings may be filed through the IEFS.
For more, see this ILB post from July 31st and this post from Aug. 14th.

Posted by Marcia Oddi on Friday, November 06, 2015
Posted to E-filing | Ind. Sup.Ct. Decisions

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

For publication opinions today (4):

In Rick C. Sasso, M.D., and SEE LLC v. Warsaw Orthopedic, Inc., Medtronic Sofamor Danek, Inc., and Medtronic, Inc., a 14-page opinion, Judge Baker writes:

SEE LLC appeals the trial court’s order denying its motion for summary judgment and granting the defendants’ cross-motion for summary judgment. It argues that it is entitled to unpaid royalties stemming from a 1998 contract. Finding this contract unenforceable as a matter of law, we affirm the judgment of the trial court. * * *

After the edits, one of the representations reads, “See further warrants and represents that it owns solely, as evidenced by a copy of an assignment attached hereto in Schedule A, all right, title, and interest in the Patent and the Intellectual Property Rights . . . .” Id. at 571. There is no such document attached to the contract. Indeed, there is no formal assignment document establishing SEE’s rights to the Patent anywhere in the record. The right to the Patent was the heart of the deal, as SEE purported in the Agreement to “irrevocably transfer[], assign[], and convey[] to SDG all its entire right, title, and interest in and to” the Patent. Id. at 254. * * *

The parties never created an addendum listing the products to be covered. This addendum would not have been “a mere memorial of the agreement already reached.” Wolvos, 668 N.E.2d at 675. It was to be an agreement by the parties in the future over material terms of the contract.

The addendum’s absence renders the Agreement unenforceable for two reasons. First, there is no basis for determining whether a breach occurred—since there are no products listed in an addendum, there are no “Medical Devices” as defined in the Agreement. If there are no “Medical Devices,” the defendants would not have breached by not paying royalties. The absence of the addendum means that courts would have no way of knowing whether the defendants breached the Agreement.* * *

The judgment of the trial court is affirmed.
Robb, J., and Shepard, S.J., concur.

[ILB: Interesting, Sr. Judges have always served as opinion authors, in my experience.]

In Timothy Devereux v. Rene DiBenedetto, a 9-page opinion, Judge May writes:
Timothy Devereux appeals the denial of his motion for summary judgment. He argues Rene DiBenedetto’s claim against him was barred by the limitations period set forth in her contract with Conour Law Firm, LLC (“the Firm”). DiBenedetto argues Devereux is not a party to the contract she made with the Firm or, in the alternative, the contract’s language shortening the limitations period was the product of unfair dealing, violated Rule of Professional Responsibility 1.8(h), and violates public policy. DiBenedetto cross-appeals, asserting the trial court erred when it did not rule on her motions to strike certain evidence Devereux designated. We affirm. * * *

We agree with the Charnay analysis and find it consistent with Indiana Rule of Professional Conduct 1.8(h). The clause in DiBenedetto’s contract with the Firm that shortens the time for filing a lawsuit violates public policy and is void. Therefore, the trial court properly denied Devereux’s motion for summary judgment. We expressly decline to comment on the merits of DiBenedetto’s action against Devereux. The opinion should be read to address the issue of the limitations clause found in the contract between DiBenedetto and the Firm, and nothing else. We affirm the decision of the trial court.

[ILB: Another case related to the William Conour fall-out is discussed in this Oct. 26th ILB post.]

In Dean Vander Woude and Timothy Koster v. First Midwest Bank, Successor in Interest to Bank Calumet, N.A., a 17-page opinion, Judge Najam writes:
Dean Vander Woude and Timothy Koster appeal the trial court’s judgment in their favor on their complaint against First Midwest Bank (“the Bank”) following a bench trial. Vander Woude and Koster present two issues for our review:
1. Whether the trial court abused its discretion when it calculated their attorney’s fee award.
2. Whether the trial court erred when it denied their request for prejudgment interest.
We affirm in part, reverse in part, and remand with instructions.
In Timothy W. Moore v. State of Indiana, a 5-page opinion, Judge Najam writes:
Moore does not dispute the evidence showing that he did not reside at his registered address on March 12, 2014. Moore’s obligation to comply with Indiana’s sex offender registry statutes did not cease because he moved out of state. Indeed, Moore was required to notify the Hamilton County Sheriff’s Department of his move to Kentucky within seventy-two hours of the move. I.C. § 11-8-8-11 (2013); Johnson v. State, 925 N.E.2d 793, 795 (Ind. Ct. App. 2010) (holding evidence sufficient to convict defendant of failure to register as a sex offender when he moved out of state without notifying local law enforcement), trans. denied. The State presented sufficient evidence to prove that Moore failed to register as a sex offender pursuant to Indiana Code Section 11-8-8-17(a)(5), as charged.
NFP civil decisions today (1):

Robert H. Gentry, III v. Michael Blair (mem. dec.)

NFP criminal decisions today (3):

Luis A. Ramirez v. State of Indiana (mem. dec.)

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

Cesar Contreras-Munoz v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, November 06, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one opinion today, upholding BMV refusal to issue certain personalized plates

In Commissioner of the Indiana Bureau of Motor Vehicles in his Official Capacity v. Rodney G. Vawter, et al., a 14-page, 5-0 opinion, Justice Dickson writes:

In accord with a recent decision of the United States Supreme Court, we uphold the actions of the Indiana Bureau of Motor Vehicles in the processing of applications for personalized license plates.

This is a direct appeal from a trial court summary judgment declaring unconstitutional the statute that authorizes the Indiana Bureau of Motor Vehicles ("BMV") to refuse to issue personalized license plates ("PLPs"). The trial court found that the statute and its related policies were vague, overbroad, and lacking in content-neutrality, violating the First and Fourteenth Amendments to the United States Constitution. The trial court also held that the Bureau violates due process under the Fourteenth Amendment by providing insufficient reasons for a denial or revocation of a PLP. The BMV appeals, arguing that because personalized license plates are government speech, the statute and policies are constitutional. For the reasons expressed below, we agree and reverse the trial court's summary judgment for the plaintiffs on these issues and direct the trial court to enter summary judgment for the BMV on these claims. * * *

Indiana's personalized license plates are government speech. The Bureau of Motor Vehicles, therefore, does not violate the First or Fourteenth Amendments in denying an application for a PLP or revoking a previously issued PLP. Furthermore, Due Process Clause protections do not apply because vehicle owners do not have a property interest in their personalized license plates. We reverse the trial court's grant of the plaintiffs' motion for summary judgment as to these issues and direct the trial court to enter summary judgment on these claims for the BMV.

See this August 28th ILB post for background: ""0INK" license plate case argued yesterday before our Supreme Court."

Posted by Marcia Oddi on Friday, November 06, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Supreme Court orders Zionsville and Whitestown to work together on map"

The Supreme Court heard oral argument in Town of Zionsville, Ind. v. Town of Whitestown, Ind., et al. on Sept. 23rd.

Matt Werner, Zionsville Times Sentinel reporter, reported Nov. 4th (here via Indiana Economic Digest) that:

The Indiana Supreme Court Justices want a single, clear map of the reorganization area before determining if they will take the case between Zionsville and Whitestown.

Chief Justice Loretta Rush issued an order Thursday mandating the two sides “to work together to select a single map” that will show the borders of Zionsville, Whitestown, Perry Township, and the former Union and Eagle townships.

Throughout the lawsuit between the two towns regarding Zionsville’s reorganization with Perry Township, the main focus has been on whether Zionsville is adjacent to the township.

Zionsville argues that since the 2010 reorganization with Union and Eagle townships, the town began to provide township services and retained township powers in Eagle Township, which borders Perry, and can reorganize as two townships. Zionsville has also argued that even if that argument does not satisfy the requirements in the reorganization statute, the town has a small island of land south of Eagle’s Nest subdivision, that has more than 150 linear feet of adjacency to Perry Township.

Whitestown has argued the town did not retain the township powers to reorganize, but only the powers to provide township services in the area such as poor relief and cemetery maintenance.

“The (four) volume (appendix from Zionsville) contains photocopies of several maps of the geographic area involved in this appeal,” the order states. “The Court finds that submission of a map reproduced in higher quality than those in the appendix would be of assistance.”

Rush asks for “a relatively simple map, from the trial record, that displays the common borders of Zionsville, Whitestown, Perry Township, and the former Union and Eagle Townships, and shows the major highways traversing the area, if possible.”

Rush asks the parties to work together and file it with the court no later than Monday. 9.

“If the parties cannot agree on which map to submit, then each side may tender its own supplemental appendix,” the order states.

ILB: Here is a copy of the order (filed Oct. 29th), via the case docket.

Posted by Marcia Oddi on Friday, November 06, 2015
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decided two Indiana cases yesterday

In BRC Rubber & Plastics, Incorpo v. Continental Carbon Company (ND Ind., MJ Cosbey), a 7page opinion, Judge Williams writes:

Continental Carbon Company sells carbon black, a material used in rubber products. BRC Rubber & Plastics makes rubber products for the automotive industry. The companies contracted for Continental to sup-ply carbon black to BRC. When Continental refused to con-firm or ship some of BRC’s orders, BRC sued, alleging that Continental had breached and repudiated the contract. The district court found as a matter of law that the agreement was a “requirements contract,” meaning it obligated Conti-nental to sell as much carbon black as BRC needed, and obli-gated BRC to buy all its carbon black exclusively from Con-tinental. Based on that view, the district court entered judg-ment for BRC.

Continental appeals the judgment and BRC cross-appeals an issue related to damages. Because we find that the agreement did not obligate BRC to buy any—much less all—of its carbon black from Continental, we hold that the agreement was not a requirements contract, so we vacate the judgment and remand, without reaching BRC’s cross-appeal.

In USA v. Booker Rogers (ND Ind., Moody), a 10-page opinion, Chief Judge Sykes writes:
Booker Rogers has a long criminal record that includes two West Virginia convictions for sexually abusing his daughter and stepdaughter. As a sex offender, he is required by the Sex Offender Registration and Notification Act (“SORNA”) to register in each state in which he resides, is employed, or is a student. 42 U.S.C. §§ 16911(1), 16913. In 2011 he moved from West Virginia to Indiana and failed to register there. A few months later his 18-year-old daughter, Jane Doe, reported to police in West Lafayette, Indiana, that Rogers was sexually abusing her.

Rogers pleaded guilty to traveling in interstate commerce and failing to register as a sex offender in violation of 18 U.S.C. § 2250. The district judge applied a six-level sentencing enhancement under U.S.S.G. § 2A3.5(b)(1)(A) for committing a sex offense—incest against Jane Doe—while in failure-to-register status. The judge also refused to award credit for acceptance of responsibility under § 3E1.1 because Rogers falsely denied this relevant conduct. Rogers challenges these sentencing decisions.

The failure-to-register guideline incorporates by reference the definition of the term “sex offense” found in 42 U.S.C. § 16911(5). This case requires us to decide whether a categorical or fact-based approach applies to classifying sex offenses under this statute. We conclude that the threshold definition of “sex offense” found in § 16911(5)(A)(i) requires a categorical approach—an inquiry limited to the elements of the offense—but the exception in subsection (5)(C) calls for an examination of the specific facts of the offense conduct. The district court conducted just this sort of analysis. Because the court properly applied the § 2A3.5 enhancement and properly declined to award § 3E1.1 credit, we affirm.

Posted by Marcia Oddi on Friday, November 06, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Child Support Guidelines amended, eff. Jan. 1st

The Supreme Court has posted this Order Amending Indiana Child Support Guidelines. "These amendments shall take effect on January 1, 2016."

Posted by Marcia Oddi on Friday, November 06, 2015
Posted to Indiana Courts

Thursday, November 05, 2015

Courts - SCOTUS "asked to review appeals court ruling in EPD SWAT raid"

Updating this ILB post from August 1st, which began:

Yesterday's 7th Circuit decision in Louise Milan v. Billy Bolin (ILB summary here, tweeted as - "J. Posner references Keystone Kops in Evansville opinion") (see also this June 3 ILB post, including links to video of the police raid) is the subject of this long story today (with video) posted mid-afternoon by Mark Wilson of the Evansville Courier & Press.
Now the Courier & Press' reporter Wilson is reporting:
City attorneys have petitioned the U.S. Supreme Court to review a federal appeals court ruling in a woman's lawsuit against the Evansville Police Department.

The petition for a writ of certiorari — essentially an appeal — was placed on the Supreme Court's docket Tuesday, filed on behalf of Evansville Police Chief Billy Bolin and 11 officers named in the lawsuit.

If the Supreme Court accepts the case, a favorable ruling could mean the chief and individual officers would be protected from liability by qualified immunity — which shields government officials from liability for violating a person's federal constitutional rights. * * *

In August, the Seventh Circuit Court of Appeals ruled that EPD "committed too many mistakes" to be shielded from liability in the raid. It is that decision the city is asking the Supreme Court to review. * * *

But the city's petition says the Court of Appeals failed to look at the Fourth Amendment issues from the perspective of a reasonable officer on the scene instead of from hindsight:

"The Seventh Circuit held that the Officers' use of force was not reasonable as a matter of law because the EPD's investigation was premature. The Officers believe the Seventh Circuit committed clear error by failing to consider the factors informing Fourth Amendment analysis and second guessing the Officer's actions to ensure their safety in executing a lawful warrant under potentially dangerous and uncertain circumstances."

Police were looking for evidence of anonymous Internet posts to a message board threatening the police department and Chief Bolin. The officers did not find any evidence in the home.

However, police damaged Milan's house, handcuffed her and her daughter and seized their computers, according to the lawsuit.

Police were only able to glean that there was an open wireless Internet connection in the home and that the threatening posts were not made from inside the house, according to court records.

The following day, police arrested Derrick Murray for the threats. He pleaded guilty to a federal charge of transmitting threats in interstate commerce and was sentenced to spend 16 months in prison and then three years on supervised release.

Biesecker said that as recently as Monday the city was refusing to settle the lawsuit outside of trial.

Posted by Marcia Oddi on Thursday, November 05, 2015
Posted to Courts in general

Ind. Decisions - Supreme Court issues one opinion today, a reversal

In Latoya Lee v. State of Indiana, a 5-page, 5-0 opinion, Chief Justice Rush writes:

The State prosecuted three co-defendants on identical charges in the same trial. In a companion case, we reversed the convictions of two of those three co-defendants—Billy Young and Marquise Lee—and remanded to the trial court with instructions to enter judgments of acquittal. Young v. State, 30 N.E.3d 719 (Ind. 2015)[ILB: May 14, 2015]. We now apply that holding to the third co-defendant— Latoya Lee––whose case is indistinguishable except that she belatedly filed her petition to transfer. The State acknowledges that it has no new arguments in opposition to Latoya’s petition to transfer, nor do we find any reason to treat Latoya differently than Young and Marquise. We therefore grant Latoya’s petition to transfer and reverse her conviction as well. * * *

Three panels of the Court of Appeals reached opposite conclusions: Latoya’s and Marquise’s panels left the convictions and fifteen-year sentences intact, but Young’s panel reversed his conviction on grounds that he lacked fair notice of the attempted aggravated battery charge and the error was fundamental. Latoya Lee v. State, No. 49A02-1310-CR-867, 2014 WL 2587313 (Ind. Ct. App. June 10, 2014); Young, 30 N.E.3d at 722. Latoya and Marquise separately petitioned for rehearing, belatedly raising the argument that had prevailed in Young. Latoya Lee v. State, No. 49A02-1310-CR-867, 2014 WL 4291784 (Ind. Ct. App. Aug. 27, 2014). Both petitions were denied, and Latoya did not pursue her appeal further. But the State sought transfer in Young, and Marquise sought transfer in his case—and we granted transfer and issued a single decision reversing both convictions. See 30 N.E.3d 719. We now grant Latoya’s belated petition to transfer in a separate order issued together with this opinion. * * *

Having already exercised our discretion to permit Latoya to file a belated petition to transfer, we see no reason to treat her differently than Young and Marquise, who now stand acquitted as a result of our decision in Young. We therefore grant transfer, reverse Latoya’s conviction, and remand to the trial court with instructions to enter a judgment of acquittal.

Posted by Marcia Oddi on Thursday, November 05, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues one disciplinary order of note

From In the Matter of: Stephen G. DRENDALL, a 2-page, 5-0 order filed Nov. 4th, :

Respondent filed a motion in the St. Joseph Probate Court seeking leave for the grandparents to intervene and an award of custody to the grandparents. Respondent did not serve the motion on the father. At Respondent’s request a hearing was held two days after the motion was filed. Respondent did not provide the father with notice of the hearing, nor did he request the court to postpone the hearing in order to give the father a chance to be heard. Respondent also did not allege that emergency judicial relief without written or oral notice to the father was authorized. * * *

Violations: Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

3.5(b): Communicating ex parte with a judge during a proceeding unless authorized to do so by law or court order.
8.4(d): Engaging in conduct prejudicial to the administration of justice.
8.4(f): Assisting a judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
Discipline: Having carefully considered the parties’ submissions, we conclude that under the circumstances of this case a public reprimand is the appropriate discipline. For Respondent’s professional misconduct, the Court imposes a public reprimand.

Posted by Marcia Oddi on Thursday, November 05, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (2):

In Noah Pittman v. State of Indiana , a 30-page opinion, Judge Brown writes:

Noah Pittman appeals his convictions and sentence for attempted stalking as a class B felony and carrying a handgun without a license as a class A misdemeanor. Pittman raises five issues which we revise and restate as:
I. Whether the trial court abused its discretion in denying Pittman’s motion to dismiss the charge of attempted stalking;
II. Whether the general attempt statute, as applied in this case, is void for vagueness;
III. Whether the evidence is sufficient to sustain Pittman’s conviction of attempted stalking;
IV. Whether Pittman’s sentence for attempted stalking as a class B felony is unconstitutional under Article 1, Section 16 of the Indiana Constitution; and
V. Whether the crime of carrying a handgun without a license is facially unconstitutional.
We affirm.
In Tommy Orlando Townsend, Sr. v. State of Indiana , a 19-page opinion, Judge Crone writes:
Tommy Orlando Townsend, Sr., appeals his convictions and fifty-five-year aggregate sentence for class A felony burglary and class B felony criminal confinement. He contends that his convictions require reversal because the jury’s rejection of his insanity defense is contrary to law. He also contends that the trial court erred in giving the State’s tendered instruction on demeanor evidence and refusing his own instruction on that issue. In addition, he argues that the trial court abused its discretion in sentencing him by failing to find that temporary mental illness was a mitigating circumstance. He also asserts that his sentence is inappropriate in light of the nature of the offenses and his character.

We conclude that the jury properly rejected Townsend’s insanity defense because there was evidence that his mental state at the time of the offenses was due to voluntary intoxication rather than a result of mental disease or defect. We also conclude that any error in instructing the jury was harmless. With regard to sentencing, we conclude that the trial court did not abuse its discretion by declining to find that temporary mental illness was a mitigating factor. Finally, we conclude that Townsend has failed to carry his burden to show that his sentence is inappropriate. Therefore, we affirm.

NFP civil decisions today (2):

Imre L. Falatovics v. Amy L. Falatovics (mem. dec.)

Equity Trust Company, et al. v. James P. Knepp and Andrea K. Slagh d/b/a Hahn, Walz & Knepp (mem. dec.)

NFP criminal decisions today (4):

Arthur L. Gates v. State of Indiana (mem. dec.)

Eqwan Garrett v. State of Indiana (mem. dec.)

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

Paul M. Camp v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, November 05, 2015
Posted to Ind. App.Ct. Decisions

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

Updating this post from yesterday, it looks like the ILB (and others) missed the most interesting part of the story. Jess Bravin writes it up at the WSJ Law Blog in a post headed "Scalia Takes on Katzmann in Statutory Interpretation Smackdown." If 2nd Circuit Chief Judge Robert Katzmann's name is familiar, one reason may be because of the book he published last year on he use of legislative history in interpreting statutes - see ILB posts here. From the WSJ Law Blog:

WASHINGTON—For the past year, Justice Antonin Scalia and Judge Robert Katzmann have been battling for the hearts, or at least the minds, of the judiciary through books presenting competing approaches to statutory interpretation.

On Tuesday, the feud became personal, when a Katzmann opinion interpreting a federal sentencing statute came before the Supreme Court—and Justice Scalia led the charge to reverse it. * * *

In his 2014 book, “Judging Statutes,” Judge Katzmann argued for interpreting legislation in a way that furthers its overarching purpose. That, he said, requires going beyond the text to consult legislative histories and other materials.

The book was partly a response to Justice Scalia, who Judge Katzmann criticized for insisting that courts consider “the words of the statute, and virtually nothing else.”

In “Reading Law,” Justice Scalia and co-author Bryan Garner wrote that they aimed to bury “the false notion that the spirit of a statute should prevail over its letter.” The 2012 book provided 57 canons of construction lawyers should follow.

Posted by Marcia Oddi on Thursday, November 05, 2015
Posted to Courts in general

Wednesday, November 04, 2015

Courts - "Code is everywhere, and defendants should have the right to inspect the software used to convict them"

That is a quote from this Oct. 7th ILB post headed "Short-circuiting defendants’ ability to cross-examine forensic evidence is not only unjust—it paves the way for bad science." One example cited was "use of evidence from breathalyzer and other tests for measuring blood alcohol - exactly how were the results determined." A snippet from the lengthy Slate article, "Convicted by Code":

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.

The ILB had an Oct. 22nd post mentioning the statistical formulas used by the Indiana State Police to calculating the DNA in an evidence sample.

On Oct. 30th Lauren Kirchner of Pro Publica had a long article headed "What We Know About the Computer Formulas Making Decisions in Your Life." It begins [ILB emphasis added]:

We reported yesterday on a study of Uber’s dynamic pricing scheme that investigated Uber’s surge pricing patterns in Manhattan and San Francisco and showed riders how they could potentially avoid higher prices. The study’s authors finally shed some light on Uber’s “black box,” the algorithm that automatically sets prices but that is inaccessible to both drivers and riders.

That’s just one of a nearly endless number of algorithms we use every day. The formulas influence far more than your Google search results or Facebook newsfeed. Sophisticated algorithms are now being used to make decisions in everything from criminal justice to education.

But when big data uses bad data, discrimination can result. Federal Trade Commission chairwoman Edith Ramirez recently called for “algorithmic transparency,” since algorithms can contain “embedded assumptions that lead to adverse impacts that reinforce inequality.

And another quote from the must-read Slate article:
We need to trust new technologies to help us find and convict criminals but also to exonerate the innocent. Proprietary software interferes with that trust in a growing number of investigative and forensic devices, from DNA testing to facial recognition software to algorithms that tell police where to look for future crimes. Inspecting the software isn’t just good for defendants, though—disclosing code to defense experts helped the New Jersey Supreme Court confirm the scientific reliability of a breathalyzer.

Posted by Marcia Oddi on Wednesday, November 04, 2015
Posted to Courts in general

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

Updating this ILB post from Oct. 27th, this post from Evan Lee at SCOTUSblog on Oct. 30th begins:

Next Tuesday’s argument in Lockhart v. United States promises to be a prime-time event for statutory interpretation geeks. Indeed, one could tout this as “The Battle of the Canons” – the exchange of volleys between two venerable canons of statutory construction. When the last shot is fired, it would not be shocking to see the rule of lenity decide the case.
Now here, on Nov. 4th is Evan Lee's long post-argument analysis. A sample:
Justice Antonin Scalia made it clear that he thinks this “battle of the canons” results in a draw, and therefore that the rule of lenity should tip the case toward Lockhart. “[W]e’ve been discussing this dueling canons and so forth,” he said to Assistant to the Solicitor General Ann O’Connell, who argued on behalf of the federal government. “My goodness, I have no – I have no assurance what the right answer is. But I know that somebody could read this and think that it means what [Lockhart] says it means. And if that’s the case, it seems to me the rule of lenity comes into play.”
Finally, here is Steve Vladeck's post-argument analysis in the second case argued on the same day as Lockhart, headed "The surprising absence of canons from a debate over the meaning of ambiguous statutory text." It begins:
If yesterday’s second argument in Lockhart v. United States was, as Evan Lee put it, “The Battle of the Canons,” the first argument in Torres v. Lynch might best be remembered as “A Battle Without Canons,” as the Justices all-but ignored the competing statutory interpretation doctrines relied upon by the parties in trying to divine the meaning of two words buried in a hyper-specific provision of federal immigration law. To some observers, the relative paucity of references to canons in the hour-long session might suggest that the case is a “very close call.” But the Court’s near-exclusive focus on Congress’s purpose in defining as an “aggravated felony” any offense “described in” a particular federal statute appears to bode ill for Jorge Torres — and to portend a ruling that state law convictions are “described in” federal statutes even when they lack jurisdictional elements that the federal statute includes. If that is the ultimate result in this case, it will only increase the range of criminal convictions that will render immigrants categorically ineligible for cancellation of their removal from the United States.

Posted by Marcia Oddi on Wednesday, November 04, 2015
Posted to Courts in general

Law - When a state appears before the SCOTUS, who most likely represents it? The AG or a private attorney?

Kimberly Robinson looks at that question today in a long Bloomberg BNA story. A quote:

Regardless of why states turn to private attorneys, [Dan Schweitzer, the director of the National Association of Attorneys General's Center for Supreme Court Advocacy] predicted that the practice would decrease now that more states are creating state solicitor general positions.

State solicitors general are typically the state's top appellate advocate, representing the state in the highest profile cases.

He noted that Wisconsin just appointed its first solicitor general in October. An Oct. 8 statement from the Wisconsin Attorney General's office touts the new SG's experience as a former clerk to Justice Anthony M. Kennedy, and said that the state now joins “the vast majority of states with a Solicitor General.”

Schweitzer said that number is now at 37. He added that the District of Columbia, the U.S. Virgin Islands and Puerto Rico have SGs too.

ILB: Thomas Fisher was appointed Indiana's first solicitor general in 2009 by then-AG Steve Carter, and remains in that position today.

Posted by Marcia Oddi on Wednesday, November 04, 2015
Posted to General Law Related

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

For publication opinions today (0):

NFP civil decisions today (6):

Lisa Jackson v. Review board of the Indiana Department of Workforce Development, and Company [labeled as mem. dec. on the opinion itself]

In the Matter of the Termination of the Parent-Child Relationship of: K.H. (Minor Child) and P.V. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

Alan Patrick McEntee v. Wells Fargo Bank, N.A. (mem. dec.)

Mario Allen v. Wendy Knight, Superintendent of Correctional Industrial Facility (mem. dec.)

Gregory A. Caudle v. Dick Brown, in his capacity as Superintendent of the Wabash Valley Correctional Facility (mem. dec.)

Candace Bean v. Stephen W. Robertson, as Commissioner of the Indiana Department of Insurance (mem. dec.)

NFP criminal decisions today (3):

Raphael Miles v. State of Indiana (mem. dec.)

David L. Lewicki v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Wednesday, November 04, 2015
Posted to Ind. App.Ct. Decisions

Courts - "Finding a Place to Sue: tracks the evolving, and often confusing, SCOTUS decisions on jurisdiction"

An NYU Law's news preview begins:

It took the Supreme Court 100 years to officially bury Pennoyer v. Neff, its landmark ruling on jurisdiction that took on cult status (or became a “hazing ritual,” according to one commenter online) for generations of law students. As a young law professor, Linda Silberman commemorated the moment in a 1978 article in the NYU Law Review, proclaiming “the end of an era.”

Fast forward nearly four decades to 2014 and the Supreme Court’s latest ruling on jurisdiction, Daimler AG v. Bauman. It prompted Silberman, now Martin Lipton Professor of Law, to write an article she is calling, “The End of Another Era: Reflections on Daimler and Its Implications for Judicial Jurisdiction in the United States,” forthcoming in the Lewis & Clark Law Review. “These dramatic jurisdictional changes,” Silberman observes, have “bracketed my career.” Those who regard the arcane topic as challenging may take comfort in Silberman’s assessment that the Supreme Court has contributed to the chaos. She has criticized a number of its decisions and adds, “even when the result is right, the rationales and approaches are often wrong.”

ILB: Here is the 1978 article, Shaffer v. Heitner: The End of an Era, from Prof. Silberman's publications page. And here is the upcoming article, available via SSRN.

Posted by Marcia Oddi on Wednesday, November 04, 2015
Posted to Courts in general

Courts - Re the 3-judge federal district court panel ...

From this SCOTUSblog argument preview:

In Shapiro v. McManus, to be argued on Wednesday, November 4, the SCOTUS will consider the proper distribution of power in cases potentially governed by the three-judge procedure. Specifically, the Court must decide whether a single district judge can dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) without referring the case for three-judge consideration.

Posted by Marcia Oddi on Wednesday, November 04, 2015
Posted to Courts in general

Tuesday, November 03, 2015

Ind. Decisions - Interesting SD Ind. ruling today ordering IDEM to produce documents

An interesting, 18-page order today by SD Indiana Magistrate Judge Denise K. LaRue in the case of Valbruna Slater Steel v. Joslyn Manufacturing Co, granting defendant Joslyn's motion to compel IDEM, "an interested non-party" to the lawsuit, "to produce the subject twenty documents, listed on it privilege log." A few quotes:

[p.12] The remaining question is whether Indiana recognizes the deliberative-process privilege. Joslyn’s initial (and possibly current) argument that Indiana does not recognize it is based on the Indiana Tax Court’s 2014 Popovich opinion, which was reiterated in Brandenburg Industrial Service Co. v. Indiana Dept. of State Revenue, 26 N.E.3d 147, 154 (Ind. Tax Ct. 2015). IDEM counters that it is “at best dubious” that Popovich’s holding “truly represents Indiana law,” because it is a non-precedential decision of a specialized trial court, it is an interlocutory order of which the state agency has not had an opportunity to seek appellate review, and it “seems” to conflict with the Indiana Supreme Court’s 1996 opinion in Medical Licensing Board of Indiana v. Provisor, 669 N.E.2d 406 (Ind. 1996). Even granting the non-precedential and interlocutory statuses of the Popovich and Brandenburg Industrial Service decisions, IDEM presents no on-point, precedential opinions of appellate courts in Indiana ― or even any non-precedential trial-court decisions ― that recognize the deliberate-process privilege in Indiana law. At most, it argues only that Popovich “seems” to conflict with the Indiana Supreme Court’s Provisor opinion. According to the briefing presented to the Court, Popovich and Brandenburg Industrial Service are the only Indiana decisions to directly address the privilege. * * *

As IDEM does here, the state in Popovich also relied on the Provisor decision. But the tentativeness of IDEM’s argument ― Popovich “seems” to conflict with Provisor ― is well warranted because Provisor did not discuss, or make any holding regarding, a deliberative-process evidentiary privilege. Provisor was a suit under Indiana’s Administrative Orders and Procedures Act by a physician for judicial review of the Indiana Medical Licensing Board’s final decision to suspend her medical license. She claimed that the Board’s decision violated statutory requirements that the Board achieve consistency in its rulings and not consider factors outside the administrative record. To support her claims, the physician tendered on the Board requests for admissions, interrogatories, and requests for production. The trial court denied the Board’s motion for a protective order and granted the physician’s motion to compel, and the Court of Appeals affirmed both rulings on interlocutory appeal. * * *

It is clear that Provisor does not address a deliberative-process evidentiary or discovery privilege under Indiana’s Trial Rules, statutes, or common law. It did not discuss the law of privileges generally or any of the underlying policies or purposes for the deliberative-process privilege, e.g., encouraging candid and frank opinions and discussions in order to better facilitate the development of government policies and enhance the quality of those policies. The Court decided only the issue of the scope of judicial review of administrative adjudications according to constitutional principles of separation of powers and statutory administrative-law restrictions. It had no opportunity to address the deliberative-process privilege in the context of general civil litigation or civil discovery under the Trial Rules. Therefore, Provisor cannot be construed as recognizing a deliberative-process evidentiary privilege in civil litigation.

Because privileges generally are created by statute in Indiana and IDEM has cited neither a statute or other authority creating or recognizing a deliberative-process privilege in Indiana law, this Court concludes that Indiana does not recognize the privilege. Therefore, IDEM’s privilege objection to producing the withheld documents is overruled. This ruling renders moot Joslyn’s alternative argument that Ms. Habeck’s affidavit waived IDEM’s privilege.

For those interested, here is the docket.

Posted by Marcia Oddi on Tuesday, November 03, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - 2016 Indiana Attorney General's race a toss-up

That is the conclusion of this Governing survey, which begins:

While slightly more than half of the AG contests in 2015 and 2016 look solid for the incumbent party -- four of them currently held by Republicans and three by Democrats -- the other six are tossups. They include a Republican-held open seat in Indiana, along with Democratic-held open seats in Kentucky, Missouri, North Carolina and Pennsylvania, and an embattled Democratic-held incumbent seat in Mississippi.

Posted by Marcia Oddi on Tuesday, November 03, 2015
Posted to Indiana Government

Ind. Gov't. - "This Indianapolis man is not a criminal, but his record says otherwise"

Another good story from Jill Disis of the Indianapolis Star; the long, front-page story begins:

For nearly a decade, Wesley Taylor has been dogged by a checkered past.

The problem? It’s not his own.

What began after the Indianapolis man’s wallet was stolen in 2006 has evolved into a worst-case scenario of identity theft – one that experts say could happen to anyone, and is nearly impossible to fix. Although he’s tried to clear his name, Taylor says the record has followed him, preventing him from landing numerous jobs. His driver’s license was suspended. An application for a gun permit was denied.

Now, Taylor, 28, is suing the city of Indianapolis in federal court. He claims officials didn’t do enough to help him correct a record tarnished by another man he says stole his identity and passed himself off as Taylor while committing several misdemeanor crimes. That man is now sitting in a prison cell on a murder conviction.

“This is what you see on paper,” Taylor said. “You see me as a gun-toting, arrest-resisting murderer.”

The complaint alleges that, despite Taylor’s pleas with the Indianapolis Metropolitan Police Department and the Marion County court staff to remove his name from the other man’s cases, the criminal record stayed wrongfully associated with Taylor for years. That inaction, Taylor's complaint alleges, amounted to defamation.

Taylor said his message to Indianapolis is simple: “If somebody didn’t do something, just take it out of their name.”

Representatives from the city’s legal department declined to comment about Taylor’s case.

ILB: Here is the 6-page complaint, filed Sept. 2, 2015: Taylor v. Consolidated Gov't of Indianapolis and Marion County.

Posted by Marcia Oddi on Tuesday, November 03, 2015
Posted to Indiana Government

Law - "Library of Congress Says It’s OK to Hack Your Car"

And here is a long copyright story the ILB has been saving. From Wired, dated Oct. 27, reported by Klint Finley. Some quotes:

Car hackers rejoice: today the Library of Congress approved copyright law exemptions that will allow you to modify the software on your car for purposes of security research, maintenance, or repair. The catch is that the exemptions don’t take effect for another year.

Once the exemption is in place, tinkerers will have more freedom to alter their automobiles without fear of reprisal, at least due to copyright laws. (Copyright laws apply to software as well as books, music, and other more traditional forms of creative expression.) That could free up more researchers, particularly risk-averse researchers attached to universities, to explore the software that underpins the automotive industry and potentially discover flaws or intentional wrongdoing, such as the software Volkswagen used to subvert emissions tests.

In recent years, security researchers and car hobbyists have faced concerns that in order to modify the software running on computers embedded within their automobiles, they have to circumvent various digital copy-protections built into the system. That runs afoul of the Digital Millennium Copyright Act (DMCA), which prohibits tampering with copy protection. But there’s a provision in the law that allows the Library of Congress to allow exceptions to the rule when there’s good reason to think consumers may be harmed by not being able to circumvent these systems. * * *

Since the EFF and iFixit first requested the exemptions last year, WIRED has reported numerous security vulnerabilities in major automobiles discovered by security researchers. Researchers this year also exposed the massive fraud perpetrated by Volkswagen, which sold cars with software that deliberately circumvented emissions testing. The new copyright exemptions will free researchers to continue their investigations without fear of intellectual property suits from automakers.

Higgins says that the opposition to the exemptions didn’t actually have much to do with copyright protection, but in using copyright to enforce other business or regulatory concerns. he EPA, for example, argued that individuals would be able to modify their cars to circumvent safety and emissions laws. The EFF, however, argued that copyright is the wrong way to enforce such concerns. There are, after all, already laws in place against driving an unsafe vehicle or spewing too much pollution. “We’re not arguing for the elimination fo vehicle regulations,” he says. “But the idea that needs to be enforced by copyright doesn’t make sense.”

Posted by Marcia Oddi on Tuesday, November 03, 2015
Posted to General Law Related

Courts - Venue shopping in patent-infringement cases: ED Texas or SD Ind?

"Water Flavorings Lawsuit May Mean End of Gravy Train in Texas" was the heading to this Oct. 27th Bloomberg Business story by Susan Decker that began [ILB emphasis]:

Could a fight over flavoring water mean the end of a court district that’s become notorious for its patent litigation?

It might, if Heartland Consumer Products Holdings LLC is successful in getting a patent-infringement lawsuit filed against it last year by Kraft Heinz Co. in Delaware moved to a court in its home state of Indiana.

In their request, Heartland’s lawyers are looking beyond those two states. A victory for them could be felt the most in one patent-friendly court, the Eastern District of Texas, where more patent suits are filed than in any other and which Heartland holds up as an example of litigants seeking to have their cases heard where they have the best chance of winning.

“This is obviously an important policy question with the potential of shaking-up patent litigation strategy,” said Dennis Crouch, a law professor at the University of Missouri School of Law, who wrote about the case on his Patently-O blog.

The case involves flavoring pouches for water. Kraft, which sells the MiO water enhancer, filed the suit in Delaware, where the Kraft Foods Group is incorporated. Heartland makes its products under brands including Refreshe, Skinnygirl and Sunkist in Indiana.

The U.S. Court of Appeals for the Federal Circuit in Washington, which handles all patent appeals, is at least considering the issue of where the case should be heard. On Monday, it ordered Kraft to submit a response to Heartland’s transfer petition * * *

The Eastern District of Texas encompasses a wide geographic area, but most suits are filed in the courthouse in Marshall, a historic town of about 24,000 people. Four of the biggest patent verdicts in U.S. history have been in that district, all since 2009, according to data compiled by Bloomberg.

Of the top 10 most litigious firms in the U.S., at least eight file the bulk of their suits in eastern Texas, according to an analysis of data from RPX Corp., a San Francisco patent-risk management services company. * * *

The case is In Re: TC Heartland LLC, 16-105, U.S. Court of Appeals for the Federal Circuit.

Heartland is located in Carmel, Indiana, according to this news release.

Posted by Marcia Oddi on Tuesday, November 03, 2015
Posted to Courts in general

Monday, November 02, 2015

Courts - More on "SCOTUS Takes On Racial Discrimination In Jury Selection"

The oral argument before the SCOTUS was this morning - see ILB pre-argument post here.

Here is Adam Liptak's post-argument story in the NYT.

And here is Lyle Denniston's, at SCOTUSblog, headed "Argument analysis: To decide, or not — that is the question ."

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Courts in general

Ind. Gov't. - "IDOR puts a stop to tax letters amid complaints"

Sandra Chapman, WTHR investigative reporter, has the story this afternoon, plus a copy of the letter. Some quotes:

Some 150,000 Indiana taxpayers are on the receiving end of a letter from the Department of Revenue accusing them of being possible tax cheats. But there's a big problem. The State of Indiana admits many of those receiving the letters don't owe a dime.

Now they're ordering a state contractor to immediately stop the mailings and apologize for the confusion.

13 Investigates was contacted by taxpayers in Greenwood, Brownsburg, Fishers and Muncie. * * *

Those on the receiving end say it implies they're possible tax cheats and they're furious.

One Delaware County taxpayer spoke with us by phone:

"To send a letter out like this, it's just irresponsible. My anger is with the leadership and the administration that allowed something like this to go out. Just sent out as a mass mailing, hoping to nail someone who has a guilty conscience," the man told 13 Investigates after providing copies of the letter he was sent.

No one at the Indiana Department of Revenue would talk on camera Monday.

But a spokeswoman says the letters are simply informational and were sent out to help taxpayers catch up on their bills with no penalties, interests or collection fees before the tax amnesty program expires in two weeks.

The letters were sent to individuals and businesses flagged under certain parameters but not fully reviewed. The 150,000 letters were sent as part of a mailing list that revenue officials say the agency did not approve.

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Indiana Government

Ind. Courts - "Judge swears in son to Indiana bar"

"James Harper, right, was joined by his father, left, Bob Harper, and his stepfather, Porter County Superior Judge David Chidester as his mother, Porter County Superior Judge Mary Harper, gave him the oath Monday for the Indiana bar."

That is the caption to the photo heading this story this afternoon in the Gary Post-Tribune, reported by James D. Wolf Jr.

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Indiana Courts

Courts - More on: Gay-Marriage SCOTUS Attorneys Seek Fees Topping $1 Million

That was the heading to this Sept. 15th story from Bloomberg News. Today Zoe Tillman at The National Law Journal is reporting in a story that begins:

Ohio will pay $1.3 million in legal fees to the lawyers who represented James Obergefell—the lead plaintiff in the landmark U.S. Supreme Court’s same-sex marriage case this summer—and other individuals who successfully challenged the state’s gay marriage ban.

The agreement, disclosed in court papers on Monday, pushes the total amount that states will pay in fees for defending gay marriage bans in federal court to more than $10 million.

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Courts in general

Ind. Decisions - Tax Court posts two today, filed Oct. 30

In Washington Township Assessor, Allen County Assessor, and Allen County Property Tax Assessment Board of Appeals v. Verizon Data Services, Inc., a 13-page opinion, Judge Wentworth writes:

The Washington Township Assessor, the Allen County Assessor, and the Allen County Property Tax Assessment Board of Appeals (collectively Allen County) claim that the Indiana Board of Tax Review erred in granting summary judgment to Verizon Data Services, Inc. because the Allen County Property Tax Assessment Board of Appeals (PTABOA) failed to issue its final determination within the statutorily prescribed period. Upon review, the Court finds that the Indiana Board did not err. * * *

While Allen County’s bright-line distinction that Section 15-1 applies to the PTABOA’s appeals process and Chapter 16 applies to the PTABOA’s assessment process would allow an assessing official to make full use of the deadlines in each, this distinction contravenes the distinct purposes of Section 15-1 and Chapter 16. * * *

Thus, to the extent the deadlines under Section 15-1 and Chapter 16 conflict, Chapter 16 governs because it applies specifically to appeals of an assessing official’s change to a personal property assessment; whereas, Section 15-1 applies generally to appeals concerning real and personal property assessments. See Componx, 741 N.E.2d at 446. This conclusion gives effect to the importance that the Legislature has placed on assessing officials’ compliance with Chapter 16’s statutory deadlines. See I.C. §§ 6-1.1-16-1(b), -2 (providing that when assessing officials fail to act within the statutorily prescribed periods, the assessed value reported on a taxpayer’s personal property return prevails). Accordingly, the Chapter 16 deadlines applied to require the PTABOA to issue its final determination by October 30, 2005, which it did not.

In Allen County Assessor v. Verizon Data Services, Inc., an 11-page opinion, Judge Wentworth writes:
The Allen County Assessor claims that the Indiana Board of Tax Review erred in granting Verizon Data Services, Inc.’s motion for summary judgment and denying the Assessor’s cross-motion for summary judgment. Upon review, the Court finds that the Indiana Board did not err. * * *

On appeal, the Assessor claims that the Indiana Board’s final determination must be reversed because it erred in determining that the Chapter 16 rather than the Section 15-1 deadlines governed the PTABOA’s appeals process. (See Pet’r Br. Supp. V. Pet. Judicial Review Final Determination [Indiana Board] (“Pet’r Br.”) at 7-8.) Alternatively, the Assessor claims that the Chapter 16 deadlines should not be enforced because Verizon waived its right to invoke the deadlines and failed to show that it suffered any prejudice. (See Pet’r Br. at 8-13.) Moreover, the Assessor claims that Indiana case law indicates that the merits should be reached and that Verizon’s Form 131 was timely filed because it misinterpreted Sections 15-1 and 15-3. (See Pet’r Br. at 10-11, 13-17.)

In a companion case issued concurrently with this decision, the Court has held that for purposes of personal property, the Chapter 16 deadlines applied not only to the assessment process, but also to the appeals process. See Washington Twp. Assessor v. Verizon Data Servs., Inc. (Verizon I), No. 49T10-1102-TA-00013, slip op. at 4-10 (Ind. Tax Ct. Oct. 30, 2015).

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and2 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (2):

O.L. v. State of Indiana (mem. dec.)

Chris Harkins v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 30, 2015

Here is the Clerk's transfer list for the week ending Friday, October 30, 2015. It is one page (and 13 cases) long.

One transfer was granted last week:

There was one case last week where transfer was denied by a 3-2 vote, after oral argument: Travis A. Ley v. State of Indiana, Transfer Denied 10/28/15 - All Justices concur, except Rush, C.J., and Rucker, J., who vote to grant the petition to transfer.

The Court held oral argument on this case on Oct. 28th.

Oddly the Court does not appear to have posted a Published Order on its decision, as it has in other cases (eg Zollman Farms).

The order may be accessed, however, by examining the docket of the case.

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - "Causes of death are public, Indiana Supreme Court says"

The ruling was Oct. 7, 2014. Here is a long list of relevant ILB posts.

A Kokomo Tribune editorial last week (here via Indiana Economic Digest) illustrates its significance:

This decision is important because of the effect it can have on entire communities.

“Cause of death may not be pleasant to think about,” wrote Bob Zaltsberg, editor of the Bloomington Herald-Times, in a column we published last year. “But access to the information can lead to understanding health risks in a family; can hold authorities accountable in the case of a high profile death; or can point to serious public health or environmental risks in a community.”

To use an example that hits close to home, if Howard County Coroner Jay Price hadn’t recognized the trend of high-volume opiate deaths in our community, the Wagoner Medical Clinic might still be in the business of poisoning our citizens. While the revelation of such information may be painful for a grieving family, public culpability in these matters is essential to the health of our state.

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Indiana Government

Ind. Gov't. - "Facebook post results in Terre Haute police officer's suspension"

Lisa Trigg reported the story this weekend in the Terre Haute Trib-Star. The story, which links the Facebook post and the THPD social media policy, begins:

A political posting on Facebook by a Terre Haute police officer — one his chief deemed inaccurate — has led to the officer’s suspension.

The disciplinary action taken against Lt. Gary Shook, who was suspended for two days without pay, is a matter now scheduled to go before the police merit board on Nov. 18. Shook’s attorney, Joe Etling, told the Tribune-Star that he believes Shook’s posting about the mayor’s race on his personal Facebook page is protected freedom of speech.

Police Chief John Plasse, a supporter of Mayor Duke Bennett, took issue with his officer’s posting, which the chief said was inaccurate. Plasse acknowledged he told Shook to remove the remarks, which the officer did. Before the Facebook posting was removed, however, someone copied the text and posted it Oct. 18 to the “Mark Bird for Mayor” Facebook site, where it can be read.

Shook’s suspension is in keeping with the THPD’s new policy regarding online activity, according to Chief Plasse, who said he could not elaborate given that the disciplinary action is pending before the merit board. He cited the same in declining a Tribune-Star request for copies of the documents related to Shook’s suspension.

Prior to Shook’s posting, THPD adopted a “Use of Electronic Social Media” policy that cautions personnel against disclosing online the nature of their employment, for safety and security reasons. However, several THPD employees do reference their employment on their Facebook pages, including posting police and department-related photos and logos.

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Indiana Government

Law - Not to be missed, NYT series on arbitration and class actions

The New York Times is running a 3-part, book-length series "examining how clauses buried in tens of millions of contracts have deprived Americans of one of their most fundamental constitutional rights: their day in court." The Sunday Times had Part 1, beginning on the front-page and continuing on to overflow 3-additional full-pages. Just a few quotes from Part 1, by Jessica Silver-Greenberg and Robert Gebeloffoct:

By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices. * * *

Some state judges have called the class-action bans a “get out of jail free” card, because it is nearly impossible for one individual to take on a corporation with vast resources. * * *

By banning class actions, companies have essentially disabled consumer challenges to practices like predatory lending, wage theft and discrimination, court records show.

“This is among the most profound shifts in our legal history,” William G. Young, a federal judge in Boston who was appointed by President Ronald Reagan, said in an interview. “Ominously, business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”

More than a decade in the making, the move to block class actions was engineered by a Wall Street-led coalition of credit card companies and retailers, according to interviews with coalition members and court records. Strategizing from law offices on Park Avenue and in Washington, members of the group came up with a plan to insulate themselves from the costly lawsuits. Their work culminated in two Supreme Court rulings, in 2011 and 2013, that enshrined the use of class-action bans in contracts. The decisions drew little attention outside legal circles, even though they upended decades of jurisprudence put in place to protect consumers and employees. * * *

The Supreme Court’s rulings amounted to a legal coup for a group of corporate lawyers who figured out how to twin arbitration clauses with class-action bans. The lawyers represented clients that had paid billions of dollars to resolve class actions over the years. The lawsuits, companies said, were driven by plaintiffs’ lawyers who stood to make millions of dollars. They said they had no choice but to settle even those cases that were without merit. * * *

The consequences of arbitration clauses can be seen far beyond the financial sector. Even lawsuits that would not have been brought by a class have been forced out of the courts, according to the Times investigation. Taking Wall Street’s lead, businesses — including obstetrics practices, private schools and funeral homes — have employed arbitration clauses to shield themselves from liability, interviews and arbitration and court records show.

Thousands of cases brought by single plaintiffs over fraud, wrongful death and rape are now being decided behind closed doors. And the rules of arbitration largely favor companies, which can even steer cases to friendly arbitrators, interviews and records show.

The sharp shift away from the civil justice system has barely registered with Americans. F. Paul Bland Jr., the executive director of Public Justice, a national consumer advocacy group, attributed this to the tangle of bans placed inside clauses added to contracts that no one reads in the first place.

“Corporations are allowed to strip people of their constitutional right to go to court,” Mr. Bland said. “Imagine the reaction if you took away people’s Second Amendment right to own a gun.”

Today's (Monday's) Times has Part 2 of the 3-part series, by Silver-Greenberg and Michael Corkery. A few quotes:
Over the last 10 years, thousands of businesses across the country — from big corporations to storefront shops — have used arbitration to create an alternate system of justice. There, rules tend to favor businesses, and judges and juries have been replaced by arbitrators who commonly consider the companies their clients, The Times found.

The change has been swift and virtually unnoticed, even though it has meant that tens of millions of Americans have lost a fundamental right: their day in court.

“This amounts to the whole-scale privatization of the justice system,” said Myriam Gilles, a law professor at the Benjamin N. Cardozo School of Law. “Americans are actively being deprived of their rights.”

All it took was adding simple arbitration clauses to contracts that most employees and consumers do not even read. Yet at stake are claims of medical malpractice, sexual harassment, hate crimes, discrimination, theft, fraud, elder abuse and wrongful death, records and interviews show.

ILB questions: Will this shift ultimately result in fewer and fewer civil cases before our Indiana courts? Will this obviate any need for a set of "business courts"?

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to General Law Related

Ind. Courts - "Students witness state's high court in action"

On Friday, Oct. 30 the Supreme Court heard oral argument in the case of Leonard Suggs v. State of Indiana. Argument was held in NW Indiana, at Portage High School in Porter County. There is no webcast available.

Amy Lavalley of the Gary Post-Tribune has coverage here; some quotes:

"This is rather a rare occurrence. We typically hold oral arguments in an ornate courthouse in the state Capitol," said Justice Robert Rucker, a Gary native, adding that a few times a year, the justices bring the oral arguments to the public. "We do this because we want you to see the process firsthand."

About 875 students from 10 schools heard the Indiana Supreme Court dissect what constitutes a family member during oral arguments Friday in the Portage High School auditorium.

The case focused on Leonard Suggs, who was found guilty in Allen Superior Court in Allen County of domestic battery against his girlfriend and felony battery against Vera Warren, a woman Suggs had known all his life as "Auntie," who is the sibling of a man who was married to Suggs' aunt.

That convoluted relationship is the basis for the appeal that landed before the Supreme Court, as attorneys for the defendant and the state argued whether Warren was truly a relative, which would support the felony battery charge.

Later in the story:
One student wanted to know about whether politics come into play in judicial appointments, because the governor makes those decisions. Justice Brent Dickson, a Hobart native, said a commission reviews applicants and provides three choices for the governor.

"The law said politics should not be considered," he said.

Joyce Russell had this report in the NWI Times. Some quotes:
Students from 10 schools, including Portage High, Chesterton High, Chesterton Middle, Immanuel Lutheran, Indiana University Northwest School of Business and Economics, Kouts High, Portage Christian, St. Paul Catholic School, Valparaiso High and Valparaiso University Law School, filled the auditorium, along with local attorneys, judges and officials. * * *

The justices also answered a few questions from students before leaving the high school to attend the Porter County Veterans Court graduation ceremony later in the morning. They were to also have lunch in Valparaiso with university students and local attorneys, Dolan said.

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Indiana Courts

Ind. Law - "Sue A. Shadley to be Honored on Saturday, November 7, 2015" [Updated]

This Plews Shadley Racher & Braun post has the details of the celebration of the life of Sue Shadley, to take place Saturday, Nov. 7 from 1-4 at Clowes Court at the Eiteljorg Museum.

[Update]
Here is the obituary which appeared in the Tuesday, Nov. 3, 2015 Indianapolis Star.

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Indiana Law

Courts - "SCOTUS Takes On Racial Discrimination In Jury Selection"

Listen to the 7-minute story from Nina Totenberg of NPR's Morning Edition. The transcript of the story shows the prosecutor's notes from the trial. From the story:

The prosecutors gave as many as a dozen reasons for striking each black prospective juror. These justifications included things like "failure to make eye contact," looking "bored," being "divorced," or "a social worker," and so on.

The appellate courts continued to accept these excuses even after Foster's lawyers obtained the prosecutor's notes in 2006 under the Georgia Open Records Act. It is rare that defense lawyers ever see these notes, and in this case, the prosecution's worksheets were not subtle.

The name of each black prospective juror was highlighted in green, circled, and labelled with a "B." At the Supreme Court Monday, defense lawyer Stephen Bright, of the Southern Center for Human Rights, will tell the justices that everything about those notes reeks of racial discrimination.

"They were referred to by B1, B2, B3," Bright says. "There were comparisons made among the black jurors that, if we have to take a black, maybe Ms. Hardge will be okay, or maybe Ms. Garrett will be okay. They didn't, of course, take either one of those."

For an outstanding 42-minute podcast about the case, see Slate's Amicus by Dalhia Litwick. Here is a direct link to the podcast.

The case is Foster v. Chatman. Here is the SCOTUSblog case page. And here is Lyle Denniston's argument preview.

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, November 5

Next week's oral arguments before the Supreme Court (week of 11/9/15):

Webcasts of Supreme Court oral arguments are available here.


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

Thursday, November 5

Friday, November 6

Next week's oral arguments before the Court of Appeals (week of 11/9/15):

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

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


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

Posted by Marcia Oddi on Monday, November 02, 2015
Posted to Upcoming Oral Arguments