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Thursday, December 31, 2015

Ind. Decisions - Court of Appeals issues 10 opinion(s) today (and 18 NFP memorandum decision(s))

For publication opinions today (10):

In East Point Business Park, LLC, Fieldview Properties, LLC, and Karen Rusin v. Private Real Estate Holdings, LLC , a 33-page opinion, Judge Mathias writes:

Appellants-Defendants East Point Business Park, LLC (“East Point”), Fieldview Properties, LLC, (“Fieldview”) and Karen Rusin (“Rusin”) (collectively “the Defendants”) challenge the Lake Superior Court’s grant of summary judgment in favor of Appellee-Plaintiff Private Real Estate Holdings, LLC (“PREH”), in PREH’s foreclosure action against the Defendants. * * *

In conclusion, we hold that the Defendants filed their designated evidence in an untimely fashion and that such evidence should therefore not be considered. We also hold that the trial court did not err in denying the Defendants’ motion to strike the affidavit of Arshad Malik, which was submitted by PREH in support of its motion for summary judgment. The Defendants’ argument that the Bank made an oral agreement to a fourth loan renewal is barred by the relevant Illinois statute of frauds, which, as a substantive law, is applicable to the interpretation of the loan agreements. We also conclude that the Bank did not breach the loan agreements by reneging on the alleged oral agreement or by failing to fund the last draw request by the Defendants. Lastly, the foreclosure action is not prevented by the Bank or PREH’s allegedly unclean hands.

In Hoker Trucking, LLC and Linda L. Phillips v. Pamela K. Robbins, as Adminstratrix of the Estate of Mike Douglas Robbins, Deceased, a 4-page opinion on a petition for rehearing, Judge Riley writes:
Robbins has now filed a petition for rehearing in which she contends that the prejudgment interest was not awarded on the attorneys’ fees, as we alluded to in our opinion, but on the $6,000,000.00 jury verdict. As such, she asserts SCI Propane is not applicable, and instead we should have followed the directives of the prejudgment interest statute, I.C. Ch. 34-51-4, which notes in section 1 that prejudgment interest “applies to any civil action arising out of tortious conduct.” We agree. Thus, we grant rehearing for the limited purpose of addressing the prejudgment interest award; in all other respects, we affirm our original opinion.
In John Collip, M.D. v. Vickie Ratts on behalf of Robert A.J. Ratts, deceased, and Little Creek Family Health Center, LLP, a 17-page opinion, Judge Baker writes:
Dr. John Collip had a contractual relationship with Dena Barger, who is a nurse practitioner and owns her own medical practice. Pursuant to their Collaborative Practice Agreement (CPA), Dr. Collip was to collaborate with Barger and oversee her prescriptive authority. Specifically, he was to review at least 5% of her charts on a weekly basis to evaluate her prescriptive practices. On March 30, 2009, Robert Ratts, one of Barger’s patients, died as a partial result of mixed drug intoxication.
[2] Dr. Collip brings this interlocutory appeal challenging the trial court’s order granting partial summary judgment in favor of Vickie Ratts, Ratts’s mother, on her medical malpractice claim. The trial court held as a matter of law that Dr. Collip had a duty to Ratts even though he had never treated Ratts as a patient.

The Indiana General Assembly has enacted a complex and detailed statutory scheme that authorizes nurse practitioners to provide medical services. We infer from the language of the statute that one of the purposes of this legislation was to provide the public with greater access to affordable healthcare. The legislature also sought to ensure the safety of the public by requiring that when prescribing legend drugs, nurse practitioners must be overseen by a licensed physician. We hold as a matter of law that physicians who undertake this responsibility owe a duty to the nurse practitioner’s patients to fulfill their contractual obligations with reasonable care. We affirm and remand. [ILB emphasis]

In Steven E. Dotlich v. Tucker Hester, LLC, an 18-page opinion, Judge Brown writes:
Steven E. Dotlich appeals the trial court’s entry of summary judgment in favor of [attorney] William Tucker with respect to Dotlich’s malpractice claim against Tucker. Dotlich raises five issues which we consolidate and restate as whether the court erred in entering summary judgment in favor of Tucker. We affirm.
In Carl Summerhill v. Craig Klauer, a 21-page opinion, Judge Baker writes:
Carl Summerhill sued Craig Klauer for negligence following a collision between Summerhill’s moped and Klauer’s motorcycle. Following trial, a jury declined to find Klauer liable. Summerhill now appeals that judgment, arguing that the trial court erred in excluding certain evidence and that he was prejudiced as a result. We agree with Summerhill that the trial court erred in excluding the testimony of an accident reconstructionist that Summerhill sought to call on his behalf. Accordingly, we must remand for a new trial. We discuss Summerhill’s other arguments to assist the trial court and the parties upon retrial.
In Daniel Harris v. Donald Brewer, Donald Crockett, and Thomas Lamb, Orange County Commissioners as governing body of the Orange County Highway Dept., a 26-page opinion, Judge Pyle writes:
Appellant/Plaintiff, Daniel Harris (Harris), appeals the trial court’s grant of summary judgment in favor of Donald Brewer, Donald Crockett, and Thomas Lamb, Orange County Commissioners, as governing body of the Orange County Highway Department (“Highway Department”) (collectively, “Orange County”), on Harris’s claims of wrongful termination and defamation. Harris was terminated from his employment with the Highway Department as a result of his alleged consumption of alcohol prior to operating a Highway Department vehicle. He subsequently filed wrongful termination and defamation claims, amongst others, against Orange County. Orange County filed a motion for summary judgment on the claims, and the trial court granted the motion. * * *

On appeal, Harris argues that the trial court erred in granting summary judgment on both claims. With respect to his wrongful termination claim, he asserts that the trial court should have ruled that he was not an at-will employee because it should have interpreted the Orange County Highway Department’s Handbook of Personnel Policy (“the Handbook”) as a valid unilateral employment contract stipulating that Harris’s employment could only be terminated for just cause. Alternatively, Harris argues that even if the Handbook did not constitute a valid employment contract, an exception to Indiana’s presumption of employment-at-will applied to him. * * *

We affirm the trial court’s grant of summary judgment on Harris’s wrongful termination claim because: (1) the Handbook did not constitute a valid unilateral contract; and (2) an exception to the employment-at-will doctrine did not apply to Harris. We also affirm the trial court’s grant of summary judgment on Harris’s defamation claim because Orange County had a qualified privilege to deliver Harris’s termination letter and there were no genuine issues of material fact. As we also conclude that the evidence Orange County challenges in its cross-appeal is not dispositive, we need not address whether the trial court erred in denying Orange County’s motion to strike evidence.

In D.A. v. State of Indiana, a 17-page, 2-1 opinion, Judge Najam writes [ILB emphasis]:
D.A. appeals the trial court’s denial of his request to apply an expungement order to the records of a civil forfeiture proceeding that arose from the same facts underlying his now-expunged convictions. D.A. raises a single issue for our review, which is an issue of first impression: whether our expungement statutes apply to the records of civil forfeiture proceedings. We hold that, on these facts, the trial court erred when it did not apply the expungement order to the records of D.A.’s civil forfeiture proceeding. * * *

The expungement statutes are inherently remedial and, as such, should be liberally construed to advance the remedy for which they were enacted. ... The purpose of our expungement statutes is to “give individuals who have been convicted of certain crimes a second chance by not experiencing many of the stigmas associated with a criminal conviction . . . .” ... That purpose would be frustrated by providing only incomplete or partial relief. Accordingly, we hold that, where, as here, a civil forfeiture is ancillary to a criminal conviction and the nexus between the civil forfeiture and the criminal conviction is established, a defendant may petition the trial court to expunge the records of that civil forfeiture along with the records of the related criminal conviction. In other words, where the factual basis for a criminal conviction and a civil forfeiture are the same, the records of the civil forfeiture proceeding relate to the person’s conviction for purposes of our expungement statutes. Because the trial court erred when it concluded otherwise, we reverse the trial court’s judgment and remand for further proceedings. Reversed and remanded.

Kirsch, J., concurs.
Barnes, J., dissents with separate opinion. [which begins, at p. 15] I respectfully dissent. I certainly understand, as the majority recognizes, that the overarching purpose of the expungement statutes is to remove “stigmas” associated with criminal convictions and to allow a fresh start for persons who meet the statutory requirements. ... However, I do not believe we are free to add language to the statutes to permit the expungement of records related to civil forfeitures. * * *

Finally, I believe it is appropriate to consider the practical effect of expungement. As noted by the majority, despite arguments by D.A. to the contrary in his reply brief and at oral argument, the trial court addressed his expungement request as falling under Indiana Code Section 35-38-9-4. An expungement under this section does not result in sealing of the conviction records; instead, they remain public records. Ind. Code § 35-38-9-7(b). Thus, the fact of D.A.’s conviction will remain readily available to the public. Even if a conviction record is sealed under Indiana Code Section 35-38-9-6, in this day and age it will be practically impossible to prevent internet access to a person’s criminal record. In other words, the expungement cannot as a practical matter literally wipe a person’s slate clean in the eyes of an intrusive and technologically-savvy public. The effect of expungement, despite this public access and knowledge, comes through Indiana Code Section 35-38-9-10, which prohibits discrimination against someone based on an expunged criminal conviction. D.A. is entitled to this protection, regardless of whether his civil forfeiture record is expunged. I conclude he has received all the protection to which he is entitled by expungement of records directly related to his conviction and that he is not additionally entitled to expungement of the civil forfeiture judgment. These statutes, in my view, promise the erasure of a conviction, not anonymity and not more than the statutory language speaks to.

Nathan Polson v. State of Indiana

Kyle W. Dilts v. State of Indiana

Shawn Jaco v. State of Indiana

NFP civil decisions today (5):

Jesse Eads and Total Image Exteriors, LLC d/b/a TIE Tree Services v. Patrick Turner (mem. dec.)

Jeffrey E. Duermitt v. Odyssey Healthcare, Inc. (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: C.G., I.G., and S.G. (Minor Children), and J.G. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: K.R. (minor child) and T.R. (mother) v. The Ind. Dept. of Child Services (mem. dec.)

CM Sunshine Home Healthcare v. Review Board of the Indiana Dept. of Workforce Development and Kimberly McClam (mem. dec.)

NFP criminal decisions today (13):

Wanetta Marie Lloyd v. State of Indiana (mem. dec.)

Tamara Fitzgerald v. State of Indiana (mem. dec.)

Daniel R. Ross v. State of Indiana (mem. dec.)

Herbert Popp v. State of Indiana (mem. dec.)

Richard Green Burns v. State of Indiana (mem. dec.)

Javier Morales, Jr. v. State of Indiana (mem. dec.)

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

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

Jonathan L. Slone v. State of Indiana (mem. dec.)

Jorge Navarro v. State of Indiana (mem. dec.)

Richard L. Berg, Jr. v. State of Indiana (mem. dec.)

Joshua T. Trammell v. State of Indiana (mem. dec.)

Dontaye Singletary v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, December 31, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court decides one today, re the personal property tax abatement deduction

In Wells County Assessor v. Alexin, LLC, a 10-page opinion, Judge Wentworth writes:

This case examines the Indiana Board of Tax Review’s final determination that the Common Council of the City of Bluffton (Council) waived Alexin, LLC’s non-compliance with certain statutory requirements for its 2013 personal property tax abatement deduction. Upon review, the Court finds that the Indiana Board’s final determination is contrary to law. * * *

The issue before the Court is whether the Indiana Board’s final determination that the Council waived Alexin’s non-compliance with certain statutory requirements for its 2013 personal property tax abatement deduction is contrary to law. The parties’ written briefs and oral arguments indicate that the resolution of this issue depends on the answers to the following two questions: (1) whether the Council had the statutory authority to waive Alexin’s untimely filed personal property tax return under Section 9.5; and, if so, (2) whether the Council actually waived Alexin’s untimely filed personal property tax return in Resolution 2013-9. * * *

While the Court is sympathetic to Alexin’s misfortune, the record evidence, the parties’ arguments, and the applicable rules of construction require the Court to find that the Council’s Resolution 2013-9 did not waive the non-compliance of Alexin’s personal property tax return. The Council’s Resolution waived only the non-compliance of Alexin’s Forms CF-1 and, therefore, the Indiana Board’s final determination is contrary to law on this basis.

CONCLUSION. For the above-stated reasons, the Court REVERSES the final determination of the Indiana Board.

Posted by Marcia Oddi on Thursday, December 31, 2015
Posted to Ind. Tax Ct. Decisions

Courts - When will the 7th Circuit join the effort to both preserve, and make readily accessible, internet resources cited in opinions?

A Dec. 31st news release from the 9th Circuit [h/t How Appealing], quoted in full:

SAN FRANCISCO – The United States Court of Appeals for the Ninth Circuit is taking further steps to ensure that information derived from the Internet and cited in official court opinions remains available even if the original online resource ceases to exist or is altered.

Virtually all Internet users have experienced the frustration of a bad web link. This often results from “link rot,” which occurs over time as information is removed or moved to other online locations. Failure to obtain online information referenced in a court opinion, however, goes beyond inconvenience and can prove critical to judges and lawyers in considering other cases.

Since 2008, court librarians in the Ninth Circuit have been tracking citations to online resources and preserving original documents and/or web pages as Adobe PDF files. Although stored on the court website, http://www.ca9.uscourts.gov/library/webcites/, the availability of these files is not readily apparent to legal researchers.

The process will change January 4, 2016, when PDF files of online resources cited in opinions are automatically added to the official case docket. The files will be immediately available to anyone accessing the docket through the court’s case management/electronic case filing system, or CM/ECF, and the federal judiciary’s PACER system.

“Preserving the Internet resource and having the information easily accessible from the docket will be extremely helpful to the bench, bar, and public,” observed Ninth Circuit Chief Judge Sidney R. Thomas.

Since January 2008, circuit librarians have identified 643 Ninth Circuit opinions having citations to online resources. The yearly totals range from a high of 102 opinions in 2011 to 69 opinions in 2014 with an average of 80 opinions per year. The number of web links cited in an opinion ranges from one to as many as 30.

Besides documents and web pages, court librarians also track citations to audio and video files hosted on Internet websites. However, the court does not currently retain multimedia files due to storage constraints and other factors.

The Judicial Conference of the United States, the judiciary’s national governing body, has advised all federal courts to preserve online resources cited in decisions. The Ninth Circuit is the third federal appellate court to add online resources to its case dockets. The courts of appeals for the Eleventh Circuit and District of Columbia Circuit also do so.

ILB: The 7th Circuit also has undertaken a preservation effort, although it was not easy to find. It is in the Library of the 7th Circuit. The introduction:
Archived websites, links (urls) from opinions within the Seventh Circuit

The archived URL project was started when it was discovered how many internet addresses cited in court opinions were no longer active or had changed the material since the opinion was issued, making it difficult for researchers to view the information the court was referencing. This list contains all 7th Circuit opinions issued since January 1, 2007 which cite an internet address. Opinions from the U.S. District Court, S.D. Indiana were included in 2010.

Using the URL in the opinion, the library saves an archival copy, including a watermark indicating the date the archived copy was made. No attempt has been made by library staff to determine if any changes have been made since the last date the court visited the web page.

The opinions are arranged in docket number order. Click on the document description to retrieve the archived copy. Copy and paste the URL in your browser to link to the actual site (if still active).

Here is the list of 7th Circuit opinions containing internal links to internet resources, dating back to 2008. I did not count the number of cases, if someone does, let me know.

Near the end of the list, you will see the Rowe decisions, Rowe v. Gibson has been the center of much discussion on independent research by judges - see this Aug. 20, 2015 ILB post.

Two cases above that, you will see that an entry from the ILB has been preserved; it was cited in the CAC challenge to the way judges are elected in Marion County.

The next step? The 7th Circuit has not yet taken the next step, the one that the 9th Circuit is now undertaking, and describes:

The process will change January 4, 2016, when PDF files of online resources cited in opinions are automatically added to the official case docket. The files will be immediately available to anyone accessing the docket through the court’s case management/electronic case filing system, or CM/ECF, and the federal judiciary’s PACER system.

Posted by Marcia Oddi on Thursday, December 31, 2015
Posted to Courts in general | Ind. (7th Cir.) Decisions | Indiana Courts

Wednesday, December 30, 2015

Ind. Decisions - Tax Court decides two more today

In Marion County Assessor v. Washington Square Mall, LLC, DeBartolo Realty Partnership, LP, and Simon Capital, LP, a 24-page opinion, Judge Wentworth writes:

The Marion County Assessor has challenged the Indiana Board of Tax Review’s final determination that lowered the assessed value of the Washington Square Mall for each of the 2006 through 2010 assessment years. Upon review, the Court affirms in part and reverses in part. * * *

Conclusion. The Indiana Board is Indiana’s property valuation and assessment expert. Consequently, when the Indiana Board ascertains, as it did here, that parts of an appraisal are not probative, it should not then accept those parts of the appraisal to value the property.

The Indiana Board’s final determination with respect to Issue I is AFFIRMED. With respect to Issue II, however, the Indiana Board’s final determination is REVERSED and REMANDED with instructions to value the Mall in accordance with the probative parts of the Korpacz Appraisal [ILB: which are then quoted].

In Mirko Blesich v. Lake County Assessor [ILB - this is in addition to the earlier ruling today with the same name], an 8-page opinion involving a pro se petitioner, Sr. Judge Fisher writes:
Mirko Blesich challenges the final determination of the Indiana Board of Tax Review that valued his real property at $205,000 for the 2010 tax year. While Blesich raises several issues on appeal, the Court consolidates and restates them as: whether the Indiana Board’s final determination was improper. The Court affirms the Indiana Board.

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

Ind. Gov't. - Drug penalties on roller coaster ride?

"Pence seeks tougher penalties for drug dealers" is the headline to this story by Dan Carden in the NWI Times. Some quotes:

Gov. Mike Pence is asking Indiana lawmakers to increase punishment for some drug crimes, less than two years after the Republican signed a law reducing most prison terms.

On Tuesday, Pence endorsed the recommendation of his Drug Task Force that the General Assembly enhance penalties for "serious, aggravated drug dealers" during its 10-week session that begins Jan. 5. * * *

Pence did not specify what the enhanced penalties should include, but said a to-be-announced measure, sponsored by state Sen. Greg Steuerwald, R-Avon, will be part of his heretofore unknown 2016 legislative agenda.

The governor's proposal echoes this month's call by the Association of Indiana Prosecuting Attorneys for creation of an "aggravated drug dealing" crime, accompanied by a lengthy prison sentence, to give prosecutors a larger role in deterring repeat drug offenders.

"These dealers are dangerous people and we need a law on the books that ensures they will be spending time in prison and not wreaking havoc in our communities," said Aaron Negangard, prosecutor for Dearborn and Ohio counties.

The Republican-controlled General Assembly recently reduced most drug crime sentences and eliminated mandatory minimum sentences in an effort to direct drug-addicted Hoosiers into treatment, instead of prison.

While Pence signed the 2013 and 2014 sentencing reform laws partially aimed at reducing the state's prison population, earlier this year he also proposed spending $51 million to expand capacity at two state prisons.

Lawmakers refused to include Pence's prison construction plan in the 2016-17 state budget.

In addition, legislative leaders repeatedly have indicated they'd prefer to monitor the effects of the bipartisan criminal code changes over a lengthy time period, rather than hastily toss aside a half-decade of work for short-term political or electoral advantage.

Major drug dealers still face prison terms of up to 30 years under the revised sentencing guidelines.

It costs the state $52.75 per day to house an adult inmate, according to the Department of Correction. Hoosier taxpayers spend more than a half-million dollars for each 30-year sentence.

See also this Dec. 9th ILB post, quoting a story by Maureen Hayden headed "Prosecutor lobbies state to get aggressive, again, on drugs."

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

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

For publication opinions today (2):

In Risha D. Warren v. Board of School Trustees of the Springs Valley Community School Corporation, a 21-page opinion, Judge Robb writes:

Risha Warren filed a complaint against the Board of School Trustees of the Springs Valley Community School Corporation (“School Board”), alleging violations of Indiana’s Open Door Law, breach of contract, and defamation. The trial court granted summary judgment in favor of the School Board.

Warren appeals, raising the following restated issues: 1) whether the trial court erred in granting summary judgment; and 2) whether the trial court erred in denying her motion to compel. Concluding the trial court erred by granting summary judgment in favor of the School Board as to the Open Door Law claim, we reverse and remand for further proceedings on that claim. On the remaining claims we affirm the grant of summary judgment in favor of the School Board. As for Warren’s motion to compel, we conclude the trial court did not abuse its discretion and affirm the trial court’s denial of the motion. We therefore affirm in part, reverse in part, and remand. * * *

Warren contends the School Board provided inadequate notice of the date and time of the public meeting held after the executive session, thereby violating Indiana’s Open Door Law, and the trial court erred by granting summary judgment in favor of the School Board on this claim. The School Board agrees the proceedings were subject to the requirements of the Open Door Law,3 but the School Board argues the notice was adequate and “specific in notifying the public that the public session would occur immediately following the executive session.” * * *

We conclude the public notice did not satisfy the Open Door Law’s notice requirement because the School Board convened the meeting at a time unreasonably departing from the time stated in the notice. Indiana Code section 5-14-1.5-5(a) requires public notice of the “date, time, and place of any meetings,” and “whichever comes later” is not a concrete “time” from the public’s perspective. The tentative start time was 7:00 P.M., but the meeting was held in the middle of the night, over seven hours later. Undoubtedly, the lateness of the hour substantially deprived the public of the opportunity to attend. The fact that several members of the public nonetheless attended does not alter our conclusion. Holding a public meeting at 2:30 A.M. is unreasonable and contrary to the purpose of the Open Door Law. [ILB emphasis]

The School Board argues that even if it violated the Open Door Law, Warren’s claim fails as a mere technical violation. We disagree. We are required to liberally construe the provisions of the Open Door Law in order to give effect to the legislature’s intention that state business be conducted openly. Baker v. Town of Middlebury, 753 N.E.2d 67, 70 (Ind. Ct. App. 2001) (citing Ind. Code § 5-14-1.5-1), trans. denied. The notice for the meeting did not comply with the requirements of the Open Door Law, and the violation both impaired public access to the meeting and affected the substance of the final action taken at the meeting. See Ind. Code § 5-14-1.5-7(d)(1). The School Board voted to cancel Warren’s contract by a 4-0-3 vote, with three members abstaining. Had the meeting been timely held with proper notice, the designated evidence shows Warren would have attended and objected to two of the board members voting, both of whom voted in favor of her termination.[6]

We also conclude the public interest would be served by voiding the final action taken at the meeting. As stated above, holding a public meeting at 2:30 A.M. is plainly contrary to the purpose of the Open Door Law. Moreover, despite the fact that board members claim they did not know where Warren was or assumed Warren did not want to attend the public meeting, the School Board’s ongoing negotiations with Warren show the School Board knew Warren was in the building and wanted to be present for the meeting. Their failure to notify Warren that the executive session had concluded indicates they did not want Warren to attend to the public meeting. Whether deliberate or indifferent, the School Board’s conduct was unreasonable and antithetical to legislature’s intention that state business be conducted openly. And nothing in the record suggests voiding the vote would result in prejudice to the public that would outweigh the remedial benefits gained by requiring the School Board to comply with the law. See Ind. Code § 5-14-1.5-7(d)(3). The trial court erred by granting summary judgment in favor of the School Board on this claim.
_________
[6] Warren would have objected to Ralph Purkhiser voting because he appeared to be sleeping during the private conference portion of the proceedings. She would have objected to Kevin Allstot voting based on a potential conflict of interest created by his wife’s employment within the Springs Valley School Corporation.

In Charles S. Whitham v. State of Indiana , a 15-page opinion, Judge Najam writes:
Charles S. Whitham appeals his convictions for attempted murder, a Class A felony (Count I); aggravated battery, a Class B felony (Count II); criminal confinement, as a Class B felony (Count V); two counts of battery, each as a Class C felony (Counts III and IV); and strangulation, a Class D felony (Count VI). Whitham raises three issues for our review, which we consolidate and restate as whether the trial court abused its discretion in the admission of certain evidence. We also raise sua sponte whether several of Whitham’s convictions violated the constitutional prohibition against double jeopardy. * * *

In sum, we affirm Whitham’s conviction for Count I, attempted murder, a Class A felony. However, we reverse Whitham’s convictions for aggravated battery, a Class B felony (Count II); criminal confinement, as a Class B felony (Count V); battery, as a Class C felony (Count III); battery, as a Class C felony (Count IV); and strangulation, a Class D felony (Count VI). Each of these offenses was a lesser-included offense to Whitham’s conviction for attempted murder. Thus, we remand with instructions that the trial court vacate Whitham’s lesser-included offenses.

NFP civil decisions today (3):

L.B. v. A.L. (mem. dec.)

In Re Paternity of E.R.B. Michael Bruzzese v. Rachel Kensinger (mem. dec.)

Magic Circle Corp. d/b/a Dixie Chopper, Arthur Evans, Wesley Evans, Jeffrey Haltom v. Simon Wilson, Gary Morgan, and Crowe Horwath LLP (mem. dec.)

NFP criminal decisions today (9):

Isaiah H. Rogers v. State of Indiana (mem. dec.)

Jesse Abrams v. State of Indiana (mem. dec.)

Scott Ezman v. State of Indiana (mem. dec.)

Brian Keith Roach v. State of Indiana (mem. dec.)

Nick Adams v. State of Indiana (mem. dec.)

Edward Jones, Jr. v. State of Indiana (mem. dec.)

Charles D. Craft v. State of Indiana (mem. dec.)

Tommy E. Foster v. State of Indiana (mem. dec.)

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

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

Ind. Decisions - Tax Court decides one today

In Mirko Blesich v. Lake County Assessor, a 7-page opinion involving a pro se petitioner, Sr. Judge Fisher writes:

Mirko Blesich challenges the final determination of the Indiana Board of Tax Review that valued his real property at $300,000 for the 2007 through 2010 tax years. Upon review, the Court affirms the Indiana Board’s final determination. * * *

On appeal, Blesich essentially maintains that no such explanation was needed: the Indiana Board should have made the reasonable inference that if his property was valued at $275,000 in 2012, it would have been even less during the assessment years at issue, which were part of “one of the . . . biggest depressed periods [in] real estate property values” in the United States on record. (See Oral Arg. Tr. at 8-9, 12-13; Pet’r Br. at 2.) As previously noted, however, it was Blesich’s duty to walk the Indiana Board through every element of his analysis. Therefore, Blesich was required to trend his 2012 appraisal back to a 2006, 2007, 2008, 2009, and/or a 2010 value. Because he did not, (see Cert. Admin. R. at 57-79, 87-129), the Indiana Board properly determined that the appraisal carried no weight.

ILB Comment: Notice that J.Fisher refers to "Oral Arg. Tr. at 8-9, 12-13." Interesting to the ILB because: (1) pro se petitioner participated in oral argument before the Tax Court, and (2) because there are apparently transcripts produced of Tax Court oral arguments.

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

Tuesday, December 29, 2015

Law - "‘Bluebook’ Critics Incite Copyright Clash"

From the WSJ Law Blog, this post by Jacob Gershman that begins:

For close to a century “The Bluebook” has reigned as the “bible of legal citation“*, the guide that practicing lawyers, judges and law students turn to when they need to know the proper way to reference a case, a statute, book or article.

Now, a copyright clash is heating up between the Ivy League publishers of The Bluebook and legal activists who are preparing to post online what they describe as a simpler, free alternative to the manual’s punctilious precepts.

The latest turn came this month when open-records activist Carl Malamud tweeted about the coming release of “Baby Blue,” the name that he and his project partner New York University law professor Christopher Sprigman are calling their rival guide.

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

Law - "The Justice Department just shut down a huge asset forfeiture program"

That is the headline to this Dec. 23rd story by Christopher Ingraham in the Washington Post. It begins:

The Department of Justice announced this week that it's suspending a controversial program that allows local police departments to keep a large portion of assets seized from citizens under federal law and funnel it into their own coffers.

The "equitable-sharing" program gives police the option of prosecuting asset forfeiture cases under federal instead of state law. Federal forfeiture policies are more permissive than many state policies, allowing police to keep up to 80 percent of assets they seize -- even if the people they took from are never charged with a crime.

Of course, AG Holder acted in Jan. 2015 to bar local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred. The ILB has had a great many posts over the years on civil asset forfeiture, on both the federal and state level. See particularly "John Oliver on Civil Asset Forfeiture"

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

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decision(s)) [Corrected]

For publication opinions today (2):

In John Barkers and Specialty Limos, LLC v. Jason Price, a 12-page opinion, Judge Najam writes:

John Barker and Specialty Limos, LLC (collectively, “Barker”) appeal the trial court’s entry of summary judgment for Jason Price. Barker raises a single issue for our review, which we restate as whether the trial court erred when it interpreted the parties’ contract. We affirm in part, reverse in part, and remand for further proceedings. * * *

Here, Barker asserts that the entry of summary judgment for Price is erroneous for two reasons. First, he asserts that the model year of the van was a term material to his agreement to purchase it, and Price failed to present a certificate of title for a 1994 van. Second, he asserts that the certificate of title was in the name of a third party and, therefore, that Price did not satisfy his obligation to deliver title as provided under the deposit agreement. We address each argument in turn. * * *

In sum, the deposit agreement is not the entire agreement between Barker and Price. Accordingly, the trial court erred when it concluded that the deposit agreement precluded Barker’s claim that the model year was a term material to the parties’ agreement for sale of the van. And we cannot say that the designated evidence otherwise shows that Price is entitled to judgment as a matter of law on this issue. We reverse the court’s entry of summary judgment for Price and remand for further proceedings. On remand, the court shall consider not only the deposit agreement but also extrinsic evidence to determine whether, as between the parties, the model year was a term material to their agreement. * * *

To prevent this issue from recurring on remand, we briefly address Barker’s alternative argument that the trial court erred when it concluded that Price had delivered a valid certificate of title pursuant to the deposit agreement even though the certificate of title was not in Price’s name. In particular, Barker’s only arguments here are, first, that title in a third-party’s name is not clear title and, second, that the Indiana Certificate of Title Act, I.C. §§ 9-17-1-1 to -8-9, controls such issues rather than the sales provisions of the Indiana Uniform Commercial Code. * * *

[T]he trial court correctly rejected Barker’s arguments, and we affirm that portion of the trial court’s judgment.

Thus, we affirm in part, reverse in part, and remand for further proceedings

In Derrell Woods v. State of Indiana, a 20-page, 2-1 opinion, Judge Najam writes:
Derrell Woods appeals the post-conviction court’s denial of his amended petition for post-conviction relief. Woods presents a single dispositive issue for our review, namely, whether the post-conviction court erred when it concluded that Woods was not denied the effective assistance of trial counsel. We reverse. * * *

Two months after Woods’ arrest, the State extended a plea offer to Zook for Woods to plead guilty to Class B felony robbery and two Class D felonies with sentencing left to the trial court’s discretion. That plea would have resulted in a maximum possible aggregate sentence of twenty-six years. The undisputed evidence shows that Zook [R. Brent Zook, Woods’ defense counsel] never communicated that plea offer to Woods and that, if he had, Woods would have accepted the plea. Instead, following a bench trial, the trial court sentenced Woods to forty-five years with ten years suspended.

We hold that Zook rendered ineffective assistance of counsel when he did not communicate the June 23, 2003, plea offer to Woods, which prejudiced Woods when he was convicted of Class A felony robbery and sentenced to forty-five years. We therefore reverse the post-conviction court’s judgment and Woods’ conviction. On remand, we instruct the court and the parties to proceed as if Woods has just received the June 23, 2003, plea offer, and he shall have four business days from the certification of this opinion to accept or reject the offer.

If Woods accepts the offer but the trial court decides not to accept it, then Woods shall have a new trial. See Dew, 843 N.E.2d at 571. Reversed.

Riley, J., concurs.
May, J., dissents with separate opinion. [which begins, at pl 18] When a petitioner appeals the denial of a petition for post-conviction relief, which is a negative judgment, we may reverse only if that petitioner demonstrates “the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). I do not believe Woods has met that burden and, accordingly, I dissent.

NFP civil decisions today (3):

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

OmniSource Corporation v. Linda K. Fuller and Greg Fuller (mem. dec.)

Chris E. Harkins v. Quick-Cash Pawn, Inc. (mem. dec.)

NFP criminal decisions today (3):

Dianna Fargo v. State of Indiana (mem. dec.)

Tamarius T. Jennings v. State of Indiana (mem. dec.)

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

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

About this Blog - A look at the current state of legal blogs, and the ILB

From Robert Ambrogi's Dec. 28th LawSites post, "The 10 Most Important Legal Technology Developments of 2015," a look at law blogging:

9. Legal Blogging Hits a Plateau. * * *

However, it would be a mistake to equate the number of blogs with the importance of blogs. As I told the ABA Journal recently and wrote here earlier this year, I see blogs as more important than ever within the legal industry. I’ve cited the prominence and influence of SCOTUSblog so many times that they’re getting sick of hearing me mention them. But ask yourself where lawyers are turning for information. In increasing numbers, they are turning to blogs. Yes, some blogs are dying. But others are thriving. And meanwhile, established legal news publishers are shuttering publications or rolling through owners. Blogging will continue to evolve in the years ahead, but it’s not going away anytime soon.

From an earlier, April 24th Ambrogi post, headed "How Legal Blogging Has Changed Over the Decade":
Blogging is not dying, it is thriving. Because it is thriving, it has become an enterprise. Big firms have paid writers on staff producing blog content. Marketing and PR firms now have units that specialize in sending their customers canned content to use on their blogs. Law.com now has an entire network of blogging contributors. Above the Law has made legal blogging into a full-fledged business — and what appears to be a pretty successful one at that. Competition abounds, and it comes from all corners.

If you want to blog successfully, you still can. You don’t have to be young. You don’t need inhouse writers or outside marketing firms. But you do need energy and commitment. Horwitz was right about that. And you need to enjoy it. Otherwise the energy and commitment get you nowhere. Blogging takes work. It can be hard work that can wear on you. But it can be rewarding. And it can also be fun. Once it’s not, that’s probably the time to move on.

ILB: In this arena, the ILB is unique in its focus on a single state's, Indiana's, law and government, enhanced by the frequency of its posts and its longevity, dating back to 2003. The ILB intends to continue into 2016 and beyond, if adequate financial support can be secured.

Posted by Marcia Oddi on Tuesday, December 29, 2015
Posted to About the Indiana Law Blog

Monday, December 28, 2015

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

For publication opinions today (2):

In Douglas L. Krasnoff v. The Education Resources Institute, a 4-page opinion on rehearing, Judge Bailey concludes:

Having clarified our prior opinion with respect to any subsequent liability Krasnoff may have had under the note, we reaffirm our decision in this case.
In In the Matter of the Expungement of J.S.: State of Indiana, et al. v. J.S. , a 22-page opinion, Judge Bradford writes:
Effective July 1, 2013, the Indiana General Assembly (the “General Assembly”) adopted a law allowing for the expungement of certain conviction records if the petitioning individual meets certain requirements. On February 27, 2014, Appellee J.S., who held a commercial driver’s license (“CDL”), petitioned to have the records relating to his April 6, 2009 convictions for Class A misdemeanor operating a vehicle while intoxicated (“OWI”) and Class A misdemeanor resisting law enforcement expunged. On July 7, 2014, the trial court issued an order granting J.S.’s petition. As part of this order, the trial court prohibited the Indiana Bureau of Motor Vehicles from disclosing J.S.’s 2009 OWI conviction to the Commercial Driver’s License Information System (“CDLIS”) as is required by existing federal and Indiana law.

Appellants the State of Indiana, the Indiana Bureau of Motor Vehicles, and Kent W. Abernathy, in his position as Commissioner of the Indiana Bureau of Motor Vehicles (collectively, the “BMV”), now appeal the trial court’s order prohibiting the BMV from disclosing J.S.’s conviction to the CDLIS. In challenging the trial court’s July 7, 2014 order, the BMV argues that the portion of the trial court’s ruling relating to the BMV is erroneous as it is inconsistent with the intent of the General Assembly. Specifically, the BMV argues that the ruling violates both existing federal and Indiana law and would lead to illogical and absurd results. Concluding that the BMV is not barred from challenging the trial court’s order and that the trial court erred in prohibiting the BMV from disclosing J.S.’s conviction to the CDLIS, we reverse and remand to the trial court with instructions to amend its July 7, 2014 order to specifically allow the BMV to comply with the existing federal and Indiana laws requiring the BMV to disclose J.S.’s conviction to the CDLIS.

NFP civil decisions today (4):

In the Matter of the Term. of the Parent-Child Relationship of R.W. and E.W. (Minor Children) and M.C. (Mother); M.C. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

Mikhail Goloverya v. Nextgear Capital, Inc. (mem. dec.)

In the Matter of: J.D. and J.G., Children in Need of Services, J.G. (Father) and K.M. (Mother) v. Ind. Dept. of Child Services, and Child Advocates, Inc. (mem. dec.)

Leo Prassas v. Corick Construction, LLC (mem. dec.)

NFP criminal decisions today (3):

Gary Byrd v. State of Indiana (mem. dec.)

Mandy Monnett v. State of Indiana (mem. dec.)

James Eric Hill V. State of Indiana (mem. dec.)

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

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

Here is the Clerk's transfer list for the week ending Friday, Dec. 25, 2015. It is one page (and 1 case) long.

One transfer was granted last week:

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

Ind. Courts - "Indiana courts push ahead with shift to e-filing"

Rick Callahan of the AP has a good weekend story on the Indiana courts move to e-filing. A few quotes:

INDIANAPOLIS (AP) — Indiana’s top courts are pushing ahead with adopting an electronic-filing system that state officials say will eventually give the public free access to online court records statewide.

The Indiana Supreme Court and the state Court of Appeals began offering e-filing in November, and the Indiana Tax Court, will follow in January. The goal is for trial courts in all 92 counties to offer e-filing by the end of 2018; one county has already instituted it and six others will follow in the first half of 2016.

Attorneys can still file paper versions of briefs and other legal documents for the two top state courts, but they’re already starting to embrace e-filing because it eliminates the costs of photocopying, binding, mailing and hand-delivering voluminous amounts of documents, high court spokeswoman Kathryn Dolan said. * * *

Hamilton County, the state’s fast-growing county that is just north of Indianapolis, started accepting court documents online in July. In the first 100 days, more than 4,000 documents were filed electronically with the county clerk’s office.

Local officials had expected there might be glitches, but the new system has gone smoothly and attorneys who’ve used it are pleased with the cost-savings and convenience, said Debbie LePere, the county’s deputy clerk.

Six Indiana counties — Clark, Harrison, Henry, St. Joseph, Shelby and Wells — will be joining Hamilton County in implementing e-filing during the first half of 2016, with more to come later.

Posted by Marcia Oddi on Monday, December 28, 2015
Posted to E-filing

Law - "20 States Have Adopted Ethical Duty of Technology Competence"

Robert Ambrogi has updated his March 16, 2015 post to reflect that 20 states have now adopted the ABA model rule imposing upon those states' attorneys the duty of technology competence. The list does not include Indiana.

Posted by Marcia Oddi on Monday, December 28, 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 12/28/15):

Next week's oral arguments before the Supreme Court (week of 1/4/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/28/15):

Next week's oral arguments before the Court of Appeals (week of 1/4/16):

Wednesday, January 6

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.

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, December 28, 2015
Posted to Ind. App.Ct. Decisions

Saturday, December 26, 2015

Ind. Courts - Michigan Supreme Court lets stand lower court public access win by ESPN against Michigan State stand

Although ESPN's public access suit against Notre Dame's security police is still pending in Indiana's Court of Appeals (docket), with oral argument recently being set to take place February 24, 2016, Michigan State's appeal to the Michigan Supreme Court in a similar lawsuit was denied on Dec. 23rd, leaving the Michigan Court of Appeals decision intact. From a story in the Detroit News:

East Lansing —The Michigan Supreme Court denied a request for appeal from Michigan State on Wednesday, a decision stemming from a suit filed by ESPN after names of students were redacted from incident reports the network requested.

It means Michigan State will have to disclose the names of suspects who were among the 301 student-athletes that ESPN had identified in its original request under the Michigan Freedom of Information Act. Michigan State released those reports but the names were redacted. ESPN then sued to have the information released. * * *

ESPN had asked for the records as part of an "Outside the Lines" investigation that examined how various universities dealt with student athletes who were accused of crimes.

The ILB posted on Aug. 25th: "The Michigan Court of Appeals sided with ESPN in a public records dispute with Michigan State University over the release of names of student-athletes mentioned in campus police reports, the Lansing State Journal reported."

From the Dec. 23 Lansing State Journal, in a story by Matt Mencarini:

LANSING - Michigan State University will have to release police reports requested by ESPN Inc. after the state Supreme Court denied the school's appeal.

The media company submitted a Freedom of Information Act request in September 2014 for incident reports involving 301 student-athletes. The university responded by providing copies of reports with the names of student-athletes listed as suspects, witnesses or victims redacted, according to court records.

ESPN sued in Ingham County Circuit Court and Judge Clinton Canady III ruled that MSU must release the names of the student-athletes if they were identified in the reports as suspects, according to court records. Canady said privacy laws exempted the release of names if student-athletes were listed as victims or witnesses.

It was a ruling upheld by the state Court of Appeals in August after MSU appealed Canady's ruling. The university then appealed to the state Supreme Court. That appeal was denied Wednesday.

From a quote in a South Bend Tribune story yesterday:
In Indiana, ESPN last January filed a lawsuit against the University of Notre Dame, arguing that the Notre Dame Security Police department is a public agency under state law, and Notre Dame should be required to follow the state's open records law when it comes to campus police records.

In April, St. Joseph Superior Court Judge Steven Hostetler ruled in favor of Notre Dame. ESPN appealed the case to the Indiana Court of Appeals, and oral arguments are scheduled for Feb. 24.

Indiana Attorney General Greg Zoeller, the South Bend Tribune and the Hoosier State Press Association have filed friend of the court briefs in support of ESPN.

ILB: For all the documents in the Indiana case, see this Aug. 17th ILB post headed:"ESPN files its brief in its state court appeal to obtain access to the reports of the Notre Dame police."

Posted by Marcia Oddi on Saturday, December 26, 2015
Posted to Indiana Courts

Thursday, December 24, 2015

Courts - "Kansas: High Court Strikes Law Cutting Its Power"

The NY Times today is running a brief AP story that begins:

The State Supreme Court on Wednesday unanimously struck down a law meant to reduce its administrative influence over lower courts, setting up a showdown with lawmakers who had threatened to defund the entire judiciary if the law were overturned.
The Lawrence Kansas Journal-World has a long story, reported by Peter Hancock, that links to a copy of the opinion, Solomon v. Kansas. A few quotes from the story:
Topeka — In a case that threatens all funding for the entire state judicial branch, the Kansas Supreme Court on Wednesday struck down a new law that changes the way chief judges in the lower courts are selected.

In a 43-page opinion in the case of Solomon v. Kansas written by Justice Eric Rosen, the court upheld a lower court decision that said the new law violates the separation of powers doctrine as well as Article 3 of the state constitution, which gives the Supreme Court “general administrative authority over all courts in this state.”

That decision could put funding for the judicial branch in jeopardy because lawmakers passed a funding bill this year that includes what’s called a “nonseverability” clause that says if the judicial selection law is overturned, all funding for the courts for the next two years also becomes null and void.

The Kansas Supreme Court’s ruling Wednesday did not address the funding issue, which is the subject of a separate constitutional lawsuit pending in Shawnee County District Court. In September, a judge in Neosho County put the nonseverability clause on hold until March 15, giving lawmakers time to address it when they return for the 2016 session.

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

Wednesday, December 23, 2015

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 14 NFP memorandum decision(s))

For publication opinions today (5):

In Carole Storch, as Personal Representative for the Estate of Charles Sindledecker v. Provision Living, LLC; PVL Tenant Holdings, LLC, d/b/a Greentree at Fort Harrison, an 11-page opinion, Judge Baker writes:

Carol Storch appeals the judgment of the trial court holding that her father’s estate is not entitled to an award of attorney fees pursuant to a residence agreement entered into between her father and his assisted living facility. Finding that the plain language of the residence agreement compels an award of attorney fees in this case, we reverse. * * *

The judgment of the trial court is reversed and remanded so that the trial court may calculate reasonable attorney fees and award those fees to Sindledecker’s estate, as called for in the parties’ residence agreement.

In Sharpsville Community Ambulance, Inc. v. Cynthia Gilbert and Randall Gilbert, an 11-page opinion, Judge Baker writes:
Sharpsville Community Ambulance, Inc. (Sharpsville), brings this interlocutory appeal challenging the trial court’s order granting partial summary judgment in favor of Cynthia and Randall Gilbert. The trial court found that Sharpsville is not entitled to the protections of the Indiana Tort Claims Act (ITCA) because it is a private company rather than a governmental entity. Sharpsville, a volunteer emergency medical services provider, contends that it falls under the ITCA because it provides a uniquely governmental service. Given precedent from our Supreme Court and the requirement that we strictly construe statutes in derogation of the common law, we find that the trial court did not err by finding that Sharpsville is not entitled to ITCA protection. We affirm and remand. * * *

Having considered Mutka, it is evident that, while Ayres created an exception to the ITCA for entities other than those specifically enumerated by the statute, that exception is extremely narrow. Moreover, the legislature has now explicitly included volunteer fire department—but not volunteer providers of emergency medical services—within the definition of “political subdivision.” Given the evolution of this area of law from Ayres, to legislative amendment, to Mutka, we are compelled to conclude that Sharpsville does not qualify as a governmental entity for the purpose of ITCA protections. Consequently, the trial court did not err by granting the Gilberts’ partial motion for summary judgment.

In Eugene J. Topolski v. Bonnie Egan, a 9-page opinion, Judge Mathias concludes:
We conclude that sufficient evidence supports the trial court’s calculation of unpaid back pay Topolski owed to Egan and that the trial court properly awarded Egan liquidated damages and attorney’s fees under Indiana Code section 22-2-5-2.
In Raymond Kerr v. City of South Bend, a 15-page opinion, Judge Baker writes:
Raymond Kerr filed a complaint against the City of South Bend alleging that noxious gases from its sewer line had been forced into his home. Kerr alleged that this constituted nuisance, trespass, negligence, and inverse condemnation, resulting in injury to his person and his property. The trial court granted summary judgment in favor of the City, concluding that Kerr’s claims were time-barred and that he was owed no duty. Finding that the trial court erred as to this latter point, we nevertheless find that Kerr’s claims are barred by the statute of limitations insofar as they relate to injury to his health. We do find, however, that a portion of Kerr’s claims may proceed insofar as they relate to damage to his property. Accordingly, we affirm in part, reverse in part, and remand for further proceedings. * * *

The judgment of the trial court is affirmed in part and reversed in part. On remand, Kerr’s claim against the City may proceed insofar as it relates to damage to or loss of the use and enjoyment of his property beginning 180 days prior to the filing of his notice of tort claim.

In Melvin C. Hamilton v. State of Indiana , a 6-page opinion on rehearing, Judge Mathias writes:
The State petitions for rehearing following our decision in Hamilton v. State, No. 65A04-1412-CR-592 (Ind. Ct. App. Sept. 9, 2015). The State does not contend that we erred in concluding that certain vouching testimony was inadmissible at trial. However, it vigorously argues that we erroneously held that the improper admission of that evidence amounted to reversible error. We disagree and reaffirm our original decision but issue this opinion on rehearing for further clarification.
NFP civil decisions today (3):

Board of Public Works and Safety of the City of Hammond v. Erik Alcantar, Sr. and Guadalupe Alcantar (mem. dec.)

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

Charles E. Sweeney v. The Honorable Nancy H. Vaidik (mem. dec.)

NFP criminal decisions today (11):

Stephen D. Booker v. State of Indiana (mem. dec.)

Jeffery T. Curry v. State of Indiana (mem. dec.)

Birol Simsek v. State of Indiana (mem. dec.)

Anthony Edward Stewart v. State of Indiana (mem. dec.)

Jerremy Buren Cofield v. State of Indiana (mem. dec.)

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

William R. Evans v. Keith Butts (mem. dec.)

John D. Quarles v. State of Indiana (mem. dec.)

Joshua A. Cook v. State of Indiana (mem. dec.)

Charles E. Nichols v. State of Indiana (mem. dec.)

Mark A. Drescher v. State of Indiana (mem. dec.)

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

Courts - "Sued Over Old Debt, and Blocked From Suing Back"

A lengthy, important story today (with 1197 comments at the moment) by Jessica Silver-Greenberg and Michael Corkery in the NY Times DealBook blog reports in part:

In short, Encore and rival debt buyers are using the courts to sue consumers and collect debt, then preventing those same consumers from using the courts to challenge the companies’ tactics. Consumer lawyers said this strategy was the legal equivalent of debt collectors having their cake and eating it, too.

The use of arbitration by the companies is the latest frontier in a legal strategy orchestrated by corporations in recent years. By inserting arbitration clauses into the fine print of consumer contracts, they have found a way to block access to the courts and ban class-action lawsuits, the only realistic way to bring a case against a deep-pocketed corporation.

Their strategy traces to a pair of Supreme Court decisions in 2011 and 2013 that enshrined the use of class-action bans in arbitration clauses.

The result, The New York Times found in an investigation last month, is that banks, car dealers, online retailers, cellphone service providers and scores of other companies have insulated themselves from challenges to illegal or deceptive business practices. Once a class action was dismantled, court and arbitration records showed, few if any of the individual plaintiffs pursued arbitration.

This long story, which needs to be read in full, is part of a series and includes many internal links to related stories.

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

Law - "Law school nonprofit buys Bill Henderson's Lawyer Metrics company"

Debra Cassens Weiss reports in the ABA Journal in a story that begins:

A nonprofit group made up of about 200 law schools is acquiring the assets of Lawyer Metrics, a company formed in 2010 partly to help law firms use statistics to hire and retain the best legal talent.

The Access Group announced the acquisition in a press release (PDF). Lawyer Metrics was co-founded by Indiana University law professor William Henderson and Pennsylvania State University statistics professor Christopher Zorn, and both will stay with the company after the sale to the Access Group.

Terms of the deal are undisclosed, Henderson tells the ABA Journal.

Henderson says he and Zorn were eager for their company to become a nonprofit and sought out the Access Group as a potential buyer. “This is an absolutely ideal outcome for us,” says Henderson, who says the deal will allow him to do high-impact work.

Henderson will spend part of his time as a law professor and part of his time doing research with Lawyer Metrics. Clients will continue to pay Lawyer Metrics for research projects, but profits will fund additional research, he tells the ABA Journal.

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

Courts - "Kentucky governor alters marriage licenses to accommodate opponents of same-sex marriage"

Sandhya Somashekha of the Washington Post reports today:

Kentucky’s new governor on Tuesday issued an executive order to adjust marriage licenses to accommodate county clerks who oppose same-sex marriage.

The order removes a requirement that county clerks’ names appear on marriage licenses issued by their offices. Gov. Matt Bevin (R), who was sworn in Dec. 8, had pledged to take the step to help Kim Davis, the county clerk who earlier this year spent five days in jail over her religious objections to same-sex unions. * * *

Bevin’s decision puts the governor’s stamp of approval on at least some of the alterations Davis made to the form. It drew praise from the Liberty Counsel, the Christian conservative law firm that has represented Davis in her protracted legal fight with the American Civil Liberties Union over the matter.

“He said he would do this as his first executive order and he kept his promise, so we’re very pleased,” said Mat Staver, chairman of the Liberty Counsel.

But it received an immediate rebuke from the American Civil Liberties Union, which said Bevin did not have the authority to change the forms and said his actions add to the “cloud of uncertainty” that already hovered over marriage licenses issued in Rowan County.

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

Ind. Courts - There is still time to apply to fill the 2016 vacancy on the Indiana Supreme Court

On Nov. 9th, Justice Dickson announced his retirement plans for 2016. On Nov. 12 applications for the upcoming vacancy on the state’s highest court were made available online, with this statement: Tentative Deadline – 12:00 p.m., January 25, 2016.

All of the ILB posts about the upcoming vacancy are now available under the category: Vacancy on Supreme Court - 2016.

The over 130 ILB posts on the 2010 vacancy, the first in this century, are located under the category: Vacancy on Supreme Ct.

Here is a detailed chart providing an overview of the entire process in 2010.

Two vacancies were filled in 2012. Find the ILB posts here:

Posted by Marcia Oddi on Wednesday, December 23, 2015
Posted to Vacancy on Supreme Court - 2016

Tuesday, December 22, 2015

Indiana Decisions - Supreme Court decides one today, re a § 1983 claim

In Randy L. Thornton v. State of Indiana, Ind. Dept. of Corr., Marion Co., Indiana, City of Indianapolis, Matthew Pietrzak, Stephanie Buttz, Eric Lee, and Dianna Johnson, a 4-page, 3-2 per curiam opinion, the Court writes:

Plaintiff Randy Thornton brought multiple claims against several defendants arising out of his incarceration for a probation violation that allegedly occurred after his term of probation had expired. The trial court dismissed his claims against all defendants. The Court of Appeals affirmed in a memorandum decision. Thornton v. State of Indiana, No. 49A02-1409-PL-662 (Ind. Ct. App. August 14, 2015). Thornton seeks transfer, contending only that his claim against four individual probation officers (the “Defendants”) under 42 U.S.C. § 1983 was improperly dismissed. * * *

We find the trial court erred when it determined Thornton’s complaint did not state a claim for relief under 42 U.S.C. § 1983 against the individually-named probation officers. Accordingly, we grant transfer and reverse dismissal of Thornton’s § 1983 claim against the Defendants and remand to the trial court for further proceedings. In doing so, we express no opinion on the merits of Thornton’s claim. In all other respects we summarily affirm the Court of Appeals’ decision. See Ind. Appellate Rule 58(A)(2).

Rush, C.J., and Rucker and David, JJ., concur.
Dickson and Massa, JJ., dissent without opinion.

Posted by Marcia Oddi on Tuesday, December 22, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Operation of the Indiana General Assembly, and how a bill becomes a law, Part I

Several weeks ago the ILB received a note from an Indiana attorney:

I want to find out more about how I can track what bills are introduced and when they are scheduled to be heard in committee, etc. I have attended a few study committee hearings in the past, but that's about it. And I only knew about those because someone told me; I'd like to try to track that stuff myself.

Any ideas on where I can find that information? I am a true newbie at this...I don't even know whether we are in session now (I assume not), and whether this is a short or long session.

The ILB plans to write several posts on this topic, with links to relevant information on the Indiana General Assembly website. Please send your comments, additions, questions or corrections.

The Indiana Constitution, at Art. 4, Sec. 9, provides that:

The sessions of the General Assembly shall be held at the capitol of the State, commencing on the Tuesday next after the second Monday in January of each year in which the General Assembly meets unless a different day or place shall have been appointed by law.
So that means that the 2016 General Assembly will commence on January 5th.

Other details are set by statute, specifically, by Title 2, Article 2.1, Legislative Sessions and Procedures.

Notice that the Constitution spoke in terms of "sessions." That word is defined by IC 2-2.1.1.1(3), as is "Term of the General Assembly", which means:

... that two (2) year period of time extending from the first Wednesday after the first Monday in November of any even-numbered year until, but not including, the first Wednesday after the first Monday in November of the next even-numbered year.
In other words, from the day after the general election in any even-numbered year until the conclusion of general election day two years hence.

IC 2-2.1-1-2 and 3 go on to break up this two-year "term" into a first and second regular session, and define their length. The first regular session of each term of the general assembly shall adjourn sine die not later than April 29 in any odd-numbered year. The second regular session of each term of the general assembly shall adjourn sine die not later than March 14 in any even-numbered year.

2016 is an even-numbered year, and hence it is the "short" session of the current term, which began the day after the general election in Nov. 2014.

Bill Introduction.

IC 2-2.1-1-10 provides:

Procedures: Filing of Bills and Resolutions. Bills and resolutions may be filed and assigned to committees at any time after
the convening of a session according to the rules of each house. During any session the standing committees of the House and Senate may announce and hold public hearings on any bill or resolution assigned to them upon the authorization of the Speaker of the House or the President Pro Tempore of the Senate, respectively, but may take no action with regard to its disposition until it is introduced according to the rules of the house of origin.
IC 2-2.1-1-2 begins:
The first regular session of each term of the general assembly shall convene on the third Tuesday after the first Monday of November of each even-numbered year
In practice, however, do not generally begin to be filed until close to the January convening.

That does not mean you will not hear proposals talked about. This year, a draft of SB 100, re LGBT rights, was "unveiled" and filed on the Nov. 17 organization day. A copy has been available from the Senate republicans webpage.

Today, Dec. 22, the official introduced version of SB 100 is available from the 2016 Indiana General Assembly webpage of bills for the 2016 session, along with over one-hundred other Senate bills. This is the first day this page has been populated. No House bills are listed, as of this writing.

More coming ....

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

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 16 NFP memorandum decision(s))

For publication opinions today (3):

In In re the 2014 Johnson Co. Tax Sale, Town of Edinburgh v. Patrick Black, Johnson Co. Auditor, and Johnson Co. Treasurer, a 14-page opinion, Judge Brown writes:

The Town of Edinburgh (the “Town”) appeals from the trial court’s Order Denying Issuance of Tax Deed. The Town raises four issues which we consolidate and restate as whether the court’s order is clearly erroneous. We affirm.
In I.A.E., Inc. and William Lazarus, a 39-page opinion, Judge Riley writes:
Appellants-Defendants/Cross-Appellees, I.A.E., Inc. (IAE) and William Lazarus (Attorney Lazarus) appeal the trial court’s summary judgment in favor of Appellees-Plaintiffs/Cross-Appellants, Edward R. Hall (Attorney Hall) and Gerald M. Bishop (Attorney Bishop), awarding them attorney fees and expenses arising from their representation of IAE in the underlying cause against the Board of Works of the City of Lake Station (Lake Station). We reverse in part, affirm in part, and remand. * * *

Based on the foregoing, we reverse the trial court’s grant of summary judgment with respect to Attorney Hall’s and Attorney Lazarus’ attorney fees based on res judicata grounds but affirm the trial court’s calculation of Attorney Bishop’s attorney fees pursuant to the guidelines in Galanis and the trial court’s grant of expenses. We affirm the trial court’s grant of abuse of process claim; and also conclude that the trial court did not abuse its discretion granting the motion to strike. On Cross-Appeal, we deny appellate attorney fees to Attorney Bishop and Attorney Hall.

In Melissa Capellari v. Gino Capellari, an 8-page opinion, Judge Bailey writes:
Melissa Capellari (“Mother”) and Gino Capellari (“Father”) divorced. The trial court included as part of its order upon final dissolution of the marriage a settlement agreement (“the Agreement”) that provided for child support,parenting time, and other matters. The Agreement also included a fee-shifting provision.

Father subsequently sought modification of his parenting time and child support from that provided for by the Agreement. Mother responded and requested payment of attorney fees if Father’s requests were denied. The trial court subsequently denied Father’s requests. The court also denied Mother’s request for payment of attorney fees based upon its construction of the fee-shifting provision. Mother filed a motion to correct error, which the trial court also denied. Mother now appeals. * * *

The fee-shifting provision at issue here, construed as Mother suggests, would serve to penalize any unsuccessful effort at the modification of parenting time or child support. This outcome creates a significant disincentive for parents to seek additional parenting time with their children, and seems at odds with this state’s public policy concerning the primacy of the best interest of the child with respect both to parenting time and child support. See id. at 1107. Here, however, the trial court was within the law and its discretion in interpreting its own order and reaching its conclusion denying Mother’s request for attorney fees. Affirmed.

Crone, J., concurs.
Vaidik, C.J., concurs in result without separate opinion.

NFP civil decisions today (4):

In the Matter of the Commitment of D.E. v. Columbus Regional Hospital Mental Health Center (mem. dec.)

Amanda S. Stout v. Ryan E. Stout (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of F.W., Minor Child, and C.W., Mother v. Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Paternity of S.G., Woodson Goebel v. Jessica Hardin (mem. dec.)

NFP criminal decisions today (12):

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

Lawrence T. Davis v. State of Indiana (mem. dec.)

Marcus Marcellus Tabb v. State of Indiana (mem. dec.)

Lucielle Lewis v. State of Indiana (mem. dec.)

Melvin J. Knetter v. State of Indiana (mem. dec.)

James W. Hamilton v. State of Indiana (mem. dec.)

Joseph B. Sabetti v. State of Indiana (mem. dec.)

Jeffery L. Gipson v. State of Indiana (mem. dec.)

Teryn Applegate v. State of Indiana (mem. dec.)

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

Violet E. Tunstall v. State of Indiana (mem. dec.)

Charlene Tabb v. State of Indiana (mem. dec.)

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

Monday, December 21, 2015

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

In Frederick Garner v. USA (SD Ind., McKinney), a 5-page opinion (combined with USA v. Frederick Garner), Chief Judge Wood writes:

As this brief account reveals, this case turned into an unnecessary procedural snarl. The fundamental problem is simple: Garner won everything he could receive in his § 2255 proceeding. The fact that the district court accepted one reason for that outcome and rejected another is of no importance. What matters is the judgment, and once the court ordered a full resentencing, that is what Garner should have received. * * *

For the reasons we have already stated, we VACATE the new criminal sentence and REMAND this case to the district court for full resentencing, at which both sides will be free to present all their arguments.

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

Ind. Gov't. - More on "Bethel College granted waiver from protections for GLBT students, employees"

Updating this ILB post from Dec. 9th, here is an important related story from the Dec. 18th Washington Post, reported by Nick Anderson, and headed "Religious colleges get exemptions to anti-bias law; critics denounce ‘hidden discrimination’ against LGBT students." the long story begins:

Dozens of religious colleges have sought exemptions in recent years from federal prohibitions against discrimination on the basis of gender identity and sexual orientation, saying the waivers are needed to protect school policies consistent with their faith, according to a new report.

The government has granted more than 30 of these requests since 2013, the Human Rights Campaign said in a report released Friday. The schools that obtained religious waivers from the anti-discrimination law known as Title IX ranged from Baptist-affiliated Anderson University in South Carolina to Quaker-affiliated George Fox University in Oregon.

HRC, which supports civil rights for lesbian, gay, bisexual and transgender communities, said its report shows a pattern of “hidden discrimination” against LGBT students in housing, admissions and other aspects of campus life.

The findings are based on correspondence between colleges and the Department of Education obtained through the Freedom of Information Act.

“There is an alarming and growing trend of schools quietly seeking the right to discriminate against LGBT students, and not disclosing that information publicly,” said HRC President Chad Griffin. “We believe that religious liberty is a bedrock principle of our nation, however faith should never be used as a guise for discrimination. Prospective students and their parents deserve greater transparency, and we urge the Department of Education to take action by helping to increase accountability and to ensure that no student unknowingly enrolls in a school that intends to discriminate against them.”

On Friday, eight U.S. senators urged the Obama administration to publish religious waiver requests on a Web site to help keep students informed as they make decisions about where to go to college. Transparency “will ensure that institutions controlled by religious organizations publicly account for their motives and justifications for seeking these waivers,” the lawmakers wrote.

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

Ind. Gov't. - Dems file open records request with Gov. Pence

From a news release:

INDIANAPOLIS – Following the official results of the Jasper mayoral election recount – where the race was determined by a single vote – the Indiana Democratic Party today filed an open records request with Governor Mike Pence regarding the involvement of a senior administration official in the recount proceedings.

During formal recount proceedings, Samantha DeWester, Assistant Commissioner for Program Support at the Indiana Department of Environmental Management, was listed and participated as co-legal counsel on the recount petition. It remains unclear as to why a member of the Pence Administration was involved in a mayoral recount, prompting the IDP’s formal open records request.

Here is the letter of request sent to the Governor.

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

Ind. Decisions - Supreme Court accepts resignation of Monrovia attorney

In an order filed Dec. 17th In the Matter of Steven C. Litz, the Supreme Court writes:

Respondent has tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17), which requires an acknowledgement that there is presently pending an investigation into or a proceeding involving allegations of misconduct and that Respondent could not successfully defend himself if prosecuted.

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26)(d).

IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation.

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

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

Here is the Clerk's transfer list for the week ending Friday, December 18, 2015. It is one page (and 19 cases) long.

One transfer were granted last week:

In addition, there was one case last week where transfer was denied by a 3-2 vote:

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

Ind. Decisions - Upcoming oral arguments this week and next

No oral arguments are currently scheduled by either the Supreme Court or the Court of Appeals this week or next.

Posted by Marcia Oddi on Monday, December 21, 2015
Posted to Upcoming Oral Arguments

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (2):

In John Paul Garcia v. State of Indiana , a 13-page, 2-1 opinion, Judge May writes:

John Paul Garcia appeals the court’s imposition of his sixty-six month sentence and its order of restitution. He asserts the restitution order was an abuse of discretion and the length of his sentence is inappropriate in light of his character and offense. * * *

[O]ur Indiana Supreme Court has held that when the record contains insufficient evidence to support an order of restitution, the case may be remanded for the trial court to hold another hearing. Iltzsch v. State, 981 N.E.2d 55, 57 (Ind. 2013). Thus, we remand this case to the trial court with instructions to conduct a new restitution hearing at which both the State and Garcia may present additional evidence bearing on the restitution due to Bowman.

We affirm the length of Garcia’s sentence, but we reverse the order of restitution and remand for a new restitution hearing.

Crone, J., concurs.
Bradford, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 9] I fully concur with the majority that Garcia’s sixty-six month sentence is not inappropriate, but because I believe that the State presented evidence sufficient to support an order of restitution, I respectfully dissent in part. Under the circumstances of this case, where the amount of restitution is not disputed and was reported in documents of sufficient reliability that were made part of the record, I would affirm the trial court’s order of restitution.

In Edward Wolpert v. State of Indiana, a 6-page opinion, Judge May concludes:
The trial court did not abuse its discretion when it admitted the results of Wolpert’s breath test because the State provided a proper foundation for its admission by submitting the inspection certification as required by Ind. Code § 9-30-6-5(d). Accordingly, we affirm.
NFP civil decisions today (1):

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

NFP criminal decisions today (5):

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

Derrick Anthony Duncan v. State of Indiana (mem. dec.)

Andre Lavon Brown, aka Andre Brown, Jr. v. State of Indiana (mem. dec.)

Todd A. Leek v. State of Indiana (mem. dec.)

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

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

Friday, December 18, 2015

Ind. Decisions - Tax Court decides one today, involving assessment of AGIT, finding IDOR's actions improper

In Columbia Sportswear USA Corporation v. Indiana Department of State Revenue, a 17-page opinion, Judge Wentworth writes:

Columbia Sportswear USA Corporation challenges the Indiana Department of State Revenue’s assessment of adjusted gross income tax (AGIT) for the 2005, 2006, and 2007 tax years (the “years at issue”). The matter is currently before the Court on the parties’ cross-motions for summary judgment. The dispositive issue is whether the Department’s adjustments to Columbia Sportswear’s net income for each of the years at issue were proper. The Court finds that they were not. * * *

The Department is an administrative agency and may exercise only those powers expressly or impliedly conferred by the General Assembly. See IND. CODE § 6-8.1-2-1 (2005); Auburn Foundry, Inc. v. State Bd. of Tax Comm’rs, 628 N.E.2d 1260, 1263 (Ind. Tax Ct. 1994). Any ambiguous grants of power, therefore, must generally be resolved against the Department. See Gary Cmty. Sch. Corp. v. Indiana Dep’t of Local Gov’t Fin., 15 N.E.3d 1141, 1146 (Ind. Tax Ct. 2014).

In this case, the Department’s reliance on Indiana Code § 6-3-2-2(l)(4) was improper because that statute permits the Department to use only methods that divide the tax base, not methods that recalculate the tax base.

The Department’s reliance on Indiana Code § 6-3-2-2(m) was also improper because the designated evidence simply does not show that the Standard Sourcing Rules failed to fairly represent Columbia Sportswear’s Indiana source income.

Finally, even if Columbia Sportswear’s Indiana source income was not fairly reflected under the Standard Sourcing Rules, the Department’s adjustments would still be improper because they were unreasonable. For all of these reasons, the Court therefore GRANTS summary judgment in favor of Columbia Sportswear and against the Department.

Posted by Marcia Oddi on Friday, December 18, 2015
Posted to Ind. Tax Ct. Decisions

ILB - Little going on

Little ILB-type news has been going on this week and that will likely be the case through the end of 2015, unless some significant opinion is issued. Expect periodic postings from the ILB.

Still waiting today for any opinions from the Indiana Courts.

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

Ind. Gov't. - New seawalls may go up in Long Beach

Some quotes from a long story today by Richard Chambers in the Michigan City News Dispatch:

LONG BEACH — Concern about the rights of property owners compared to the rights of the public in regard to the beach's use is continuing in Long Beach.

The Long Beach Advisory Board of Zoning Appeals approved variances on Dec. 8 to allow three homeowners to build sea walls beyond the regular zoning. Zoning normally only allows new sea walls to be built up to 106.6 feet north of Lake Shore Drive.

The walls are wanted to protect the owners' septic systems.

The petitions drew many concerned residents at a special meeting on Nov. 24, and a full house came to the Town Hall for the vote on Dec. 8. Two of the sea-wall variances were approved 4-1, with member Peter Kelly giving the only dissenting vote, and another variance was approved 3-1, with Kelly opposing and Chairman Rich Crain abstaining.

The walls have to be only 5 feet high, be sand-colored and have dune grass on the north side. However, the homeowners still have to go to the Building Commission and obtain permits.

The board granted two of the three petitions exactly as they were requested. However, one of the requests was to allow a sea wall to be built 137.9 feet from Lake Shore Drive but the length was reduced to 120 feet, or a variance of slightly more than 13 feet.

The petitions resulted from concerns about the change to the beach, especially removal of sand after storms in October of 2012 and October of 2014, and about the existing sea walls' age of more than 50 years.

More from the story:

Among those opposed to these walls is the Long Beach Community Alliance. The alliance's main concern is whether the walls would even be on the owners' property, according to Pat Sharkey, the alliance's attorney.

The land of Long Beach follows an 1829 survey, she said.

The petitioners did not properly demonstrate whether their property extends to where these new walls would be built when they presented their requests to the board, Sharkey said. Therefore, she said, the alliance may consider legal action if permits are granted.

She referenced the decision of Judge Richard Stalbrink of La Porte County Superior Court No. 2 on July 24. Although the decision is noted for his ruling on the ordinary high water mark, he also said ownership has to be limited to what is described in the deed.

"As a matter of interpretation, and common sense, if a lot is carved from within a section, the boundaries of that lot can be no greater than those of the section from which it is carved," Stalbrink wrote.

The lot in that case involved property from section 15, but the principle applies to any section, Sharkey argued.

The deeds of the properties in question define the property as section 14 of the original plat of Long Beach, Sharkey said. The property owners should use the 1829 survey; if they can show their property is in section 14, the alliance would not consider opposing their ownership claim.

Carla Fargo is working with a separate group of Long Beach residents who want to protect the beach from construction that may, in their opinion, harm the beach. These sea walls would result in more erosion on adjacent properties, she said.

She argued that the sea walls will not work. She said scientific studies have shown sea walls do not stop erosion, and the walls become buried, she said.

She also argued that the property owners could have known, based on beach history, the risk they took when they put the septic systems there. Until the last few years, septic systems could not be on the lakeside, she added.

Fargo expected to sue if any building permits were issued.

See these ILB posts from July 27 and July 28 on Judge Richard Stalbrink's July 24th opinion on the Lake Michigan high water mark.

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

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

In Kevin McCarthy v. Patricia Fuller (SD Ind., Lawrence), a 20-page opinion, including Judge Sykes' concurring opinion beginning on p. 15, Judge Posner writes:

To conclude, we affirm the entire judgment except the injunction, which we vacate, leaving it to the district judge to decide in the first instance whether to issue a new injunction, one consistent with the criticisms in this opinion of the injunction he issued.

SYKES, Circuit Judge, concurring. The only serious issue remaining in this long-running case is the propriety of the permanent injunction entered by the district court as an additional form of relief on the jury’s verdict, which found the defendants liable for defamation and awarded damages. The in-junction is deeply flawed for all the reasons described by my colleagues: (1) the jury was not asked to identify which of nine possible statements were false and defamatory, so we have no findings to support the specificity requirement for a proper injunction, see FED. R. CIV. P. 65(d)(1); (2) the enjoined statements do not even correspond to the statements the plaintiffs claimed were defamatory; and (3) the injunction is hopelessly vague and overbroad. It plainly cannot stand.

Unlike my colleagues, however, I would not give the judge an opportunity to correct these errors and try to fashion a narrower injunction on remand. * * *

Accordingly, I join the court’s opinion affirming on all is-sues except the injunction. I also join the decision to vacate the injunction. But my agreement stops there. I would remand with narrower instructions: The district court should simply issue an amended judgment without the flawed injunction.

[Updated 12-21-15] Eugene Volokh has a blog post today on Friday's decision, headed "Seventh Circuit strikes down overbroad injunction against libel." It begins:

Last Friday, the Seventh Circuit handed down an interesting opinion about libel injunctions in McCarthy v. Fuller. It’s not a novel ruling — indeed, it fits very well with the precedents — but it may still be helpful to future litigants and courts.

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

Ind. Gov't. - "Making Government Transparency More Transparent "

Ted Newcombe, a Governing columnist, writes this week: "In their quest to make public records requests easier, faster and cheaper, some governments are publishing them online for anyone to see." He writes that many:

... state and local governments treat requests for public records as a burden and not as part of the job of government. But that’s slowly changing. Some governments are taking steps to make it easier, faster, and less costly to request and receive government information.

A small but growing number of cities and counties are going even further and starting to share the responses to requests for public records by posting them online. The first to do this was Montgomery County, Md., which passed legislation in 2012 mandating the publishing of public records requests. The county’s website lists the person or organization who made the request, the date of the request, a description of the document and a link to the information.

Hans Riemer, the county councilmember who wrote Montgomery’s 2012 law, says the requests have public value and should be shared publicly. “It takes the process away from insiders and makes it public,” he says.

Another benefit: It’s a way to lower costs by reducing the amount of staff time spent answering multiple requests for the same information. Riemer adds that public sharing could also dissuade people who make spurious requests, “because now the whole world knows what they are doing.”

Other cities that have portals for sharing public records include Chicago; Oakland, Calif.; and Washington, D.C. There are also a number of single agency portals, such as the Illinois Board of Education and the Chicago Public Schools. But Montgomery County appears to be the only government entity that mandates request information be publicly posted.

If there’s any resistance to the policy of sharing requests and responses for public records, it comes from the media. Journalists are heavy users of public records and have expressed concerns that publication of their requests, along with the documents they have received from the request, could give competing news organizations advance notice of a developing story.

ILB: Re resistance from the media, see this May 23, 2010 ILB post headed "Daley to post all investigative reporter requests online." A quote from the Chicago Sun Times:
In the name of “transparency,” Mayor Daley on Thursday got some measure of revenge against the investigative reporters who’ve made his life miserable by digging up dirt on the Hired Truck, city hiring and minority contracting scandals.

He revamped the city’s new website to include a log of all Freedom of Information Act requests. The list includes the name and organization of each applicant, documents demanded and dates the information was requested and is due to be released.

A new state law merely requires city departments to maintain such a log — not to post it on the Internet to tip investigative reporters about the trail being followed by competitors.

But Daley gleefully declared that he was going “above and beyond what’s required” in the interest of “transparency, openness and the free-flow of information.”

“If you want transparency in government, you have to have this. I’m sorry. This has nothing to do with [getting even with] the Sun-Times, Tribune, media or anything. This is what you want,” Daley said.

Corporation Counsel Mara Georges noted that some investigative reporters try to keep tabs on competitors by “FOI-ing other peoples’ FOIs.”

By posting the log, she said, “We don’t have to be the arbiter of disputes…to decide who’s gonna get access to other peoples’ FOIs, who’s gonna get access to the information others are asking about.”

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

Ind. Gov't. - "Wis. state officials backtrack on open records changes"

That is the headline to this long story today by Mary Spicuzza of the Milwaukee Journal-Sentinel. There is much of broader interest than simply the State of Wisconsin in the story, which ends:

The August action by the Public Records Board could limit the access of citizens and media outlets to information from texts, emails, Facebook messages and other electronic methods that public employees might use to communicate about official actions.

The new definition expanded on the description of transitory records to include "emails to schedule or confirm meetings or events, committee agendas and minutes received by members on a distribution list, interim files, tracking and control files, recordings used for training purposes and ad hoc reports for individual use."

The board's change would also mean that transitory documents were "no longer limited to correspondence records only."

The recent battle over open records in Wisconsin is just the latest fight to erupt around the country over public access to government officials' texts and other electronic messages.

And as officials increasingly use electronic communications such as texts, fights over whether those records should be released to the public often have ended up in the courts, which overwhelmingly have ruled texts and other electronic exchanges are public records.

Detroit tried for years to keep secret text messages that former Mayor Kwame Kilpatrick exchanged with his chief of staff. The records were released in 2008 to the Detroit Free Press, and the texts showed that in a police whistle-blower trial the two officials had lied under oath about having an affair.

The Washington Supreme Court unanimously ruled in August that a public employee's work-related text messages sent and received on a private cellphone are public records.

Nevada Gov. Brian Sandoval was sued earlier this month after seeking to keep secret any text messages sent between him and executives of the electric utility NV Energy regarding legislation affecting that industry.

Today's story links to a long, fascinating Dec. 11th story by the same reporter that begins:
The recent battle over open records in Wisconsin is just the latest fight to erupt around the country over public access to government officials' texts and other electronic messages.

And as officials increasingly use electronic communications like texts, fights over whether those records should be released to the public often have ended up in the courts, which overwhelmingly have ruled texts and other electronic exchanges are public records.

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

Thursday, December 17, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (2):

In Monarch Beverage Company, Inc. v. David Cook, in his official capacity as Chairman of the Indiana Alcohol and Tobacco Commission, et al., a 14-page opinion, Judge Kirsch writes:

Indiana’s Alcoholic Beverages Law, which consists of several statutory provisions (“the Prohibited Interest Provisions”), prohibits alcohol wholesalers from holding interests in both beer and liquor permits. Monarch Beverage Company, Inc. (“Monarch”) filed a complaint against David Cook, in his official capacity as Chairman of the Indiana Alcohol and Tobacco Commission, et al. (“the State”), alleging that the Prohibited Interest Provisions violate the Equal Privileges and Immunities Clause of the Indiana Constitution because the statutes discriminate on their face against beer wholesalers by prohibiting beer wholesalers from seeking a permit to distribute liquor and such restraint is not based upon an inherent difference between beer and liquor wholesalers. The trial court granted summary judgment in favor of the State and against Monarch, finding the statutes to be constitutional. Monarch appeals the trial court’s order, alleging that the trial court erred in its determination that the statutes are not unconstitutional. We affirm.
In Jerrell Antonio Key v. State of Indiana, a 15-page opinion, Judge Bailey writes:
Key presents two issues for our review, which we consolidate and restate as: whether the trial court erred in denying his motion to correct error, where the State objected to Key’s petition for expungement, but the trial court did not set the matter for a hearing before denying the petition. * * *

We think the statute is clear and unambiguous. After an expungement petition is filed, the prosecuting attorney must reply within thirty days of receipt. I.C. § 35-38-9-8(f). If the prosecutor does not object, the court may grant the petition without a hearing. I.C. § 35-38-9-9(a). The term “may” in a statute ordinarily implies a permissive condition and a grant of discretion. Alden v. State, 983 N.E.2d 186, 189 (Ind. Ct. App. 2013) (citation and quotation marks omitted), trans. denied. Thus, the court may, in its discretion, grant an unopposed petition for expungement. However, if the prosecutor objects, “the court shall set the matter for hearing.” I.C. § 35-38-9-9(c) (emphasis added). “It is well settled that the use of the word ‘shall’ is construed as ‘mandatory language creating a statutory right to a particular outcome after certain conditions are met.’” Taylor, 7 N.E.3d at 365 (quoting Alden, 983 N.E.2d at 189). Thus, when the prosecuting attorney objects to a petition for expungement, the statute grants the petitioner a due process right to a hearing on the petition. * * *

It is a fundamental rule of Indiana law that when a procedural statute conflicts with a procedural rule adopted by the supreme court, the latter shall take precedence. Bowyer v. Ind. Dep’t of Natural Res., 798 N.E.2d 912, 916 (Ind. Ct. App. 2003). Thus, when a procedural statute conflicts with the Indiana Rules of Trial Procedure, the trial rules govern, and phrases in statutes that are contrary to the trial rules are considered a nullity. Id. at 917. “To be ‘in conflict,’ it is not necessary that the rule and the statute be in direct opposition.” Id. The rule and statute need only be incompatible to the extent both could not apply in a given situation. Id. * * *

Finally, we observe that Subsection 35-38-9-9(c) is more than a procedural rule, as it grants the petitioner a due process right to a hearing when the prosecutor objects to the expungement petition. Key was entitled to a hearing under the plain and ordinary meaning of Indiana Code section 35-38-9-9(c).

Conclusion. The trial court erred when it denied Key’s contested petition for expungement without first setting the matter for a hearing. The court therefore erred when it denied Key’s motion to correct error. We accordingly remand for further proceedings not inconsistent with this opinion.

NFP civil decisions today (2):

Barry B. Eskanos and Ami B. Eskanos v. Washinton Mutual Bank, FA and JPMorgan Chase Bank, N.A. (mem. dec.)

In the Matter of T.D. (Minor Child), A Child in Need of Services, and W.D. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (2):

Montrail Williams v. State of Indiana (mem. dec.)

Timothy L. Bye v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, December 17, 2015
Posted to Ind. App.Ct. Decisions

Wednesday, December 16, 2015

Indiana Decisions - Supreme Court decides one today

In AM General LLC v. James A. Armour, a 13-paage, 5-0 opinion, Justice David writes:

Today this Court holds that the promissory note in the present case does not satisfy the requirement of “payment” under the disputed employment contract. This issue arose when James Armour’s employment contract with AM General entitled him to payment of a long-term incentive plan (LTIP). When Armour retired in early 2012, he was to receive a lump sum LTIP payment on or about January 20, 2012. Instead, Armour started receiving quarterly installment payments in the form of checks, which Armour accepted.

However, in December of 2012, AM General attempted to make the final installment payment with a subordinate promissory note (the Note). The language within the Note provided that acceptance would function to fully release AM General from its obligations under the LTIP provision of the Employment Agreement. It also contained various other conditions on payment and transferability. Armour promptly rejected the Note, requesting full payment. This case reaches us today based upon Armour’s claim that the Note did not constitute payment under the Employment Agreement.

We agree. The term “pay” within the Employment Agreement obligated AM General to make the LTIP payment to Armour in cash or a cash equivalent. The Note tendered to Armour was merely a conditional promise to pay and cannot constitute payment where no provision within the Employment Agreement permits payment in the form of a subordinate promissory note. As such, AM General breached the Employment Agreement when it failed to pay Armour the LTIP amounts when due. We affirm the trial court’s award of summary judgment in favor of Armour, including the award of pre-judgment interest. * * *

AM General failed to satisfy its obligation under the Employment Agreement LTIP provision when it offered Armour a subordinate promissory note as payment. As a matter of law, payment under the contract required the LTIP to be paid in cash or a cash equivalent. The various conditions placed upon the Note demonstrates that the Note was not a cash equivalent. We affirm the trial court’s grant of summary judgment in favor of Armour, awarding him the remaining portion of his LTIP payments. We also affirm the trial court’s order awarding Armour pre-judgment interest calculated from January 20, 2012, the time at which the LTIP payment was due under the Employment Agreement.

Posted by Marcia Oddi on Wednesday, December 16, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - 9 a.m. Supreme Court argument set for Thursday, Dec. 17, postponed

Samuel Sallee v. State, set for oral argument before the Supreme Court on Thursday, Dec. 17th, has been postponed, per an order of the court filed Dec. 15th:

The oral argument scheduled in this appeal for Thursday, December 17, 2015, at 9:00 a.m. is hereby VACATED, the Court having been advised that the appellant’s attorney has a medical emergency and that the appellee has no objection. The argument will be reset by order of the Court at a later date.

Posted by Marcia Oddi on Wednesday, December 16, 2015
Posted to Upcoming Oral Arguments

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

For publication opinions today (2):

In Circle Health Partners, Inc. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development , a 13-page opinion, Judge May writes:

Circle Health Partners, Inc., (“CHP”) appeals the decision of the Liability Administrative Law Judge (“LALJ”) that certain workers were employees of CHP, rather than independent contractors, such that CHP’s payments to those workers were “wages” as defined in Ind. Code § 22-4-4-2 for which CHP was liable to the State of Indiana for additional unemployment taxes. * * *

Circle Health argues the LALJ erred by determining the nurses and phlebotomists are employees of CHP within the meaning of Ind. Code § 22-4-8-1. * * *

As a business must meet all three of the factors in Ind. Code § 22-4-8-1 in order to prove a worker is not an employee, CHP’s inability to prove the LALJ erred as to the first factor is sufficient to require us to affirm the LALJ’s decision. * * *

The evidence supports the LALJ’s findings, and those findings support the LALJ’s conclusion “the nurses and phlebotomists at issue were not free from direction and control in contract and in fact.” (App. at 20.) Accordingly, we affirm.

In Scott Alan Stibbins, individually and as Personal Rep. of the Estate of Warren E. Stibbins, and Trustee of the Warren E. Stibbins Revocable Trust, et al. v. Carol (Stibbins) Pagano Foster, et al., a brief opinion on rehearing, Judge Baker writes:
The appellants have filed a petition for rehearing, raising a number of arguments with respect to our opinion in this case. We grant the petition for the limited purpose of striking the final sentence of footnote two * * * In all other respects, we deny the petition for rehearing.
NFP civil decisions today (1):

In the Matter of the Term. of the Parent-Child Relationship of S.H. (child) and M.H. (father) and C.H. (Mother); M.H., and C.H. v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (2):

T.M.J. v. State of Indiana (mem. dec.)

De'Auntaye White v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, December 16, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - The Judicial Technology Oversight Committee (JTOC) held its semi-annual meeting on Monday

By law, IC 33-23-17, the Judicial Technology Oversight Committee (JTOC) is required to meet at least twice each fiscal year. It has 11 members, including: the chief justice or her designee, one trial court judge, two state senators, two state representatives, two circuit court clerks, a representative of the state bar association, one individual affiliated with a taxpayer organization, and the chief information officer of the state office of technology.

This ILB post from March 19, 2015 (the day before its last meeting) set out the JTOC's duties. That post ended:

No minutes or reports of the JTOC have ever been made public, to the ILB's knowledge. There does not appear to have been a meeting since June 23, 2014.
Although the JTOC is established by statute and includes members appointed by the leadership of both houses of the general assembly, the court, and the governor, and although it is dealing with matters of importance to the attorneys and citizens of Indiana, it is not in the least bit transparent, as the ILB has noted in the past (eg. 6/24/14).

The meetings are not publicly noticed, as required of state entities by law -- agendas, meeting locations, etc. are not posted anywhere. No minutes are available.

Finally, although a member of the state bar association was included as an appointee in the statute to represent the lawyers of the state and to keep these attorneys informed of the committee's activities, such information has never been forthcoming.

Given this background, the ILB was delighted yesterday afternoon to hear from Miriam Smulevitz Dant, Dant Advocacy, who has shared with the ILB her notes from Monday's public meeting of JTOC.

Judicial Technology Oversight Committee
December 14, 2015 Meeting

Attendees: Justice Steven David, Judge Paul Mathias, Paula Lantz (White Co. Clerk), Terri Rethlake (St. Joseph Co. Clerk), Senator Sue Glick, Rep. Matt Pierce, Dewand Neely (IOT Director), Judge Mary Willis, David Pippen (IN Bar Association), Mark Dobson (Elkhart Co. Economic Development Corporation)

Updates from Judge Mathias: Update on e-filing -- All nonconfidential case types are now being e-filed in Hamilton County, and this will be used as the template in other counties. Need to determine when to make e-filing mandatory in Hamilton Co. In the 4th quarter of 2015, the Supreme Court and the Court of Appeals came onto the Odyssey CMS and began e-filing shortly thereafter. Clark, Harrison, Wells, Shelby, and St. Joseph Counties are scheduled to begin e-filing in 1st quarter of 2016. Henry Co. and several others are scheduled for 2nd quarter of 2016. One private EFSP (Green Filing) is ready or almost ready to go, and provides an alternative to Odyssey's EFSP. We expect Doxpop and Centifax to be ready to go by 1st quarter of 2016 (Centifax might be ready to go closer to 2nd quarter, though).

Update on Odyssey -- Odyssey is now handling 62% of the caseload (including the Supreme Court, the Court of Appeals, and the tax court). In 2016, Bartholomew, Perry, Starke, Delaware, and Tippecanoe Counties will convert to Odyssey, and possibly two townships in Marion Co. Beginning to convert Lake Co. There are seven more CSI counties interested in converting in 2017, and by 2018 at least 80% of state's caseload will be on Odyssey. E-filing will take place with these Odyssey conversions.

Public access to e-filings – Need to determine what kind of access the general public will have to court records that are filed electronically. Have looked at what other states are doing. Florida is one extreme, with all filings being available, and Iowa is at the other extreme, requiring the public to come to the clerk’s office and look up filings on the clerk’s computers. Minnesota began by putting everything online, but found that allowing access to pre-conviction filings was creating an electronic smear, so now they don’t put criminal filings online until post-conviction. Massachusetts chose to deny the media any access to these records, but we think the media should be included. Chief Justice Rush is appointing a commission to advise the Court on these issues. Justice David added that there will be an opportunity for interested stakeholders such as the media, attorneys, information advocates, judges and clerks to have input. We want to think about the unintended consequences. Access to pre-conviction records will need to be considered.

Handouts were distributed:
2015 update to statewide CM and INcite, court portal
INcite application - tax intercept project

Discussion of Hamilton County e-filing - Clerk Rethlake: What kind of problems has Hamilton Co. experienced with e-filing? Judge Mathias: Doing a workaround on initial pleadings because some paperwork is needed at the beginning. Will allow attorneys to serve summons so paper won’t have to go through the clerk’s office. The sheriff will still need to be involved, so all of this is being worked on. Clerk Lantz: Most sheriffs do not have the ability to collect fees (sheriff service fees), which is why the clerks collect it for them.

Judge Willis: The RJO is causing us to have a bifurcated system. Also have an issue with getting the paper records from the start.

Justice David: The Court established a working group to launch a pilot project on commercial courts. Will select 5-6 trial courts for this project, and they will receive specialized training to handle complex commercial litigation.

KSM Consulting Report was distributed.

Discussion of standardization and clerk choice of CMS - Clerk Rethlake: A standardization of fields among all courts and records would be a good thing. Need to have competition in the marketplace. Clerk Lantz and JTOC member Dobson agreed. Rep. Pierce: Conclusion seems to be that standardization will be needed if multiple vendors are being used. Clerk Lantz: Discussed a letter from CSI to JTOC, and concerns about clerks being mandated by judges to move to Odyssey. Clerk Rethlake raised concerns regarding a data warehouse issue. Justice David: The data warehouse issue is being worked on. CSI e-filing will be looked at early next year. The Court has had counties reach out about Odyssey. Indiana law requires a collaborative decision to change to a new CMS. By October of 2015, there were roughly 1.5M transactions in Odyssey and roughly 340,000 financial transactions. Judge Willis: Judges are becoming more computer literate and have to be involved in the technology decisions. Dobson: After what happened to the clerk in Elkhart Co., has a protocol been developed so that a clerk is not forced to go onto Odyssey? Justice David: There is a statutory process requiring collaboration. If this is not being followed, the Court wants to know about it.

Next meeting: June 20th, 2016 - 1:30 pm

ILB: These meeting notes are jam-packed with information. There are some obscure references, at least to the ILB, such as "the data warehousing issue," "the RJO."

Posted by Marcia Oddi on Wednesday, December 16, 2015
Posted to 21st Century Law | E-filing | Indiana Courts | Indiana Government

Ind. Courts - Allen Co: "39 graduate at 40th Drug Court"

Frank Gray of the Fort Wayne Journal Gazette reports in a story that begins:

Allen Superior Court’s Drug Court held its 40th graduation ceremony Monday, with 39 graduates receiving certificates and also having charges against them dropped.

The various participants, from 21 to 59 years old, some facing first of­fenses and others with lengthy criminal records, spent between nine and 24 months in the program, under­going counseling and testing but getting an opportunity to shed their addictions and change their lives.

The Drug Court was instituted in 1996 as a way of taking addicts who dealt drugs small time or relied on crime to support their habits and giving them a chance to get clean. It was viewed with some skepticism, called by some a “hug a thug” program, Superior Court Judge Fran Gull said before the ceremony.

“It lets them get clean, stay clean, and lots of drug-free babies are born,” Gull said.

Since the program was instituted 19 years ago, there have been about 730 graduates, not counting Monday’s class. About one-quarter who start the program quit or are removed from the program.

The ability to have a charge dismissed is a big incentive to stick with the program, Gull said. “If you’re looking at a B felony, that’s 20 years. There’s a huge benefit to finishing the program.”

Posted by Marcia Oddi on Wednesday, December 16, 2015
Posted to Indiana Courts

Ind. Gov't. - "Elected officials take fight against nepotism law to state court"

The ILB has had several posts on this story, mostly recently on Dec. 4th, re their loss in federal court.

Today Sarah Reese has a story in the NWI Times headed "Elected officials take fight against nepotism law to state court" that begins:

Five municipal employees from several Lake County communities have taken their fight to avoid Indiana's anti-nepotism law to state court.

U.S. District Chief Judge Philip Simon earlier this month dismissed the politicians' lawsuit from Hammond federal court but declined to rule on their state claims.

An attorney for 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 filed the remaining claims in Lake Superior Court.

Attorney Adam Sedia said his clients also are asking a Lake County judge to grant their petition for an emergency temporary restraining order, preliminary injunction or permanent injunction prohibiting the State Board of Accounts from considering them as having resigned from their municipal positions when they assume office Jan. 1.

The Indiana General Assembly passed a law in 2012 forbidding individuals from being both elected officials and employees of the same government unit. All five were elected or re-elected Nov. 3.

Posted by Marcia Oddi on Wednesday, December 16, 2015
Posted to Indiana Government

Tuesday, December 15, 2015

Indiana Decisions - Supreme Court decides one today

In Jeffrey Hewitt v. Westfield Washington School Corporation, et al., a 15-page, 5-0 opinion, Justice David writes:

This case involves termination of an elementary school principal after the school board learned that the principal had been involved in a sexual relationship with a teacher, one of his subordinates. At issue is whether the school board provided the principal with appropriate process when it terminated his employment as an administrator. In a case of first impression, we hold that the teacher’s termination statute, found at Indiana Code § 20-28-7.5-1 et seq., does not apply to termination of an administrator when his underlying teaching contract is not being terminated. We further hold that the provisions in the form teacher’s contract that make reference to an opportunity for hearing and a just cause determination also apply only to the termination of an administrator’s underlying teaching contract. Under the facts and circumstances of this case, the principal was given sufficient notice and an opportunity to be heard. * * *

We hold that when a school corporation seeks to terminate a principal’s administrator’s contract only and not his underlying teacher’s contract, it does not need to provide the hearing process described in the teacher’s termination statute. We further hold that the language in Hewitt’s form teacher’s contract referring to a hearing with the benefit of counsel and a just cause determination also applies only to Hewitt’s underlying teacher’s contract and not his administrator’s contract. Finally, we hold that under the facts of this case, Hewitt received constitutional due process. We therefore affirm the trial court’s grant of summary judgment for the School.

Posted by Marcia Oddi on Tuesday, December 15, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Public access to death certificates still somewhat muddy?

Attorney Cara Wieneke, a contributor to the ILB who practices criminal and appellate law in central Indiana, has sent the ILB this memo recounting her recent experience in trying to obtain a death certificate:

In October 2014, our Supreme Court decided Evansville Courier & Press v. Vanderburgh County Health Department, 17 N.E.3d 922 (Ind. 2014), which held that death certificates filed with county health departments are public records under APRA to which the departments must provide public access. For reasons explained fully in the Court’s opinion, this holding applied to county health departments but not to the Indiana State Department of Health.

A review of the State Department of Health’s information on death certificates, however, does not inform the reader of the Court’s decision that death certificates are now public records that are available for viewing in county health departments. In fact, the State Department’s website informs the reader that death certificates are NOT considered public records:

You may contact the local health department in the county where the event occurred to obtain information on their walk up service hours, method of acceptable payment, and if they accept order via the internet. All requests require proper identification and proof of relationship to the person whose record is being requested. Methods of payment and fees may vary. See requirements.
See http://www.in.gov/isdh/20444.htm (emphasis added).

It seems at least one county health department is unaware of the Supreme Court’s decision as well. Earlier this week I traveled to the Wells County Health Department to obtain a death certificate for use as evidence in court. I reviewed the health department’s website information on vital records and noted that, like the State Department of Health, the information on the Wells County Health Department’s website also implies that one must prove a relationship to the deceased before she can view or obtain a copy of the death certificate. See https://www.wellscounty.org/vital-records/.

Armed with a copy of the deceased’s obituary, which I found online via a Google search, I requested a certified copy of the death certificate. The vital records registrar I spoke with refused to provide me with the certificate at first, claiming that I had to prove my relationship with the deceased.

After explaining to her that I was an attorney and needed a certified copy of the certificate for use in court, she asked to see a court order or some other document that permitted me to obtain a copy of the certificate. Eventually she agreed to give me a copy if I could provide at least two forms of identification proving that I was an attorney in Indiana.

Finally, after filling out an application form that required me to list my relationship with the deceased, I was given a copy of the certificate. But if I had not been able to provide proof that I was a lawyer, I would not have been allowed to view records that have clearly been deemed public by our Supreme Court.

Posted by Marcia Oddi on Tuesday, December 15, 2015
Posted to Ind. Sup.Ct. Decisions | Indiana Government

Ind. Decisions - Tax Court posts one today, decided Dec. 14

In Crystal Flash Petroleum, LLC v. Indiana Department of State Revenue, a 10-page opinion, Judge Wentworth writes:

Crystal Flash Petroleum, LLC has appealed the Indiana Department of State Revenue’s denial of its claims for refund of sales/use tax remitted for the 2007 and 2008 tax years. The matter is currently before the Court on the Department’s Motion for Partial Summary Judgment, which the Court grants in part and denies in part. * * *

The Department’s Motion presents three issues that the Court restates as: 1) whether Crystal Flash is entitled to a refund of the sales/use tax it paid on its ice production equipment; 2) whether Crystal Flash is entitled to a refund of the sales/use tax it paid on certain food preparation equipment; and 3) whether Crystal Flash is entitled to a refund of the sales/use tax it paid on its mid-grade gasoline equipment. Nonetheless, the Court must first address Crystal Flash’s argument that the Department has not made a prima facie case that is entitled to summary judgment on these issues because this matter concerns its refund claim, not the audit or proposed sales/use tax assessments. * * *

[T]he Department has made a prima facie case by designating its proposed sales/use tax assessments as evidence for purposes of this Motion. Accordingly, the evidentiary burden has shifted to Crystal Flash5 to show that there is a genuine of material fact as to whether: 1) it is engaged in production, 2) it has an integrated production process, or 3) its ice production, food preparation, or mid-grade gasoline equipment is essential and integral to its production process. * * *

For the above-stated reasons, the Court GRANTS summary judgment in favor of the Department and AGAINST Crystal Flash with respect to Issues 1 and 2 and DENIES the Department’s Motion with respect to Issue 3. The Court will issue an order under separate cover regarding the unresolved issues in this case.

Posted by Marcia Oddi on Tuesday, December 15, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (2):

In Seema Kapoor; Shiv Kapoor; Performance Support Consulting, LLC; Matt Judson; and Regional Construction Services, Inc. v. Steve Dybwad; Cronin Insurance Services, Inc.; Mark Light; et al., a 54-page opinion, Judge Bradford writes:

Defendants fulfilled various roles in assisting Plaintiffs to establish welfare benefit programs for the employees of their companies, programs which involved the purchase of cash value life insurance policies. These plans were initially known as the Cronin Insured Secured Program (“Cronin ISP Plan”) and, later, the Cronin Group Term Life Insurance Program (“Cronin GTLP Plan”). For several years, Plaintiffs made premium payments and deducted the contributions on their tax returns.

In 2012 and 2013, the Plaintiffs received deficiency notices from the IRS, indicating that it had disallowed the deductions taken for contributions to the Cronin ISP and GTLP Plans. As a result, Plaintiffs incurred costs for back taxes, penalties, and interest. All Defendants were sued by various Plaintiffs (the Kapoor Plaintiffs, the Judson Plaintiffs, or all Plaintiffs) for fraud, fraud by omission, negligent misrepresentation, negligence, unjust enrichment, money had and received, and constructive fraud. The trial court granted Defendants’ motion to dismiss for failure to state a claim under which relief may be granted.

On appeal, Plaintiffs argue that (1) Defendants’ alleged misrepresentations are actionable as a matter of law, (2) Plaintiffs’ fraud allegations were pled with requisite specificity, (3) Defendants had a duty to Plaintiffs, (4) the economic loss doctrine does not bar their negligence claim against Fox & Fox, (5) Plaintiffs were not required to attach certain “writings” in order to sustain a cause of action against Fox & Fox, (6) the trial court erred in dismissing the Judson Plaintiffs’ fraud claim against WRL, and (7) the trial court erred in dismissing the Judson Plaintiffs’ negligence claim against Greenwalt.

CIS and ASBE contend that (1) Plaintiffs do not have a viable cause of action because it is inherently unreasonable to rely on predictions regarding future tax consequences and (2) Plaintiffs’ fraud claims were not pled with sufficient specificity. Greenwalt argues that the Judson Plaintiffs’ (1) negligence claims against them are time-barred, (2) fraud claims were not pled with sufficient specificity, and (3) the constructive fraud claim did not allege the necessary unconscionable advantage. Fox & Fox contends that (1) allegations of fraud against it fail to state a claim, (2) fraud claims were not pled with sufficient specificity, (3) the constructive fraud claim was properly dismissed due to a lack of duty, and (4) the negligence claim was properly dismissed pursuant to the economic loss doctrine and for a lack of duty. WTB contends that (1) Washington state law governs its relationships with various Plaintiffs, (2) it had no legal duty to provide tax or financial advice to Plaintiffs and (3) any claims based on a breach of duty must therefore fail. WRL contends that (1) the Judson Plaintiffs’ fraud allegations were not pled with sufficient specificity and (2) the Judson Plaintiffs pled no facts supporting a material misrepresentation. Light contends that all of the Judson Plaintiffs’ claims against him fail as a matter of law. Because we conclude that the trial court erred in dismissing several fraud, constructive fraud, and negligence claims against various defendants, we reverse the judgment of the trial court in part and remand for further proceedings.

In Billy Deon Blackmon v. State of Indiana, a 23-page opinion, Judge Crone writes:
Billy Deon Blackmon appeals his conviction for class D felony resisting law enforcement following a jury trial. He argues that the trial court clearly erred in rejecting his claim that the prosecutor used a peremptory challenge to strike a potential juror based on the juror’s race in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The prosecutor gave two reasons for his peremptory strike, one of which was demeanor-based. The trial court allowed the peremptory strike without explicitly stating which of the prosecutor’s reasons it found to be credible and not racially motivated. On appeal, Blackmon argues that because one of the reasons was demeanor-based and the trial court failed to find that it was credible, we have no basis from which to defer to the trial court on this reason. He also argues that the second reason was a pretext for racial discrimination. Therefore, he argues that his conviction must be reversed and his case remanded for a new trial.

Given the circumstances present here, we reject Blackmon’s contention that the trial court was required to explicitly credit the prosecutor’s demeanor-based reason. We conclude that the prosecutor’s second reason is suspicious and raises an inference of discriminatory motive. However, we conclude that reversal of Blackmon’s conviction is not required because it is clear that the prosecutor would have struck the juror based on the demeanor-based reason alone.

Blackmon also asserts that the evidence is insufficient to support his conviction. We conclude that the evidence is sufficient, and therefore we affirm.

NFP civil decisions today (0):

NFP criminal decisions today (6):

James L. Reynolds, Jr. v. State of Indiana (mem. dec.)

Ryan Browne v. State of Indiana (mem. dec.)

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

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

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

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

Posted by Marcia Oddi on Tuesday, December 15, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - How is Indianapolis' LGBT anti-discrimination ordinance working out?

Currently state law does not protect the LGBT community from discrimination, although legislation may be introduced in this session in an effort to do so. Indianapolis has offered such protection, by ordinance, for a number of years. Last session, the General Assembly passed a "religious freedom restoration act" (RFRA) that would have pre-empted local nondiscrimination ordinances. After outcry by many, the RFRA law was altered before it went into effect by a "RFRA fix" amendment, restoring the right of local communities to pass nondiscrimination ordinances. Notably, however, the draft legislation prepared for instroduction in the Senate this year again would pre-empt any local ordinances.

Today the Indianapolis Star's Stephanie Wang looks at Indianapolis' LGBT nondiscrimination ordinance in depth in a story headed "Does LGBT discrimination exist?" She points out that "... 17 discrimination complaints based on sexual orientation or gender identity [were] handled last year by the Indianapolis-Marion County Office of Equal Opportunity," and continues:

People who question the need for legal protections for gay, lesbian, bisexual and transgender Hoosiers often say there’s no proof of that type of discrimination going on in Indiana. Such nondiscrimination laws, they say, would instead create more legal issues and pave the way to allow discrimination against evangelical Christians.

But a review of Indianapolis discrimination complaints shows a more complicated picture.

In Indianapolis, whose nondiscrimination ordinance includes sexual orientation and gender identity among 11 protected classes, nearly 1 in 5 complaints last year were based on sexual orientation or gender identity. Only two complaints were based on religion. And one of those was Alexander's claim that her religious rights were abridged because of discrimination against her sexual orientation.

What's more, the cases examined by The Star suggest that nondiscrimination ordinances don't result in an excess of costly, business-killing legal judgments.

Whether race, religion or sexual orientation was the source, few of the cases are ever fully investigated — let alone proven as likely discrimination. Out of the 17 complaints last year relating to sexual orientation or gender identity, just one was determined to have "reasonable cause" to believe the ordinance was violated. Cases are much more often dismissed or privately reconciled.

The point of such laws, experts said, is not to punish businesses. Nor is it to win substantial financial redress for victims.

These ordinances cannot completely eliminate discrimination. But, experts say, the laws make a statement of equality. They encourage businesses to be more proactive about inclusion in order to avoid discrimination.

Later in the long story:
Discrimination can be proven if victims can show they were treated differently from someone outside of their protected class — known as disparate treatment.

But, in the absence of emails, witnesses or other documentation, “it’s hard to prove what was in someone’s mind,” said Susan W. Kline, a labor and employment group partner at Faegre Baker Daniels. * * *

The larger benefit of nondiscrimination protections comes as companies adopt policies to comply with the law.

Kline said she has recently started advising more clients on instituting equitable and inclusive policies for gay and transgender employees.

Some companies, such as Eli Lilly and Co., say they have long had such policies because they want to attract diverse talent. Others may be looking into such policies as more Indiana communities began this year to adopt such policies.

And even though the state law does not include LGBT protections, federal agencies such as the Equal Employment Opportunity Commission have started to interpret guidelines in ways that can cover gay and transgender people.

“While I understand you feel you ought to be able to run your own business the way you want, consistent with your beliefs,” Kline said, “unless you’re a religious organization with some exceptions, you have to run your business in a way that complies with the law. You would just have to help folks understand this is not any commentary on their own faith or moral view.”

Any accompanying story today by reporter Wang is headed "How Indy LGBT rights law applied to Just Cookies, 111 Cakery. And where they are now."

Posted by Marcia Oddi on Tuesday, December 15, 2015
Posted to Indiana Government

Monday, December 14, 2015

Ind. Courts - Both SSM birth certificate cases now assigned to Judge Pratt

The Allen/Phillipa-Stackman SSM birth certificate case has been reassigned today to federal Judge Tanya Walton-Pratt who has the other (Henderson) case.

For background, see this ILB post from Dec. 8th.

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Judge recuses herself from Lake County councilman's criminal case"

Elvia Malagon is reporting late this afternoon in the NWI Times in a story that begins:

CROWN POINT — Citing the power Lake County Councilman Jamal Washington has over her budget, Lake Superior Judge Julie Cantrell recused herself Monday from the pending criminal case.

Cantrell recused herself during an initial hearing in her courtroom for Washington. She said Washington is part of a three-person committee that decides her court's budget.

Washington plans to continue his work on the County Council, "representing his constituents with the same effort, compassion, and dedication that he has displayed since being elected," according to a statement issued by his attorney, Paul Stracci.Washington, 42, faces two counts of strangulation, Level 6 felonies, and domestic battery, a Level 6 felony, stemming from a Dec. 3 incident at his Merrillville home.

He was not present in court, because Cantrell had excused his appearance.

Cantrell said she will send an order today to the Indiana Supreme Court requesting they select a judge outside of Lake County to preside over Washington's case.

The Lake County prosecutor's office had already requested a special prosecutor be appointed to handle the prosecution of the case because the County Council makes decisions about the office's budget.

Deputy Prosecuting Attorney Maureen Koonce requested no contact orders be issued against Washington and the women involved in the case. Cantrell said the judge who takes over the case will rule on the request.

Cantrell noted three protective orders have already been issued against Washington that involve the two women he is accused of battering and one of his daughters. Koonce said the state was seeking to prevent Washington from having contact with his other child while the case was pending.

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides one Indiana case today, re sale of cold beer by convenience stores

In Indiana Petroleum Marketers v. David Cook (SD Ind., Young), a 13page decision, Judge Sykes writes:

An association of Indiana convenience stores filed this lawsuit seeking to invalidate a state law that restricts the sale of cold packaged beer. The suit claims the law violates the Equal Protection Clause because some kinds of stores may sell cold beer but grocery and convenience stores may not. The district court upheld the law and entered judgment for Indiana.

We affirm. A threshold question is the extent to which the Twenty-first Amendment affects this case. Indiana argues it has “nearly absolute” authority to regulate alcohol sales under the Twenty-first Amendment and no further analysis is necessary. That’s not correct. But the district court was right to uphold the law. Indiana’s cold-beer statute is subject to rational-basis review and survives that lenient standard. * * *

Indiana explains that the goal of this regulatory scheme is to curb underage beer consumption by limiting the sale of immediately consumable cold beer. Restricting the sale of cold beer to stores that are more rigorously regulated is rationally related to that legitimate goal.

The Association attacks this legislative choice with several policy arguments: beer is beer, and grocery and convenience stores already sell it, just not cold; grocery and convenience stores are permitted to sell chilled drinks with higher alcohol content (like wine coolers) so why not chilled beer; grocery and convenience stores have a better record of compliance with state alcohol laws than liquor stores; grocery and convenience stores are frequented by police officers and other adult customers, deterring underage persons from trying to buy alcohol there; and selling beer in refrigerators makes it less accessible than selling it warm.

This mode of argument doesn’t suffice under rational-basis review. To succeed on its claim, the Association must “negative every conceivable basis which might support” the statutory scheme. Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080–81 (2012) (quotation marks omitted). The Association’s policy arguments for allowing cold-beer sales by grocery and convenience stores are matters for the Indiana legislature, not the federal judiciary.

For the foregoing reasons, the Association has failed to carry its burden of demonstrating that Indiana’s cold-beer statute violates the Equal Protection Clause. AFFIRMED.

See this Jan. 5, 2015 ILB post for the oral argument.

Note that this is a different case from the Monarch Beverage 3-Tier challenge, decided by Judge Barker on Sept. 30th, or the Monarch case heard Dec. 2nd by the Court of Appeals.

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "LGBT bid turning into a 'bathroom bill'"

That is the headline topping Maureen Hayden's CNHI story in the New Albany News & Tribune. The long story begins:

INDIANAPOLIS — Sen. Travis Holdman hoped debate over his LGBT rights bill would weigh questions of religious liberty with the expansion of civil protections.

A conservative Republican, Holdman labored to include sweeping language in the 20-page proposal that anticipates everything from hiring to use of public facilities. He carved out exemptions based on religious beliefs.

But, as feared, opponents now brand the measure filed last month as a “bathroom bill.” Holdman’s effort to broaden the state’s civil rights law to include sexual orientation and gender identity may soon be bogged down in questions about who should be allowed to use which restroom.

Mirroring objections raised to similar laws elsewhere, religious conservatives paint the measure as cover for predators to enter public bathrooms. Opponents to a similar LGBT rights bill in Houston, Texas, shot it down earlier this fall with ads showing a little girl confronted by a scary man in the bathroom.

“It’s an emotional flashpoint to get people fired up about the bill,” Holdman said. “It’s based in fear, not fact.”

Holdman said he was warned months ago by fundamentalist pastors that they would focus opposition in Indiana in a similar vein, claiming that gender identity protections threaten public safety.

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to Indiana Government

Courts - "SCOTUS to review blood-test requirement for DWI cases", also wetlands case

Robert Barnes of the Washington Post reports:

The U.S. Supreme Court said Friday it will review state laws that make it a crime to refuse to take a blood alcohol test if the officer does not have a warrant and will review a challenge to the federal government’s ability to define wetlands.

The court took cases from North Dakota and Minnesota to consider whether laws that criminalize the refusal to take a test are constitutional. Those are among 13 — including Virginia — in the country with such a requirement.

The challengers say such laws violate the Fourth Amendment’s protection against unreasonable searches and do not fit within the Supreme Court’s requirements about what police may do without a warrant. * * *

In the wetlands case, the court will decide whether property owners can go to court to challenge agency decisions about when they need permits under the Clean Water Act.

The Obama administration asked the justices to review a lower court’s ruling that Hawkes Co. can sue to open a peat mine in Minnesota.

The lead drunk driving case is Birchfield v. North Dakota, and the wetlands case is Army Corps of Engineers v. Hawkes Co.

Amy Howe has more on Hawkes in SCOTUSblog. Lyle Denniston has more on both grants.

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to Courts in general

Ind. Courts - Former Indianapolis attorney suspended for two years, without automatic reinstatement

The ruling, filed Dec. 11th, is In the Matter of: Dejuan L. BOUVEAN. Some quotes:

The Commission opened an investigation after receiving an overdraft notice for Respondent’s attorney trust account. The investigation revealed that from July 2013 to August 2014 Respondent commingled his personal funds with client funds and made dozens of disbursements and ATM withdrawals from the trust account that were not associated with, or for the benefit of, any client. Further, in 2013 Respondent kept no individual client ledgers of the money in his trust account, and in 2014 he kept insufficient client ledgers.

The hearing officer found the following facts in aggravation: (1) Respondent has demonstrated a pattern of misconduct; (2) Respondent has engaged in multiple disciplinary violations; and (3) Respondent has been the subject of multiple show cause proceedings. The hearing officer found no facts in mitigation. * * *

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than two years, without automatic reinstatement, effective immediately.

See also this June 8th ILB post concerning an earlier suspension reported in the IndyStar.

The Roll of Attorneys shows a long list of concluded disciplinary actions, and an address in Georgia.

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In F. John Rogers, as Personal Representative of Paul Michalik, Deceased, and R. David Boyer, Trustee of the Bankruptcy Estate of Jerry Lee Chambers v. Angela Martin and Brian Paul Brothers, a 15-page opinion, Judge Barnes writes:

F. John Rogers, as the personal representative of Paul Michalik, deceased, and R. David Boyer, as trustee of the bankruptcy estate of Jerry Chambers, (collectively “the Appellants”) appeal the trial court’s granting of a motion to strike and a motion for summary judgment filed by Angela Martin. * * *

The Appellants filed a complaint against Martin and Brothers alleging in part that Martin violated the Dram Shop Act by furnishing alcohol to Brothers and that Martin failed to render aid to Michalik. Martin filed a motion for summary judgment, and the Appellants responded. Martin then replied, and a hearing was held. The trial court granted Martin’s motion for summary judgment. The Appellants now appeal. * * *

Because there is a question of fact regarding whether Martin furnished alcohol to Brothers, the trial court erroneously granted summary judgment to Martin on the Appellants’ Dram Shop Act claim. Further, we conclude that Martin, as a social host, owed Michalik a duty to render aid, and questions of fact remain regarding whether she breached that duty. We reverse and remand.

NFP civil decisions today (1):

In the Matter of the Involuntary Term. of Parent-Child Relationship of T.M. and A.C., Minor Children and their Father, J.C. v. Marion Co. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (6):

Juan Carlos Brown v. State of Indiana (mem. dec.)

Rodger L. Blackburn v. State of Indiana (mem. dec.)

Charles Edward Henry v. State of Indiana (mem. dec.)

Thaddeus L. Rodriguez v. State of Indiana (mem. dec.)

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

Aaron S. Buck v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to Ind. App.Ct. Decisions

E-filing - More on: Implementation: How is it going so far?

Updating this Dec. 8th post, where the ILB quoted a reader:

I cannot file more than one document and one attachment each time without having to go back in and restart the entire process. This is a pain. I would like to file my entire filing on one screen but cannot do it. So when I file my initial brief, I must enter the system, file the Notice of Exclusion. Then re-enter the system, file my initial brief and attached judgment/order. Then re-enter the system a third time and file my appendix and non-public access attachment.
The ILB received this post in response:
Hi Marcia

In response to the post on Tuesday by the reader having to re-enter the system to file multiple documents, the reader did not state which system they used. However, I can advise that at least under the Tyler system it is possible to file a lead document with multiple attachments, and in fact, it is possible to file more than one lead document in a single filing session. To file more than one lead document, after the lead document is selected, “save changes” should be selected and then a button will appear on the page that says “add another filing.” I don’t think the “add another filing” button appears until after “save changes” is selected, but, it is indeed possible to click on “add another filing” after “save changes” and file another lead document.

Ruth Johnson
Appellate Division Chief, Marion County Public Defender Agency

And does this work? "Yes", replies a new note from "the reader", who continues:
Ruth is right. I went back in and did the Tyler system again. There is a little button after the "Save Changes" that appears that says "Add Another Filing." But it is at the top of the screen, which is not viewable on my monitor without scrolling up :) That's why I couldn't find it.

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to E-filing

Ind. Courts - Caterpillar sued by employee fired for keeping a locked weapon in his vehicle at work

Another $$$ Indiana Legislative Insight story this week highlights a lawsuit pending in the Court of Appeals, Caterpillar Inc. v. William Sudlow. The case originates in Tippecanoe County and, according to ILI:

... involves Caterpillar, Inc.’s firing of an employee for keeping a weapon in his locked vehicle at work, in what the employee and NRA claim is a departure from company policy, a violation of Indiana law protecting the right of employees to keep firearms in their locked vehicles while at work, and wrongful discharge for exercising the fundamental constitutional right to keep and bear arms.

Caterpillar appeals a Tippecanoe County Circuit Court ruling that its actions were unlawful under I.C. § 34-28-7-2, which allows employees with a carry-permit to keep a licensed gun in their cars on workplace premises “if the gun is locked in the trunk, kept in the glove compartment of their locked car, or stored out of plain sight in the locked car.”

As the appellate docket to the case shows, the Court has received an amicus brief from the National Rifle Association of America, in support of Appellee William Sudlow.

An Oct. 15, 2013 $$$ story in the Wall Street Journal reported:

Across the country, employers are grappling with new laws that bring guns closer to the office. * * *

Details vary by state, but under most so-called Bring Your Gun to Work laws, employers can keep firearms out of offices and factory floors, but they can't ban weapons in the parking lot. * * *

Many big employers, including FedEx Corp. , Volkswagen AG , Caterpillar Inc. and Bridgestone Corp. , have fought the laws, arguing that their right to maintain a safe workplace—and set the rules on their property—should trump the right to carry a gun.

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to Indiana Courts

Ind. Gov't. - More on: Legislative pay: Indiana's "part-time citizen legislators" make over $60,000 a year

Supplementing this Dec. 7th ILB post quoting an Indianapolis Star story, the Fort Wayne Journal Gazette today has an editorial titled "Lawmaking shift: As duties and income grow, so should oversight." Some quotes:

When Indiana became a state in 1816, its founders established a General Assembly designed to be close to the people. Most members in the early years were true citizen-legislators, primarily farmers. Turnover was valued over legislative experience, with most serving a single term.

Nearly 200 years later, Indiana lawmakers still claim to be citizen-legislators, but the work and time commitments have grown tremendously, along with the pay. An analysis by the Indianapolis Star finds that lawmakers take home an average of $60,000 a year. Top legislative leaders earn more than $70,000 annually.

Legislative demands aren’t likely to decrease, so it’s time for lawmakers to acknowledge they share little in common with their pioneer-era predecessors and change the rules they set for themselves. The current ethics and disclosure requirements might have served well in years past, but limited turnover, continuing questions about conflicts of interest and the endless revolving door between the legislature and lobbying groups make it clear that tougher rules are needed. Guidelines that respected the part-time status of lawmakers no longer work. * * *

The vast majority of lawmakers are honest, dedicated and committed to serving their fellow Hoosiers, just as Indiana’s first citizen-legislators. To protect their own integrity and the General Assembly’s, they must acknowledge the job has changed and the rules must change as well.

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending December 11, 2015

Here is the Clerk's transfer list for the week ending Friday, December 11, 2015. It is two pages (and 20 cases) long.

One transfer was granted last week:

In addition, after hearing oral argument on Dec. 7th in the case of S. Holt Road Holdings v. Holt Road, LLC, the Supreme Court on Dec. 11th ruled:
The Order granting transfer is vacated and transfer is hereby denied. - Dickson, Rucker, and Massa, JJ., concur. Rush, C.J., and David, J., dissent from the denial of transfer.
The COA opinion was reinstated was precedent. According to the docket, there was no written dissent filed by the two dissenting justices.

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - More on: Elkhart County prosecutor announces run for Attorney General

Updating this ILB post from Dec. 7th, Tim Vandenack and The Elkhart Truth this weekend had a second long story on Elkhart County prosecutor Curtis Hill's run for attorney general.

The ILB also has learned that former Court of Appeals judge Linda Chezem is chairing Hill's campaign.

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to Indiana Government

Ind. Gov't. - "Hep C drug fight bitter pill to some: ACLU lawsuit is only a small part of a bigger bipartisan policy battle"

That is the heading to the lead story in this week's issue of $$$ Indiana Legislative Insight. The story begins:

In Jackson et al., v. Sec’y of the Indiana Family and Social Services Admin., No. 1:15-cv-01874-SEB-DKL, the American Civil Liberties Union of Indiana files suit against the Family and Social Services Administration challenging FSSA’s new policy – just implemented in October – of denying Harvoni, a life-saving drug, to certain Medicaid recipients who have early-stage Hepatitis C, allegedly in contravention of federal Medicaid law ... and this is a bigger can of worms than you might think, extending well beyond FSSA and the friendly confines of Indiana. Indeed, FSSA and the State of Indiana may find themselves in an untenable position as they try to accommodate growing human needs – and the costs and the lawsuit – which had gone largely overlooked until late last week – has major fiscal and public policy implications.
ILB: Here is a copy of the lawsuit, filed Nov. 25, 2015.

The Indianapolis Star had a related story on Friday, by Shari Rudavsky, headed "A new drug can cure Hepatitis C, but Indiana won't always pay for it under Medicaid." A quote:

Indiana, like most other states, refuses to pay for the drug for her or any other Medicaid recipient until they have entered a later stage of the disease.

The American Civil Liberties Union of Indiana recently sued Indiana’s Family and Social Services Administration on behalf of [Sarah Jackson] and others like her, asking the state to reverse its policy and provide at least some of these expensive drugs now.

“What we have here is a drug that can cure Hepatitis C, and it is being denied to people with Hepatitis C,” said Gavin Rose, a senior staff attorney with the Indiana ACLU.

Hepatitis C, a chronic condition, long evaded treatment. A viral liver infection, it is spread through sexual contact, sharing drugs and needles, or from mother to child.

In recent years, however, a number of new drugs have hit the market that offer cure rates of 90 percent or greater. But these drugs are costly, running as much as $1,000 for each pill that must be taken daily for 12 weeks.

For now, Jackson, a 34-year-old Fort Wayne florist who has no symptoms of the disease, must wait until her disease worsens to start treatment, hoping that the state changes its policy before she winds up with liver damage that could lead to cirrhosis, cancer or death.

More from the story:
Indiana is far from alone in its decision to restrict access.

Earlier this month the U.S. Senate Finance Committee released the results of an 18-month investigation into how one company, Gilead Sciences, priced its two drugs. The drug company, according to the report, set prices with an eye toward maximizing revenue, even though its own analysis showed more patients could be treated if the drug cost less.

The report found that at least 27 states said they would pay for only the sickest of their Medicaid patients to receive the Gilead drugs.

Not one state Medicaid program makes the drug available to everyone who could benefit from it, said Matt Salo, executive director of the National Association of Medicaid Directors.

Price governs those decisions, Salo said. While Medicaid programs do approve expensive drugs for many other rare conditions, such as hemophilia or cystic fibrosis, none of those diseases affect as many people as hepatitis C. An estimated 1 million people on Medicaid in this country have hepatitis C and approving these drugs for all would "explode the budget," potentially leaving those on Medicaid with other diseases in the lurch, he said.

"This has clearly been priced to prioritize profit margins and not cures. Effectively what they have done is priced this drug so it is unavailable for everyone who needs it," Salo said. "We often talk about an unwritten social contract that has existed in Medicaid that orphan drugs can have orphan drug prices. ... But when you have something that’s treating a mainstream condition, it violates the social contract."

The long Indiana Legislative Insight story concludes:
As for the overarching policy implications, Sen. Wyden [Senate Finance Committee Ranking Democrat Ron Wyden (D-OR)] explained that “The reason that a Democrat and a Republican came together to investigate into what happened in this case is because of the serious challenge that could be on the horizon. Very quickly after [Gilead’s Harvoni predecessor drug] rollout, the alarming consequences of the price became clear. It was a huge medical breakthrough, and it was overtaken almost immediately by the price. Now, consider where medicine is headed in the future. America needs a cure for cancer. It needs a cure for Alzheimer’s. It needs a cure for diabetes. And it’s important to note on World AIDS Day, it needs a cure for HIV. If those cures are unaffordable and out of reach to millions who need them, the Congress will not have met its responsibilities to the American people.”

Posted by Marcia Oddi on Monday, December 14, 2015
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/14/15):

Thursday, December 17

Next week's oral arguments before the Supreme Court (week of 12/21/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/14/15):

Monday, December 14

Tuesday, December 15

Next week's oral arguments before the Court of Appeals (week of 12/21/15):

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.

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, December 14, 2015
Posted to Upcoming Oral Arguments

Saturday, December 12, 2015

Courts - "You Probably Should Not Live-Tweet a Trial You Are Watching"

That is the heading to this Dec. 10th post by Lisa Needham of Lawyeris that begins:

If you are a law firm partner, blogger, and tweeter of law-related things, it probably behooves you to pay attention to things like whether a court is allowing pictures on any given day. And you really should think about what you throw on your Twitter feed when you are hanging out on the courtroom. Witness the travails of one Vincent “Trace” Schmeltz III, a partner at Barnes & Thornburg in Chicago.

Posted by Marcia Oddi on Saturday, December 12, 2015
Posted to Courts in general

Friday, December 11, 2015

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

For publication opinions today (4):

In Wayne Patton v. Jessica Patton, a 12-page opinion, Judge Bradford writes:

Appellant-Respondent Wayne Patton (“Father”) and Appellee-Petitioner Jessica Patton (“Mother”) were divorced in January of 2013. Mother was granted sole legal and physical custody of the couple’s son W.P., born on February 9, 2007. Since 2011, Father’s visitation with W.P. has been supervised, and in 2012, Father was convicted of child seduction for fondling the breasts of his teenage daughter, who, incidentally, is now emancipated. In 2014, Father moved to modify parenting time with W.P. and child support, seeking to have the supervision requirement lifted and his support obligation reduced to reflect the fact that one of three children was now emancipated.

Mother requested that a psychological evaluation of Father be performed, after which the evaluator found indications of defensiveness and poor judgment and decision-making. The evaluator also expressed doubts regarding Father’s psychological functioning. Following a hearing, the trial court denied Father’s motion for modification of visitation and child support obligation. Because we conclude that the trial court abused its discretion in refusing to alter Father’s child support obligation, we affirm in part, reverse in part, and remand with instructions.

In Jason J. Maraman v. City of Carmel, Indiana , an 11-page opinion with a pro se appellant, Judge May writes:
Jason Maraman challenges his citation for speeding. As the Carmel city ordinance under which Maraman was ticketed was void, the trial court should have granted Maraman’s motion to dismiss. We must accordingly reverse.

[ILB: reasoning is worth reading]

As the ordinance under which Carmel wished to prosecute Maraman was invalid, Maraman’s motion to dismiss should have been granted. We must therefore reverse.

In R.P. Leasing, LLC, Robert C. Waite, and Ilene A. Waite v. Chemical Bank, a 13-page opinion, Judge Najam writes:
Viewing the facts in the light most favorable to R.P. Leasing, as we must, see, e.g., Jobes v. Tokheim Corp., 657 N.E.2d 145, 147 (Ind. Ct. App. 1995), there is conflicting evidence on a material issue of the fair market value of the Michigan property, making summary judgment inappropriate in this case, see Reed, 980 N.E.2d at 303. * * *

Because there is conflicting designated evidence on the material issues of the fair market value of the Michigan property and the true amount of the indebtedness on the Note, the trial court erred in granting summary judgment to the Bank. * * *

The trial court did not err in denying R.P. Leasing’s request for attorney’s fees.

In Rex S. Lovett v. State of Indiana , an 11-page, 2-1 opinion, Judge Bailey writes:
Rex Lovett (“Lovett”) filed a petition for relief from sex offender registration requirements under Indiana’s Sex Offender Registration Act (“SORA”). The trial court denied his petition. Lovett appeals, arguing that the registration requirement is unconstitutional as applied to him because it violates the ex post facto clause of the Indiana Constitution. Because Lovett was, at the time of and as a result of his original offense, subject to sex offender reporting requirements in another state, we conclude that an ongoing requirement to register in Indiana is not an additional, ex post facto punishment under the Indiana Constitution. * * *

Lovett was subject to registration requirements in the State of Washington from the date of his conviction; it is not adding to his punishment to require continued registration in Indiana. And he should not be allowed to evade these requirements simply by relocating to Indiana, when the sole basis for that evasion would be a conviction date for a crime committed outside Indiana. We therefore affirm the judgment of the trial court. Affirmed.

Mathias, J., concurs.
Baker, J., dissents with separate opinion. [that begins, at p. 9] I respectfully dissent. In Wallace v. State, 905 N.E.2d 371 (Ind. 2009), our Supreme Court held that mandatory sex offender registration is punitive, and that application of SORA to an offender who had committed his offense prior to the enactment of SORA violated the ex post facto prohibition of the Indiana Constitution. * * *

While I see the logic in the State’s position on this issue, as well as the majority’s decision, the case law could not be clearer. Our Supreme Court, plus three panels of this Court, have plainly held that the date of primary importance is the date of the original conviction. Notwithstanding the state of the law at the time Lovett moved to Indiana, he is a resident of this State and “is entitled to the protections afforded to him by the Indiana Constitution. Therefore, even though he would be required to register as a sex offender under [Washington’s] laws, Indiana’s law controls.” Hough, 978 N.E. 2d at 510. Lovett was convicted of a sex offense before Indiana enacted SORA. Therefore, I believe that requiring him to register as a sex offender would violate Indiana’s constitutional prohibition against ex post facto laws; I would affirm the trial court’s judgment.

NFP civil decisions today (2):

Caroline Briggs v. Abdullah Alkhalidi (mem. dec.)

Mark Cotton, et al. v. FSPI Empl Profit Sharing Plan, 401K (mem. dec.)

NFP criminal decisions today (6):

Shaun Combs v. State of Indiana (mem. dec.)

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

Terry L. Rork, Jr. v. State of Indiana (mem. dec.)

Robin Maze v. State of Indiana (mem. dec.)

DeShawn Belcher v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Friday, December 11, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Efforts to lobby the Supreme Court never a good idea, attorney advises

The ILB has received copies of several emails attributed to a group called Watchdog Indiana. From Dec. 11:

Hello Watchdogs,

The December 8 Watchdog Indiana E-mail Update asked Watchdogs to contact our Indiana Supreme Court Justices to let them know that Indiana Senate Bill 330 passed last year by our Indiana General Assembly nullifies the substantial preference given to municipal annexation ordinances by various Indiana Appeals Court precedents, and that they should therefore consider all relevant evidence specific to the Fortville case to decide if the proposed annexation territory is actually needed and can be used for development in the reasonably near future.

Fight Against Forced Annexation (FAFA) is the organization formed by the Fortville remonstrators opposing the Fortville Annexation that will be decided by the Indiana Supreme Court. The FAFA President in the following E-mail asks that no one contact the Supreme Court Justices because it could be detrimental to the outcome of their case:

Aaron,

XXXX XXXX forwarded your email to me about contacting the Supreme Court justices regarding our case.

I respectfully ask you to immediately withdraw the request to all those you contacted. Our attorney has advised us not to participate in this as it is completely improper to influence judges through political pressure. This could hurt our case instead of helping it as judges do not respond positively to this kind of extra-judicial activity. This action could be interpreted as interference in our case.

While your intentions may be honorable, as President of FAFA, I am strongly encouraging you to withdraw this request. This is on the advice of our attorney, who we have complete faith and confidence in. We trust him with our case.

[name deleted by ILB]
FAFA President

The Watchdog email concludes:
It may very well be “appropriate” for Watchdogs to abide by the wishes of FAFA remonstrators and NOT contact the Indiana Supreme Court Justices regarding the Fortville annexation case. However, Watchdog Indiana is frustrated by any suggestion that it is proper for everyday Hoosiers to avoid full participation in the public arena – that it is “completely improper to influence judges” by directly expressing an opinion on an important matter of public policy.

Posted by Marcia Oddi on Friday, December 11, 2015
Posted to Indiana Courts

Ind. Gov't. - What the State of Michigan is doing to prevent cyberattacks on state government

Rick Snyder, Governor of Michigan, has this article in Governing.

Posted by Marcia Oddi on Friday, December 11, 2015
Posted to Indiana Government

Ind. Gov't. - Dunes Pavilion project reportedly hits new snag

The Chesterton Tribune is reporting:

Pavilion Partners LLC’s construction of a banquet facility at the Indiana Dunes State Park beach would be an illegal conversion of property whose proper uses are regulated under the federal Land and Water Conservation Fund Act (LWCF) of 1968.

That’s the finding of the National Park Service (NPS), as announced today by Public Employees for Environmental Responsibility (PEER).

In June, NPS found that the LWCF--under which conversions of public lands for uses other than public outdoor recreation must be approved by NPS --does apply to the LLC’s lease agreement with the Indiana Department of Natural Resources because Indiana Dunes State Park has been the recipient of LWCF funding. That meant, at the time, that the DNR was subject to the National Environmental Policy Act and would have to prepare an environmental impact statement after a review of the project in its totality was conducted.

Now, however--in a Dec. 4 letter to PEER, NPS Midwest Regional Director Cameron Sholly reported that NPS would be unable to approve “several of the prospective uses” to which Pavilion Partners wants to put the land and that those uses would be “non-compliant” and therefore “constitute conversion.”

“Although weddings, wedding receptions, and banquets can be conducted outdoors, they are not generally categorized as contributing to the outdoor recreation experience,” PEER quoted from Sholly’s letter. And similarly “the construction of new banquet facilities not accessible to the public could not be approved.”

NPS does not actually have the legal authority to halt non-compliant conversion of LWCF-regulated lands, PEER said today, but should the LLC’s project continue there would have to be “the substitution of other recreation properties of at least equal fair market value and of reasonably equivalent usefulness and location,” PEER said.

The problem for DNR, PEER continued: “Given the lakeshore setting, it is not clear that the state could create equivalent value for a conversion or from what funding source.”

“This project appears to be an illegal conversion of an investment in public outdoor recreation into a commercial profit center,” PEER senior counsel Paula Dinerstein said.

“Compounding the confusion is the state agency’s lack of forthrightness about what exactly it is approving to be built and where.”

“The promise that this project will cost the state and its taxpayers nothing now seems illusory,” Dinerstein added. “These are irreplaceable recreational crown jewels that should be polished, not pawned.”

Here is the PEER news release.

Posted by Marcia Oddi on Friday, December 11, 2015
Posted to Indiana Government

Ind. Courts - "Conservative groups' lawsuit says RFRA fix unconstitutional"

Updating the ILB's posts from yesterday (here and here), Stephanie Wang of the Indianapolis Star today has an excellent story examining the law suit. A sample:

The lawsuit presents an unusually convoluted situation — even Jim Bopp, the prominent conservative attorney in Terre Haute who is representing the case, acknowledges that.

But, simply put: The lawsuit asks the court to throw out the RFRA fix, and then makes a claim under the original RFRA that local nondiscrimination ordinances are undue government intrusions on the free exercise of religion and other First Amendment rights.

Essentially, it asks the court to choose between the competing interests that have clashed over RFRA for the past year: At the intersection of deeply held evangelical beliefs and rights for gay, lesbian, bisexual and transgender people, whose rights need to be protected?

Indiana’s original Religious Freedom Restoration Act, which passed into law this year with considerable conservative influence, sets a judicial standard for weighing religious objections. But, after outcry over whether that would allow Christians to discriminate against the LGBT community, lawmakers added the fix to prevent RFRA from being used to supersede local and state civil rights laws.

Now, religious conservatives say the fix does not afford equal protection to people of all faiths. It does not permit evangelical Christians to raise religious objections based on their views on marriage and sexuality — but it allows the objections of other faiths who don’t hold those beliefs.

“This pits some religions that the government protects against other religions that will suffer government punishment if they don't fall in line,” Bopp said in a statement. “We believe this discrimination between religious views is unconstitutional.”

The fix, the lawsuit said, “was in response to protests against RFRA by those who want to force others to not just passively accept persons and conduct inconsistent with the biblical view on marriage and sexual relations but to compel active participation with, and support for, such persons and conduct regardless of a religious objection.”

Posted by Marcia Oddi on Friday, December 11, 2015
Posted to Indiana Courts

Thursday, December 10, 2015

Ind. Courts - State's brief now filed in Purvi Patel appeal of conviction for feticide, child neglect

The ILB has had a number of posts relating to the Purvi Patel appeal of her feticide and child neglect conviction. Here is the appellant's brief in Patel v. State, filed Oct. 2, 2015.

Here now is the brief of the appellee, the State of Indiana, filed Dec. 9th.

Posted by Marcia Oddi on Thursday, December 10, 2015
Posted to Indiana Courts

Ind. Courts - More on: Lawsuit claims RCRA "fix" and ordinances passed pursuant thereto are invalid

In a post earlier this afternoon, the ILB wrote:

...the Attorney General must defend in any lawsuit that challenges the constitutionality of state law.
In other words, the Attorney General must defend this challenge to the RFRA "fix," even though the State is not named in the lawsuit.

Although I was unable to find such a mandate in the Indiana statutes, Attorney General Zoeller himself has written at length about this duty. See this 2015 Indiana Law Journal article by Gregory F. Zoeller, titled "Duty to Defend and the Rule of Law." From p. 515:

[This article] explains the proper role of a state attorney general when a party challenges a state statute. In short, an attorney general owes the state and its citizens, as sovereign, a duty to defend its statutes against constitutional attack except when controlling precedent so overwhelmingly shows that the statute is unconstitutional that no good-faith argument can be made in its defense. To exercise discretion more broadly, and selectively to pick and choose which statutes to defend, only erodes the rule of law.
A section on "Duty to Defend at the State Level" begins on p. 528.

Posted by Marcia Oddi on Thursday, December 10, 2015
Posted to Indiana Courts | Indiana Government

Ind. Courts - Lawsuit claims RCRA "fix" and ordinances passed pursuant thereto are invalid

Indiana Family Institute, et al v. City of Carmel, et al. is a 49-page lawsuit filed today in Hamilton County, by James Madison Center attorney James Bopp, challenging the RFRA "fix" and the ordinances that the cities of Carmel and Indianapolis passed pursuant to the "fix."

From a press release of the plaintiffs:

The Indiana Family Institute, The Indiana Family Action, and The American Family Association of Indiana filed a lawsuit challenging the Constitutionality of last spring’s Religious Freedom Restoration Act (RFRA) “fix” as well as the Carmel and Indianapolis-Marion County Nondiscrimination Ordinances claiming in state court that the measure contradicts Indiana’s strong Constitutional protections, specifically equal protection for the religious-free-exercise of all persons. The suit was brought on behalf of plaintiffs by First Amendment Attorney James Bopp, Jr., The Bopp Law Firm, Terre Haute, Indiana.
Interestingly, although the Attorney General must defend in any lawsuit that challenges the constitutionality of state law, neither the AG nor the State has been made a party to this lawsuit.

Posted by Marcia Oddi on Thursday, December 10, 2015
Posted to Indiana Courts | Indiana Government

Ind. Decisions - State of Indiana reportedly won't appeal 7th Circuit decision on Marion Co. judicial selection

Ballot Access News is reporting that the State of Indiana won't appeal the 7th Circuit's Sept. 9th ruling in Common Cause Indiana v. Individual Members of the Ind. Election Commission, et al (which was summarized here by the ILB; see also this post). This is the 7th Circuit opinion that upheld a district court ruling and declared that the method of electing Marion Superior Court judges is unconstitutional.

The ILB has not yet confirmed this report. However, the Ballot Access post ends on an off note, saying:

It is somewhat likely that the legislature will now abolish judicial elections in Indianapolis. In most other parts of Indiana there are no such judicial elections.
In fact, local judges are elected in all but a couple of Indiana -- e.g. St. Joe and Lake counties.

Posted by Marcia Oddi on Thursday, December 10, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (4):

In Auto Liquidation Center, Inc., and Majid Zojaji (a/k/a Mike Zojaji), individually v. Jorge Chiqui Chaca, a 14-page opinion, Chief Judge Vaidik writes:

Auto Liquidation Center (ALC), whose owner is Majid “Mike” Zojaji,
repossessed a Dodge Charger that it sold on credit to Jorge Chiqui Chaca.
Initially the car was repossessed because Zojaji erroneously believed that Jorge
was behind in payments. After Jorge proved he was current in his payments, Zojaji refused to return the car to Jorge, claiming instead that he confiscated the car because Jorge had disconnected the GPS—a GPS that Zojaji had used to
disable Jorge’s car for alleged non-payment. Ultimately, Zojaji never returned
the car or its contents to Jorge and sold it at auction. A jury found that ALC
and Zojaji converted Jorge’s car and awarded damages and treble damages
under Indiana Code section 34-24-3-1. ALC and Zojaji appeal the judgment
arguing that there is insufficient evidence to show that they had the intent to
exert unauthorized control over Jorge’s property. They also complain that the
damages awarded were excessive. We find sufficient evidence of intent, affirm
the damage award, and order the case remanded to the trial court to award
reasonable appellate attorney’s fees to Jorge. We also warn that self-help is a
perilous and potentially expensive path. * * *

As a final note: justice is better dispensed in a courtroom and not in one’s own
hands. Self-help remedies are perilous and potentially expensive. When selfhelp
is attempted, a jury or judge decides the appropriateness or
inappropriateness of the actions regardless of how justified the actor may have
thought his actions were. As we see here, the risks of paying damages, treble
damages, pre-judgment interest, attorney’s fees, appellate attorney’s fees, and
costs are not worth the possible benefits of sidestepping the court system.
[24] Affirmed and remanded for a determination of reasonable appellate attorney’s fees.

In Yellow Book Sales and Distribution Company, Inc. v. JB McCoy Masonry Inc. and Robin J. Brooks, a 12-page opinion, Judge Kirsch writes:
Following a bench trial, the trial court denied Yellow Book Sales and Distribution Company, Inc.’s (“Yellow Book”) breach of contract claim seeking relief against Robin J. Brooks (“Brooks) for the unpaid balance on an advertising contract. Brooks had signed the contract as “Owner” of JB McCoy Masonry Inc. (“McCoy Masonry”), the company identified in the contract as “Customer.” Yellow Book appeals, raising the following consolidated and restated issue: whether the trial court erred in holding that Brooks was not personally liable to Yellow Book for the amount still owed by McCoy Masonry under the contract. * * *

We conclude that the essential terms of the Contract between Yellow Book, Brooks, and McCoy Masonry are sufficiently identified by the written agreement, including the identity of all three parties. As a result, we hold that Brooks was not a guarantor, but instead, assumed a primary obligation to perform the Contract with Yellow Book. Finding that Brooks is personally liable under the Contract, we reverse and remand to the trial court for a determination of damages, including interest, and attorney fees.

In State of Indiana v. Anthony Gaw, a 7-page opinion, Sr. Judge Shepard writes:
On behalf of the Madison County Title IV-D Prosecutor, the State of Indiana appeals an order of Madison Circuit Court 5 granting Anthony Gaw relief from a child support decision entered by Madison Circuit Court 2.

Indiana has created avenues by which inmates may seek to revisit issues like child support, but collateral attack is not one of them. We reverse. * * *

In light of the foregoing, we conclude that Madison Circuit Court 5 was without jurisdiction to grant Gaw the relief he sought.

In Ronald L. Eckelbarger v. State of Indiana , a 20-page, 2-1 opinion, Judge Altice writes:
Eckelbarger presents three issues for our review:
(1) Do Eckelbarger’s convictions for three counts of Class B felony dealing in methamphetamine violate the State’s prohibition against double jeopardy?
(2) Did the trial court abuse its discretion by ordering consecutive sentences in excess of the maximum term permitted by Ind. Code § 35-50-1-2(c)?
(3) Is Eckelbarger’s sentence inappropriate in light of the nature of the offense and his character? * * *

We therefore conclude that Eckelbarger’s acts of delivering methamphetamine and manufacturing methamphetamine were not part of the same continuous offense. Eckelbarger’s convictions do no run afoul of the State’s prohibition against double jeopardy. * * *

As we have already determined, the crimes were distinct in nature and were not part of a continuous transaction. Therefore, we conclude that Eckelbarger’s crimes were not part of a single episode of criminal conduct. The trial court was not constrained to impose a sentence capped at the advisory sentence for a Class A felony. * * *

In light of the nature of the offense and particularly the character of the offender, which demonstrates quite clearly that Eckelbarger has no regard for the laws of this state and has disdain for legal authority, we conclude that the sentence imposed by the trial court is not inappropriate. Judgment affirmed.

Brown, J., concurs.
Riley, J., concurs in part and dissents in part with separate opinion. {which begins at p. 18] I concur with the majority’s conclusion that Eckelbarger’s conviction for multiple Counts of dealing in methamphetamine does not violate double jeopardy principles, and I further concur that the trial court was not constrained in its imposition of consecutive sentences amounting to thirty-two years because Eckelbarger’s crimes were not part of a single episode of criminal conduct. However, I dissent with respect to the majority’s determination that Eckelbarger’s aggregate thirty-two-year sentence is appropriate.

NFP civil decisions today (4):

In the Matter of the Term. of the Parent-Child Relationship of: A.H. & B.H. (Minor Children) and G.H. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

Robert Noyd v. Billie (Noyd) Lavoie (mem. dec.)

The Marriage of: Bernadette C. Jones, f/k/a Bernadette C. Brunson and Bennie Brunson (mem. dec.)

E. Scott Treadway v. Stewart & Irwin, P.C., Mary Schmid, Ronald Smith, Donald Wray, Peter Kovacs, Jeffrey Halbert, James Brauer, Glenn Bowman, and Edward Bielski (mem. dec.)

NFP criminal decisions today (8):

Demario M. Loston v. State of Indiana (mem. dec.)

Douglas Allen Bergfeld v. State of Indiana (mem. dec.)

Brent N. Draime v. State of Indiana (mem. dec.)

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

Judy Kirby v. State of Indiana (mem. dec.)

Thomas H. Molina v. State of Indiana (mem. dec.)

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

Fredy R. Ticas v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, December 10, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Wartell appeal denied by court: Defamation lawsuit's dismissal affirmed"

Michael A. Wartell v. Lawrence H. Lee (ILB summary here, 2nd case), a Dec. 7th Court of Appeals opinion, is the subject of a Dec. 8th story by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

The alleged defamation was one of about three lawsuits stemming from the 2012 forced retirement of Wartell. * * *

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

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

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

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

Lee responded, seeking summary judgment in his favor.

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

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

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

The court found that Lee’s statements “are vague and not objectively verifiable without referring to extrinsic evidence.

“Lee mentioned no specific incidents of misconduct but rather made general statements about Wartell’s character and conduct in his role as chancellor. Although Lee’s statements in his letter to Córdova were arguably defamatory, the vagueness with which they are stated prevents them from imputing misconduct and rising to the level of defamation,” the ruling said.

Posted by Marcia Oddi on Thursday, December 10, 2015
Posted to Ind. App.Ct. Decisions

Wednesday, December 09, 2015

Ind. Gov't. - "Bethel College granted waiver from protections for GLBT students, employees"

Margaret Fosmoe has this long story today in the South Bend Tribune. A few quotes:

MISHAWAKA — Bethel College earlier this year sought and received a federal waiver from Title IX requirements intended to protect LGBT students and employees from discrimination.

The waiver doesn’t mean that individuals who are attracted to the same sex are prohibited from attending or graduating from Bethel, but rather that they must be celibate, just as Bethel’s unmarried heterosexual students are expected to be, Bethel President Gregg Chenoweth said Wednesday in a telephone interview. The same standard applies to employees, he said.

“When we admit a student, we do not require a profession of faith or a declaration of sexual identity. We have students who are atheists and we have students who are gay,” he said.

The exemption hasn’t made any practical difference in Bethel’s operations, the president said. “Our sense is this hasn’t really caused much of a ripple on campus,” he said.

Citing the college’s status as a religious institution, Chenoweth in May asked the U.S. Department of Education’s Office for Civil Rights to waive portions of Title IX that would apply to students and employees who are gay, lesbian, bisexual, transgender, pregnant out of wedlock or in same-sex marriages. The request was approved as were requests by several other colleges and universities across the country. * * *

Chenoweth sought exemption from parts of Title IX that might otherwise require the college to make restroom or locker room accommodations for transgender individuals, permit same-sex dating relationships between students or permit transgender students on athletic teams not of their birth gender. He also requested exemption from parts of the law that might otherwise require the college to enroll a student or employ a faculty or staff member who is pregnant out of wedlock, terminates a pregnancy, has sex outside of traditional marriage, or is engaged in a homosexual relationship or same-sex marriage. * * *

Bethel employees are required to sign a covenant of lifestyle that they will adhere to the college’s Christian standards, including not engaging in premarital or extramarital sexual relations.

Posted by Marcia Oddi on Wednesday, December 09, 2015
Posted to Indiana Government

Courts - "The man behind two blockbuster Supreme Court cases this week."

The Texas Monthly's Daily Roundup for Dec. 8th includes:

There’s a Texas-based Supreme Court case being heard on Tuesday, and for once it doesn’t have to do with abortion, guns, or executions.

This time the high court will weigh in on if political districts should be determined by actual population or the number of eligible voters. As the Dallas Morning News puts it, the case “essentially asks the high court to clarify the one-person, one-vote standard it articulated half a century ago by explaining that what it really meant was ‘one-voter, one vote.'”

That of course is opposed to the other idea that non-voters—such as children and, probably more importantly for Texas, non-citizens—should be counted when considering districts, as Texas and other states do now. If the two plaintiffs succeed, “legislatures in all 50 states, as well as city councils, county commissioners courts, school boards and any other political entity with population-based districts could be required to undergo the chaotic process of redrawing district lines based on the total number of registered voters (or possibly eligible voters), not the total population, as has been the case for decades in practically every state in the country,” writes the Austin American-Statesman.

The plaintiffs’ efforts are being financed by Edward Blum, the person behind behind Project on Fair Representation, which is also responsible for the affirmative action case being presented to SCOTUS on Wednesday “as well as the lawsuit that led to the 2013 decision that wiped away a key element of the federal Voting Rights Act.”

So one man is responsible for the affirmative action case being heard today, the one-man one-vote challenge heard yesterday, and the 2013 successful challenge to the Voting Rights Act?

Warren Richey of the Christian Science Monitor had a long story Dec. 7th, headed "The man behind two blockbuster Supreme Court cases this week." Some quotes:

Washington — The US Supreme Court is set this week to examine two potential landmark cases in back-to-back sessions on Tuesday and Wednesday.

The Tuesday case seeks to test compliance with the constitutional principle of one person, one vote in voting districts in Texas. Wednesday’s case challenges the use of race in an affirmative action admissions program at the University of Texas.

While it is unusual to have two such high-profile cases heard on consecutive days, what is even more unusual is that the two cases share the same origin. Both legal challenges were conceived and launched by the same man – Edward Blum of Austin, Texas.

In recent years Mr. Blum has emerged as a remarkably successful constitutional crusader. The cases on Tuesday and Wednesday will mark the fifth and sixth time one of his litigation projects has made it to the Supreme Court.

This would be an exceptional record for any appellate lawyer, but Blum isn’t even a lawyer.

Blum, a former stock broker, is under no illusions about the popularity of his lawsuits. Both of the current cases have drawn scorching criticism from major civil rights groups and advocates. Even the Republican-controlled State of Texas is pushing back against his approach in the voting case. * * *

Blum’s Project on Fair Representation was originally set up 10 years ago as an advocacy organization set up to educate the American public and lawmakers about what he terms the “pitfalls and mischievous evolution of the Voting Rights Act.” * * *

Blum has a reputation for not leaving anything to chance. He gives nearly as much consideration to the selection of an appropriate plaintiff as identifying the best lawyer to argue the case. His litigation projects are funded by conservative donors. Blum has no staff.

Also on Dec. 7, David H. Gans of the New Republic had a long article that began:
The country’s most dangerous legal mastermind returns to the Supreme Court this week.

Ed Blum is not a lawyer. Instead, he recruits plaintiffs, hires counsel, and helps to finance litigation designed to move the law sharply to the right on issues of race and voting. Two years ago, Blum helped to bring two cases to the Supreme Court, Shelby County v. Holder, which sought to gut the Voting Rights Act, and Fisher v. University of Texas, which was designed to strike down affirmative action in college admissions. Now, with two cases from Texas, including a second trip to the Supreme Court for the Fisher case, he is hoping to rewrite the Fourteenth Amendment’s broad guarantee of equality, seeking to sharply limit affirmative action on college campuses and deny unnaturalized immigrants, children, and others equal representation in state legislatures. Blum’s campaign seeks to turn the Fourteenth Amendment into an obstacle to efforts to ensure real equality, denying the government the power to redress our nation’s long history of racial discrimination.

Posted by Marcia Oddi on Wednesday, December 09, 2015
Posted to Courts in general

Ind. Gov't. - "Giving lenders the power to foreclose without going to court would be giving the foxes the keys to the hen houses"

Following up on Brian Eason's Indianapolis Star series on abandoned housing (see ILB post from Dec. 1), the Star today has a letter from Prof. Florence Wagman Roisman, Indiana University Robert H. McKinney School of Law:

Many thanks to The Star for its important series about abandoned housing in Indianapolis. Reforms are needed with respect to abandoned housing and with respect to housing that is occupied. Unscrupulous landlords subject many residents and neighbors to unhealthy and dangerous conditions for whichneither the city inspection system nor the courts provide redress.

However, Sen. Jim Merritt’s suggestion that Indiana abandon judicial foreclosure and adopt non-judicial, “power-of-sale” foreclosure should not be pursued. Lenders would love such a change, but homeowners and the public would be harmed by it. The shocking disclosures about “robo-signing” and other illegal activities by home mortgage lenders were made because about half the states require judicial supervision of foreclosures. If foreclosure were easier and faster, we’d have many more abandoned houses, and studies have shown how lenders fail to maintain those real estate owned properties. Giving lenders the power to foreclose without going to court would be giving the foxes the keys to the hen houses.

Posted by Marcia Oddi on Wednesday, December 09, 2015
Posted to Indiana Government

Ind. Decisions - Indianapolis attorney suspended early in 2014 without automatic reinstatement has now been reinstated

Updating this post from Feb. 14, 2014, here is a newly posted Dec. 4, 2015 order.

In the Matter of: Terrance L. Kinnard:

On February 10, 2014, this Court entered an order suspending Petitioner for not less than six months without automatic reinstatement, effective March 24, 2014. Petitioner filed a petition for reinstatement on March 16, 2015. Following proceedings before a hearing officer, on October 9, 2015, the Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(18)(b), filed its recommendation that Petitioner be reinstated to the practice of law in Indiana. * * *

The Court therefore GRANTS the petition for reinstatement and REINSTATES Petitioner as a member of the Indiana bar as of the date of this order. Petitioner shall pay any costs owing under Admis. Disc. R. 23(18)(d).

Posted by Marcia Oddi on Wednesday, December 09, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In Chuck W. Adams, Charles E. Howard, et al. v. ArvinMeritor, Inc., et al., a 30-page, 2-1 opinion, Judge Robb writes:

Chuck Adams and Charles Howard are inmates at the Indiana Department of Correction (“DOC”) Correctional Industrial Facility (“CIF”) in Madison County. Both Adams and Howard participate in an offender work program at CIF operated by Meritor. In a single complaint, Adams raised two legally independent but factually related claims: 1) a claim for unpaid wages against the Meritor and certain State defendants joined by Chuck Howard and all ArvinMeritor-Meritor-PEN Brake Shop Employees similarly situated, and 2) an individual personal injury claim against the Medical and additional State (“State-CIF”) defendants arising from injuries Adams allegedly sustained on the job. The trial court granted the Meritor and State defendants’ Trial Rule 12(B)(6) motions to dismiss the wage claim, which alleged there is no private right of action to sue for such wages. The trial court granted summary judgment to the Medical and State-CIF defendants on the personal injury claim on the basis of Adams’s failure to exhaust his administrative remedies.

Adams raises several issues on appeal, of which we address three: 1) whether a private right of action is available to enforce Indiana Code Title 11; 2) whether Adams was required to exhaust administrative remedies before bringing a personal injury action; and 3) whether Adams had a right to participate in a hearing on a number of motions.

We conclude Adams did have a private right of action to pursue his wage claim and therefore the trial court erred in granting the Meritor and State defendants’ motions to dismiss as to that claim.

We further conclude Adams had an available administrative remedy as to his personal injury claim but failed to pursue it to completion and therefore the trial court properly granted summary judgment to the Medical and State-CIF defendants.

Finally, we conclude Adams was allowed to participate in the hearing through the submission of documentary evidence and the trial court did not err in denying his motion to appear by video conference or same-day transport. We reverse in part and affirm in part. * * *

Mathias, J., concurs.
May, J., concurs in part, dissents in part. [that begins, on p. 25] I agree with the majority that the trial court properly granted summary judgment to the Medical and State-CIF defendants because Adams had an available administrative remedy as to his personal injury claim but failed to pursue it to completion, and that the trial court did not err in denying Adams’ motion to appear by video conference or same-day transport. But I believe the majority’s own analysis does not permit the result it reaches with regard to whether Adams had a private right of action to pursue his wage claim, and therefore respectfully dissent from that holding. * * *

Despite our statement in Kimrey that there must be an explicit right of action, the majority instead reverses the trial court based on what it concedes is an implicit right of action: “section 11-10-7-4 provides at least an implied right to sue.” (Slip op. at 11.) That result cannot be reconciled with our Kimrey statement, and I cannot accept the majority’s opinion that the Kimrey requirement of an “explicit” right of action can be satisfied by something only “implicit.”

In Michael Fish v. 2444 Acquisitions, LLC, a 12-page opinion, Judge Barnes writes:
Michael Fish appeals the trial court’s grant of a motion for relief from judgment filed by 2444 Acquisitions, LLC (“Acquisitions”). We reverse.

Fish raises several issues, one of which we find dispositive and restate as whether the trial court properly granted Acquisitions’s motion for relief from judgment. * * *

We reverse the trial court’s grant of Acquisitions’s motion for relief from judgment pursuant to Indiana Trial Rule 60(B).

NFP civil decisions today (0):

NFP criminal decisions today (9):

Henry Lee Shell, Jr. v. State of Indiana (mem. dec.)

Ivan R. Embry v. State of Indiana (mem. dec.)

Nicholas Cooper v. State of Indiana (mem. dec.)

Brian N. McClain v. State of Indiana (mem. dec.)

Harold Randy Hughes v. State of Indiana (mem. dec.)

Rashaun Curry v. State of Indiana (mem. dec.)

Trenton B. Holcomb v. State of Indiana (mem. dec.)

Scott Bowcock v. State of Indiana (mem. dec.)

Robert J. Maxie v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, December 09, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Tax Court will join Supreme Court and Court of Appeals in accepting e-filings, effective January 1st

The Court has just issued a news release announcing:

All appellate courts will accept electronically filed documents in January 2016. The Indiana Supreme Court and Court of Appeals recently began accepting e-filings, and the Tax Court will join the initiative in January 2016. Chief Justice Loretta Rush announced the implementation of e-filing in all appellate courts by signing the order for Tax Court e-filing.

Posted by Marcia Oddi on Wednesday, December 09, 2015
Posted to E-filing

Ind. Gov't. - "Prosecutor lobbies state to get aggressive, again, on drugs"

Maureen Hayden of CNHI writes today in the Greensburg Daily News of Aaron Negangard:

A county prosecutor from rural southeast Indiana, Negangard is convinced that the state has given up too quickly in its war on drugs. He is a fierce believer in the power of penalty. * * *

In the coming year, he’ll lead the charge from the Indiana Prosecuting Attorneys Council pressing lawmakers for a new criminal statute of “aggravated drug dealing.”

It would carry a 20-year mandatory sentence for a dealer whose customer ends up dead from drugs. Tougher penalties for other drug crimes, like dealing to a minor, will be included, as well.

“It won’t be an easy charge to prove,” he said. “But I’ve prosecuted cases like that before.”

The prosecutor in Dearborn County, Negangard says he’s waged his own war on drugs, with the rise of heroin and opioid abuse in rural Indiana. Much of that comes with his proximity to Cincinnati — a key stop on a heroin pipeline just up the Ohio River.

His aggressive style has critics at the Statehouse.

Advocates of last year’s law that dramatically reduced penalties for drug crimes, and emphasized treatment over incarceration, see him as obstinate and unwilling to give the reforms time to work.

They point to a 2010 study, by the Pew Charitable Trusts and the Council of State Governments Justice Center, which found that Indiana’s drug penalties were disproportionately tough and expensive for taxpayers.

Leading to sentencing reforms, the state’s prison population had shot up 47 percent in a decade. The study found Indiana, with no change, would need to spend another $1 billion a year on prisons by 2017.

Negangard would like lawmakers to glimpse how crazy his world can be.

“We’re the public safety experts,” he says of prosecutors. “We’re the ones on the front-lines.” * * *

Negangard doesn’t oppose treatment. He helped start his county’s drug court, which allows low-level offenders to avoid prison if they seek treatment. He also backs a local jail program that offered counseling to addicts long before legislators called for such measures.

But there aren’t nearly enough treatment dollars to go around, he said, and Negangard questioned the Legislature’s long-term commitment to the fight.

So far, lawmakers have set aside only $30 million in grants for communities. Much of that likely will go to the biggest counties, he said.

“There’s never been the needed resources committed to the war on drugs,” he said.

Posted by Marcia Oddi on Wednesday, December 09, 2015
Posted to Indiana Government

Ind. Decisions - "Security company may be liable for guard shooting East Chicago woman"

Yesterday's Supreme Court decision in Stacy Knighten v. East Chicago Housing Authority (ILB summary here) is the subject of a story today by Dan Carden of the NWI Times:

INDIANAPOLIS | An East Chicago woman paralyzed after being shot in the back by her then-boyfriend, a private security guard at her public housing complex, can seek damages from his employer.

The Indiana Supreme Court on Tuesday authorized a trial against Davis Security Service LLC to determine whether Donnell Caldwell, a Davis guard at the West Calumet Complex, was acting within the scope of his duties when he shot Stacy Knighten on Aug. 7, 2010.

According to court records, Caldwell was working the housing complex's entrance guard shack while he argued with Knighten about her spending his money and using his car to drive drunk to the liquor store.

At some point during the argument, Knighten damaged the entrance gate to the complex. After she began walking away, Caldwell drew his handgun and shot Knighten in the back, paralyzing her from the waist down, records indicate.

In its 5-0 decision, written by Justice Robert Rucker, a Gary native, the Supreme Court concluded that Lake Superior Judge John Pera and the Indiana Court of Appeals were too hasty in granting and approving summary judgement absolving Davis Security of liability.

The justices said a trial is needed to determine whether Caldwell was required by his employer to be armed at work, and whether his shooting of Knighten was in keeping with his duty "to deter or mitigate the risk of loss" at the housing complex.

The high court noted that typically employers are not liable if an employee engages in a wrongful act at work, so long as the conduct is not intended by the employee to serve any purpose of the employer.

In this case, the justices said it is possible Caldwell's shooting Knighten may have been work-related. As such, summary judgment is not appropriate and a trial is necessary to determine the facts.

Posted by Marcia Oddi on Wednesday, December 09, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: "Same-sex couples sue state over birth certificates"

Updating yesterday's post, David Wells' Courthouse News Service story Tuesday, headed "Gay Couples Challenge Birth Certificate Rules," includes a useful link to the birth certificate worksheet:

Many of the plaintiffs' concerns grow out of Indiana's seemingly antiquated birth certificate procedures. On the state's birth certificate worksheet, it asks many questions about the parentage of the child, but specifically refers only to a father as the other parent.

Posted by Marcia Oddi on Wednesday, December 09, 2015
Posted to Indiana Courts

Ind. Courts - "Re-sentencing date set for three of the Elkhart Four"

Updating this ILB post from Dec. 2nd, Michelle Sokol of The Elkhart Truth reported yesterday:

After the Indiana Supreme Court overturned their murder convictions and shot down the state’s request for a rehearing, three of the so-called Elkhart Four are set to be re-sentenced for lesser burglary charges in early 2016.

A sentencing hearing is set for 8:30 a.m. Jan. 7 for Levi Sparks, Blake Layman and Anthony Sharp, who were originally sentenced to decades in prison for their role in a 2012 burglary that resulted in a fatal shooting.

While those three were originally convicted for the controversial felony murder charge, the Indiana Supreme Court instructed the local Elkhart Circuit Court to instead charge them with burglary. A fourth man, Jose Quiroz, was also involved, but he pleaded guilty and was not affected by the high court’s decision.

Layman and Sharp received a sentence of 55 years in prison from the original felony murder conviction, and Sparks received a 50-year sentence. The Class B felony charge of burglary, however, carries a maximum sentence of 20 years.

Elkhart Circuit Court Judge Terry Shewmaker, who presided over the four-day trial in August 2013, will be the same judge to preside over the re-sentencing hearing. * * *

Elkhart County Prosecutor Curtis Hill has stood by his interpretation of the felony murder law, and has prosecuted other cases in a similar manner. [ILB emphasis] Among those was the case of Freddie Rhodes and Deante Dalton, who were convicted in June 2015 of felony murder for the shooting death of their accomplice, DreTarrious Rodgers, who died during a home invasion the three took part in.

Rhodes was sentenced to 58 years for his role in the death and Dalton was sentenced to 55 years.

The Indiana Supreme Court’s Elkhart Four decision did not automatically overturn the felony murder convictions of Rhodes and Dalton, but their attorneys are in the process of appealing their cases.

Posted by Marcia Oddi on Wednesday, December 09, 2015
Posted to Indiana Courts

Tuesday, December 08, 2015

E-filing - Implementation: How is it going so far?

Pretty smoothly, the ILB has heard so far, but with a few glitches. It is, of court, still in pilot.

Posted by Marcia Oddi on Tuesday, December 08, 2015
Posted to E-filing

Courts - Updating "West Virginia Coal Country Sees New Era as Donald Blankenship Is Indicted"

Updating this ILB post from Dec. 2, 2014, The New Yorker's Evan Osnos reported the verdict last week in this long Dec. 3rd story headed "Don Blankenship, West Virginia’s 'King of Coal,' Is Guilty." A quote:

Today, after a six-week trial, jurors convicted Blankenship of one misdemeanor for conspiring to violate safety rules and acquitted him of felony charges of lying about it. It was a compromise verdict: the jurors had deliberated for ten days, and had twice told the judge that they could not agree, before being urged to continue until they’d reached a conclusion. For some observers, the verdict, which carries with it a maximum sentence of one year in prison, was disappointing, but it was a milestone; Blankenship became, as the Times put it, “the most prominent American coal executive ever to be convicted of a charge connected to the deaths of miners.” It was justice, of a kind. Judy Jones Peterson, whose brother died in the mine, told reporters, “Even if Don Blankenship wasn’t convicted of all of these crimes, he is guilty, my friends.”

The most lasting legacy may reside in the trial itself: the portrait, revealed in internal memos and recordings, of a toothless regulatory system and a corporate culture that exposes the men and women of Appalachia to extraordinary risk.

For more see this NYT story from the same day, "Mixed Verdict for Donald Blankenship, Ex-Chief of Massey Energy, After Coal Mine Blast," by Alan Blinder.

And today the Times has an editorial titled "The Dirty Work of a Coal Baron Exposed."

Posted by Marcia Oddi on Tuesday, December 08, 2015
Posted to Courts in general

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

For publication opinions today (0):

NFP civil decisions today (1):

Cynthia Liggins v. Ralph Smith and Tammeka Smith and Attorney General of Indiana (mem. dec.)

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Tuesday, December 08, 2015
Posted to Ind. App.Ct. Decisions

Indiana Decisions - Supreme Court decides one today

In Stacy Knighten v. East Chicago Housing Authority, Individually and d/b/a West Calumet Complex, Davis Security Service, LLC, and Donnell Caldwell, an 8-page, 5-0 opinion, Justice Rucker writes:

While on duty a security guard shot and severely injured a person with whom he was romantically involved. The injured party filed a complaint against the security guard’s employer under the theory of respondeat superior. The trial court granted the employer’s motion for summary judgment. Concluding there are genuine issues of material fact precluding summary disposition, we reverse the trial court’s judgment. * * *

In the end, the scope and extent of Caldwell’s duties and responsibilities as an employee of Davis Security, and whether in discharging his weapon Caldwell engaged in conduct consistent with his duties and responsibilities, and thus whether this act was done “to an appreciable extent, to further his employer’s business[,]” Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003) (quoting Celebration Fireworks, 727 N.E.2d at 453), are matters that cannot be resolved by summary disposition. In fact “[i]t is well established that whether an employee’s actions were within the scope of employment is a question of fact to be determined by the factfinder.” Walgreen Co. v. Hinchy, 21 N.E.3d 99, 107 (Ind. Ct. App. 2014) (citing Trinity Lutheran Church, Inc. v. Miller, 451 N.E.2d 1099, 1102 (Ind. Ct. App. 1983)).

Conclusion. We reverse that portion of the trial court’s order granting summary judgment in favor of Davis Security based on Knighten’s respondeat superior claim. This cause is remanded for further proceedings.

Posted by Marcia Oddi on Tuesday, December 08, 2015
Posted to Ind. Sup.Ct. Decisions

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

In BBL, Incorporated v. City of Angola (ND Ind., Miller), a 24-page opinion, Judge Sykes writes:

Alva and Sandra Butler and their company, BBL, Inc. (we’ll refer to them collectively as “BBL”), purchased a restaurant in the City of Angola, Indiana, and planned to convert it to an adult-entertainment venue featuring nude dancing. Within days of the purchase, Angola amended its zoning and other ordinances to make this use of the property impossible. The Butlers and their company brought this suit alleging claims for violation of their rights under the First Amendment and Indiana law. They moved for a preliminary injunction. The district court denied the motion, and the plaintiffs took this interlocutory appeal seeking review of that decision. See 28 U.S.C. § 1292(a)(1) (authorizing interlocutory appeal of orders granting or denying injunctive relief).

The appeal is a procedural and substantive tangle. The judge denied the preliminary-injunction motion in a brief discussion at the end of a 73-page omnibus order addressing multiple motions then pending before the court. Included in the package of motions was a request by the City for judgment on the pleadings on certain parts of the legal test applicable to BBL’s First Amendment claim. The judge granted this motion, leaving the final step in the First Amendment analysis for later decision. That approach was unusual; we question whether “judgment” on the pleadings can be granted on intermediate steps in a doctrinal test. This procedural step affected the judge’s decision on the preliminary-injunction motion.

Still, the judge was right to deny the motion. At the preliminary-injunction hearing, BBL made a tactical decision not to contest the City’s evidence that the challenged ordinances were designed to reduce the negative secondary effects of adult-entertainment establishments. BBL thus stipulated away the key factual issue in the analysis of the First Amendment claim. To the extent that the preliminary-injunction motion was premised on the state-law claims, the judge also correctly denied it. [ILB emphasis]

BBL attacks other aspects of the judge’s omnibus order, but our jurisdiction is limited to the denial of preliminary injunctive relief. On that issue, we affirm.

Posted by Marcia Oddi on Tuesday, December 08, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Same-sex couples sue state over birth certificates" [Updated]

From a long, front-page story today in the Indianapolis Star, reported by Stephanie Wang. Some quotes:

Along with another Central Indiana couple, the Phillips-Stackmans filed a lawsuit Monday in the U.S. Southern District of Indiana in Indianapolis against the state and local health departments to have both same-sex parents named on their children's birth certificates.

The state only lists Lisa as Lola's mother, because Lisa carried and delivered her. In order for Jackie to legally be Lola's mom, she would have to adopt her — even though Lola is biologically Jackie's child.

"There's just no space for two moms," Jackie Phillips-Stackman, 37, said. "This is all new ground that our state is having to travel."

Earlier this year, several Indiana families, led by Ashlee and Ruby Henderson of Lafayette, also filed a similar lawsuit against the state and county health departments. [ILB: See below for more on this.] One of the attorneys on both cases, Karen Celestino-Horseman, said this is an issue created by part of the law not catching up to the recent legalization of same-sex marriages.

Birth certificates, the lawsuits allege, continue to treat marriage as being between a man and a woman, without giving equal recognition to married same-sex couples.

If a mother is married to a man, he is presumed to be the child's father — even in cases of artificial insemination. Or, a mother can provide other paternity information.

But if a mother is married to a woman, the female spouse receives no legal status in relation to the child.

"The thought of having to adopt my own child just rubbed me wrong, especially with all the planning we had done," Jackie Phillips-Stackman said. "It's offensive."

A birth certificate, the lawsuits said, is a vital record that is often necessary for parents to register a child in school, make medical decisions, line up Social Security and inheritance benefits, or list a child as a dependent on insurance and income taxes.

For the Phillips-Stackmans, there were no issues with the hospital or insurance recognizing Jackie as a mother. But since Jackie is an Indianapolis Metropolitan Police Department detective, she said the omission on the birth certificate could cause other problems.

If their parents are killed in the line of duty, children of police officers can receive college tuition assistance and a monetary death benefit. * * *

Several other states have recently grappled with this same issue. In Nebraska, for example, the state agreed to change its birth certificate policies after couples brought a lawsuit, according to news reports. In Utah and Arkansas, judges ruled in favor of married same-sex couples.

The Indiana State Department of Health declined to comment on the pending litigation.

Indiana Attorney General Greg Zoeller, whose office represents state agencies in court, said in a statement: “There are many legal unknowns following the U.S. Supreme Court's decision of June striking down marriage statutes in many states. It may take time for the lower courts to resolve any remaining issues surrounding the complex, interwoven system of laws involving birth records, divorce and parental rights, property and tax laws. Challenges to Indiana statutes require the Attorney General’s Office as state government’s lawyer to defend the laws passed by the people’s elected representatives in the Legislature.”

ILB: Here is a copy of the 43-page plaintiffs' brief in support of their motion for summary judgment in the case of ASHLEE and RUBY HENDERSON, a married couple and L.W.C.H., by his parent and next friend Ruby Henderson, et al., Plaintiffs, vs. DR. JEROME M. ADAMS, in his official capacity as Indiana State Health Commissioner, et al.

And here is the complaint filed yesterday
, Dec. 7th, in NOELL and CRYSTAL ALLEN, a married couple; JACKIE and LISA PHILLIPS-STACKMAN, a married couple and L.J.P-S, by her mother and next friend, Lisa Phillips-Stackman, Plaintiffs, vs. DR. JEROME M. ADAMS, in his official capacity as Indiana State Health Commissioner, et. al.

[Updated at 11:08 AM] Here is a background story on the Henderson case, reported Feb. 13th by Dave Bangert of the Lafayette Journal & Courier.

Posted by Marcia Oddi on Tuesday, December 08, 2015
Posted to Indiana Courts

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

On August 20th, the ILB quoted at length from a 2-1 7th Circuit opinion, Jeffrey Rowe v. Monica Gibson, where Judge Posner, who authored the opinion, had performed extensive internet research. Judge Hamilton, in dissent, wrote in part:

On that claim, the reversal is unprecedented, clearly based on “evidence” this appellate court has found by its own internet research. The majority has pieced together information found on several medical websites that seems to contradict the only expert evidence actually in the summary judgment record. With that information, the majority finds a genuine issue of material fact on whether the timing of Rowe’s Zantac doses amounted to deliberate indifference to a serious health need, and reverses summary judgment. (The majority denies at a couple of points that its internet research actually makes a difference to the outcome of the case, see ante at 14, 16, but when the opinion is read as a whole, the decisive role of the majority’s internet research is plain.)
As the Wisconsin Appellate Law blog reported yesterday, there was a vote to rehear the case en banc:
The results are in this afternoon in the Seventh Circuit’s vote to rehear en banc Rowe v. Gibson, No. 14-3316 (Aug. 19, 2015), and it was a close one, a 4-4 tie, which means that the majority’s opinion stands, though not without an extraordinary exercise in defensiveness by the panel majority (but more on that below).

A vote of the majority of the judges in regular active service on the Seventh Circuit was required to rehear the case en banc, leaving the petitioner one vote short.

There are currently nine judges in regular active service on the court, but Judge Joel Flaum did not participate in the vote, creating the potential for a deadlocked court since there were only eight votes left to be cast. Judges Frank Easterbrook, Michael Kanne, Diane Sykes, and David Hamilton (the last of whom wrote a stinging dissent in Rowe) voted to rehear the case en banc. Chief Judge Diane Wood and Judges Richard Posner, Ilana Diamond Rovner, and Anne Claire Williams voted to deny the petition for rehearing.

The post continued with an interesting discussion of how, in "what we think was a highly unusual and defensive move, the panel majority (Judges Posner and Rovner) used the court’s order denying the petition for rehearing en banc today" to defuse the issue, to explain "that the panel’s debate over internet research, while “lively,” was not essential to its decision to overturn the district court’s grant of summary judgment."

Read the entire post, by Eric G. Pearson, here
.

Posted by Marcia Oddi on Tuesday, December 08, 2015
Posted to Ind. (7th Cir.) Decisions

Monday, December 07, 2015

Ind. Gov't. - Elkhart County prosecutor announces run for Attorney General

Here is the story from Tim Vandenack of The Elkhart Truth. Some quotes:

Elkhart County Prosecutor Curtis Hill, responsible for prosecuting criminal suspects here since 2003, is no longer just thinking about running for Indiana attorney general.

At a press conference in Indianapolis on Monday he announced that he’s a candidate, surrounded, according to a press release, by law enforcement officials and fellow prosecutors from around the state.

“The extent of encouragement and support I have received has been nothing short of overwhelming,” Hill said, according to WISH TV. His statement said he had received more than $100,000 in contributions since announcing he had formed an exploratory committee to look into a potential bid.

Hill, a Republican first elected county prosecutor in 2002, is seeking to become the first African-American Republican to appear on a statewide ballot in Indiana, according to WISH. He was in Indianapolis and not immediately available for additional comment.

The incumbent attorney general, Republican Greg Zoeller, is not seeking re-election and is instead running for the 9th District U.S. House seat in south-central Indiana. Steve Carter, a Republican and former two-term attorney general, also plans to run for the attorney general seat, according to his website. Indiana Sen. Randy Head, a Republican, has also been cited as a possible candidate, while Lorenzo Arredondo, a Democratic former Lake County judge, has formed a committee in advance of a possible bid for the post as well.

Each party in Indiana picks its hopeful for the attorney general’s slot at a convention, where delegates from around the state make the call. The GOP convention is set for June. The candidates selected at each party convention are then put on the November general ballot, at which point voters make the call. * * *

The incumbent attorney general, Republican Greg Zoeller, is not seeking re-election and is instead running for the 9th District U.S. House seat in south-central Indiana. Steve Carter, a Republican and former two-term attorney general, also plans to run for the attorney general seat, according to his website. Indiana Sen. Randy Head, a Republican, has also been cited as a possible candidate, while Lorenzo Arredondo, a Democratic former Lake County judge, has formed a committee in advance of a possible bid for the post as well.

Each party in Indiana picks its hopeful for the attorney general’s slot at a convention, where delegates from around the state make the call. The GOP convention is set for June. * * *

The Elkhart County Prosecutor’s Office website says Hill is “well-known for taking a hard line against career and hardened criminals” but has also initiated “creative programs in alternative justice” for less serious offenders. Of late, one of the highest profile and most controversial cases in Hill’s office has been prosecution of the so-called Elkhart Four.

His office’s efforts resulted in felony murder convictions against four males involved in a 2012 home burglary that led to the shooting death of one of their fellow conspirators by the homeowner, who cited self-defense. The murder convictions against three were overturned earlier this year by the Indiana Supreme Court, which instructed the Elkhart Circuit Court to find them guilty of felony burglary instead.

Posted by Marcia Oddi on Monday, December 07, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (3):

In Brad Barton v. Alexandra Barton , a 21-page opinion, Judge Crone writes:

In a consolidated appeal, Brad Barton (“Husband”) appeals the trial court’s decree dissolving his marriage to Alexandra Barton (“Wife”) and the trial court’s subsequent order denying his motion for relief from judgment on the basis of fraud or misrepresentation. On appeal, Husband contends that each of the appealed orders constitutes an abuse of discretion. We conclude that the trial court did not abuse its discretion in denying Husband’s motion for relief from judgment and we affirm that order in its entirety. Regarding the dissolution decree, we conclude that the trial court did not abuse its discretion in awarding incapacity spousal maintenance and attorney’s fees to Wife. However, we conclude that the trial court erred in dividing the marital estate, namely in valuing and dividing Husband’s pension and deferred tax savings plan. Therefore, we affirm in part, reverse in part, and remand with instructions.
In Michael A. Wartell v. Lawrence H. Lee , a 13-page opinion, Judge Mathias writes:
Dr. Michael Wartell (“Wartell”), former Chancellor of Indiana University Purdue University Fort Wayne (“IPFW”), filed a complaint in Allen Superior Court against Lawrence Lee (“Lee”), alleging among other claims, defamation per se because Lee sent a private letter to then-Purdue president Dr. France Córdova (“Córdova”) urging her to deny Wartell’s request for an exception to Purdue’s retirement policy. The trial court subsequently granted Lee’s motion for partial summary judgment on the claim of defamation per se. Wartell now appeals and argues that the trial court erred in concluding that Lee’s statements in the letter to Córdova did not constitute defamation per se. We affirm.
In Phillip Whitley v. State of Indiana, a 17-page opinion, Judge Mathias writes:
Phillip Whitley (“Whitley”) was charged in Marion Superior Court with Class A felony dealing in methamphetamine, Class C felony possession of methamphetamine, Class D felony possession of a controlled substance, and Class A misdemeanor driving while suspended. The evidence supporting the charges was discovered during an inventory search of the vehicle Whitley was driving. Whitley filed a motion to suppress this evidence, arguing the warrantless search violated his constitutional rights under the Fourth Amendment and Article 1, Section 11. The trial court denied Whitley’s motion to suppress, certified its decision, and our court has accepted jurisdiction of this interlocutory appeal. * * *

The circumstances in this case present more than a minor deviation from IMPD’s General Order 7.3 on Towing and Impounding Vehicles. * * *

The search of the truck was reasonable under the Fourth Amendment and Article 1, Section 11. We therefore affirm the trial court’s denial of Whitley’s motion to suppress.

NFP civil decisions today (2):

In the Matter of the Term. of the Parent-Child Relationship of: A.D. and C.D. and Ch.D. and Cl.D. v. Ind. Dept. of Child Services (mem. dec.)

In Re the Adoption of: B.B. (Minor Child), K.B. v. J.K. (mem. dec.)

NFP criminal decisions today (5):

Mark Hurst v. State of Indiana (mem. dec.)

Richard L. Berg v. State of Indiana (mem. dec.)

James E. Pugh v. State of Indiana (mem. dec.)

Antonio Floyd v. State of Indiana (mem. dec.)

Bruce Ashby v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, December 07, 2015
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS leaves intact an assault weapon ban that had been upheld by 7th Circuit

Lyle Denniston of SCOTUSblog has coverage of today's cert denial here. The case, out of the 7th Circuit, was Friedman v. City of Highland Park.

See also this story by David G. Savage of the LA Times, headed "Supreme Court lets local ban on assault weapons stand."

Posted by Marcia Oddi on Monday, December 07, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending December 4, 2015

Here is the Clerk's transfer list for the week ending Friday, December 4, 2015. It is one page (and 17 cases) long.

One transfer was granted last week:

In addition, there was one case last week where transfer was denied by a 3-2 vote:

Posted by Marcia Oddi on Monday, December 07, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - Legislative pay: Indiana's "part-time citizen legislators" make over $60,000 a year

That was the report Sunday from Tony Cook on the front-page of the Indianapolis Star. The long story begins:

Ask Indiana lawmakers about possible conflicts between their private jobs and public work and you’ll hear a common refrain: Such dilemmas are inevitable in a part-time citizen legislature.

But an Indianapolis Star review of lawmaker compensation found that legislators receive an average of about $60,000 a year. Some receive more than $70,000.

That’s far more than the average Hoosier (Indiana’s median household income is $48,248). It's also similar to what lawmakers in some states receive for working full time.

In Indiana, lawmakers receive a relatively modest base salary of $24,140. Most of their compensation comes from a per diem, which is $159 a day during the legislative session. That money is intended to cover the costs of meals and hotels, but lawmakers receive it regardless of whether they actually incur those expenses. Lawmakers who live in or near Indianapolis can simply pocket it. There is also extra pay for leadership positions.

Still, most lawmakers have some source of outside income. The result can be an ethical minefield.

Posted by Marcia Oddi on Monday, December 07, 2015
Posted to Indiana Government

Law - Reverse mortgages and issues for heirs

An important story this weekend in the Washington Post, reported by Marcie Geffner and Kathy Orton, is titled "Reverse mortgages require a lot of forward thinking before committing." A few quotes from the long story:

Experts say the key to avoiding ... problems is for borrowers to understand the full ramifications of a reverse mortgage on their children and spouses. If they want their heirs to inherit the home, they need to put mechanisms in place beforehand.

Reverse-mortgage lenders say these loans are intended to benefit the homeowners by providing them with an income source. Recent policy changes have led to greater consumer protections. Still, these loans can become stressful and problematic after the borrower dies.

The long, informative story includes useful links to other articles.

Posted by Marcia Oddi on Monday, December 07, 2015
Posted to General Law Related

Ind. Courts - "In Indiana, the wrongfully convicted are on their own"

In a good front-page Indianapolis Star story today, Kristine Guerra reports:

People who are wrongfully convicted and released from prison in Indiana are left almost entirely on their own, with no help from the government that placed them behind bars. Compared with the rest of the nation, experts say Indiana has been sluggish in implementing reforms that would assist innocent people who leave prison after years of incarceration.

Just because the system exonerates someone does not “equate to money in their pockets,” said Fran Watson, law professor at the Indiana University Robert H. McKinney School of Law in Indianapolis. Some choose to file wrongful conviction lawsuits and are awarded settlements, but only after a lengthy civil litigation.

Unlike Indiana, about 30 states, as well as the federal government and the District of Columbia, automatically provide some form of financial compensation when someone has been wrongfully convicted, whether it was caused by official misconduct or a mistake by either witnesses or investigators.

The report points out that Texas "provides exonerees $80,000 for every year they were falsely imprisoned," and Illinois:
...provides about $85,000 for those who served up to 5 years in prison, $170,000 for those who served between 5 and 14 years, and about $199,000 for those who served more than 14 years. Illinois also makes available education and insurance plans and offers job training and housing assistance to exonerees.
18 people have been officially exonerated in Indiana. More from the story:
Justice advocates say the problem in Indiana is exacerbated because the state not only lags many others in assistance to the wrongfully accused, it also lacks some important best practices that prevent wrongful convictions in the first place.

For example, Indiana lacks specific safeguards to prevent eye witness misidentification, the leading cause of wrongful convictions in the country, according to the Innocence Project.

Model legislation suggested by the Innocence Project would require that whoever is showing a photo lineup to witnesses does not know which person investigators believe is the suspect. That lessens the likelihood that someone would make suggestive statements to stir witnesses toward identifying someone. The legislation also would require witnesses to describe in their own words how certain they are of their identification.

Indiana, however, has made some strides in certain areas. Under the Indiana Rules of Evidence, police interrogation of suspects should not be presented as evidence in court unless it’s recorded in a video that captures facial expressions and body language of both the suspect and the interrogator.

Indiana also allows people who are convicted of murder and Class A, B and C felonies to request testing of DNA evidence after they’ve been sentenced. But the Innocence Project’s Brown said this points to another loophole in Indiana: DNA evidence is preserved only after someone has petitioned for testing, and there’s no law requiring automatic preservation of any kind of evidence that was presented in court.

“There’s a huge hole in the law that enables the destruction of evidence legally,” Brown said. “In many instances, it takes somebody years to petition DNA testing in the first place.”

Watson, who runs a local Innocence Project network at Indiana University-Purdue University in Indianapolis, said enacting a law that governs evidence preservation would be a good starting point for Indiana. She said she has advocated for it in the legislature, but with very little success.

“It’s important that the evidence be preserved because science changes,” Watson said. “If science is going to continue to evolve, you would want a strong law about what you keep or don’t keep and how you keep it and how long you keep it.”

Posted by Marcia Oddi on Monday, December 07, 2015
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, December 10

Next week's oral arguments before the Supreme Court (week of 12/14/15):

Thursday, December 17

Webcasts of Supreme Court oral arguments are available here.


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

Monday, December 7

Tuesday, December 8

Wednesday, December 9

Next week's oral arguments before the Court of Appeals (week of 12/14/15):

Monday, December 14

Tuesday, December 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, December 07, 2015
Posted to Upcoming Oral Arguments

Friday, December 04, 2015

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 3 NFP memorandum decision(s))

For publication opinions today (4):

In Old Utica School Preservation, Inc., Kenneth Morrison, Scott Sandefur, and Pam Sandefur v. Utica Township, John Durbin as Township Trustee, Jacob's Well, Inc., Kevin Williar, John Posey, et al., a 15-page opinion, Judge May writes:

Old Utica School Preservation, Inc.; Kenneth Morrison; Scott Sandefur; and Pam Sandefur (collectively, “Citizens”) appeal the denial of their Motion for Declaratory Judgment and Motion for Mandatory Injunction against Utica Township; John Durbin as Township Trustee; Jacob’s Well, Inc.; Kevin Williar; John Posey; Anthony Glotzback; and Barbara Williar (collectively, “Appellees”). * * *

The trial court correctly determined the School was used for park and recreation purposes as required by the deed because portions of the building were available to the general public and used for recreational purposes. The trial court also correctly determined the Citizens did not demonstrate an irreparable injury that would make a mandatory injunction appropriate. However, the trial court erred when it determined the School was conveyed in fee simple subject to condition subsequent. We therefore affirm in part, reverse in part, and remand for correction of the declaratory judgment to indicate the property was conveyed with a restrictive covenant.

In Sara Ellison v. Town of Yorktown, Indiana, a 20-page opinion, Judge Robb writes:
The Town of Yorktown initiated condemnation proceedings against Sara Ellison seeking to appropriate two permanent easements and one temporary construction easement on her property; specifically, Yorktown planned to construct a storm sewer and a residential hiking trail on Ellison’s property Thereafter, the parties entered into settlement negotiations. After the parties purportedly reached a settlement agreement, Ellison executed the storm sewer and temporary construction easements, but did not execute the residential trail easement. As a result of the alleged breach of the settlement agreement, Yorktown filed an amended complaint seeking to exercise its right of eminent domain on the residential trail easement and to enforce the agreement the parties negotiated through counsel. Yorktown moved for summary judgment, arguing the parties reached a settlement agreement that satisfied the Statute of Frauds and Ellison breached the agreement when she sought additional consideration before fulfilling her end of the bargain. The trial court granted the motion and entered judgment in favor of Yorktown. On appeal, Ellison raises one issue, which we restate as whether the trial court erred in granting summary judgment in favor of Yorktown. Concluding there is no genuine issue of material fact and Yorktown is entitled to judgment as a matter of law, we affirm. * * *

We hold there is no genuine issue of material fact as to whether the parties agreed to settle the eminent domain action, whether Ellison breached the terms of the settlement, and whether the parties’ agreement satisfies the Statute of Frauds. Because we conclude the parties formed a valid settlement agreement that satisfies the Statute of Frauds and Ellison breached the agreement, we conclude the trial court did not err in granting summary judgment in favor of Yorktown. We affirm.

In Dannie Carl Pattison v. State of Indiana , a 12-page opinion, Judge May writes:
Dannie Carl Pattison appeals his conviction of Class D felony operating a vehicle with an alcohol concentration equivalent (ACE) of .08% or more with a prior conviction within the last five years. Pattison asserts a jury instruction included a constitutionally impermissible evidentiary presumption that shifted the burden of proof to him on an element of the offense. We reverse. * * *

Because the error caused by the court’s constitutionally infirm jury instruction was neither corrected by the court’s other instructions nor harmless based on the other evidence presented, we must reverse Pattison’s conviction.

In Jordan Pribie v. State of Indiana , a 20-page opinion, Judge Baker writes:
Jordan Pribie appeals his conviction of Class B Felony Rape. He argues that the trial court incorrectly found certain evidence to be barred by Indiana Evidence Rule 412, and that its exclusion violated his constitutional right to a fair trial. He also alleges two instances of juror misconduct and argues that these also violated his constitutional right to a fair trial. Finding that the trial court properly excluded the evidence and that no juror misconduct violated his rights, we affirm. * * *

In sum, the trial court did not abuse its discretion when it excluded the evidence of unknown male DNA, nor did it abuse its discretion to deny the motion to correct errors where the bailiff’s improper communication was harmless and the trial court found that the jury did not hear extraneous information.

NFP civil decisions today (0):

NFP criminal decisions today (3):

Charles B. Jones v. State of Indiana (mem. dec.)

Marcus Jovan Lindsey v. State of Indiana (mem. dec.)

Leo John Conley v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, December 04, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court posts one today, decided Dec. 3

In Marion County Assessor v. Gateway Arthur, Inc., a 9-page opinion, Sr. Judge Fisher writes:

This case examines whether the Indiana Board of Tax Review erred in reducing Gateway Arthur, Inc.’s real property assessment for the 2006 tax year. The Court finds that the Indiana Board did not err.

Posted by Marcia Oddi on Friday, December 04, 2015
Posted to Ind. Tax Ct. Decisions

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

In Anne Hill v. Carolyn Colvin, a 20-page opinion including a Posner concurrence beginning on p. 15, Judge Williams writes:

An administrative law judge disbelieved Anne Hill’s testimony that she could not sit, stand, or walk for extended periods of time and denied her application for Disability Insurance Benefits and Supplemental Security Income. In this action arising under 42 U.S.C. § 405(g), Hill challenges this adverse credibility finding as well as the ALJ’s assessment of her residual functional capacity. We agree with Hill that the ALJ’s credibility analysis was flawed and remand the case to the agency for further proceedings. * * *

POSNER, Circuit Judge, concurring. I join Judge Williams’s majority opinion without reservations. I write separately only to focus attention on what seems to me a persistent, serious, and often ignored deficiency in opinions by the administrative law judges of the Social Security Administration denying social security disability benefits (or, what is similar, supplemental security income). The deficiency concerns testimony by vocational experts employed by the Administration concerning the number and types of jobs that an applicant deemed not to be totally disabled could perform, and the evaluation of that testimony by administrative law judges. This deficiency has recently been attracting critical attention.

Posted by Marcia Oddi on Friday, December 04, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "CVS wins another tax appeal; ruling could cost Monroe County $129K"

The ILB had a post on Aug. 25th (the first in a series) headed "First it was the big boxes, now the CVS stores ...". Today Ernest Rollins reports in the Bloomington Herald-Times in a $$ story that begins:

The CVS store along Ind. 46 in Ellettsville could get an estimated $129,000 tax refund after the Indiana Board of Tax Review ruled in its favor following an appeal of the county’s assessments.

This is the second appeal the county has lost involving CVS stores within Monroe County, bringing the total of the potential refund to the national pharmaceutical chain to $277,000, not including interest that might be due. The Ellettsville store appealed assessments from 2007 to 2013, and the board of tax review ruling reduced the assessments for each of those years. In some cases there was a $1 million difference between the old and new assessments.

The tax review board did the same in August when it ruled in favor of the CVS store located on College Avenue that appealed assessments between 2009 and 2013. If the county pays that refund, it would be out an estimated $148,000. There are also CVS appeals pending at three more locations throughout the county, County Auditor Steve Saulter said, adding that each appeal is for multiple years of assessments.

ILB: The IBTR website has been updated to include decisions issued during the month of November.

Posted by Marcia Oddi on Friday, December 04, 2015
Posted to Indiana Government

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

Updating this lengthy Nov. 20th ILB post, which began:

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.

But yesterday, as Teresa Auch Schultz reports in the Gary Post-Trbune, "Lake County pols lose bid to keep office and municipal jobs." The long story begins:
A federal judge ruled against five elected officials in Lake County seeking through a lawsuit to keep both their jobs and their political seats.

U.S. District Judge Philip Simon said in his order dismissing the lawsuit Thursday that the state of Indiana had shown it had a compelling interest to pass a law banning elected officials from working for the governments they represented.

The state passed the law in 2012 with the intention of ending elected officials from voting on their own salaries and benefits. The law was grandfathered for then-current office holders until Jan. 1, when any elected official still working for their town or city would automatically lose their job.

"It strikes me as entirely reasonable for the General Assembly to have wanted to avoid a situation where elected officials are allowed to feather their own nests," Simon said in his ruling.

Simon also pointed to other possible situations of a conflict of interest, such as a police officer voting on whether police should wear body cameras.

"Judge agrees five Lake pols must give up one of two paychecks" is the headline to Bill Dolan's NWI Times story on the ruling, that concludes:
Simon stated this new law doesn't impose unconstitutional burdens on the five defendants who can run for office anywhere but in their hometowns. He said it is similar to other constitutional laws forbidding felons from holding public office or requiring officials to live within their community.

Posted by Marcia Oddi on Friday, December 04, 2015
Posted to Ind Fed D.Ct. Decisions | Indiana Government

Ind. Courts - "Prosecutors say federal judge wasn't asleep, Soderquists shouldn't get new trial"

Updating ILB posts from Sept. 23rd and 28th, Sarah Reese reports in the NWI Times:

HAMMOND | Federal prosecutors say they reviewed courtroom security video and found no reason former Lake Station Mayor Keith Soderquist and wife Deborah should be granted a new trial.

The Soderquists were convicted Sept. 11 of improperly using money from Keith Soderquist's campaign fund and the city's food pantry account to gamble.

They're seeking a new trial and have moved to disqualify U.S. District Judge Rudy Lozano based on claims the judge fell asleep at least two times during their trial.

The U.S. attorney's office said in a recent court filing that Lozano appeared "less than completely attentive" during 2 to 2.5 minutes of their trial, which included dozens of hours of testimony and spanned seven days. Nothing in trial transcripts "supports an inference that the court was sleeping during trial," the filing says.

"The defendants fail to state with any specificity how they have been deprived of any due process right," the filing says. "For example, they do not claim that the alleged inattention of the court led to any erroneous ruling or allowed inadmissible evidence to be presented to the jury.

"Furthermore, the defendants fail to assert what the court should have done differently and how the claimed inattentiveness may have affected the outcome of this trial." * * *

Scott King, attorney for the Soderquists, on Wednesday filed a motion seeking to delay the couple's Dec. 15 sentencing for about 45 days.

Defense attorneys are preparing a reply to the government's filing that will include a request for an evidentiary hearing, the motion says.

And from a Nov. 5th story by reporter Reese:
HAMMOND | The U.S. attorney's office will not be permitted to individually view recordings from the September trial of former Lake Station Mayor Keith Soderquist and his wife, Deborah, federal court records show. * * *

Prosecutors had sought the individual viewing because Scott King, the Soderquists' attorney, was busy preparing for the couple's second trial — which had been set to start Nov. 9 — and likely would not be available until after that date.

Posted by Marcia Oddi on Friday, December 04, 2015
Posted to Ind Fed D.Ct. Decisions

Thursday, December 03, 2015

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

For publication opinions today (1):

In Roger S. Blackman v. Karen A. Gholson and James W. Blackman , a 13-page opinion, Judge Barnes writes:

Roger Blackman appeals the trial court’s dismissal of his will contest action and subsequent denial of his motion to correct error. We affirm. * * *

[Analysis I. Dismissal of Action]

Given the development of the law of jurisdiction beginning with K.S., we do not believe that a failure to comply with the statutory procedures for initiating a will contest action impacts a trial court’s subject matter jurisdiction to consider the petition. To the extent Smith or Kitterman held otherwise, we conclude they have been supplanted by K.S. and its progeny. Here, there is no question that the trial court had subject matter jurisdiction to consider Roger’s will contest action. Any failure by Roger to precisely follow the statutory procedures for initiating such an action did not impact subject matter jurisdiction. * * *

Although, admittedly, the statute is not crystal clear, caselaw has emphasized that a will contest action is separate and distinct from the probate of a will, and that it is governed by the Indiana Trial Rules regarding commencement of a civil action; it is not treated merely as a pleading within the probate action. See Avery, 953 N.E.2d at 472. Roger’s failure to comply with the will contest statutes and Trial Rules properly subjected his filing to dismissal.

Roger asserts that he should be forgiven for failing to file the will contest as its own separate civil action, complete with summonses and a filing fee, because his attorney was acting upon the advice of the trial court clerk in not filing it as a separate proceeding. He cites no authority for the proposition that an attorney should be able to rely upon advice from a non-attorney as to legal matters. We decline to create such authority. In sum, the trial court properly granted Karen and James’s motion to dismiss.

II. Journey’s Account Statute

Roger also argues, as he did before the trial court, that he should be permitted to properly re-file his will contest pursuant to the Journey’s Account Statute (“JAS”), following the expiration of the three-month time limit for initiating a will contest. * * *

Here, Roger’s failure to pay a filing fee for the will contest as required by the Trial Rules was negligence in the prosecution of the action and, as such, precludes his reliance upon the JAS to permit refiling of the will contest after the expiration of the statutory time limit for filing such an action.

III. Appellate Attorney Fees

On a final note, Karen and James request that we order Roger to pay their appellate attorney fees. * * *

Karen and James have not convinced us that Roger’s appeal is so permeated with either substantive or procedural bad faith such that an award of appellate attorney fees is warranted.

Conclusion

Although the trial court had subject matter jurisdiction over Roger’s attempted will contest action, it was appropriate to dismiss the action due to his failure to comply with the statutes and rules for initiating such an action. Additionally, Roger’s failure to pay the filing fee for the action precludes reliance upon the JAS to resuscitate it. Although Roger is unsuccessful on appeal, an award of appellate attorney fees against him is not warranted. We affirm.

NFP civil decisions today (3):

A.M. v. Department of Child Services (mem. dec.)

In the Matter of J.A., A Child Alleged To Be In Need Of Services, M.A., Father v. The Indiana Department of Child Services (mem. dec.)

Jerrud P. Seaton v. Mindy S. Foust (mem. dec.)

NFP criminal decisions today (6):

Howard Wilder v. State of Indiana (mem. dec.)

Cherise L. Kelsaw v. State of Indiana (mem. dec.)

Herbert F. Breneman v. State of Indiana (mem. dec.)

Willie Bontempo v. State of Indiana (mem. dec.)

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

Rayna Robbins v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, December 03, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: State files petition for Supreme Court to rehear Elkhart Four cases

Updating this ILB post from yesterday afternoon, the Elkhart Truth has a brief story by Tori Fater and J. C. Lee, headed "Elkhart Four cases won't be reheard in Indiana Supreme Court after Elkhart County prosecutor's petition denied."

Posted by Marcia Oddi on Thursday, December 03, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Still more on: Supreme Court disbars Indianapolis attorney "without hesitation"

Updating earlier ILB posts (here and here) about David J. Steele, Josh Sigler of the Kokomo Tribune reports in a story headed "Former county deputy prosecutor disbarred by state supreme court." Some quotes:

Court documents filed Monday state Steele misappropriated $150,000 of client funds from his attorney trust account, transferring a major portion of the unearned fees into personal or operating accounts. It also says Steele inflated billable hours in a variety of ways, submitting an example of such acts through an email he sent one of the employees in his practice.

“I simply cannot tell you how tired [I] am of these people,” Steele said in the email. “How tired [I] am of hearing about the stupid [expletive] transcripts she ordered on her own and expects me to split with her. … You added a line to her January bill right? A line that said, ‘emails and phone calls to and from client, prepare for hearing,’ right? How much time did we put down for that? I think [I] only told you like 4.5 hours right? Well [expletive] that. If she wants me to split the cost of those [expletive] transcripts [I] told her not to get, and add another 1.5 hours to that line ok?” * * *

Steele has been a licensed practitioner of law in Indiana since 2003. He was a deputy prosecutor in Howard County, but resigned in 2008 after then Howard Superior Court 2 Judge Stephen Jessup accused him of missing court dates because he was strung out on drugs. Jessup was later reprimanded for those comments by the Indiana Judicial Qualifications Commission.

Steele also ended his Kokomo practice in 2008, and most recently was practicing family law in the Keystone at the Crossing part of Indianapolis.

Posted by Marcia Oddi on Thursday, December 03, 2015
Posted to Ind. Sup.Ct. Decisions

Wednesday, December 02, 2015

Ind. Courts - More on: State files petition for Supreme Court to rehear Elkhart Four cases

Updating this ILB post from Oct. 24th, reporting that, per the Elkhart Truth:

The state of Indiana has filed a petition asking the Indiana Supreme Court to rehear the cases of three members of the Elkhart Four who had their convictions overturned.
This afternoon (Dec. 2) the Supreme Court has issued an order denying the State's rehearing petition.

Here is the Sept. 18th Supreme Court ruling in Blake Layman & Levi Sparks v. State of Indiana. The opinion concluded:

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

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

Posted by Marcia Oddi on Wednesday, December 02, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - COA hears liquor distribution dispute

Oral argument was heard yesterday in the case of Monarch Beverage Co. v. David Cook, et al. You may watch the videocast here. Kristine Guerra of the Indianapolis Star has the story today. Her report begins:

Monarch Beverage Co., the largest wholesaler of beer and wine in the state, wants to also distribute liquor to retailers.

But state law says that if the company wants to sell liquor, it must not sell beer.

The Lawrence-based company is asking the Indiana Court of Appeals to declare unconstitutional the law that prohibits beer wholesalers from seeking a permit to also distribute liquor. Monarch argues that it violates the Equal Privileges and Immunities Clause of the Indiana Constitution.

A three-judge appeals court panel heard arguments Tuesday from attorneys representing Monarch and the state.

The hearing comes almost two years after Monarch filed a lawsuit in an effort to remove the law from the books. The lawsuit was filed against David Cook in his official capacity as commissioner of the Indiana Alcohol and Tobacco Commission in Marion Superior Court's civil division. Judge Timothy Oaks ruled against Monarch, which is now asking the appeals court to overturn the ruling.

Monarch's attorney, Kannon Shanmugam, of Washington, D.C.-based Williams & Connolly LLP, argued Tuesday that the law discriminates against beer wholesalers by treating them differently from everyone else, including retailers and wine wholesalers, who are able to distribute liquor.

ILB: The COA panel was composed of J. Barnes, J. Kirsch and J. Najam.

Posted by Marcia Oddi on Wednesday, December 02, 2015
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Christopher Schmidt v. Indiana Insurance Company, C&F Insurance Group, LLC, and Bart Stith, a 9-page, 5-0 opinion, Justice Dickson writes:

Following the denial of his homeowner's fire insurance claim, the plaintiff commenced this action against the company that issued his policy, the insurance agency, and the insurance agent. The trial court granted summary judgment in favor of all the defendants. We reverse in part the grant of summary judgment favoring the agency and agent, but otherwise affirm as a partial summary judgment. * * *

In challenging the trial court's grant of summary judgment in favor of the Agents, the plaintiff essentially argues that the Agents failed to make a prima facie showing of no factual dispute as to (1) the non-availability of fire insurance that would have covered the plaintiff's property, and (2) the plaintiff's ratification of a dwelling insurance application that inaccurately described the dwelling. * * *

We reverse in part the trial court's entry of summary judgment for the Agents to the extent that it may apply to the plaintiff's claim for negligent procurement of insurance, but we direct the entry of partial summary judgment for the Agents as to the plaintiff's claim alleging the Agents failed to accurately report dwelling fire policy information to the insurance company. As to summary judgment in favor of Indiana Insurance Company, we summarily affirm the Court of Appeals.

Posted by Marcia Oddi on Wednesday, December 02, 2015
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Thomas M. Kunberger v. State of Indiana, a 17-page, 2-1 opinion, Judge Robb writes:

Thomas Kunberger pleaded guilty to criminal confinement, a Level 6 felony; strangulation, a Level 6 felony; and domestic battery, a Class A misdemeanor. The trial court accepted Kunberger’s plea and sentenced him to two years and 183 days in the Indiana Department of Correction, with twenty-three days of credit for time served and two years suspended to probation. Kunberger now appeals, raising two issues for our review: (1) whether his convictions for criminal confinement, strangulation, and domestic battery violate double jeopardy; and (2) whether his sentence is inappropriate in light of the nature of the offenses and his character. Concluding Kunberger’s convictions do not violate double jeopardy and his sentence is not inappropriate, we affirm Kunberger’s convictions and sentence. * * *

Kunberger’s convictions for criminal confinement, strangulation, and domestic battery do not violate double jeopardy, and his sentence is not inappropriate in light of the nature of the offenses and his character. We therefore affirm Kunberger’s convictions and sentence.

Vaidik, C.J., concurs.
Pyle, J., concurs in part, dissents in part. [on p. 17, concluding] I believe that Kunberger’s behavior toward the victim, combined with his outrageous lack of respect for the court’s authority and his failure to abide by its no-contact order, warrant a fully executed sentence to the Department of Correction. In all other respects, I concur with my colleagues.

NFP civil decisions today (2):

In Re the Involuntary Term. of the Parent-Child Relationship of: Au.R. and Ay.R. (Minor Children) and R.W. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

A. Taylor v. Indiana Bureau of Motor Vehicles, State of Indiana, Gerald B. Coleman as Commissioner of the Bureau of Motor Vehicles (mem. dec.)

NFP criminal decisions today (2):

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

Keith A. Nemer v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, December 02, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: Plaintiffs granted $50 million default judgment in environmental nuisance case

Updating this ILB post from yesterday, Kevin Allen of the South Bend Tribune has a long story today. Some quotes to supplement earlier ILB posts:

The Stutsmans and other residents in the Baugo North area filed a class-action lawsuit against VIM in 2009, and last week a federal judge issued a $50.6 million judgment in favor of the 1,025 plaintiffs. The Hoosier Environmental Council, which provided the plaintiffs with free legal representation during the six-year process, called the award one of the largest environmental judgments in Indiana history.

It's unclear if the plaintiffs will see much of that money, but the Stutsmans said the group of Baugo North residents didn't file the lawsuit for financial gain.

"Our whole purpose was to get them to move out and clean up the area," Wayne Stutsman said. "Do they have any money? I don't know. If we get nothing, we'll be more than happy that the area is going to be cleaned up, and we'll get our lives back."

Barbara Stutsman added that it was a relief to see a government authority acknowledge there were problems at VIM and nearby residents suffered as a result. She said other officials at the county, state and federal levels ignored their pleas for years.

Regulatory agencies began to pay closer attention to VIM after explosions at the plant in 2007 killed a worker and started an inferno that burned for four days before local firefighters were finally able to extinguish it.

U.S. District Court Judge Philip Simon, in the order he signed Nov. 24, described the effect VIM had on the Baugo North neighborhood.

Simon wrote that many plaintiffs felt like they were prisoners in their own homes — unable to have cookouts, work in their gardens or participate in other outdoor activities. They had "to keep all of the windows and doors closed tight in an effort to escape the rancid smells and filth," he added, and they couldn't invite family and friends to their homes due to the "unbearable" odors emanating from VIM's property.

The Tribune attempted to contact VIM President Kenneth Will at two separate phone numbers listed in his name, but both numbers are no longer in service.

Will also was no longer employing an attorney in the case, according to court records. The decision Simon issued last week was a default judgment.

VIM sold the recycling facility, located near the corner of County Road 1 and Old U.S. 33, to a company named Soil Solutions in 2011.

Soil Solutions is still operating at the site but will end its activities there by July 2019 in accordance with a settlement the company reached with plaintiffs last year. The settlement also requires the property to be cleaned up and prohibits similar waste-processing operations from locating there in the future. Soil Solutions is not liable for any of the $50.6 million in damages described in last week's judgment.

Kim Ferraro, an attorney for the Hoosier Environmental Council, said the next step is to investigate Will's assets. He is president of VIM Recycling and K.C. Industries, both of which are active businesses, according to secretary of state documents. Ferraro said Soil Solutions paid $8 million for the VIM facility in 2011, and K.C. Industries continues to own that land.

But she reiterated the Stutsmans' point that the lawsuit was not about financial gain.

"Although $50 million sounds like a significant amount, it goes to compensate more than 1,000 people for years of harm," Ferraro said. "For the community, what it signifies is the scope of harm. The court put a dollar amount on what they went through."

Posted by Marcia Oddi on Wednesday, December 02, 2015
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Decisions - More on: Supreme Court disbars Indianapolis attorney "without hesitation"

WRTV6 has a story with video on yesterday's action by the Supreme Court to disbar Indianapolis attorney David J. Steele.

See the ILB post here.

Posted by Marcia Oddi on Wednesday, December 02, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court announces six oral arguments in Dec., three of them tomorrow [Updated]

The Supreme Court this morning has announced on its Oral Arguments Online page that there will be six oral arguments this month, three to take place on Dec. 3rd, the other three on Dec. 10.

These arguments have now also been added to the Official State Calendar. (When the ILB reviewed the official calendar on Monday, no Supreme Court arguments were shown for the month of Dec.)

The Court of Appeals information remains the same. One case, Rhodes v. State, is listed on the official state calendar for oral argument on Dec. 3rd, but is not listed on the oral arguments online page. I'm guessing that is because there will be no videocast of the argument.

The ILB will be updating Monday's "Upcoming Oral Arguments" shortly to reflect this new information.

[Updated at 10:37] Hold on, the Supreme Court has just scheduled two more oral arguments for this month, these fortunately not until the 17th.

Posted by Marcia Oddi on Wednesday, December 02, 2015
Posted to Upcoming Oral Arguments

Tuesday, December 01, 2015

Law - Congressman Joe Kennedy III (D-MA4) and Congresswoman Susan Brooks (R-IN5) today launched the Access to Civil Legal Services Caucus

Here is the news release. There is certainly a need!

KENNEDY, BROOKS LAUNCH CONGRESSIONAL ACCESS TO CIVIL LEGAL SERVICES CAUCUS

Caucus will work to address obstacles in civil legal aid system

Washington, DC – As Congress continues to debate comprehensive justice reform, Congressman Joe Kennedy III (D-MA4) and Congresswoman Susan Brooks (R-IN5) today launched the Access to Civil Legal Services Caucus which will focus on expanding access to legal representation for low-income families. According to the Legal Services Corporation, half of those that qualify for legal assistance are turned away due to lack of resources. As former prosecutors, Kennedy and Brooks have both made addressing inequities in the justice system a priority of their time in Congress.

“Our legal system is where our nation makes good on the sacred promise of equal justice under the law,” said Congressman Kennedy. “But too often that promise is far from guaranteed for low-income families, veterans, victims of domestic violence and thousands of other Americans forced to stand in our courtrooms alone each year with their homes, savings and futures at risk. Through this caucus, we can build a strong coalition in Congress to advocate for civil legal aid programs and ensure access to representation is never limited by income.”

“Unfortunately, some civil disputes require the parties to resolve their differences in court, but many of those who face the toughest legal challenges, including low-income families, veterans, and victims of domestic violence, are forced to navigate the judicial system alone, without any legal help or counsel simply because they can’t afford it,” said Congresswoman Brooks. “Without legal advice to help guide them through the complicated judicial process, and with court personnel and systems often overwhelmed, they can face enormous burdens that devastate families, result in a further descent into poverty, and cause homelessness. This caucus will seek to change that, making sure that when civil disputes are brought to our judicial system, those involved, regardless of financial means, have access to appropriate legal resources and representation.”

In a letter to colleagues urging them to join the Caucus, the lawmakers cited a Boston Bar Association report that found 64% of cases in Massachusetts in 2013 that were eligible for legal aid programs were turned away due to lack of funding. They also emphasized that most cases covered by civil legal aid organization in Massachusetts and Indiana involved family and housing cases.

Posted by Marcia Oddi on Tuesday, December 01, 2015
Posted to 21st Century Law | General Law Related | Indiana Courts | Indiana Government

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

The federal court decision in VIM Recycling, about which the ILB had a long, well worth ready, post last Wed., Nov. 25th, is today announced in a Hoosier Environmental Council news release:

Northern Indiana Community Wins Huge Victory Over Polluters

Residents, Suffering for More than a Decade, Awarded $50 Million By Federal Judge

(ELKHART, IN)- People in a working-class Elkhart community, who endured 11 years of hazardous fires, constant dust, acrid smoke, and obnoxious odors from the dangerous practices of an industrial waste processor, VIM Recycling (VIM), have been awarded just over $50 million in a class action lawsuit.

“This judgment puts into perspective the enormous cost imposed on real people, their lives and community, when a company fails to be a responsible corporate citizen and when government turns a blind eye and does not adequately enforce environmental safeguards,” said Kim Ferraro, HEC’s senior staff attorney who litigated the case. “Although the judgment is significant, it cannot bring back what the 1,025 residents -- men, women and children -- of this neighborhood lost or fairly pay them back for the miserable conditions they were forced to live with for more than a decade due to the callousness of the owner of VIM, and apathy of state and local officials who had numerous opportunities to meaningfully address the problem but failed to do so. While there are many businesses and government officials that do keep the health and safety of citizens top of mind, this was not true in this situation. In this case, it is up to public interest organizations like HEC, and courageous & resilient citizens like those that we represented, to hold both business and government accountable.”

In his order granting default judgment, U.S. District Court Judge Philip Simon described some of the evidence submitted in the case, which supported his decision to award more than $50 million in compensatory damages to be divided among each of the 1,025 Class members for each year of harm they suffered from VIM’s operations. For example, Judge Simon relied on findings of plaintiffs’ expert, Dr. Mark Chernaik, who earned his Ph.D in biochemistry from John Hopkins University School of Public Health. According to Dr. Chernaik, during the time the VIM defendants owned and operated the waste facility, people living in the surrounding community were "exposed to harmful and obnoxious air pollutants dispersed from the facility” including: “1) smoke containing oxygenated VOCs from the chronic, persistent smoldering combustion of waste, sporadic waste pile fires, and manipulation of waste using heavy equipment; 2) particulate matter from the outdoor grinding of waste; 3) hydrogen sulfide from stagnant pools of wastewater that ha[d] contacted waste; and 4) odorous VOCs from the decomposition of waste at the facility.” Furthermore, Dr. Chernaik confirmed that neighbors’ complaints of “extreme noxious odors, including the smell of rotten eggs, emanating from the VIM facility” were “consistent with exposure to these harmful pollutants.”

The judgment marks the end of the neighbors’ legal battle that began in 2009 when they realized government officials were not going to take action to hold VIM accountable.

“VIM’s operations caused many sleepless nights not only for people who lived in the surrounding community, but also for the men and women of the Baugo Fire Department -- I was a member of both, said Rob Pedzinski, one of the named plaintiffs in the case. “We never knew when the next fire call to VIM would be. Living with this fear was the normal for me, my family and neighbors for so many years as Elkhart County and state officials failed to hold VIM accountable for its continual non-compliance with fire safety codes, zoning restrictions, and environmental regulations. Our community was left to fend for itself. Thanks to HEC, we did what our government should have done – protect people, not profits.”

The Hoosier Environmental Council filed the case and represented the community pro bono for over 6 years dedicating thousands of hours of attorney time and incurring substantial litigation costs. Consequently, Judge Simon held that HEC is entitled to reimbursement explaining that, “an attorney’s non-profit status does not . . . prevent recovery of attorney’s fees [because such an award] ensures that the value of the lawyer’s gift inures to the favored cause, and not to the adversary in litigation.”

ILB: The opinion itself is available here.

Although this is a default judgment and, as the opinion notes:

Plaintiffs seem to have come to the conclusion that the judgment being entered via this order will be, in many respects, a pyrrhic victory. The VIM Defendant appear to be judgment-proof.
the federal court's rulings relating to environmental nuisance and private nuisance will certainly be cited in future cases.

Posted by Marcia Oddi on Tuesday, December 01, 2015
Posted to Environment | Ind Fed D.Ct. Decisions

Ind. Decisions - "Juvenile judge erred by putting kids in child welfare system"

In the Matter of S.M. (ILB summary here), decided yesterday by the Court of Appeals, is the subject of a just-posted Indianapolis Star story by Marisa Kwiatkowski. Some quotes:

Marion Juvenile Court officials ordered four children into the child welfare system despite "wholly lacking" evidence of the need to do so, the Indiana Court of Appeals decided Monday.

The appellate judges reversed the juvenile court's decision. In a unanimous opinion, the appeals court determined the Indiana Department of Child Services had failed to prove the children were seriously endangered, failed to prove the parents were unable or unwilling to properly care for the children and failed to prove the intervention of the court was necessary.

Magistrate Danielle Gaughan decided the juvenile case, and her order was approved by Marion Juvenile Court Judge Marilyn Moores. On Tuesday, Moores said the judicial code of conduct prohibited her from commenting on a pending case. * * *

The woman, who was not named in the opinion, admitted she had smoked marijuana once while she was pregnant but before she knew about it. She said she stopped as soon as she found out she was pregnant, court records state.

According to the opinion, DCS had found evidence of neglect against the parents three times before — twice involving domestic violence among the parents and once for marijuana use by the mother while she was pregnant.

In this most recent case, the boy's mother voluntarily took random drug screens about every two weeks from January through April. All of her drug screens came back negative, according to court records. She also participated in home-based therapy. * * *

In the opinion written by Judge John Baker, the appeals court said "there is no evidence in the record that at any point in time any of the children were endangered." There also was no evidence they ever lacked food, shelter, love or care, according to the opinion. * * *

"The juvenile court found four children to be in need of services when the record is devoid of evidence supporting such a finding," Baker wrote in the opinion.

"We are well aware that DCS and the courts are overwhelmed with the growing numbers of CHINS cases statewide," he wrote. "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."

Posted by Marcia Oddi on Tuesday, December 01, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 1 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (1):

Corey Goodnight v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, December 01, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one disciplinary opinion today, disbarring Indianapolis attorney "without hesitation"

In In the Matter of: David J. Steele, a 7-page, 5-0 opinion, the Court writes:

The Indiana Supreme Court Disciplinary Commission charged Respondent, David J. Steele, with eight counts of misconduct involving among other things theft of client funds, retaliatory disclosures of clients’ confidential information, pervasive dishonesty, and a pattern of conduct prejudicial to the administration of justice. Respondent’s 2003 admission to this state’s bar subjects him to this Court’s disciplinary jurisdiction. See IND. CONST. art. 7, § 4.

Respondent already is under an order of emergency interim suspension and has tendered to this Court an affidavit of consent to discipline admitting the material facts alleged in the verified complaint. We adopt those facts, find misconduct as charged, and conclude without hesitation that Respondent should be disbarred. * * *

The Court concludes that Respondent violated the Indiana Rules of Professional Conduct by stealing approximately $150,000 from his clients, disclosing client confidences for purposes of both retaliation and amusement, threatening and intimidating his office staff, lying pervasively to all comers, obstructing the Commission’s investigation, and engaging in a pattern of conduct prejudicial to the administration of justice. * * *

Respondent already is under an order of emergency suspension in this cause. For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state effective immediately.

Posted by Marcia Oddi on Tuesday, December 01, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Government tax sale system makes it hard for neighbors to take charge of abandoned houses" [Updated]

Following on his Nov. 15th story on "How our government helps investors profit from neighborhood decay," Brian Eason of the Indianapolis Star reports today on the tax sale system. Some quotes:

An Indianapolis Star analysis found that individuals looking to buy a single home account for fewer than 4 percent of all liens sold at tax sale. The vast majority of sales — 95 percent — go to either for-profit companies or investors who buy two or more properties.

But people like the Chases, who want the home next door in order to fix up their neighborhood? They don’t participate. And it’s not hard to see why.

First, you have to have cash, and lots of it. Rachael and Jennifer had to borrow from family and friends to scrape together enough for a respectable bid.

Then, you have to know how to find out a property is even up for auction. Unlike zoning changes, when the government gives nearby property owners notice that something’s afoot, there’s no warning that a home in your neighborhood is up for tax sale.

Check the Marion County treasurer’s website, and you might be able to find it — if you click on the right file. One file lists all of the addresses, but to decipher another, you have to know what a parcel ID number is and how to find it using the city’s mapping software.

Master all of that, and you have to understand redemption periods and how to actually acquire the title, which is not as easy as a straight purchase.

Oh, and hopefully you wrote down the tax sale ID number before you came. That is the number the auctioneer calls at tax sale, instead of the address or the parcel ID.

And then, if the sale is successful, you have only purchased a tax lien -- the owner has a year to redeem it, with interest. More:
Under a new state law, they should have been able to buy such a home outright. The home hasn’t had utilities in more than year, one of the determining factors of abandonment. Right now, it’s not even habitable under the health code.

Senate Enrolled Act 422 [sic.] shortened and moved the redemption period to 120 days before the sale for a home the city certifies as abandoned. But because the law only took effect July 1, there weren’t enough days before the Oct. 8 tax sale to notify delinquent homeowners of the new redemption period this year.

ILB: A problem with this otherwise good story: There is no SEA 422 from 2015. There is a SEA 423, but I can't locate any relevant language...

[Updated on Dec. 2] ILB: The Star paragraph quoted above has now been corrected to read:

Senate Enrolled Act 422 in 2014 shortened and moved the redemption period to 120 days before the sale for a home the city certifies as abandoned. But because a subsequent fix to the law only took effect July 1, there weren’t enough days before the Oct. 8 tax sale to notify delinquent homeowners of the new redemption period this year.
Here is SEA 422 from 2014.

The 2015 "subsequent fix" is apparently in SEA 415. The Star's Eason earlier reported on SB 415 in this Feb. 18, 2015 story that was subheaded: "Supporters say an anti-blight measure advancing through the state legislature would fix a convoluted tax sale system that is riddled with red tape and encourages the wrong sort of buyer.."

Posted by Marcia Oddi on Tuesday, December 01, 2015
Posted to Indiana Government