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Friday, January 29, 2016

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 38 NFP memorandum decision(s))

For publication opinions today (5):

In Carrie A. Greer v. Discover Bank , a 5-page opinion with a pro se appellant, Judge Najam writes:

Carrie A. Greer appeals the trial court’s entry of default judgment against her and in favor of Discover Bank (“Discover”). Greer raises a single issue for our review, namely, whether the trial court erred when it concluded that Greer had been adequately served with a summons and Discover’s complaint against her. However, because Greer did not follow the proper procedure for perfecting her appeal of this issue, we are obliged to dismiss the appeal. * * *

Greer did not file a Trial Rule 60(B) motion for relief from the trial court’s entry of default judgment against her. Accordingly, her appeal is not properly before us. Siebert Oxidermo, 446 N.E.2d at 337.

In Jason Hansbrough v. State of Indiana , a 9-page opinion, Judge Crone writes:
Jason Hansbrough appeals his conviction, following a bench trial, for unlawful possession of a firearm by a serious violent felon, a level 4 felony. During a valid traffic stop of Hansbrough’s vehicle, police officers conducted a dog sniff around the vehicle. After the canine alerted to the presence of narcotics, officers searched the vehicle and found a firearm. Hansbrough unsuccessfully moved to suppress the evidence obtained during the search arguing that the dog sniff prolonged the traffic stop in violation of his constitutional rights. The evidence was subsequently admitted at trial over his continuing objection. The sole restated issue for our review is whether the trial court abused its discretion in admitting the evidence obtained as a result of the search. Finding no abuse of discretion, we affirm.
In Ronald L. Sanford, Jr. v. State of Indiana , an 11-page opinion, Judge Crone writes:
Ronald L. Sanford, Jr., appeals the denial of his petition for permission to file a belated notice of appeal of his sentence filed pursuant to Indiana Post-Conviction Rule 2. He argues that the trial court abused its discretion in finding that he had failed to carry his burden to prove that he was diligent in requesting permission to file a belated notice of appeal. He also argues that pursuant to In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), his right to appeal should be restored due to extraordinarily compelling reasons.

We conclude that the trial court did not abuse its discretion in denying Sanford’s petition for permission to file a belated notice of appeal. We also conclude that O.R. need not be extended to criminal defendants who already have a remedy for reinstating an untimely appeal through Post-Conviction Rule 2. Therefore, we affirm.

In Willie Moore v. State of Indiana , a 28-page, 2-1 opinion, Judge Pyle writes:
We conclude that: (1) the officer had reasonable suspicion to stop Moore, so the stop was lawful under the United States Constitution; (2) the officer’s actions were reasonable under the totality of the circumstances, so the stop was lawful under the Indiana Constitution; and (3) the Illinois statute for residential burglary was substantially similar to the Indiana statute for burglary. However, we agree with Moore that there was not sufficient evidence to elevate his resisting law enforcement conviction to a Level 6 felony because there was no evidence that he proximately caused the officer’s injuries. As a result, we affirm Moore’s conviction for unlawful possession of a firearm by a serious violent felon, but we reverse his conviction for resisting law enforcement as a Level 6 felony. We remand to the trial court with instructions to vacate Moore’s resisting law enforcement conviction and to enter a new conviction and sentence for the lesser-included offense of Class A misdemeanor resisting law enforcement. We affirm in part, reverse in part, and remand. * * *

Baker, J., concurs.
Bradford, J., concurs in part, dissents in part with opinion. [which begins, at p. 26] I concur with the majority’s conclusion that the trial court acted within its discretion in admitting the handgun discovered on Moore’s person into evidence. I also concur with the majority’s conclusion that the Illinois statute for residential burglary was substantially similar to the Indiana burglary statute. However, because I believe that the evidence was such that the trial court, acting as the trier-of-fact, could reasonably conclude that Moore’s actions were the proximate cause of Officer Helmer’s injury, I respectfully dissent from the majority’s conclusion that the evidence was insufficient to sustain Moore’s conviction for Level 6 felony resisting arrest.

In Kimberly Y. Morgan v. State of Indiana, a 6-page opinion, Judge Bailey writes:
Kimberly Y. Morgan (“Morgan”) appeals a restitution order following her pleas of guilty to three counts of Theft, as Class D felonies. She presents the issue of whether the trial court properly ordered her to pay $16,000.00 to the Howard County Convention and Visitors Commission, Inc. (“the Visitors Commission”), in addition to the $11,455.48 agreed-upon restitution to Selective Insurance Company of America (“Selective Insurance”). We affirm in part, reverse in part, and remand with instructions.
NFP civil decisions today (15):

In the Matter of the Termination of the Parent-Child Relationship of N.A., Mother, and M.A., Father, and A.A., B.A., C.A., N.A., et al. v. Indiana Department of Child Services (mem. dec.)

Timothy Hipskind v. Insurance One Services, Inc., and David Vanderpool (mem. dec.)

Brian L. Cain, Nancy Ilderton and Wells Fargo Advisors, LLC v. Old National Bancorp, Inc. (mem. dec.)

Anthony Fisher v. Thomas VanVleet and Dustin Gary (mem. dec.)

In the Matter of the Involuntary Term. of Parent-Child Relationship of L.D., D.B. (Father) v. Marion Co. Dept. of Child Services, and Child Advocates Inc. (mem. dec.)

In re the Matter of H.M., a Child In Need of Services, A.A. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

A.B. v. Review Board of the Department of Workforce Development (mem. dec.)

John D. May v. Indiana Department of Child Services, Carrie T. Ingram, and Direnda Winburn (mem. dec.)

In the Matter of J.C. and K.C., Children in Need of Services, and J.S. (Mother) and M.S. (Stepfather) v. Indiana Department of Child Services (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of T.S., Father, and N.B., Child, T.S. v. Indiana Department of Child Services (mem. dec.)

In Re The Marriage Of: Mark Steven Brown v. Julie Brown (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of A.C., C.C., N.C., Sk.C, Sa,C., Sh.C., & E.F. and F.F. and S.C. v. The Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of S.L. (Minor Child), and M.C. (Father) v. The Indiana Department of Child Services (mem. dec.)

Peggy Bull d/b/a Brown County Getaway v. Brown County Area Board of Zoning Appeals (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: I.H., A.H., E.H., and F.H., Minor Children, and J.H., Mother v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (23):

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

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

Douglas L. Wilson, Jr. v. State of Indiana (mem. dec.)

David Michael Jones v. State of Indiana (mem. dec.)

Christopher R. Marks v. State of Indiana (mem. dec.)

Jayson S. Roberts v. State of Indiana (mem. dec.)

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

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

Anthony L. Hall v. State of Indiana (mem. dec.)

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

Sherry A. Fairchild v. State of Indiana (mem. dec.)

Bradley J. Harris v. State of Indiana (mem. dec.)

Lyle M. Moser v. State of Indiana (mem. dec.)

Paris Hardy v. State of Indiana (mem. dec.)

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

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

Sallye Purnell v. State of Indiana (mem. dec.)

Latanya T-Butler v. State of Indiana (mem. dec.)

Steven A. Bird v. State of Indiana (mem. dec.)

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

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

Lisa A. Medsker v. State of Indiana (mem. dec.)

Lyle D. Tucker v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, January 29, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Right to Farm Act prevails in Randolph County lawsuits, yet again

In July of 2014, the ILB has three posts under the heading "Right to Farm Act prevails in Randolph County lawsuits."

A related, 2-page ruling was issued by Special Judge Marianne Vorhees on Jan. 28th, 2016, an order granting defendants' motions for summary judgment in a 5th Maxwell Farms case, stating:

The Court held a hearing on the Defendants' Motions for Summary Judgment on January 18, 2016, and took the Motions under advisement.

As to all Defendants, the Motions for Summary Judgment are well taken and should be and hereby are granted.

Plaintiffs have not presented any evidence to establish an exception to the Indiana Right to Farm Act.

The ILB was also able to obtain a copy of the defendants' 55-page memorandum in support of their summary judgement motion. See particularly the argument beginning at the bottom of p. 6, asserting that Indiana's Right to Farm Act is a statute of repose and bars plaintiffs' claims after one year.

Posted by Marcia Oddi on Friday, January 29, 2016
Posted to Environment | Ind. Trial Ct. Decisions

Ind. Gov't. - More on "Discord ongoing over LGBT bill" - is something better than nothing?

Updating this long ILB post from yesterday, summarizing media reports on the marathon first committee hearing on SB 344, Stephanie Wang and Tony Cook of the Indianapolis Star have an interesting story that begins:

A day after a gay rights proposal got its first nod from lawmakers, the leader of the Indiana House put a damper on the measure's chances.

“I’ve yet to talk to someone who thinks the bill is a good idea, with just a couple of few exceptions,” House Speaker Brian Bosma said Thursday.

He also set an unusually high bar for the measure to get an initial hearing in the House — if it even advances that far.

Such a decision is typically left to the chairman of the House committee to which the bill is assigned. But in this case, Bosma said there won’t be a hearing unless the House Republican caucus — which has 71 members — decides it’s a good idea.

“The one thing we have decided on this is we’re going to have a firm caucus discussion about this and the caucus will decide if the bill is going to proceed or not,” he said.

His comments came less than 24 hours after a Senate panel voted to advance the measure, Senate Bill 344, to the full Senate. Only if the proposal clears the Senate would it move to the House.

The bill would add some protections against discrimination for gay Hoosiers in the areas of housing, employment and public accommodations. But it does not include protections for transgender people and it would still allow small wedding service providers, some adoption agencies and religious-affiliated organizations to discriminate based on sexual orientation.

Posted by Marcia Oddi on Friday, January 29, 2016
Posted to Indiana Government

Ind. Courts - All 30 Supreme Court applications available in SC Law Library for review.

Here is the photo/tweet supplied by the Indiana Courts. As in the past, the ILB will be reviewing and summarizing for ILB readers:

Posted by Marcia Oddi on Friday, January 29, 2016
Posted to Indiana Courts | Vacancy on Supreme Court - 2016

Ind. Courts - "Bill would create new way to select Marion County judges"

SB 352, addressing the issue of selection of Marion County Superior Court judges, post the 7th Circuit opinion, Common Cause v. Election Comm. (see this Jan. 9 IBJ article on the Marion County court issues and this Sept. 9th ILB post), was heard in Senate Judiciary Committee on Jan. 27th. The complexity of the bill, authored by Senator Michael Young, was increased by the addition of committee amendments, which now may be accessed via this DPA committeee report. The introduced version of SB 252 is here, the two documents must be read together until the bill is reprinted. However, the author testified at the committee hearing Wednesday that this bill was still a work in progress, that he planned to confer with the Chief Justice and that revisions likely would be offered on 2nd reading.

Kristine Guerra of the Indianapolis Star reports today on the bill. Some quotes:

Marion County's pay-to-play system of electing its judges has long been criticized as being highly political and an infringement on people's right to vote.

A new bill being debated in the legislature attempts to address some of that criticism by creating a new way of selecting judges in Marion County. Senate Bill 352, authored by Sen. R. Michael Young, forms a selection committee that will select and nominate judges. Once the judges' six-year term is over, voters can decide through primary and general elections whether or not they can stay on the bench.

Supporters say it's a well-balanced approach that gives voters, party leaders and members of the legal community some control over who should be Marion County's 36 superior court judges. But opponents say it does not alleviate a major problem in the current system: Political interests still play too much of a role in what's supposed to be a neutral and impartial judiciary.

What's highly criticized is the selection committee, which critics say is too top heavy with political actors. * * *

Under SB 352, the committee initially will appoint judges. Retention elections, in which voters will be asked if judges should stay on the bench, will be held once their six-year term is over. If a judge loses or chooses to not run, the committee will appoint someone to the open seat. If a judge resigns, the committee will nominate two candidates from a pool of applicants, and the governor will make the final decision.

Changing the status quo became necessary, after a federal judge ruled that the current judicial election system is unconstitutional. The 7th U.S. Circuit Court of Appeals upheld that ruling.

Unlike the rest of the state, Marion County elects only party-slated judges. The two major political parties conduct primary elections in which they nominate candidates for the exact number of judicial seats to be filled — split evenly between Democrats and Republicans. By contributing money to their respective parties, the judicial candidates have a much better chance of securing an endorsement and winning a judicial seat in the election.

Julia Vaughn, policy director for Common Cause Indiana, said while Young's bill does give voters some say, it still firmly entrenches politics in the process of selecting judges. * * *

Vaughn, whose organization started the legal battle that eventually invalidated Marion County's judicial election process, said a merit selection system used in St. Joseph and Lake counties is more appropriate. Under that approach, a judicial nominating commission made up of lawyers and laypeople interviews applicants and recommends candidates to the governor, who makes the final decision. * * *

Young said Wednesday that he planned to meet with Loretta Rush, chief justice of the Indiana Supreme Court, to ensure SB 352 meets the state's Code of Judicial Conduct.

The Senate Judiciary Committee approved the bill in a 5-2 vote, and it will up for a second reading on the Senate floor.

Posted by Marcia Oddi on Friday, January 29, 2016
Posted to Indiana Courts

Thursday, January 28, 2016

Ind. Decisions - Supreme Court decides one today - re 2011 State Fair stage collapse

In In Re: Indiana State Fair Litigation, Mid-America Sound Corporation v. Indiana State Fair Commission, et al., Jill Polet, et al., an 11-page, 5-0 opinion, Chief Justice Rush writes:

Indiana courts strictly construe contracts to indemnify a party against its own negligence—recognizing that a party would not lightly accept liability for someone else’s negligence. Thus, indemnity clauses must state the parties’ intent to indemnify in clear and unequivocal language. Otherwise, we will not find a knowing and willing agreement to indemnify. And the need for explicit language is especially important when an agreement involves retroactive indemnity—since even in insurance contracts, where indemnity is the central purpose, we presume that insurers would not accept liability for a known, existing loss.

Here, Mid-America Sound argues that the Indiana State Fair Commission accepted liability for an existing, catastrophic loss—not through explicit contract language calling for retroactive indemnification, but through a years-long course of conduct in paying invoices that had standard indemnity language on the back. But as a matter of law, a form of liability so disfavored (especially when retroactive) cannot be implied from a course of dealing when it is not expressed by clear and unequivocal contract language. We therefore grant transfer and affirm the trial court’s grant of summary judgment for the Commission. * * *

Mid-America and the Commission proceeded to file cross-motions for summary judgment, taking opposite positions about whether the December 2011 invoice’s indemnity language applied retroactively to the August 2011 roof collapse. The trial court granted the Commission’s motion, and Mid-America appealed. A divided Court of Appeals reversed and remanded, finding that genuine issues of material fact existed regarding whether the Commission knowingly and willingly agreed to indemnify Mid-America for the roof collapse. In re Ind. State Fair Litigation, 28 N.E.3d 333, 343 (Ind. Ct. App. 2015). * * *

In summary, then, the principle we deduce from Indiana contract law (and confirmed by the States that follow similar principles) is this: Indemnification for another party’s negligence—especially retroactively—is an “extraordinary obligation” that is generally “not favored.” Emmet Fertilizer, 852 F.2d at 360. Accordingly, as a matter of law, we will not infer that obligation from a course of dealing when, as here, the parties’ contract does not expressly call for it in “clear and unequivocal terms.” GKN Co., 798 N.E.2d at 552. The trial court therefore correctly granted summary judgment for the Commission and against Mid-America.

In view of that conclusion, we express no opinion on whether the Commission is a govern-mental entity with immunity under the Indiana Tort Claims Act (ITCA), Ind. Code ch. 34-13-3; whether indemnity for another party’s negligence is a tort- or contract-based liability for ITCA purposes; or whether the invoices’ indemnity language is void against public policy. But those arguments do illustrate why Mid-America’s failure to make a “clear and unequivocal” demand for retroactive indemnification is particularly significant in these circumstances. Regardless of their merits, those claims are not implausible—and therefore it seems that a party seeking to impose such a disfavored liability under these circumstances would have particular incentive to draft its contract in the clearest and most unequivocal terms possible. Mid-America’s failure to do so here further underscores why we should not infer an extraordinary liability when a contract fails to provide for it expressly.

Conclusion. The terms of Mid-America’s invoices to the Commission did not clearly and unequivocally provide for retroactive application, and as a matter of law, we will not infer such an onerous provision from the parties’ course of dealing. We therefore affirm the trial court’s grant of summary judgment to the Commission.

ILB: The ILB has a list of posts related to the State Fair stage collapse.

Posted by Marcia Oddi on Thursday, January 28, 2016
Posted to Ind. Sup.Ct. Decisions | Stage Collapse

Ind. Gov't. - "Proposed abortion ban for gender, fetal disability advances"

Chelsea Schneider has the story here today in the Indianapolis Star. The story begins:

A group of Republican lawmakers are reprising an effort to ban abortions in the state based on gender or disabilities in a fetus, a controversial and possibly unconstitutional prohibition that failed last year in the Indiana General Assembly.

The proposal would ban abortions if the reason for seeking one is “solely” because of the sex of a fetus. The ban also would apply to women seeking an abortion if her fetus is diagnosed, or potentially diagnosed, with Down syndrome or another genetically-inherited disability.

The bill, which cleared a Senate committee Wednesday, would add to the state’s abortion restrictions, which already are among the most stringent in the country. State law currently restricts most abortions after 20 weeks of pregnancy. The bill, by state Sens. Travis Holdman and Liz Brown, is moving forward, while another measure that would restrict abortions once a fetal heartbeat is detected has stalled.

Brown, a Fort Wayne Republican, is running in a heated Republican primary for Indiana’s Third Congressional District. Her campaign sent an email to supporters celebrating the passage of Senate Bill 313 after it cleared committee by a 7-4 vote.

Brown said the bill is needed, because doctors are “pressuring women to have these abortions.”

More from the story:
However, Sen. Vaneta Becker said the bill is “clearly unconstitutional.”

Becker, an Evansville Republican, noted the U.S. Supreme Court has declined to consider overruling lower court decisions that found abortion restrictions early in a pregnancy were unconstitutional. That includes a case in North Dakota where a lower court ruled an abortion ban after a fetal heartbeat is detected — as early as six weeks in pregnancy — was unconstitutional.

Doing so means the Supreme Court has effectively upheld Roe v. Wade, the landmark ruling that legalized abortion in the country, Becker said. States face restrictions in banning abortions before a fetus could survive outside the womb.

Banning abortions based on gender and disability sets a “dangerous precedent,” Becker said.

“This bill does nothing to improve or protect women’s health,” Becker said. “This bill is just clearly a bill designed with a broader agenda … to shame and judge women.”

The Supreme Court refused to take up the case from North Dakota, and a separate 12-week ban out of Arkansas, presumably because “neither law would be able to withstand constitutional scrutiny,” said Elizabeth Nash with the Guttmacher Institute. The organization is a sexual and reproductive health advocacy group.

Posted by Marcia Oddi on Thursday, January 28, 2016
Posted to Indiana Government

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

Updating this ILB post from Dec. 10th, the Court of Appeals yesterday filed an order granting and scheduling order argument in the case of Purvi Patel v. State.

The Court of Appeals oral argument will take place Monday, May 23, 2016 at 2:00 PM in the Supreme Court Courtroom. The scheduled panel members are Chief Judge Vaidik, Judges Bailey, and
Crone.

The ILB has had a long list of posts on this case, involving Purvi Patel's appeal of her feticide and child neglect conviction.

Posted by Marcia Oddi on Thursday, January 28, 2016
Posted to Indiana Courts

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

In United States v. Terry Joe Smith (SD Ind., Lawrence), an 8-page opinion, Judge Posner writes:

Terry Joe Smith, a police officer in Putnam County, Indiana (roughly midway between Indianapolis and Terre Haute), was convicted by a jury in federal court of violating 18 U.S.C. § 242 by depriving two persons, under color of state law (which is to say in Smith’s capacity as a police officer), of their constitutional right not to be subjected to the intentional use of unreasonable and excessive force. Sentenced to 14 months in prison to be followed by two years of supervised release, Smith appeals his conviction and the government appeals his sentence, the brevity of which, it contends, the judge failed to justify. * * *

In short, does the judge’s review of these cases provide any basis for thinking 14 months a proper sentence for Smith? Apart from the judge’s reference to anger management and comments on Smith’s minor good works in the community, no reason for the light sentence he imposed can be found in the transcript of the sentencing hearing.

We add that the judge imposed the standard conditions of supervised release without stating them in the sentencing hearing. That was error too; the entire sentence must be given orally. E.g., United States v. Harper, 805 F.3d 818, 822 (7th Cir. 2015).

Conviction affirmed, sentence vacated, case remanded for full resentencing.

Posted by Marcia Oddi on Thursday, January 28, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (0):

NFP civil decisions today (3):

In the Matter of: B.C., a Child in Need of Services, T.C. (Mother) and W.J. (Alleged Father #1) v. Indiana Department of Services and Child Advocates, Inc. (mem. dec.)

Jill Yount v. Robert L. Houston and Houston & Thompson (mem. dec.)

Susan F. McCall v. City of Washington (mem. dec.)

NFP criminal decisions today (2):

Michael S. Washington v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Thursday, January 28, 2016
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from Dec. 10th, Olivia Covington reports today in the Columbus Indiana Republic under the heading "City named in RFRA lawsuit." Some quotes from the lengthy story:

Columbus and its Human Rights Commission are being sued over the city’s human rights ordinance, which has protections for lesbian, gay, bisexual and transgender residents.

Terre Haute-based Bopp Law Firm added the city, the commission and its commissioners, as well as Bloomington and its human rights commission and commissioners, as defendants to an existing lawsuit challenging the legislative fix to last year’s Religious Freedom Restoration Act (RFRA). That lawsuit initially was filed in late 2015 in Hamilton County, attorney Jim Bopp said.

The original lawsuit named Carmel and the city of Indianapolis-Marion County as defendants. All cities included in the lawsuit have nondiscrimination ordinances that protect LGBT residents while allowing for limited or no exceptions for religious beliefs.

Bopp filed the complaint on behalf of the plaintiffs, Indiana Family Institute, Indiana Family Action and The American Family Association of Indiana.

The groups contend that the version of RFRA in effect does not protect their constitutionally-held religious beliefs to oppose gay marriage, Bopp said. * * *

After national backlash, lawmakers amended the bill to prohibit LGBT discrimination while also providing exceptions for churches, religious schools and ministers.

The Indiana Family Institute, Indiana Family Action and American Family Association of Indiana would not qualify for those exemptions, Bopp said. That means the government could compel them to provide some services to gay couples that would go against their religious beliefs.

Additionally, Bopp said the RFRA fix favors some religious beliefs regarding same-sex marriage over others.

“The Unitarian views get preferred over the Catholics,” he said.

Similarly, the ordinances in place in the four cities named in the lawsuit would also not allow the groups to freely express their religious beliefs, Bopp said.

Posted by Marcia Oddi on Thursday, January 28, 2016
Posted to Indiana Courts

Ind. Gov't. - Updating: Still more on "No more stringent" back again

Updating yesterday's ILB post, the AP reports today (here from the $$ Bloomington Herald-Times):

INDIANAPOLIS — Legislation that would prohibit Indiana state agencies from enacting tougher environmental rules and standards than the federal government narrowly won the backing of a state House committee on Wednesday following a discussion that invoked the water crisis in Flint, Michigan.

The House Environment Affairs Committee voted 7-6 to send the legislation authored by its chairman, Rep. David Wolkins, R-Winona Lake, to the full House for consideration.

Wolkins, who has sponsored several similar bills over the years, said he's hopeful this measure will pass the House and won't stall in the Senate, where previous versions have never been brought to a vote.

Wolkins said he's been pleased with Indiana's environmental regulations for more than a decade under Republican governors but believes his bill is needed in the event that future state regulators, presumably under Democratic governors, "overreach" and impose tough environmental rules, which he said could stifle economic development.

Hoosier Environmental Council staff attorney Kim Ferraro told the panel that the legislation is unnecessary because existing state law has checks and balances that ensure the Indiana Department of Environmental Management and the state's Environmental Rules Board "do not overreach and impose regulations that cause undue, unnecessary" burdens on industry.

Posted by Marcia Oddi on Thursday, January 28, 2016
Posted to Environment | Environment

Ind. Gov't. - "Discord ongoing over LGBT bill"

The revised text of the SB 344, reflecting last evening's amendments, will not be available until later today. [Updated at 5:28 PM] Here is the adopted committee report with the amendments made last evening.

Some quotes from Niki Kelly's story today in the Fort Wayne Journal Gazette:

Pretty much no one got what they wanted late Wednesday when the Senate Rules Committee voted 7-5 to pass a bill providing limited discrimination protections to gay, lesbian and bisexual Hoosiers.

Democrats said Senate Bill 344 is unacceptable because it leaves transgender citizens out of the bill entirely and provides too many exemptions for Hoosiers to deny service in the name of faith.

But social conservatives argued it goes too far elevating sexual orientation to protected-class status and sets up Hoosier businesses to be fined and sued for standing by religious beliefs.

Republicans on the committee voted in support – except Sen. Dennis Kruse, R-Auburn – to keep the process moving, but many are looking for changes.

“It’s a tough issue. It’s remarkable that we are even having this discussion,” said Senate President Pro Tem David Long, R-Fort Wayne.

He also noted that there will be robust debate on the Senate floor and the bill’s “fate is unknown.”

About 40 people testified on the legislation over four hours. * * *

[One speaker said] exemptions in the bill should not be any broader than they are for race and other protected categories, such as gender and national origin.

But the current bill does just that, carving out cases in which small businesses – those with fewer than six employees – can legally refuse to provide services related to the solemnization, rehearsal, reception, celebration or social event for a marriage ceremony, renewal of marriage vows or marriage anniversary.

The author, Sen. Travis Holdman, R-Markle, said this is a way to recognize Indiana’s strong freedom of conscience and religious liberty protections.

Opponents of the legislation flew in two business owners from Oregon and Washington who have violated anti-discrimination laws by refusing to provide flowers or cake for a same-sex marriage. * * *

Indiana law doesn’t provide anti-discrimination protections for sexual orientation or gender identity the way it does for other classes such as gender, race and national origin.

That means in much of the state, landlords, employers and businesses are free to openly discriminate against gays.

There are more than a dozen cities – including Fort Wayne – with local protections, though they vary in scope and enforcement. The bill would leave in place those local human rights ordinances passed before Jan. 1.

“You can say ‘you’re gay. You’re fired,’ ” Indiana Chamber of Commerce President Kevin Brinegar said. “That’s wrong.”

He supports a stronger bill due to the profound and ongoing impact on the state’s ability to attract jobs, investment and skilled workers as a result of last year’s national firestorm over religious rights. But he said this version is a step in the right direction.

Eric Miller, who heads the religious-based Advance America, said it is impossible for legislators to both protect faith and extend civil rights to LGBT Hoosiers.

“A vote for this bill is a vote against religious liberty,” he said.

The panel also threw a curve­ball into the mix by adding an amendment to eliminate the state Religious Freedom Restoration Act – and its fix – passed last year.

Sen. Brandt Hershman, R-Buck Creek, said the language essentially reverts Indiana back to the previous status before the RFRA fight. Specifically, it codifies a legal standard the Indiana Supreme Court made precedent in 2001 protecting religious freedom.

Democrats supported that amendment but all voted against the bill.

“We can’t send a message that we only allow a little discrimination,” said Sen. Tim Lanane, D-Anderson.

Tony Cook, Chelsea Schneider and Stephanie Wang of the Indianapolis Star report:
A bill that would provide some protections for lesbians, gays and bisexuals — but not transgender Hoosiers — squeaked out of an Indiana Senate committee Wednesday night.

But no one on any side of the highly contentious debate seems particularly pleased with the heavily amended measure, which faces an uncertain future as it heads to the full Senate for more heated wrangling early next week.

Democrats slammed the measure, Senate Bill 344, for excluding transgender Hoosiers and even the seven GOP lawmakers who voted for it expressed reservations.

"It is going to go to the floor of the Senate where there will be a robust debate and its fate is unknown," Senate President Pro Tempore David Long said. "We don’t know what will be the outcome, but we’ll have the discussion and we’ll see where it goes."

Several lawmakers said their votes represented an effort to continue the conversation about gay rights — not necessarily support for the current proposal. * * *

During the hearing, lawmakers surprisingly added to the bill a repeal of last year's controversial Religious Freedom Restoration Act and the "fix" that quickly followed it.

If adopted, the changes would make Indiana the first state in the nation to repeal a RFRA law, according to one legal scholar. It also would represent a stunning reversal for leaders of the Republican-controlled Senate, who pushed hard to pass RFRA despite concerns that it could allow businesses to discriminate against same-sex couples.

Long and his fellow Republicans made it clear they want to put the negative perceptions created by the RFRA furor behind them. But impassioned testimony during the five-hour hearing also made it clear that the political atmosphere is still clouded by extreme feelings and fears on both sides.

Republican committee members also added adoption and crisis pregnancy centers to the list of organizations and businesses that would still be allowed to discriminate against LGBT people under the proposal. Another change would also allow faith-based groups, such as homeless shelters, to discriminate even if they aren't affiliated with a church.

Democrats objected to those carve-outs.

“Once we create loopholes, people take advantage of them," Senate Minority Leader Timothy Lanane, D-Anderson, said.

The bill already had allowed small wedding service providers and religious-affiliated organizations to discriminate against gays and lesbians. But it also adds sexual orientation to Indiana's civil rights laws, protecting gays and lesbians from discrimination in housing, employment and public accommodations. * * *

Scott McCorkle, CEO of Salesforce Marketing Cloud, said SB 344 is unacceptable because it leaves out protections for transgender individuals. McCorkle said that repealing RFRA reopens much of the arguments of last year’s debate.

“Therefore I speak to you today with grave concerns about the economic future of our state,” he said.

McCorkle said Indiana is still “reeling” from the damage he feels was caused by RFRA, and that he supported the “fix” to ensure the law couldn’t be used to discriminate against individuals based on sexual orientation and gender identity.

He said repealing RFRA and the subsequent “fix” threatens to “take us back to that dark moment in Indiana history."

Transgender military veteran Rhiannon Carlson asked lawmakers to include protections for transgender people.

Dan Carden of the NWI Times writes:
An Indiana Senate committee approved legislation Wednesday night providing civil rights protections to lesbian, gay and bisexual Hoosiers, tempered with a broad exemption for nearly any entity claiming a religious affiliation.

Senate Bill 344 also intentionally excludes transgender Hoosiers from its anti-discrimination provisions, leaving thousands of Indiana residents vulnerable to losing their jobs, homes or being denied service in a restaurant or other business open to the public. * * *

Committee members spent more than 90 minutes tinkering with specific details of the legislation before settling on a final version and considering some three hours of public testimony.

The plan adds sexual orientation, veteran status and active-duty military status to the seven classes — race, religion, color, sex, national origin, disability and age — already specifically protected under Indiana law against discrimination in housing, education, employment and access to public accommodations.

Religion-affiliated organizations, including churches, adoption agencies, day care programs, schools, clergy and any other nonprofit that offers religious-centered programs, as well as most wedding service providers, could still discriminate based on sexual orientation by claiming sincerely held religious beliefs.

State Sen. Travis Holdman, R-Markle, sponsor of the legislation, also persuaded the panel to specifically authorize anti-abortion organizations and crisis pregnancy centers to continue discriminating against homosexuals if they choose.

In addition, the measure lifts a state ban on contracting with businesses and other entities that favor hiring members of a specific religious group, as permitted by federal law, or requires their employees follow a religion-inspired code of conduct.

It also repeals the 2015 Religious Freedom Restoration Act, including the "fix" that prohibited discrimination based on sexual orientation and gender identity, and replaces it with a direction to the Indiana Supreme Court that religious liberty should be strongly favored in any case involving the constitutionally protected right.

A similar proposal, Senate Bill 66, known as "Super RFRA," which would have declared freedom of religion, speech, assembly and the right to bear arms only can be infringed by the state through the least restrictive means of furthering a compelling government interest, failed to advance out of a separate committee Wednesday.

Finally, the legislation requires a General Assembly study committee this summer review issues relating to gender identity discrimination for possible action by lawmakers in 2017.

Holdman said it was challenging for him as a conservative, evangelical Christian to figure out the appropriate balance between anti-discrimination protections and religious freedom. He pronounced himself satisfied with the committee-approved proposal.

Most Hoosiers testifying to the committee were less satisfied, and opposition to the measure produced some odd political bedfellows.

For example, both Curt Smith, head of the Indiana Family Institute, and Chris Paulsen, of Freedom Indiana, urged lawmakers to reject the proposal.

Smith because it provides sexual orientation protections; Paulsen because it excludes gender identity.

Business leaders, including Kevin Brinegar of the Indiana Chamber of Commerce and Scott McCorkle of Salesforce, declared the proposal a good start, but ultimately unacceptable because it diminishes Indiana's welcoming reputation by continuing to permit some discrimination.

The committee rejected a proposal that it simply add "sexual orientation, gender identity" to the civil rights statutes without any exceptions.

[Updated 1/289/16] Here is Hayleigh Colombo's long IBJ story on Wednesday's committee hearing.

Posted by Marcia Oddi on Thursday, January 28, 2016
Posted to Indiana Government

Ind. Courts - Interview times, applications, photos of Supreme Court candidates

From the Court:

The Judicial Nominating Commission (JNC) will conduct public interviews of the thirty applicants for the Supreme Court judicial position as follows:

February 17 (Wednesday)

9:00 a.m. – 10:15 a.m. – Executive session to consider applications

(Break)

10:45 a.m. – 11:05 a.m. – Mr. Thomas P. Yoder

11:05 a.m. – 11:25 a.m. – Mr. Geoffrey G. Slaughter

11:25 a.m. – 11:45 a.m. – Mr. Thomas E. Wheeler, II

(Lunch – Executive Session)

1:30 p.m. – 1:50 p.m. – Hon. Thomas J. Felts

1:50 p.m. – 2:10 p.m. – Mr. Peter J. Rusthoven

2:10 p.m. – 2:30 p.m. – Hon. Vicki L. Carmichael

(Break)

2:45 p.m. – 3:05 p.m. – Mr. David E. Cook

3:05 p.m. – 3:25 p.m. – Mr. Curtis E. Shirley

3:25 p.m. – 3:45 p.m. – Mr. Mark A. Lienhoop

February 18 (Thursday)

9:30 a.m. – 9:50 a.m. – Hon. James R. Ahler

9:50 a.m. – 10:10 a.m. – Hon. Sally A. McLaughlin

10:10 a.m. – 10:30 a.m. – Hon. Matthew C. Kincaid

(Break)

10:45 a.m. – 11:05 a.m. – Ms. Jaime M. Oss

11:05 a.m. – 11:25 a.m. – Hon. Larry W. Medlock

11:25 a.m. – 11:45 a.m. – Mr. John H. Shean

(Lunch – Executive Session)

1:30 p.m. – 1:50 p.m. – Hon. Steven L. Hostetler

1:50 p.m. – 2:10 p.m. – Mr. E. Nelson Chipman, Jr.

2:10 p.m. – 2:30 p.m. – Ms. Leanna K. Weissmann

(Break)

2:45 p.m. – 3:05 p.m. – Hon. Frances C. Gull

3:05 p.m. – 3:25 p.m. – Hon. Darrin M. Dolehanty

3:25 p.m. – 3:45 p.m. – Ms. Elizabeth C. Green

February 19 (Friday)

9:00 a.m. – 9:20 a.m. – Mr. Bryce D. Owens

9:20 a.m. – 9:40 a.m. – Mr. Ted A. Waggoner

9:40 a.m. – 10:00 a.m. – Hon. Kit C. Crane

(Break)

10:15 a.m. – 10:35 a.m. – Hon. Paul R. Cherry

10:35 a.m. – 10:55 a.m. – Rep. Thomas W. Washburne

10:55 a.m. – 11:15 a.m. – Mr. Thomas M. Fisher

(Break)

11:30 a.m. – 11:50 a.m. – Mr. Lyle R. Hardman

11:50 a.m. – 12:10 p.m. – Ms. Karen A. Wyle

12:10 p.m. – 12:30 p.m. – Hon. Steven R. Nation

(Break)

12:45 p.m. – Lunch and Deliberations in Executive Session

The interviews are open to the public and will take place at the Indiana State House in room 319. Decorum rules are in place for the press and public:

According to the Indiana Constitution and state statute, the seven-member JNC must recruit and select candidates to fill the vacancy on the state’s highest court. The JNC will review applications, consider applicants’ legal education, writings, reputation in the practice of law, and other pertinent information.

After the February interviews, a second round of interviews will take place March 3-4. After interviews and deliberations in an executive session, the JNC will publicly vote to send the three most qualified candidates to the Governor who has 60 days to select Indiana's next justice.

Applications and photographs are available online. Attachments, including writing samples and transcripts, will be available Friday, January 29 from 10:00-11:30 a.m. in the Supreme Court Law Library, State House room 316. After the public display the documents are available for review in person at the library.

Posted by Marcia Oddi on Thursday, January 28, 2016
Posted to Vacancy on Supreme Court - 2016

Wednesday, January 27, 2016

Ind. Gov't. - More on: Will GA do an end-around to revive the controversial Dunes pavilion liquor license effort? [Updated]

Updating this ILB post from Tuesday, Jan. 25, which quoted from several stories on HB 1247, which had not at that point been scheduled for committee hearing, Dan Carden of the NWI Times reports this afternoon:

INDIANAPOLIS — A House committee is expected to approve legislation Thursday that could enable alcohol sales at the Indiana Dunes State Park pavilion, regardless of consent by local authorities.

House Bill 1247 was amended by the Public Policy Committee Wednesday to allow the Indiana Department of Natural Resources to obtain a new "state park" alcohol permit, without having to follow most of the procedures typically required to get state permission to sell beer, wine or liquor — including local review.

"I view these permits that we're talking about for the state parks as an economic development tool for the state, and a chance for us to leverage the assets that we have in our state parks," said state Rep. Sean Eberhart, R-Shelbyville, sponsor of the measure.

While the proposal eases the process to sell alcohol in every state park, nearly all the committee testimony during the three-hour hearing focused on the Dunes Pavilion controversy.

Last March, Pavilion Partners, LLC inked a $5 million public-private partnership with the DNR to renovate the historic lakefront pavilion and add a banquet center on an existing cement pad adjacent to the building.

After local residents furiously protested the possibility of drinking in the park, the Porter County Alcoholic Beverage Commission twice denied Pavilion Partners the alcohol sales permit they say is needed to run a successful operation.

That decision was affirmed in October by the Indiana Alcohol and Tobacco Commission. An appeal before an ATC administrative law judge tentatively is scheduled for April.

The appeal may not be needed, however, if the proposed state park alcohol measure becomes law.

Norman Hellmers, of Valparaiso, speaking on behalf of Dunes Action, a group opposed to alcohol in the park, said it is unconscionable that state lawmakers would do an end-run around a decision that's already been settled locally.

"When you want to add an amendment that says they can just automatically get a permit for each of the state parks without any local input whatsoever, well that's simply not the democratic way to do things," Hellmers said.

Region representatives of the Sierra Club and Isaac Walton League environmental organizations similarly condemned the proposal.

The measure was supported by members of local building trades unions, Region tourism organizations, the state's commerce agency, Northwest Indiana Forum and the DNR. * * *

The committee is set to vote at 7:30 a.m. Region time on whether to advance the legislation to the full House.

ILB: The amendment struck out the introduced version of HB 1247 and replaced it entirely with new language re "Alcoholic beverage permits for state parks." Here is the new language, via the NWI Times.

[More] Kevin Nevers of the Chesterton Tribune reports this afternoon:

When a spokesperson for State Sen. Jim Merritt, R-31st, told the Chesterton Tribune two weeks ago that Merritt’s SB 188—compelling the Indiana Alcohol and Tobacco Commission to issue the DNR, on behalf of a state park, a three-way permit exempt from local ABC investigation and proceedings—would not have a hearing this session before the State Senate’s Public Policy Committee but, nevertheless, that the bill had not been withdrawn, she was altogether accurate.

SB 188 has indeed not had a hearing before the Senate’s Public Policy Committee.

It will, however, in the form of a proposed amendment to HB 1247, have a hearing before the House’s Public Policy Committee at 7 a.m. (8 a.m. EST). Thursday.

In fact, HB 1247—compelling the IATC to issue a three-way to an alcohol retailer for “economic development purposes,” similarly without ABC oversight—now exists really in number only. That’s because the proposed amendment to HB 1247 is nothing more nor less than the substantive text of SB 188, with this single addition, which happens to be the amendment’s first sentence: “Delete everything after the enacting clause and insert the following.”

The matter being deleted: the language of HB 1247.

The matter being inserted: the basic language of SB 188.

As things stand now, accordingly, HB 1247 has become an empty vessel carrying Merritt’s water. That vessel was co-authored by State Rep. Tom Dermody, R-20th, and Sean Eberhart, R-57th.

Merritt’s water would pour like this: any application for a three-way made by the DNR, on behalf of “one or more state parks” must be issued by the IATC, without public notice or investigation by the local ABC; without regard to quota provisions; without a “determination of reputation and character”; and without “consideration of location,” that is, irrespective of whether there is a need for such services at the location of the permit, whether there is a desire in the neighborhood or community “to receive such services,” and whether such services will have an impact either on the community or on other businesses in the community.

Merritt told the Tribune earlier this month that his intent in authoring SB 188 was to make the inn, conference center, and golf course at Fort Harrison State Park more competitive with the many hotels, restaurants, and other entertainment options located near the park.

ILB: Here is the agenda for the Public Policy meeting, convening at 8:00 AM Eastern time tomorrow morning. Note that there is no opportunity for public testimony. You may watch the meeting live here.

[Updated 2/2/16] Here is a Jan. 29th Chesterton Tribune story by Luke Nevers that begins:

Fifteen people with an interest in HB 1247 testified before the Indiana House’s Public Policy Committee on Wednesday, one day before the committee unanimously passed the bill and sent it to the floor.

Of those, five witnesses spoke against the bill: Norm Hellmers of Dunes Action; Eric Schlene, a former resident of Jackson Township; Jim Sweeney, president of the Porter County Chapter of the Izaak Walton League of America; Larry Silvestri, also of Dunes Action; and Bowden Quinn of the Hoosier Chapter of the Sierra Club.

The other 10 witnesses spoke in favor of the bill: Dewey Pearman of the Construction Advancement Foundation of Northwest Indiana; Pete Rimsans of the Indiana State Building and Construction Trades Council; Todd Vandermyde of Operating Engineers Local 150; Heather Ennis of the Northwest Indiana Forum; Matt Whetstone of the Northern Indiana Tourism Development Commission; Mark Wasky of the Indiana Economic Development Corporation; Mark Webb, an Indianapolis attorney who specializes in alcohol permitting; Mark Shublak of the South Shore Convention and Visitors Bureau; Cameron Clark, director of the Indiana Department of Natural Resources; and Melissa Coxey, representing Pavilion Partners.

Prior to the testimony, the bill’s author, State Rep. Sean Eberhart, R-57th, took a few moments to explain the bill, which he said “would truly allow more options for the state and (DNR) to expand the amenities and offerings at our state parks.” He noted that the DNR and not any private alcohol retailer would be the permittee, and he said--in response to a query by State Rep. Charlie Brown, D-Gary, who expressed a concern about the possible mixing of minors and alcohol at the beach--that the DNR would have to follow the laws and regulations already in place with respect to alcohol.

“We’re not bypassing those rules,” Eberhart said.

State Rep. Philip GiaQuinta, R-80th, for his part, wanted to be sure of one thing: there would be no local ABC review and no ATC review of a DNR permit application, “that is correct?”

That is correct, Eberhart said. Because the DNR is a state agency, “we’re looking at a little different animal.”

But what input would there be from local residents? GiaQuinta pressed.

“Most of the state parks are pretty expansive,” Eberhart said in response. “”There no real close neighbors I know of.”

For much of the session, testimony alternated between those in opposition to HB 1247 and those in favor of it.

The story then goes on at length, detailing individual testimony.

Posted by Marcia Oddi on Wednesday, January 27, 2016
Posted to Indiana Government

Ind. Courts - Supreme Court applicants to be online tomorrow morning

From the Court:

The interview schedule will be announced tomorrow morning (Thursday, January 28). The applications (and downloadable photographs) will be online at that time.

The public viewing of the applications, with the voluminous attachments (writing samples, transcripts etc.) will now take place Friday, January 29 from 10 - 11:30 a.m. at the State House in the law library.

Posted by Marcia Oddi on Wednesday, January 27, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Courts - "Agreement with DOC marks fundamental, systemic change in the treatment of seriously mentally ill prisoners" [Updated]

From an ACLU of Indiana news release just issued. The long statement begins:

Indianapolis -A long-running class action lawsuit brought by the American Civil Liberties Union of Indiana and the Indiana Protection and Advocacy Services Commission against the Indiana Department of Correction has been settled with a proposed agreement that awaits approval by the Court after notice to the class. If approved the agreement will fundamentally transform the way seriously mentally ill prisoners are treated in state correctional facilities. The changes will affect hundreds, if not thousands, of prisoners in Indiana who will receive better access to mental health care and who will no longer be held without treatment in solitary confinement.

The agreement prohibits, with some exceptions, the confinement of seriously mentally ill prisoners in restrictive status housing or protective custody (i.e., solitary confinement). As a general rule, no prisoner who is seriously mentally ill will be placed into restrictive housing. The agreement uses a definition of severe mental illness that includes people who entered solitary with less than severe mental illnesses but whose mental health has deteriorated due to solitary. And, the agreement provides for "minimum adequate treatment" for these prisoners.
Here is a copy of the 27-page "Stipulation to Enter Into Private Settlement Agreement Following Notice to the Class and Fairness Hearing."

[Updated 1/29/16]
See this Washington Post editorial today, "Indiana takes a step forward on solitary confinement."

Posted by Marcia Oddi on Wednesday, January 27, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Still more on "No more stringent" back again

Updating this ILB post from Jan. 20th, HB 1082 passed out of House committee this morning. From a Hoosier Environment Council news release:

In Backdrop of Flint Water Crisis, House Environmental Committee Passes Major Anti-Environmental Bill, Despite Across-the-Board Opposition by Public Interest Groups

Just a few moments ago, the Indiana House Environment Committee narrowly passed (on a vote of 7 to 6) a highly controversial bill (HB 1082) that would leave Indiana vulnerable to environmental disasters like the one unfolding in Flint.

“The situation in Flint demonstrates the gaps that exist in federal regulation that Indiana could address if we do not adopt HB 1082 as law: In Committee this morning, the bill's author, Representative Wolkins, correctly pointed out that there were violations of federal drinking water regulations in Flint. However, close examination of those regulations brings to light gaps that could allow the Flint situation to happen again. For example, under federal regulation, drinking water systems can continue to deliver lead-tainted water to households and businesses for up to 24 months while a variety of fixes are attempted,” said Dr. Indra Frank, Environmental Health and Water Policy Director for the Hoosier Environmental Council.

Posted by Marcia Oddi on Wednesday, January 27, 2016
Posted to Environment | Indiana Government

Ind. Gov't. - "House OKs rules on police video access" [Updated]

Updating this ILB post from yesterday, Niki Kelly of the Fort Wayne Journal Gazette reports today:

The Indiana House voted 65-30 Tuesday to set up rules for accessing police video recordings that give wide discretion to police on when – if ever – to release them.

Rep. Kevin Mahan, R-Hartford City, said the bill is a balancing act between public information and transparency while recognizing the privacy rights of Hoosier citizens and police that might be in the recordings.

He said he doesn’t want access to the recordings to be a deterrent to law enforcement agencies thinking of adding body cameras. The bill also covers dash cameras.

“I could be the victim of a crime or the victim of police misconduct and I feel comfortable with the bill,” Mahan said.

But it has been criticized by the Hoosier State Press Association and the Indiana Broadcasters Association as giving law enforcement the power to release only the recordings that are positive.

It also places the burden to get the recording on someone asking for it unlike Indiana’s other public records laws, which places the burden on government denying the request.

House Bill 1019 sets up two processes to get access.

Members of the public and the media would have to file a lawsuit and try to prove the public interest would be served with the release of a video. Even if the person or group wins, a judge is prohibited from giving them attorney’s fees.

Secondly, people who are in the videos – or relatives and attorneys of someone now deceased in a video – can view the video twice but not get a copy. If law enforcement doesn’t comply, the person would have to go to court and might be able to receive attorney’s fees.

[Updated Jan. 28] Maureen Hayden, CNHI state Reporter, has a long story today in the Terre Haute Tribune Star, headed "Police want tight limits in bill on body-camera footage."

Posted by Marcia Oddi on Wednesday, January 27, 2016
Posted to Indiana Government

Ind. Gov't. - "With increased support, hate crime bill advances"

Stephanie Wang reports in today's Indianapolis Star in a story that begins:

With new bipartisan support, and with sway from influential city leaders, Indiana lawmakers gave preliminary approval Tuesday to what could become the state's first hate crime law.

But a public hearing on the issue quickly became snarled by friction from the debate over lesbian, gay, bisexual and transgender rights.

The mere discussion of a hate crime law marked a big departure from previous years when Democrat proposals on the issue never advanced.

This year, a Senate committee took up a proposal brought by Republican lawmaker Susan Glick from LaGrange. Marion County Prosecutor Terry Curry showed up to put his weight behind the issue, joined by a coalition of institutions that serve minorities.

Senate Bill 220 would create a sentencing enhancement for bias-motivated crimes, as opposed to previous proposals to make it a separate criminal charge. Courts could consider stricter penalties for convicted offenders who targeted victims because of characteristics such as race, religion, sex, disability, sexual orientation or gender identity.

"This is about evil intent," Glick said. Hate crimes can send chilling messages throughout communities, she said — but a law could send a message back to criminals that the state will not tolerate hate. Indiana is one of five states without a hate crime statute.

Curry cited several past examples of crimes motivated by bias: the burning of a cross in a Johnson County yard, the attack of a Muslim woman in Bloomington, and the intimidation of a gay neighbor in Indianapolis.

Posted by Marcia Oddi on Wednesday, January 27, 2016
Posted to Indiana Government

Ind. Courts - "Court Of Appeals Rules Against County Speed Limit"

The Jan. 19th Court of Appeals opinion in Cary R. Coleman v. State of Indiana (ILB summary here, 2nd case), where the court concluded:

Because there were no “appropriate signs giving notice of the altered speed limit” to northbound drivers on Leesville Road, the statewide default speed limit of 55 miles per hour was applicable. See I.C. § 9-21-5-6(c). As Coleman did not exceed that speed, the judgment against him was in error.
was the subject of a story Jan. 27th from WBIW, Bedford. Some quotes:
(BEDFORD) - Lawrence County Attorney Dave Smith addressed the commissioners about a Indiana State Court of Appeals Case that will affect the speed limits on county roads. On January 19th the appeals court ruled ruled in favor of Cary R. Coleman.

On November 29, 2014 Coleman was driving north on Leesville Road when a Lawrence County Police officer clocked him going 46 miles per hour. The officer stopped Coleman and issued Coleman a speeding ticket.

Pursuant to Ordinance 5-2-1 county officials had altered the speed limit on Leesville road from the statewide default of 55 miles per hour to 35 miles per hour. However there were no signs on Leesville Road giving northbound motorist notice of the altered speed limit.

Coleman fought the ticket and the matter was set for trial on March 2, 2015. The trial court heard arguments from the state and Coleman. Coleman testified that he had exceeded the 35 miles per hour, but argued that the applicable speed limit was 55 miles per hours saying there were no signs posted stating different for northbound traffic.

He did state there was a speed limit sign facing southbound traffic, but that the sign had been illegally placed by a private citizen.

According to Coleman, in the absence of signage notifying northbound motorists of the altered speed limit, the 55 mile-per-hour statewide default speed limit applied. * * *

The Appeals Court found in favor of Coleman stating that because there was no sign on Leesville Road notifying northbound motorists of the altered speed limit. Thus, pursuant to I.C. § 9-21-5-6(c), the altered speed limit was not effective as to northbound traffic, and the default speed limit of 55 miles per hour was applicable.

Because Coleman was alleged to have been traveling at 46 miles per hour, he did not commit the civil infraction of speeding. As Coleman did not exceed that speed, the judgment against him was in error.

Smith says the issue now is that county roads that are not posted with 35 miles per motorist traveling more than 35 miles per hour are not violating the speed limit.

Smith added that now before a 35 mile per hour sign can be posted the sheriff's and highway department will have to do a road study, post notice of the changed speed limit and hold a public meeting for each county road that does not have a posted speed limit sign.

"Which will cost a lot of money," says Commissioner President Bill Spreen. "We live here and know what speed limits our roads need. This is just another way for the state to totally over write us."

Posted by Marcia Oddi on Wednesday, January 27, 2016
Posted to Ind. App.Ct. Decisions | Indiana Government

Ind. Gov't. - "Key LGBT bills to get hearings this week (today)"

Megan Banta reported Sunday in the $$ Bloomington Herald-Times, in a story that begins:

As state lawmakers prepare to begin the debate over expanding Indiana's civil rights laws to include protections for lesbian, gay, bisexual and transgender Hoosiers, Bloomington officials and LGBT advocates have concerns about the first three proposals to receive consideration.

One of the proposals — Senate Bill 66, which lawmakers will discuss at 9 a.m. Wednesday — defines certain rights, including the right to worship, to freely exercise one's religious opinions and right of conscience, to freedom of religion generally and to bear arms, as fundamental. [ILB: SB 66 was withdrawn from consideration this morning.]

It's received criticism from LGBT advocates, including Freedom Indiana, a statewide grassroots campaign working to update Indiana’s civil rights law to protect gay and transgender Hoosiers from discrimination in employment, housing and public accommodations, as being a second version of the Religious Freedom Restoration Act, which the proposal also would repeal.

The other two bills expand protections to include all or part of what many LGBT rights advocates want, although both include exemptions for religious objections. Those proposals — Senate Bills 100 and 344 — will be up for discussion at 4 p.m. Wednesday. [ILB: You may watch the hearing here when it begins]

Local officials and advocates say both of those proposals complicate the issue when there's a simple solution.

"I think those 'four words and a comma' would be a simple enough thing to do to put this all to rest," Bloomington City Council member Susan Sandberg said, referring to proposals that would add "sexual orientation, gender identity" to the state's existing civil rights code.

Worth reading before the hearing is this lengthy Sunday Indianapolis Star story by Tony Cook and Chelsea Schneider, headed "For Indy powerbrokers, a dilemma on LGBT rights." It begins:
Increasingly, an unspoken question hangs over Indiana’s debate on gay rights: How far are the state’s key business leaders willing to go in their push to expand the state’s civil rights laws?

Those leaders flexed their muscles last year to temper the national firestorm that followed the passage of the Religious Freedom Restoration Act, which critics feared would open the door to discrimination against lesbian, gay, bisexual and transgender Hoosiers.

At the time, those business leaders vowed to continue fighting for full statewide LGBT protections.

But now, nine months later, they’re faced with a dilemma.

Any such legislation could put Gov. Mike Pence in political danger as he faces one of the toughest campaigns of his career.

If Pence opposes expanded protections, as he has in the past, he would run counter to public opinion polls that show a majority of Hoosiers support them. But if he supports an expansion, he risks alienating social conservatives whom he needs to turn out in a tight race.

The best thing for Pence — politically — might be if the legislation never reaches his desk.

That leaves business leaders with a tough choice: Will they go to the mat for LGBT Hoosiers and push to advance civil rights legislation, even if it means handing a potential political advantage to Pence’s union-backed opponent, Democrat John Gregg?

The Indianapolis Star is keeping a running update to today's activities here.

Posted by Marcia Oddi on Wednesday, January 27, 2016
Posted to Indiana Government

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

For publication opinions today (1):

In In Re the Marriage of: Courtney Carr v. Beth E. Carr, a 10-page opiniion, Judge Baker writes:

Courtney Carr appeals the trial court’s dissolution order, which, in part, did not count the survivor benefit plan feature of his military pension as a marital asset. Finding that the survivor benefit plan should have been counted as a marital asset, we affirm in part, reverse in part, and remand with instructions to recalculate the asset distribution. * * *

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions to (1) count the SBP as a marital asset and (2) either (a) make findings justifying a sixty-five/thirty-five split or (b) reallocate the marital assets in accordance with a sixty/forty split.

NFP civil decisions today (1):

Tywann T. Gray v. Evergreen Finance, LLC (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Wednesday, January 27, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Be aware: planned e-filing downage

The ILB has just received a copy of this announcement:

This is notification that the Indiana efiling environment will be unavailable for system maintenance from Friday, January 29, 2016 at 11:00 pm EST until Saturday, January 30, 2016 at 6:00 am EST. Please plan accordingly to ensure that all necessary filings are submitted prior to this time.
A question: Why couldn't they shut it down at midnight instead of 11:00 p.m.? Yes, lawyers shouldn't wait until the last minute, but why create a problem for those who do.

Posted by Marcia Oddi on Wednesday, January 27, 2016
Posted to E-filing

Ind. Decisions - More on: DC Circuit panel "Rejects a Bid to Block Coal Plant Regulations"

Updating this ILB post from Jan. 22nd, reporting on a DC Circuit ruling that "required states to move forward with plans to shut down polluting coal plants and build new wind and solar sources," the AG announces that Indiana is part of a coalition seeking a stay of the decision. Some quotes from the news release:

Indiana and a group of other states on Oct. 23 filed a legal challenge to a new EPA rule that requires existing power plants to make costly technological changes to reduce carbon dioxide emissions. The states had asked the U.S. Court of Appeals for the District of Columbia Circuit to stay, or halt implementation of, the rule so EPA could not enforce it while the underlying lawsuit is being litigated.

Late Thursday, the DC Circuit denied the multistate group’s request for a temporary stay; so the 29 states and state agencies who are plaintiffs today appealed that ruling to the United States Supreme Court. The multistate coalition asks the Supreme Court to overrule the DC Circuit and stay enforcement of the EPA rule while the underlying legal challenge is being litigated. If the stay is granted, the multistate lawsuit still would proceed on its legal merits in the DC Circuit, but without the states having to undertake costly rule implementation now.

Here is a copy of the 63-page motion for SCOTUS stay in West Virginia & Texas et al v. EPA, signed by 29 states, including Indiana.

Posted by Marcia Oddi on Wednesday, January 27, 2016
Posted to Environment | Indiana Government

Ind. Courts - Still more: Local papers/media report on Supreme Court applicants [Updated]

Updating yesterday's posts (see all posts on 2016 Supreme Court vacancy here), another story: "Three Area Residents Apply For Indiana Supreme Court Vacancy," WBIW Bedford. Some quotes:

Locally, attorneys Karen A. Wyle, and John H. Shean, both of Bloomington and Washington Circuit Court Judge Larry W. Medlock have applied to fill the seat of Justice Brent E. Dickerson, who is retiring on April 26 after serving as a judicial branch leader for more than 30 years.
[Updated Jan. 28] And here, from the South Bend Tribune, "Five area applicants for Indiana Supreme Court seat":
Five area lawyers are among 30 applicants to replace Justice Brent E. Dickson on the Indiana Supreme Court.

They are Marshall County Prosecutor E. Nelson Chipman; Lyle R. Hardman, partner with Hunt Suedhoff Kalamaros, South Bend; St. Joseph Superior Court Judge Steven L. Hostetler; Mark A. Lienhoop, managing partner of Newby, Lewis, Kaminski & Jones, LaPorte; and Jaime M. Oss, managing partner of Huelat Mack & Kreppein, Michigan City.

Posted by Marcia Oddi on Wednesday, January 27, 2016
Posted to Vacancy on Supreme Court - 2016

Tuesday, January 26, 2016

Ind. Courts - More: Local papers/media report on Supreme Court applicants

Updating this post from earlier today, another story:

Posted by Marcia Oddi on Tuesday, January 26, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - Supreme Court reprimands Hammond attorney

In In the Matter of: Eduardo Fontanez, Jr., an order filed Jan. 25, the Court writes:

Stipulated Facts: Respondent represented Client in a tort action against the City of Hammond. After the case was removed from state to federal court, Respondent failed: (1) to serve initial disclosures as required under federal rules of procedure; (2) to respond to discovery requests; (3) to respond to an order compelling discovery; (4) to pay attorney fees awarded to the defendants; (5) to respond to the defendants’ motion for sanctions; and (6) to appear at the hearing on the motion for sanctions. The federal court granted the defendants’ motion for sanctions and dismissed the tort action with prejudice.

Respondent failed to apprise Client of the status of the case or respond to Client’s requests for information. Client eventually learned of the case disposition from his daughter, who looked it up online.

Aggravating and mitigating facts. The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no prior discipline; (2) Respondent has been cooperative with the Commission and has been remorseful; (3) during the period of misconduct, Respondent was in the midst of a prolonged custody dispute; (4) Respondent has reached out to Client and encouraged him to consult with an attorney regarding a malpractice action against Respondent, and is willing to pay any malpractice judgment that might be entered; and (5) Respondent has attended CLE programs and consulted with other practitioners in an effort to improve his practice management and skills.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:
1.1: Failure to provide competent representation.
1.3: Failure to act with reasonable diligence and promptness.
1.4(a): Failure to keep a client reasonably informed about the status of a matter and respond promptly to reasonable requests for information.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent’s misconduct. The costs of this proceeding are assessed against Respondent.

Posted by Marcia Oddi on Tuesday, January 26, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Still more on "Bill allows legislative employees to carry guns"

Updating this ILB post from Jan. 21st, SB 259, "Carrying of handguns by members and employees of the general assembly," is on the third reading calendar this afternoon.

Posted by Marcia Oddi on Tuesday, January 26, 2016
Posted to Indiana Government

Ind. Gov't. - HB 1019, law enforcement recordings, is on 3rd reading this afternoon

HB 1019 was the subject of a long Jan. 18th ILB post, headed ""Police could refuse to release video footage in new Indiana bill."

The Indianapolis Star had this editorial today, headed "Police camera footage should remain public":

The use of body and dashboard cameras by police departments aims to build trust between law enforcement officials and the public. Video from such cameras has proven to be a vital tool in determining the truthfulness of encounters between civilians and officers.

Proposed legislation that would allow Indiana police departments to decide whether to release video footage captured on body-worn or dashboard cameras would undermine efforts to increase police transparency and the ability for citizens to hold law enforcement accountable for their actions.

House Bill 1019, authored by Rep. Kevin Mahan, R-Hartford City, would limit public access by giving police departments the freedom to show recordings of law enforcement actions only to the person in the video or that person’s relatives or attorney. The general public could be shut out from valuable information under HB 1019.

Allowing departments to shield information about questionable incidents is a bad idea. Such footage has proven to be good for citizens and for police officers, who have been exonerated when falsely accused of wrongdoing. Yet incidents of inappropriate deadly force, and the use of video as objective evidence in these cases, also underscores the necessity of such technology.

Under the proposal, if a law enforcement agency refuses to release footage, the person requesting the video would have to take the department to court and argue for the video’s release. Hoosiers have a right to government records and documents — in the case of video, visual documentation — and residents should not have to pay legal fees to fight for their release. Not only would that option be financially prohibitive for some, but there is no guarantee that they would win in court.

This proposed legislation unnecessarily attempts to undo sound public policy. Disclosure of how government operates is mandatory in maintaining a democratic society. Similar to other police records, video camera footage should be subject to current public records laws.

House Bill 1019 is a disturbing and overreaching piece of legislation. Lawmakers should quickly do away with this bill and move on to other important matters.

Posted by Marcia Oddi on Tuesday, January 26, 2016
Posted to Indiana Government

Ind. Gov't. - More on: "Miami Nation of Indiana trying to win back recognition as a tribe" [Updated]

Updating this Oct. 26, 2015 ILB post quoting from a good story by Andrea Neal, and this post on Oct. 30, Maureen Hayden, here identified as Goshen News Statehouse Reporter, reported Jan. 25 in the Goshen News, under the headline: "MAUREEN HAYDEN: Miami chief continues long fight." Some quotes:

Brian Buchanan spent his childhood hiding the fact that he was Native American, advised to do so by older relatives who feared he would be bullied and shamed. Now, as an adult, he wears his heritage proudly as chief of the Miami Nation of Indiana.

But for Buchanan, 54, the distinction means he inherits a fight waged for more than a century, to get the state and federal governments to formally recognize the 5,000-member Miami as an official Indian nation.

“It’s exhausting,” said Buchanan, who’s led the campaign for more than a decade. He recalled the famous surrender speech of one his heroes, the defiant Chief Joseph of the Nez Perce, after he was forced from his tribal land in 1877.

“I can understand when Chief Joseph said, ‘I will fight no more forever.’”

Still, there was a moment at the Statehouse last week that buoyed Buchanan, who works as an electrical engineer. The Senate Public Policy Committee unanimously passed a bill giving the Miami the right to a seat on the state’s Native American Indian Affairs Commission. [Update: see below]

It’s a small victory, given the commission’s minor role advising the governor and lawmakers. But it’s symbolic of progress toward the larger goal.

The bill’s author, Sen. Randy Head, R-Logansport, has authored similar bills that never even got a hearing.

“It just begins to recognize an historical truth,” said Head, whose district includes Miami County, home to Buchanan’s ancestors for more than 100 years before Indiana became a territory.

The story of the Miami Nation is messy and shameful. Much of the Miami were forcibly removed in 1846. Theirs was the last of the Native American tribes pushed out of Indiana following the passage of the federal Indian Removal Act.* * *

As things stand, it would take an act of Congress to allow the Miami Nation of Indiana to re-petition the federal government to join the 566 other tribes recognized as sovereign nations.

U.S. Sen. Joe Donnelly, a Democrat, has taken up that complicated pursuit.

Buchanan says tribal leaders see their effort as part of an “ancestral promise” that cannot be broken.

“We see it as a restoration of our dignity as a people,” he said. “Our ancestors were mistreated, cheated and lied to. It was a wrongdoing that needs to be fixed.”

[Updated at 1:54 PM] SB 13 is on third reading this afternoon.

Posted by Marcia Oddi on Tuesday, January 26, 2016
Posted to Indiana Government

Ind. Gov't - SB 109 - "the unsatisfactory culmination of years of debate"

That is the conclusion on the canned hunting bill likely to become law this law, reached in this Fort Wayne Journal Gazette editorial today:

Sporting world, rejoice!

To ensure that canned hunting is “regulated,” a bill passed by the Indiana Senate last week would legalize the practice of shooting penned, domesticated deer. To ensure that no one misses out on an opportunity to make money from people willing to pay big money to shoot big bucks, Senate Bill 109 would allow the number of these so-called “hunting preserves” to proliferate around the state.

But in a big nod to the querulous few who have tried to bring the concept of sportsmanship into the canned-hunting debate, the Senate’s bill would prohibit stalking and slaughtering these penned trophies-to-be for 24 hours after the deer are drugged. Yes, drugged. That, you see, wouldn’t be a “fair” chase.

In an especially courageous ethical step, the bill now being rushed through the legislature’s short session would prohibit hunters from shooting deer over the Internet. Computer-assisted hunting with drones or remotely controlled rifles would not be allowed.

If, as seems very likely, this bill becomes law, it will be the unsatisfactory culmination of years of debate. In addition to the sportsmanship question, there’s been concern that keeping herds of deer in high-fenced shooting ranges could increase the danger of disease that could destroy both domesticated and wild deer.

A battle between the preserves and the Department of Natural Resources left the matter in limbo until last year, when an appellate court ruled that the DNR did not have authority over the facilities.

To ensure that the facilities get at least a bit of regulation, even some opponents of the practice are throwing in the towel this time around. Sen. John Broden, D-South Bend, told The Journal Gazette’s Niki Kelly that he supported SB 109 even though “my preference would be to ban this activity altogether.”

But by passing a law regulating the practice of canned hunting, the legislature would be legitimizing the illegitimate. Canned hunting isn’t sporting or humane, and it shouldn’t get the Indiana legislature’s seal of approval.

ILB: The editorial might also have noted that once SB 109 becomes law, there can be no turning back for Indiana.

For background, start with this ILB post from Jan. 22nd.

Posted by Marcia Oddi on Tuesday, January 26, 2016
Posted to Indiana Government

Ind. Courts - Local papers report on Supreme Court applicants

Here are the stories the ILB has seen this morning:

Posted by Marcia Oddi on Tuesday, January 26, 2016
Posted to Vacancy on Supreme Court - 2016

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

For publication opinions today (0):

NFP civil decisions today (1):

Carl Mickens v. CMFG Life Insurance Company and The Estate of Harvey Mickens, Synovia Vardiman & Pearline Harris, Individually and as Administrators of the Estate of Harvey Mickens (mem. dec.)

NFP criminal decisions today (2):

Jerry E. Johnson v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Tuesday, January 26, 2016
Posted to Ind. App.Ct. Decisions

Monday, January 25, 2016

Ind. Gov't. - Med-mal reform dead for this session

SB 152 is dead, according to Brandon Smith, Statehouse Bureau Chief for Indiana Public Broadcasting. He tweets:

Sen. Steele says talks between all sides in medical malpractice bill (hospitals, trial lawyers, doctors) broke down. Couldn't advance bill. Steele refused to get into specifics on how/why talks broke down, saying he didn't want to harm future negotiations.
It was scheduled for a hearing today in Senate Judiciary.

Posted by Marcia Oddi on Monday, January 25, 2016
Posted to Indiana Government

Ind. Courts - 30 apply for Supreme Court vacancy - 2nd breakdown [Corrected]

The ILB has covered the filling of the three earlier 21st century Supreme Court vacancies. Here are the lists of candidates:

There are some overlaps this year:

Posted by Marcia Oddi on Monday, January 25, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Courts - 30 apply for Supreme Court vacancy - 1st breakdown

First breakdown of applicants:

Posted by Marcia Oddi on Monday, January 25, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Courts - 30 apply for Supreme Court vacancy

The Judicial Nominating Commission received 30 applications for the upcoming Indiana Supreme Court vacancy. The following attorneys and judges have applied for the seat which will be available when Justice Brent E. Dickson retires April 29, 2016 after 30 years as a judicial branch leader.

1. Hon. James R. Ahler, Jasper Superior Court

2. Hon. Vicki L. Carmichael, Clark Circuit Court 4

3. Hon. Paul R. Cherry, U.S. District Ct., Hammond

4. Eugene N. Chipman, Jr., Plymouth

5. David E. Cook, Indianapolis

6. Hon. Kit C. Crane, Henry Circuit Court 2

7. Hon. Darrin M. Dolehanty, Wayne Superior Court 3

8. Hon. Thomas J. Felts, Allen Circuit Court

9. Thomas M. Fisher, Indianapolis

10. Elizabeth C. Green, Indianapolis

11. Hon. Frances C. Gull, Allen Superior Court

12. Lyle R. Hardman, South Bend

13. Hon. Steven L. Hostetler, St. Joseph Superior Court

14. Hon. Matthew C. Kincaid, Boone Superior Court 1

15. Mark A. Lienhoop, La Porte

16. Hon. Sally A. McLaughlin, Dearborn Superior Court 2

17. Hon. Larry W. Medlock, Washington Circuit Court

18. Hon. Steven R. Nation, Hamilton Superior Court 1

19. Jaime M. Oss, Michigan City

20. Bryce D. Owens, Pendleton

21. Peter J. Rusthoven, Indianapolis

22. John H. Shean, Bloomington

23. Curtis E. Shirley, Indianapolis

24. Geoffrey G. Slaughter, Indianapolis

25. Ted A. Waggoner, Rochester

26. Rep. Thomas W. Washburne, Evansville

27. Leanna K. Weissmann, Lawrenceburg

28. Thomas E. Wheeler, II, Indianapolis

29. Karen A. Wyle, Bloomington

30. Thomas P. Yoder, Fort Wayne

According to the Indiana Constitution and state statute, the seven-member Commission must recruit and select candidates to fill the vacancy on the state’s highest court. The Commission will review applications, consider applicants’ legal education, writings, reputation in the practice of law, and other pertinent information.

Initial interviews are February 17-19 with a second round March 3-4. They are open to the public and will take place at the Indiana State House in room 319. When the February interview schedule is made public, applications and photographs will be available online. Attachments, including writing samples and transcripts, will be available February 5 from 10:00-11:30 a.m. in the Supreme Court Law Library. After February 5, the attachments are available in person at the library.

After interviews and deliberations in an executive session, the Commission will publicly vote to send the three most qualified names to Governor Mike Pence. The Governor has 60 days to select Indiana's next justice.

Posted by Marcia Oddi on Monday, January 25, 2016
Posted to Vacancy on Supreme Court - 2016

Env't. - "Flint water crisis reflects national ambivalence on pollution regulation"

Fascinating, must-read story today by Michael Hawthorne of the Chicago Tribune. The long story begins:

The last time a top Chicago-based EPA official was ousted from her post, it was for being too aggressive about fighting pollution in Michigan.

Mary Gade was forced out as the agency's regional administrator in 2008 amid an outcry from politicians angered and embarrassed by a series of legal actions she took to force Dow Chemical, one of the state's leading employers, to speed up the removal of toxic waste from Saginaw-area rivers.

Now one of Gade's successors is out after handling another environmental debacle too cautiously. Susan Hedman resigned under fire Thursday, a few days after President Barack Obama declared a federal emergency involving lead-contaminated drinking water in Flint.

Emails and other documents obtained by researchers and local journalists show EPA officials in Chicago were alarmed a year ago about Flint's unfolding disaster. But while an agency expert played a critical role in exposing the extent of the lead contamination, Hedman chose to work slowly behind the scenes instead of warning the public.

"There is a moral failure here that is beyond astonishing," said Henry Henderson, Midwest director of the Natural Resources Defense Council, a nonprofit advocacy group that was preparing a lawsuit against the EPA before Hedman resigned and the agency announced it would take action to ensure Flint residents have safe drinking water.

The EPA responses in Flint and Saginaw highlight a long-running national debate about how federal and state governments react to pollution problems. Politicians from both parties frequently condemn environmental regulators as overzealous or ham-handed, even as they demand to know why more isn't being done to protect the public from toxic chemicals and air pollution.

Often it takes persistent citizens, pressure from nonprofit groups and the glare of media attention to break through bureaucratic inertia in agencies that critics routinely compare to either Nazis or Keystone Kops.

In Flint, residents started asking questions more than a year ago about foul-smelling, rust-colored water streaming out of their taps after the city started drawing from the Flint River.

Posted by Marcia Oddi on Monday, January 25, 2016
Posted to Environment

Ind. Decisions - Supreme Court decides one today

In Shane Keller v. State of Indiana, an 8-page, 3-2 opinion, Justice Dickson writes:

Following a jury trial, the defendant was convicted of two counts of Class B felony Burglary for breaking and entering into a farmhouse. Because the jury instruction's expansion of the statutory definition of a "dwelling" for purposes of Class B felony Burglary included misleading language and invaded the province of the jury, we direct the trial court to change the Class B felony Burglary convictions to Class C felony Burglary convictions and to resentence the defendant accordingly. * * *

Rucker and David, JJ., concur.

Massa, J., dissents with separate opinion in which Rush, C.J., joins. [which begins, at p. 7] In crafting a proper jury instruction for the term “dwelling,” the trial court here was placed in a difficult position: either to rely exclusively on the text of the statute, or to further inform deliberations by incorporating the holding of White v. State, which unambiguously found that where a person maintained personal belongings in a house, and intended to take up residency in that house in the near future, it qualified as a “dwelling” for purposes of a burglary conviction, because any other result would “defy logic.” 846 N.E.2d 1026, 1031 (Ind. Ct. App. 2006). The majority finds that it was error for the trial court to incorporate the holding of White, because that panel considered a challenge to the sufficiency of the evidence supporting conviction, rather than the adequacy of a jury instruction. * * *

It is not that complicated. Juries are perfectly capable of discerning a dwelling from a doctor’s office, and they did so in this case, with guidance from the trial court that was not so inappropriate as to merit reversal by this Court.

Posted by Marcia Oddi on Monday, January 25, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 22, 2016

Here is the Clerk's transfer list for the week ending Friday, January 22, 2016. It is 3 pages (and 30 case) long.

Four transfers were granted last week:

Additionally, there were two cases last week where transfer was denied by a 3-2 vote. In both cases, the justices who voted to grant transfer were CJ Rush and J Dickson:

Posted by Marcia Oddi on Monday, January 25, 2016
Posted to Indiana Transfer Lists

Env't. - Man-made environmental crises in the news

Sunday's papers had several long, thorough overviews of the tragedy in Flint, Michigan:

And the incredible ongoing story out of LA is reported by Ian Lovett of the NY Times in a story headed "Gas Leak in Los Angeles Has Residents Looking Warily Toward Flint."

And lest we forget, from August, the story of the massive spill of mining waste in Colorado, caused by the EPA, here reported in Newsweek last summer.

Posted by Marcia Oddi on Monday, January 25, 2016
Posted to Environment

Ind. Law - "When You Die, Who Can Read Your Email?" Indiana among those considering new law

That was the heading of an ILB post from about this same time last year, one of many posts the ILB has had on digital assets.

Again this year the General Assembly is considering the Revised Uniform Fiduciary Access to Digital Assets Act of the National Conference of Commissioners on Uniform State Laws. The bill is SB 253, authored by Senators Waltz and Bray. The bill was passed out of committee on Jan. 21.

Posted by Marcia Oddi on Monday, January 25, 2016
Posted to Indiana Law

Ind. Gov't. - More on: Decision in an Illinois federal court on access to county records dispute

Last week the 7th Circuit affirmed the March 5, 2015 summary judgment order from the Central District of Illinois the ILB last wrote about in this April 20, 2015 post.

The opinion, involving "Screen-scrapers" and "web-harvesters," was Fidlar Technologies v. LPS Real Estate Data Solutions, issued Jan. 21, 2016. Judge Flaum writes in the 21-page opinion:

Fidlar Technologies (“Fidlar”) brings this action against LPS Real Estate Data Solutions, Inc. (“LPS”) for violations of the Computer Fraud and Abuse Act (“CFAA”) and the Illinois Computer Crime Prevention Law (“CCPL”). Fidlar claims that LPS improperly downloaded county land records provided through Fidlar’s services. The district court granted summary judgment in favor of LPS. It held that Fidlar failed to show that LPS acted with intent to defraud under CFAA § 1030(a)(4) or that LPS caused “damage” under § 1030(a)(5)(A). The court also rejected Fidlar’s argument that LPS knew or had reason to know that it might cause loss as required by the CCPL. For the following reasons, we affirm. * * *

In 2011, LPS designed a “web-harvester,” a computer program to download county records en masse. To create the web-harvester, LPS ran a number of standard record search-es and used a “traffic analyzer” to view the SOAP calls sent from the client to the middle tier. LPS then identified the SOAP calls necessary to retrieve records and developed its own client, the web-harvester, to emulate those SOAP calls and send them to the middle tier. LPS’s web-harvester only sent the SOAP calls necessary to retrieve records; it did not send other SOAP calls, such as those that track a user’s activ-ity. But every SOAP call did include LPS’s unique identifier assigned by each county.

Like the Laredo client, the web-harvester allowed LPS to search for and retrieve any record from the county databases it subscribed to. However, LPS’s web-harvester had three major differences from Fidlar’s Laredo client. First, the web-harvester allowed LPS to acquire records en masse rather than viewing or printing them one at a time. Second, the web-harvester allowed LPS to download or save records, an option not available in the Laredo client. Third, LPS’s web-harvester did not send any tracking data at all and did not register any print fees, even if LPS downloaded or saved a record.

LPS used its web-harvester to obtain a large number of records from the 82 county databases it subscribed to over approximately two years. It downloaded the records in bulk onto its computers and then sent the records to India. There, select data from the records were “keyed,” or entered, into LPS’s database. Throughout this period, LPS continued to pay for unlimited subscriptions in all 82 counties but did not incur (or pay) print fees for all of the records it acquired through its web-harvester. Indeed, essentially none of LPS’s activities were tracked during this period. Nonetheless, LPS’s web-harvester did not disrupt Fidlar’s services to other users or alter any content in the middle tier or county data-bases.

In 2012, Fidlar received a message from one of its county customers noting that LPS was paying subscription fees but was not logging any time used. In early 2013, Fidlar decided to investigate LPS. Based on server logs, Fidlar concluded that LPS was using a web-harvester instead of the Laredo client to obtain records. * * *

Fidlar’s own conduct, moreover, bolsters LPS’s testimony on this point. LPS presented evidence that Fidlar knew that at least two of LPS’s competitors used third party programs to acquire record data via Laredo. In particular, CoreLogic used a “screen-scraper” to collect data from county records. Similarly, the First American Title Company used its own web-harvester to acquire records. Fidlar was aware of this conduct yet did not do anything to stop it. Indeed, in an in-ternal e-mail, a Fidlar employee stated that Fidlar could make screen-scraping or web-harvesting illegal with a “simple dis-claimer that states the information can’t be scraped from the image.” Taken together, this evidence suggests that even Fidlar itself did not believe that web-harvesting was impermissible. * * *

Fidlar cannot show that LPS in-tended to defraud the counties. LPS demonstrated that its intent was to efficiently acquire records in a way it believed to be permissible under the governing agreements. Its intent was not to avoid print fees. Accordingly, LPS did not intend to cause loss to the counties.

For the same reason, Fidlar cannot show that LPS knew or had reason to know that it might cause loss to the counties. LPS was aware that some counties imposed print fees and that the counties obtained revenue from these fees. But given that LPS believed that it was entitled to download records without incurring a fee, it follows that LPS did not know or have reason to know that it was causing a loss. The fact that LPS could have paid print fees but chose not to does not establish a loss to the counties because LPS was not printing records. At a minimum, Fidlar must demonstrate that LPS had reason to know that the counties were entitled to the print fees they allegedly lost. However, from LPS’s perspective, the counties were not entitled to anything beyond the unlimited subscription fees LPS was already paying. Therefore, we agree with the district court that no reasonable jury could conclude that LPS knew or had reason to know that it would or might cause a loss.

Posted by Marcia Oddi on Monday, January 25, 2016
Posted to Ind. (7th Cir.) Decisions | Indiana Government

Ind. Courts - Applications for upcoming vacancy on the state's highest court are due today by noon

Applications for an upcoming vacancy on the state's highest court are due today, January 25, 2016 by noon.

The ILB is hearing that there may be as many as 20 applications...

Watch for the names later this afternoon.

Posted by Marcia Oddi on Monday, January 25, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Gov't. - Will GA do an end-around to revive the controversial Dunes pavilion liquor license effort?

The AP's Brian Slodysko has this long, must read story in several Indiana papers this morning - some quotes:

Indiana lawmakers are looking to breathe life into an embattled privatization deal that awarded a long-term lease to a well-connected Republican developer who wants to bring fine dining and a bar to the Indiana Dunes State Park, which conservationists have fought to keep free from commercial development for over a century.

Valparaiso businessman Chuck Williams hired a lobbying firm and is working with lawmakers to push a bill that would circumvent an October ruling by the state's Alcohol and Tobacco Commission, which upheld a local liquor board's decision to deny him an alcohol permit.

Williams said alcohol sales would be necessary to make it profitable for him to rehabilitate a dilapidated pavilion in the park nestled among the towering dunes that line Lake Michigan. His plan would include two beachfront restaurants, a rooftop bar, and a glass-walled banquet hall offering "the best view in Indiana."

The project by Williams' Pavilion Partners was opposed by local environmental activists and others who helped scuttle his bid for the alcohol permit. But GOP House Speaker Brian Bosma said he hopes Rep. Tom Dermody, who chairs the House policy committee, will find an equitable way to "bring the committee to 'Yes.'"

"There's a dilapidated building there that needs to be built up, and we need to support the program — whether it is Mr. Williams or somebody else," said Dermody, a LaPorte Republican.

The measure by Rep. Sean Eberhart, R- Shelbyville, would require the ATC to bypass local liquor control boards and issue an "economic development" alcohol permit for projects like Williams' and would retroactively apply to his pending application before the ATC, which is on appeal. A spokeswoman said Eberhart was not available to comment Friday.

This isn't the first time Williams has asked lawmakers for help. Alcohol was previously banned at the park — a prohibition Williams helped turn back with the assistance of northwest Indiana lawmakers, including his neighbor Rep. Ed Soliday, a Valparaiso Republican who in 2012 sponsored legislation allowing alcohol sales and consumption.

Williams donated nearly $1,200 for Soliday's get-out-the-vote efforts the following November, according to state records.

The effort by Williams to renovate the pavilion dates back to the administration of Gov. Mitch Daniels.

For five years, Williams worked behind the scenes with state Department of Natural Resources officials, securing the decades-long privatization deal. But once the project was formally announced last March, it was engulfed in controversy amid accusations that Williams used political clout to get a sweetheart deal, working with the state long before the project went out to bid.

Williams, a state Republican Party official, has denied that his political connections played a role, and the Indiana DNR says it followed state and federal laws and did not give Williams preferential treatment. Recently updated state records show that Williams has contributed about $175,000 in office space and cash donations to GOP causes, a correction to previous state figures that indicated he had given nearly twice that amount.

From the Chesterton Tribune last week:
A group opposing an alcohol permit for a 24-hour gas station in Greenwood, Ind., has joined Dunes Action in opposing HB 1247, which as authored would allow alcohol retailers--for the sake of “economic development”--to circumvent local ABC oversight and proceedings.

The bill would also nullify many of the statutory grounds for rejecting permit applications.

“All Hoosiers need to be aware of House Bill 1247 and immediately contact their local legislators to urge them to stop this bill,” said Jim Sweeney of Dunes Action. “HB 1247 makes several changes that would eliminate local community involvement for some license applications throughout the state. It would also decrease (Indiana Alcohol and Tobacco Commission’s) authority and eliminate moral character and reputation as factors when issuing beer and liquor licenses.”

Angela Stelljes, who represents a group in Greenwood opposed to the issuance of an alcohol permit to a 24-hour gas station, said that the legislation would impact her neighborhood and allow alcohol sales near local schools. “Realizing HB 1247 obliterates what little local voice we have for the sake of profits is astonishing,” she said.

Dunes Action, for its part, hopes to keep Pavilion Partners LLC from re-introducing alcohol at Indiana Dunes State Park beach, under a long-term lease with the Indiana Department of Natural Resources which provides for at least three points of liquor sales.

Nuvo's David Hoppe had this story on Jan. 18, with the heading "Sweetheart deals beat fixing state’s economy."

Amy Lavalley's Jan. 21st Gary Post-Tribune story includes:

Critics of a plan to allow alcohol sales at the Indiana Dunes State Park aren't happy with a bill before the Indiana House of Representatives that would eliminate hearings before county liquor boards for license applications for locations for "economic development purposes."

House Bill 1247, authored by Rep. Sean Eberhart, R-Shelbyville, and co-sponsored by Rep. Tom Dermody, R-LaPorte, comes just a few months after Pavilion Partners was denied a liquor license for the pavilion at Indiana State Park.

"We think it's over the top," Jim Sweeney, co-founder of the grassroots organization Dunes Action, said of Eberhart's bill. * * *

House Bill 1247, which would be retroactive to Jan. 1, would bypass county liquor boards; would prohibit the state board from considering the permit location in granting or denying a permit in many instances; eliminates the "good moral character and repute" requirement for a beer retailer; and repeals the "high and fine reputation" requirement for a liquor retailer's permit, among other measures.

Eberhart could not be reached for comment on the intent of the bill, but Sweeney said the bill's message is that local opinion doesn't matter in granting liquor licenses.

"I think the bill is a kick in the teeth for the ATC for turning that request down" for Pavilion Partners, he said. "Why on earth would the state not want the ATC to consider the reputation of the applicant?"

Reporter Lavalley's story also points to an earlier effort this session:
Senate Bill 188, proposed by Sen. James Merritt, R-Indianapolis, would have allowed the Indiana Department of Natural Resources to bypass local liquor boards and apply for licenses with the Indiana Alcohol and Tobacco Commission. Merritt said earlier this month the focus of the bill was Fort Benjamin Harrison in his district; that bill has since been withdrawn.
Here is HB 1247. It appears the bill is not currently set for a hearing ...

The ILB has had a long list of posts on the Dunes pavilion project, dating back to 2006.

Posted by Marcia Oddi on Monday, January 25, 2016
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/25/16):

Thursday, January 28

Next week's oral arguments before the Supreme Court (week of 2/1/16): [NOTE: These cases have been rescheduled for Feb. 11]

Friday, February 5 [now Feb. 11th]

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/25/16):

Tuesday, January 26

Next week's oral arguments before the Court of Appeals (week of 2/1/16):

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, January 25, 2016
Posted to Upcoming Oral Arguments

Friday, January 22, 2016

Ind. Decisions - "Indiana High court OKs expansive police search of arrestees"

Dan Carden of the NWI Times reports this afternoon on yesterday's Supreme Court opinion in Antonio Garcia v. State of Indiana. Some quotes:

INDIANAPOLIS — The state's high court has ruled police officers in Indiana can open all items found on a person who is under arrest — regardless of an item's size, connection to criminal activity or inability to endanger officer safety.

In a 5-0 decision, the Indiana Supreme Court reversed a Feb. 3, 2015 Court of Appeals ruling that limited police search power, and reinstated the Class D felony conviction of an Indianapolis man, Antonio Garcia, for possession of a controlled substance.

Garcia was stopped by police Aug. 6, 2012 for driving without headlights at dusk and failing to signal a lane change. He later was put under arrest for driving without a license.

During a pat-down following Garcia's arrest, an officer found a small metallic cylinder in Garcia's left front pants pocket.

The officer opened the container and recognized the pill inside as a narcotic pain reliever for which Garcia did not have a prescription. * * *

Justice Stephen David, writing for the Supreme Court, said both federal and state precedents give police wide latitude to search the person and possessions of an individual following a lawful arrest.

In Garcia's case, opening the pill container did not violate his rights, and did not require a warrant, because the search was conducted as part of the arrest process, David said. Moreover, he insisted, officer safety always is a concern.

"Small and seemingly innocuous items have the potential to pose a threat," David said. "We see no reason to delay the officer's ability to inspect such items once they have already been lawfully seized."

Justice Robert Rucker, a Gary native, did not sign-on to David's reasoning but said he concurred with the result.

Posted by Marcia Oddi on Friday, January 22, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today - Zionsville v. Whitestown annexation

In Town of Zionsville, Indiana v. Town of Whitestown, Indiana, and Angel Badillo, a 22-page, 4-0 opinion with J.David not participating, Justice Dickson writes:

Today we undertake to resolve various disputes between governmental entities in Boone County, Indiana, arising under the Indiana Government Modernization Act ("GMA"), Indiana Code Section 36-1.5-1-1 et seq. We reverse both the trial court's rejection of the GMA reorganization of Zionsville and Perry Township and its approval of Whitestown's attempts to annex territory included in the 2014 Zionsville-Perry reorganization plan and territory included in Zionsville's previous 2010 reorganization. * * *

The parties' opposing motions for summary judgment presented the trial court with competing claims as to the power of Zionsville to engage with Perry Township in a reorganization under the Government Modernization Act, as to the power of Whitestown to annex Perry Township territory within such reorganization, and also as to the power of Whitestown to annex territory within Zionsville's 2010 Reorganization. These competing claims present issues of law, and we now hold that the 2014 Zionsville-Perry Reorganization is not prohibited and that Whitestown may not adopt annexation ordinances annexing territory in municipalities that are the result of completed reorganizations under the Act. The judgment of the trial court is reversed. This cause is remanded for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Friday, January 22, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Senate Judiciary Committee schedules for next week

Next week is the last week for bills to be heard in first house committee. In addition to its regularly scheduled Wednesday meeting, Senate Judiciary has also scheduled a meeting for Monday, Jan. 25th.

As indicated by the ILB in this Jan. 20th post, SB 152 (medical malpractice), which had been scheduled for hearing on the 20th, is now scheduled for Monday, Jan. 25th, upon adjournment.

Also scheduled for Monday is SB 1 (administrative law). Both bills are authored by the committee chair, Senator Steele.

A little more about SB 1, from the fiscal note:

It replaces administrative law judges (ALJ) and environmental law judges (ELJ) with an Administrative Court that conducts administrative hearings and other duties formerly conducted by ALJs and ELJs.

Judges: It provides that the Administrative Court consists of nine judges appointed by the Governor for terms of 5 years. The bill specifies that a person may serve not more than 10 years on the Administrative Court. The bill requires the Governor to appoint one of the nine Administrative Court judges to serve as Chief Judge of the Court.

Process: The bill provides that, when an action is filed with the Administrative Court, the Chief Judge assigns a panel of three of the nine judges to hear the action.

Appeal: It specifies that a: (1) decision of the Administrative Court that is not a judgment requiring or following a judicial review may be initially appealed to the Administrative Court; and (2) judgment or other decision of the Administrative Court that requires a formal judicial review may be appealed only to the appropriate circuit court or superior court.

Senate Judiciary will also meet on 9 AM on Wed., Jan. 27th. Among the bills currently scheduled are SB 66 ("civil rights") and SB 352 (Marion superior court).

[ILB - SEE this Jan. 9 IBJ article on the Marion County court issue.]

The meeting Wednesday has 6 bills scheduled at present, at least one of which, SB 66, may draw much testimony.

Additionally, be forwarned that it is not unheard of for the author of a bill to submit totally new language to the committee at the beginning of testimony, throwing some speakers who do not have access to the new language off-balance.

Posted by Marcia Oddi on Friday, January 22, 2016
Posted to Indiana Government

Ind. Decisions - DC Circuit panel "Rejects a Bid to Block Coal Plant Regulations"

This decision impacts Indiana and more than two dozen other states. Coral Davenport of the NY Times reports:

In a significant victory for President Obama, a federal appeals panel on Thursday rejected an effort by 27 states and dozens of corporations and industry groups to block the administration’s signature regulation on emissions from coal-fired power plants while a lawsuit moves through the courts.

The rule, issued last summer by the Environmental Protection Agency, is at the heart of Mr. Obama’s efforts to tackle climate change. It would require each state to significantly cut greenhouse gas pollution from electric power plants, the nation’s largest source of such emissions.

Once fully in place, the regulation — which would cut emissions from existing power plants by 32 percent from 2005 levels by 2030 — could transform the electricity system, closing hundreds of heavily polluting coal-fired plants and sharply increasing production of wind and solar powers.

But the 27 states, many of which have economies that rely on coal mining or coal-fired power, have sued the administration to kill the plan. The Court of Appeals for the District of Columbia Circuit set June 2 to hear arguments in that case, although it is widely expected to be ultimately decided by the Supreme Court, most likely in 2017.

“We are pleased that the court has rejected petitioners’ attempts to block the Clean Power Plan from moving forward while litigation proceeds,” said Josh Earnest, the White House spokesman. “We look forward to continuing to work with states and other stakeholders taking steps to implement the Clean Power Plan.”

By rejecting the petition on Thursday, a three-judge panel of the court required states to move forward with plans to shut down polluting coal plants and build new wind and solar sources.

Curtis Tate writes for McClatchy:
WASHINGTON A federal court has declined to put President Barack Obama’s Clean Power Plan on hold, meaning Kentucky and other states that sued to block it must comply with it until the legal challenges are resolved.

Under the plan, states must reduce their carbon dioxide emissions by one-third by 2030, meaning states that are heavy users of coal to produce electricity face having to move toward natural gas or renewable energy.

Here is a story from USA Today, by Richard Wolf.

Here are some earlier ILB posts on the federal Clean Power Plan.

[More] Here is a good, in-depth story from the $$ WSJournal, reported by Brent Kendall and Amy Harder. A few quotes:

The U.S. Court of Appeals for the District of Columbia Circuit, in a brief written order, denied their requests to stay the regulation during the litigation. The court said the challengers “have not satisfied the stringent requirements” for a stay of a regulation pending the court’s review. * * *

Thursday’s order declining to block the regulations came from a three-judge D.C. Circuit panel. The panel, two judges appointed by Democratic presidents and one appointed by a Republican, said it would consider the legal challenges on an expedited timeline. The court said it would hear oral arguments on June 2.

Posted by Marcia Oddi on Friday, January 22, 2016
Posted to Environment | Indiana Decisions | Indiana Government

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

For publication opinions today (1):

In State of Indiana v. Frank Hancock, a 6-page opinion, Judge Mathias writes:

Frank Hancock (“Hancock”) was charged with two counts of Level 4 felony possession of a firearm by a serious violent felon (“SVF”) in the Jefferson Superior Court. However, the trial court determined that Hancock was not an SVF because his prior conviction for residential burglary in Ohio was not “substantially similar” to residential burglary in Indiana. The State of Indiana brings this interlocutory appeal and argues that the trial court erred when it determined that the elements of residential burglary in Ohio are not “substantially similar” to those in Indiana. We affirm. * * *

The State argues that the elements of the Ohio and Indiana statutes are functionally equivalent. However, the Ohio residential burglary statute is much broader, and we are presented with different outcomes based on whether the situation occurred in Ohio or Indiana. Therefore, it is clear that the Ohio and Indiana residential burglary statutes are not substantially similar as a matter of law.

NFP civil decisions today (1):

Aaron Lake, National City Morgage Co., The Bank of New York Mellon Trust Company, N.A., and Unifund CCR Partners v. Kevin Butler d/b/a Butler Homes (mem. dec.)

Debbie Schinbeckler v. Express Scripts, Inc. and Travelers Insurance Co. (mem. dec.)

NFP criminal decisions today (2):

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

Lamocres A. Johnson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, January 22, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - NCAA suing its insurers for litigation costs

According to this report by Lorraine Bailey of the Courthouse News Service:

In a complaint filed in the Marion Superior Court in Indiana, the NCAA says its insurers -- the Federal Insurance Company, Illinois National Insurance Company, Westchester Fire Insurance Company, and XL Specialty Insurance Company -- have a duty to cover the costs associated with its various defenses. * * *

It is represented by George Plews with Plew, Shadley, Racher & Brown LLP in Indianapolis.

Posted by Marcia Oddi on Friday, January 22, 2016
Posted to Indiana Courts

Environment - EPA Region 5 administrator resigns over Flint Michigan water situation

EPA's Region 5 covers the midwest, including Indiana and Michigan.

From a story today by Melissa Nann Burke of The Detroit News:

The head of EPA’s Region 5 covering the Midwest told The Detroit News last week her department was aware since April that Flint water was not being treated with chemicals to prevent lead from leaching — a situation that its water expert said would put residents at risk for contamination. The agency did not alert the public to those concerns.

Region 5 Administrator Susan Hedman said last week that, though her agency did not alert the public to the potential dangers, it followed proper protocol by repeatedly prompting Michigan’s DEQ to implement corrosion controls.

“It is important to understand the clear roles here,” Hedman said. “Communication about lead in drinking water and the health impacts associated with that, that’s the role of DHHS (Department of Health and Human Services), the county health department and the drinking water utility.”

Flint’s lead-contaminated water system stems from the city’s switch to Flint River water in April 2014 while under control of a Snyder-appointed emergency manager. In October, after state health officials confirmed elevated levels of lead in the bloodstreams of Flint children, the city was switched back to Detroit’s Lake Huron water system.

From Michigan Public Radio yesterday:
Today, the Environmental Protection Agency announced that EPA Region 5 Administrator Susan Hedman will resign as of February 1.

Hedman headed up the EPA regional department that oversees the Michigan Department of Environmental Quality. She was appointed to lead the EPA’s Region 5 office in 2010, where she oversaw EPA operations in six states. Before that, she was an environmental attorney with the Illinois Attorney General’s office.

[More] The NWI Times is now reporting, via the AP: "Chicago-based EPA director resigns over Flint water crisis."

Posted by Marcia Oddi on Friday, January 22, 2016
Posted to Environment

Ind. Gov't. - "Lawmakers endorse regulating fenced-in hunting"

Yesterday's first house passage of SB 109 is reported by Dan Carden in this NWI Times story today. From the story:

Indiana's seven hunting preserves, where Hoosiers can shoot an unlimited number of deer, sheep and goats kept in a fenced area, soon could be subject to state regulation.

Senate Bill 109, co-sponsored by state Sen. Jim Arnold, D-LaPorte — whose district borders the Backwoods Preserve in Plymouth — aims to bring order to what currently is an unsupervised industry after state courts last year concluded that prior regulations were invalid.

The legislation, which passed the Republican-controlled Senate 29-19 and now goes to the Republican-controlled House, puts the State Board of Animal Health, instead of the Department of Natural Resources, in charge of licensing and inspecting the hunting preserves, which must enclose at least 100 acres.

It also requires individuals who shoot a deer at a hunting preserve to pay a $150 license fee to the state. Shooting a goat or sheep would require an $80 license.

The measure also prohibits shooting animals remotely using a computer-fired weapon.

ILB: For background on this issue, see this Nov. 16, 2015 ILB post, and its links.

Niki Kelly of the Fort Wayne Journal Gazette has this story today - some quotes:

An appellate court ruling last year said the Indiana Department of Natural Resources overstepped its authority in banning captive hunts of privately owned deer. That legalized the facilities in existence under an injunction and allowed them to proliferate with no rules.

The General Assembly had two choices this year: ban them completely or regulate and let them grow. There hasn’t been enough support in the past for a ban, and the Senate bill took the latter approach.

Sen. Mark Stoops, D-Bloomington, would have preferred a middle ground – limiting the industry to the four facilities in existence before the court ruling.

That number has grown to seven in the state.

Stoops also noted that there are no limits on how many animals can be hunted and that the bill opens up hunting to exotic sheep and goats as well.

“How are we doing this to the state of Indiana?” Stoops asked.

“It’s not hunting,” he said. “I don’t think anybody can call this hunting.”

Sen. John Broden, D- ;South Bend, said he personally abhors the concept of hunting preserves and so-called canned hunting.

“My preference would be to ban this activity altogether, but efforts to do that in the past have failed,” he said. “Thus, I supported SB 109 so that there would at least be some regulation of this activity.”

Under the bill, the DNR would have no role in regulating the entities. Instead, the Indiana State Board of Animal Health would assume full oversight, including licensing and inspections.

Posted by Marcia Oddi on Friday, January 22, 2016
Posted to Indiana Government

Thursday, January 21, 2016

Ind. Decisions - Supreme Court issues one opinion today

In Antonio Garcia v. State of Indiana, a 14-page, 5-0 opinion, Justice David writes:

In August 2012, Indianapolis Metropolitan Police Officer Phillip Robinett conducted a routine traffic stop. Upon making the stop, he discovered that the driver, Antonio Garcia, was driving without a valid driver’s license. Garcia was lawfully placed under arrest. Before Officer Robinett placed Garcia in his police cruiser to be transported to the police station, he conducted a quick pat-down search of Garcia’s clothing in order to check for weapons. A cylinder-shaped pill container was found in Garcia’s pocket. Officer Robinett opened the container to check what it contained. The content was later confirmed to be a single narcotic pill, which Garcia did not have a valid prescription for.

Garcia was charged with driving without a license and possession of a controlled substance. At trial, Garcia sought to suppress the admission of the pill container and its contents as the fruit of an unlawful search under Article 1, Section 11 of the Indiana Constitution. It was not disputed that Officer Robinett was free to conduct a warrantless pat-down search of Garcia’s person incident to his arrest. Rather, Garcia only challenged the opening of the pill container as being an unreasonable search.

We disagree with Garcia’s contention that opening the pill container during the course of the pat-down search incident to his arrest constituted an unreasonable search. As such, we affirm the trial court’s denial of Garcia’s motion to suppress and hold that the search of Garcia incident to his arrest was reasonable under Article 1, Section 11 of the Indiana Constitution. * * *

We affirm the trial court’s denial of Garcia’s motion to suppress the pill container found on his person during a search incident to a valid arrest. In doing so, we hold that the search of Garcia’s person, which included opening the container, was within the scope of a search incident to a lawful arrest and reasonable under Article 1, Section 11 of the Indiana Constitution.

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

Posted by Marcia Oddi on Thursday, January 21, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Empire Fire and Marine Insurance Company v. Charlene Frierson and Roderick Frierson, a 12-page opinion, Judge Brown writes:

Empire Fire and Marine Insurance Company (“Empire”) appeals from the trial court’s order denying its motion for summary judgment in favor of Charlene Frierson and Roderick Frierson (collectively, the “Friersons”) and the denial of its motion to correct error. Empire raises three issues, one of which we find dispositive and which we revise and restate as whether the court erred in denying Empire’s motion for summary judgment. We reverse. * * *

Empire argues that its policy clearly and unambiguously excluded UM and UIM coverage except in five states, none of which are Indiana, and that Enterprise accordingly paid no premium for UIM coverage for vehicles rented and operated in Indiana. It argues that in 2009 subsection (d) was added to Ind. Code § 27-7-5-2, which specifically addresses the issue presented, and was a direct response by the legislature to the Indiana Supreme Court’s holding in United Nat’l Ins. Co. v. DePrizio, 705 N.E.2d 455 (Ind. 1999), “that a commercial umbrella policy providing excess automobile liability coverage qualified as ‘an automobile liability policy or motor vehicle liability policy’ and insurers were to provide UM and UIM coverage under” Ind. Code § 27-7-5-2(a). * * *

The Empire Policy purchased by the Friersons for SLP coverage did not provide UIM coverage to the Friersons. Accordingly, we conclude that the court erred when it denied Empire’s motion for summary judgment.

NFP civil decisions today (2):

In the Matter of the Term. of the Parent-Child Relationship of: B.G. and Br. G. (Minor Children), K.F. and Z.G. v. Ind. Dept. of Child Services (mem. dec.)

B&R Oil Company, Inc. and Atlas Oil Company v. William E. Stoler, et al. (mem. dec.)

NFP criminal decisions today (1):

Rodger Wilson, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, January 21, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Court of Appeals rules against Dyer dentist"

Updating this ILB post from yesterday, which summarized the COA opinion in Indiana Professional Licensing Agency and Indiana State Board of Dentistry v. Irfan A. Atcha, D.D.S., Giles Bruce reports today in the NWI Times:

The Indiana Court of Appeals ruled Wednesday against a Dyer dentist accused by the state of false advertising.

In 2013, the Indiana State Professional Licensing Agency and Indiana State Board of Dentistry ordered that Dr. Irfan Atcha's license be placed on indefinite probation and he be fined $3,000 for deceptive advertising. Atcha appealed to Marion County Superior Court, which overturned those agencies' decision.

While the appeals panel agreed with the lower court that Atcha was not required to list all the dentists in his practice in his ads, it ruled that the state has constitutional authority to restrict false and misleading commercial speech.

The appeals court sent the matter back to the dental board for a reassessment of Atcha's penalty.

"Because the First Amendment ... is at the heart of the matter, I fully expect that we will seek a review of the appellate court decision by the Indiana Supreme Court," said Frank Recker, one of Atcha's lawyers.

The ILB has obtained a copy of the 12-page, Dec. 31, 2014 Marion County Superior Court order in Atcha.

Posted by Marcia Oddi on Thursday, January 21, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "2 of the Elkhart Four — Levi Sparks and Blake Layman — expected to leave prison in a few months"

Updating this ILB post from Jan. 7th, headed "3 of the Elkhart Four - Blake Layman, Levi Sparks and Anthony Sharp - sentenced for burglary convictions," Sharon Hernandez of The Elkhart Truth is reporting today:

GOSHEN — The Indiana Department of Correction is still going through some calculations, but there is now little doubt that two of the so-called “Elkhart Four” will be released within the next few months.

Levi Sparks and Blake Layman, who were resentenced two weeks ago after the Indiana Supreme Court tossed their previous convictions, are expected to be released from prison in February and in April respectively. A third co-defendant, Anthony Sharp, has an estimated release date of May 2018.

The three were found guilty of felony murder following a four-day jury trial in 2013. Layman and Sharp received a sentence of 55 years in prison. Sparks received a 50-year sentence.

The case went through the Court of Appeals and later to the Supreme Court, which overturned the original convictions and instructed the trial court to find them guilty of burglary.

At a sentencing hearing Jan. 7, Layman and Sharp were sentenced to 10 years in prison. Sparks was sentenced to nine.

On Tuesday, IDOC spokesman Douglas S. Garrison sent an email that stated the earliest possible release dates for the three was at least 20 months away. However, credits received by Layman and Sparks for completing their GED and other programs in prison had not been applied to their sentences yet, Garrison said on Wednesday. Once that’s done, Layman and Sparks could be released within the next two months, Garrison said.

Because Layman, Sparks and Sharp had already served some time in prison — about 2½ years — they earned credit time toward their new sentence. In addition, good behavior in the jail gives an inmate a day for each day they serve, Garrison said. An inmate sentenced to 10 years in prison might be released in five years if he has good behavior.

Participating in certain programs can also give extra credit time to people in the jail.

Cara Wieneke, Layman’s attorney, said her client participated in a literacy program and obtained his GED. He’s also finishing up a program called PLUS. Each one of those programs gives Layman a six-month reduction in his sentence, Wieneke said.

In the PLUS program, which stands for Purposeful Living Units Serve, participating inmates live together in the same unit and take the same classes, Garrison said.

“Their job is to learn how not to think like a criminal again,” he said.

Once Layman completes the PLUS program, he will get another six-month reduction, allowing him to be released in April, Wieneke said.

Sparks has also been through those programs and is completing his PLUS program. He is expected to be released from prison in February.

Sharp’s release date is scheduled for October of 2018, unless he completes any programs that might reduce his sentence. * * *

A fourth co-defendant, Jose Quiroz, pleaded guilty to his charge of felony murder in 2012. He is now seeking post-conviction relief.

The ILB has a long list of earlier entries on the Elkhart Four.

Posted by Marcia Oddi on Thursday, January 21, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - More on "Bill allows legislative employees to carry guns"

Updating this ILB post from yesterday, more from Tony Cook's story today in the Indianapolis Star:

Employees of the General Assembly could join lawmakers in carrying handguns at the Indiana Statehouse under a measure that passed a Senate committee today.

Senate Bill 259, introduced by Sen. Jim Tomes, would allow employees of the Senate, House, and Legislative Services Agency to carry firearms in the Statehouse as long as they have a handgun license. It also would codify a longstanding administrative policy allowing lawmakers to carry weapons in the Statehouse.

The Senate Judiciary Committee voted 6-3 along party lines to advance the measure to the full Senate, despite concerns from Democrats who argued that the measure could do more harm than good. * * *

The measure is one of several that have been introduced this year to expand gun rights in Indiana. Others would get rid of Indiana's licensing requirement to carry a handgun, allow guns at public universities and state office buildings, and make it easier for repeat alcohol offenders to get a handgun license.

Posted by Marcia Oddi on Thursday, January 21, 2016
Posted to Indiana Government

Ind. Courts - Supreme Court authorizes six judges to preside over pilot project commercial courts

From the just-issued news release:

The Indiana Supreme Court is authorizing six judges to preside over pilot project commercial courts, which will begin hearing cases June 1, 2016. These specialized trial courts will benefit all court users by resolving complex business cases more efficiently, which will afford more court resources for other case types. The commercial courts also benefit businesses by promoting earlier and more frequent settlement of cases and predictable resolution of business disputes, which helps businesses make operational decisions.

A Supreme Court order announces details of the pilot project and the following commercial courts:

Judge Craig Bobay, Allen Superior Court – Civil Division
Judge Stephen Bowers, Elkhart Superior Court 2
Judge Richard D'Amour, Vanderburgh Superior Court
Judge Maria Granger, Floyd Superior Court 3
Judge John Sedia, Lake Superior Court
Judge Heather Welch, Marion Superior Court, Civil Division 1
In June 2015 the Court unanimously approved a working group to recommend policies and procedures for commercial courts. In the 2016 State of the Judiciary, Chief Justice Loretta Rush announced significant progress on the project. She thanked the working group including "lawyers, legislators, academics, businesses, and judges who made the vision a reality for our state." The working group will continue to provide guidance during the first three years of the pilot project.

Commercial courts will hear cases where the parties have agreed to have their dispute resolved through the specialized docket. Commercial courts in the United States began in 1993 and now exist in more than 20 states.

Here is the order, filed Jan. 20th at 4:30 PM. From the order:
The purpose of commercial courts is to:

(1) establish judicial structures that will help all court users by improving court efficiency;

(2) allow business and commercial disputes to be resolved with expertise, technology, and efficiency;

(3) enhance the accuracy, consistency, and predictability of decisions in business and commercial cases;

(4) enhance economic development in Indiana by furthering the efficient, predictable resolution of business and commercial law disputes; and

(5) employ and encourage electronic information technologies, such as e-filing, e-discovery, telephone/video conferencing, and also employ early alternative dispute resolution interventions, as consistent with Indiana law.

Posted by Marcia Oddi on Thursday, January 21, 2016
Posted to Ind. Commercial Courts | Indiana Courts

Ind. Gov't. - "Indiana could tax online travel sites"

Updating this ILB post from Jan. 18th, on SB 309 and the Orbitz case (re whether online travel sites are subject to sales tax and on what basis), which was argued 2 years ago and is awaiting a decision from the Tax Court, Tony Cook of the Indianapolis Star has a story today on the Senate Tax & Fiscal Policy Committee hearing yesterday on the bill. Some quotes:

Travel websites such as Travelocity and Expedia would face higher taxes under a proposal pending before Indiana lawmakers.

Senate Bill 309, introduced by Sen. Brandt Hershman, would require those companies to pay sales and innkeeper’s taxes in Indiana, generating an estimated $18.7 million for state and local governments over the next two years.

Supporters of the measure, including traditional hotels and local tourism officials, say it would make taxes fairer as travelers change how they purchase hotel rooms. Opponents say the bill is essentially a new tax that ultimately would be passed on to consumers. * * *

But the issue that garnered the most discussion during Tuesday’s hearing involved online travel websites.

“Today unfortunately there is an unlevel playing field with some of these players in the short-term online arena,” said Patrick Tamm, president of the Indiana Restaurant & Lodging Association, which represents hotels. “We have to pay all our taxes, and we do so willingly. This is simply making sure people pay their appropriate taxes.”

But opponents argue that travel websites are more like travel agencies than hotels.

“This is a new tax in Indiana,” said Steve Shur, president of the Travel Technology Association, whose members include Airbnb, Expedia, Hotwire, Orbits [sic.] and Priceline. “These taxes will ultimately be passed on to the consumers.”

The Senate Tax & Fiscal Policy Committee plans to take a vote on the issue at a meeting next week.

Posted by Marcia Oddi on Thursday, January 21, 2016
Posted to Ind. Tax Ct. Decisions | Indiana Courts | Indiana Government

Wednesday, January 20, 2016

Ind. Gov't. - Bigbox/dark store revision passed out of Senate committee today

The bill is SB 308, introduced by Senator Hershman. The change is at SECTION 16 (p. 19) of the introduced bill. According to the digest, it:

Repeals provisions enacted in 2015 concerning the assessment of: (1) certain limited market or special purpose property; and (2) commercial nonincome producing real property. Provides that in addition to the factors under current law, the DLGF shall also provide for the classification of improvements on the basis of market segmentation. Specifies that the value in exchange of an improved property does not reflect the true tax value of the improved property if a market segmentation analysis indicates that purportedly comparable sale properties have a different market or submarket for the current use of the improved property. Specifies that a market segmentation analysis must be conducted in conformity with generally accepted appraisal principles and is not limited to the categories of markets and submarkets enumerated in the rules or guidance materials adopted by the DLGF.

Provides that true tax value shall be determined under the rules of the DLGF (subject to the provisions of the property tax article), and that the DLGF's rules may include examples to illustrate true tax value. Specifies that true tax value does not mean the value of the property to the user. Specifies that the Indiana board of tax review (Indiana board) may, on its own motion, have a review appraisal prepared by an independent appraiser to review any appraisal submitted by a party to the hearing.

Hayleigh Colombo has a story on the bill (without identifying its number) in the IBJ this afternoon.

Posted by Marcia Oddi on Wednesday, January 20, 2016
Posted to Indiana Government

Indiana Decisions - Supreme Court decides one today

In Kastin E. Slaybaugh v. State of Indiana, a 2-page, per curiam opinion, the Court writes, in full:

After Kastin Slaybaugh was convicted of rape, he moved for mistrial on grounds there had been juror misconduct. His motion asserted that in voir dire, a juror had denied knowing the victim or her family, but Slaybaugh discovered that a relative of the victim was a “Facebook friend” of that juror. The trial court ordered the juror deposed. The juror testified she was a realtor, had more than 1000 “friends” on Facebook—most of whom she had “friended” for networking purposes—but she had not recognized the victim’s name during voir dire, did not recognize the victim when she testified, and did not know the victim or her family. The trial court determined that the juror had been truthful when answering that she had no knowledge of the victim or her family, and denied Slaybaugh’s motion for mistrial. Noting the novel issue involving a juror’s “expansive list of Facebook friends,” the Court of Appeals affirmed in Slaybaugh v. State, ___ N.E.3d ___, ___, 2015 WL 5612205, *1 (Ind. Ct. App. 2015).

We agree with the result reached by the Court of Appeals, grant transfer, expressly adopt and incorporate by reference the Court of Appeals opinion in accordance with Indiana Appellate Rule 58(A)(1), and affirm the trial court.

ILB: Here is the ILB's summary from the Sept. 24, 2015 Court of Appeals opinion:
In this case, we are called to review a novel issue in Indiana—whether a juror, who was apparently not asked about her Facebook usage or friendships, engaged in juror misconduct when she did not disclose during voir dire that a witness’s relative was among her expansive list of Facebook friends.

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

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

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

Posted by Marcia Oddi on Wednesday, January 20, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Doxpop joins Indiana e-filing network

From the Doxpop news release today:

Richmond, Indiana (January 20, 2016) -- The Indiana Supreme Court has certified Doxpop, LLC, as an electronic filing service provider in the Indiana Statewide Electronic Filing System. Attorneys and self-represented litigants may now use Doxpop to submit court case filings electronically in participating trial and appellate courts.

Attorneys and others who file will be transitioning to electronic filing over the coming year as more courts join the filing network. "Our system makes e-filing simple and our friendly customer support team is ready to guide new users through this transition," said Nick Fankhauser, Doxpop's VP of Indiana Operations.

"Doxpop has been serving the needs of the legal community in Indiana since 2002, and we are delighted to provide integrated e-filing services to our subscribers," said Ray Ontko, President of Doxpop. "Users are able to access e-filing functions from the familiar and trusted Doxpop environment they already use to track and research cases every day. All e-filing features, including filing, service, and notification, are available within the Doxpop system."

Appellate IT Director Robert Rath explained, "E-file Indiana is a marketplace for independent e-filing service providers. The addition of Doxpop allows litigants the choice of features and services and we are very pleased to announce their certification."

Filers may choose to use the Doxpop system for e-filing, or the more basic e-filing portal provided by the Court, or one provided by other commercial systems.

Doxpop plans to provide on-site training for early adopters "to make coming up to speed as simple as it should be."

Posted by Marcia Oddi on Wednesday, January 20, 2016
Posted to E-filing

Law - "New Guidelines Nudge Doctors to Give Patients Access to Medical Records"

From Sunday's New York Times, a long story by Robert Pear begins:

WASHINGTON — The Obama administration is tearing down barriers that make it difficult for patients to get access to their own medical records, telling doctors and hospitals that in most cases they must provide copies of these records within 30 days of receiving a request.

In theory, patients have long had a right to obtain copies of their records, but federal officials say they receive large numbers of complaints from consumers frustrated in trying to exercise that right.

In new guidelines, issued this month, the administration says doctors and hospitals cannot require patients to state a reason for requesting their records, and cannot deny access out of a general concern that patients might be upset by the information.

The story links to the new HIPAA guidelines: Individuals’ Right under HIPAA to Access their Health Information 45 CFR § 164.524."

Posted by Marcia Oddi on Wednesday, January 20, 2016
Posted to General Law Related

Ind. Gov't. - "Bill allows legislative employees to carry guns"

Good story this afternoon by Niki Kelly of the Fort Wayne Journal Gazette on this morning's committeee hearing on SB 259, under which:

Legislative employees would get special permission to carry firearms in the Indiana Statehouse and adjacent state buildings under a bill passed by a Senate committee Wednesday.

But the public and many other state employees would still be banned.

Sen. Jim Tomes, R-Wadesville, authored Senate Bill 259 allowing professional, full-time staff of the Indiana House and Senate to carry a handgun at the state capitol complex.

It passed committee 6-3 with no one testifying for or against the legislation.

Sen. Brent Steele, R-Bedford, said when he first came to the legislature in 1994 it was common practice for attorneys, legislative assistants and others to carry handguns - with proper permits.

"Somebody issued an order that people we trust with our lives around here...all the sudden these crazy people radical as they are, couldn't carry a handgun," he said incredulously.

He also noted that legislative work often isn't done until late at night when it is dangerous to walk to cars.

Reporter Kelly's story continues:
The Indiana Department of Administration passed rules in 2007 - under then Gov. Mitch Daniels - banning firearms and other deadly weapons from the government center campus, including visitors and state employees.

"It is the policy of the state to protect the public peace, health, and safety and to preserve the lives and property of the people working or having business in the Indiana government center campus and to assure the continuity of state government operations," according to the rules.

Specific exemptions were given then for law enforcement, legislators and members of the judiciary.

The rules were readopted in 2013 - under Gov. Mike Pence.

ILB: A copy of this morning's amendment to the proposal, to include legislators in addition to their employees, is not available online yet, but the bill as introduced would add a new chapter IC 2-3-10 titled "Legislative Employees and Handguns."

Already existing in the law relating to handguns, IC 35-47, is a chapter 16 headed "Possession of Firearms by Judicial Officers."

Posted by Marcia Oddi on Wednesday, January 20, 2016
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 10 NFP memorandum decision(s))

For publication opinions today (2):

In Indiana Professional Licensing Agency and Indiana State Board of Dentistry v. Irfan A. Atcha, D.D.S. , a 19-page opinion, Chief Judge Vaidik writes:

Dr. Atcha, a Dyer dentist, began an extensive advertising campaign marketing his expertise in modern implant and sedation techniques. Among other claims, he touted that his procedures are “too advanced for most dentists, oral surgeons, and periodontists.” He also promoted himself as the “only licensed and certified advanced trained dentist to perform the IV sedation and dental care on his patients.” Undoubtedly to encourage potential clients to receive dental implants from him, he used pictures to show that dentures combined with dental adhesives are poisonous.

After a number of complaints from fellow dentists, the Indiana Professional Licensing Agency and the Indiana State Board of Dentistry found when advertising his practice Dr. Atcha made false and misleading claims of (1) dental specialty and (2) better materials or superior services. He also was found to have violated regulations compelling him to disclose every dentist within his practice in his advertisements. Upon his appeal to the Marion Superior Court, the court found all three dental advertising regulations unconstitutional. We reverse in part and affirm in part.

Although protected by the First Amendment, commercial speech receives less protection than other forms of expression. In particular, the State retains the authority to prohibit or restrict false and misleading commercial speech. Here, the State properly restricted Atcha’s false and misleading claims implying he had a particular dental specialty and could provide better materials or superior service than other dentists. However, we conclude that the State may not compel a dentist to list on his advertisements every dentist in his practice.

Finding no reasonable relationship between compelling the disclosure of all associated dentists and preventing deception, we agree with the trial court that the regulation does not satisfy First Amendment protections for commercial speech. Therefore, we affirm the trial court in part and reverse in part.

In Shari L. Morey v. W. Michael Morey, an 18-page opinion, Judge Mathias writes:
The marriage of Shari (“Wife”) and W. Michael (“Husband”) Morey was dissolved in Marion Superior Court. Wife appeals the decree of dissolution and raises three issues, which we restate as:
I. Whether the trial court erred in in its application of the coverture fraction formula to Husband’s Reynolds & Reynolds pension;
II. Whether the trial court abused its discretion in failing to credit Wife’s payment of Husband’s post-dissolution expenses and;
III. Whether the trial court abused its discretion in its valuation of the marital residence.

Husband cross-appeals and argues that the trial court abused its discretion when it found that Husband failed to rebut the presumption that an equal division of marital property was just and reasonable. He also asserts that the trial court erred when it failed to apply the coverture fraction formula to his annuity and 401(k). We affirm. * * *

Bailey, J., concurs.
Baker, J., concurs in result with opinion. [which begins, at p. 17] I fully concur with the majority opinion with the exception of its analysis related to the coverture fraction. As the majority observes, the doctrine of coverture has its origin in an outdated and misogynist view of the respective roles and rights of men and women. In my view, it is long since time that the State of Indiana should discard this archaic doctrine, especially
since it is no longer needed. * * *

In my opinion, the coverture fraction has been superseded by statute for decades. Given that it has been superseded, and given its roots in an aspect of our history that we have gladly put behind us, I believe that the outmoded theory should no longer be applied in this State, and I part ways with the majority in its application of this doctrine. That said, if the relevant statutes were applied to this case as opposed to the coverture doctrine, I believe that the same result would be reached. Consequently, I concur in the result reached by the majority on this issue. In all other ways, I fully concur with the majority opinion.

NFP civil decisions today (6):

Joshua Shepherd Thompson v. City of Jeffersonville, Indiana and its Fire Department Merit Commission (mem. dec.)

In the Matter of the Civil Commitment of S.J. v. Eskenazi Health (mem. dec.)

Janel Manriquez v. Derek Lee Manriquez (mem. dec.)

Robert J. Lunsford v. Laurie (Lunsford) Knight (mem. dec.)

2007 East Meadows, LP v. RCM Phoenix Partners, LLC (mem. dec.)

Charles E. Gatewood, II, and Rita L. Gatewood v. John A. Gatewood, as Personal Representative of the Estate of Margaret H. Gatewood (mem. dec.)

NFP criminal decisions today (4):

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

Zolo Agona Azania v. State of Indiana (mem. dec.)

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

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

Posted by Marcia Oddi on Wednesday, January 20, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - E-filing now available in Clark Circuit and Superior Courts

This list shows the case types that may now be e-filed in Clark, as well as Hamilton, courts. Per the Indiana Courts announcement:

E-filing is now available in Clark County Circuit and Superior Courts for many civil and criminal case types. Clark is the second county to begin using the statewide e-filing system for trial court cases. Additional counties will begin using the system in the coming months.

Posted by Marcia Oddi on Wednesday, January 20, 2016
Posted to E-filing

Law - Lawyerist.com interview with LegalZoom

The legal blog, Lawyerist, had a 45-minute interview last month with the CEO of LegalZoom. If you practice civil law, it is important that you listen to it. Some of you may "hear the footsteps."

Posted by Marcia Oddi on Wednesday, January 20, 2016
Posted to 21st Century Law

Ind. Gov't. - More on "No more stringent" back again

Updating this ILB post from yesterday, the Fort Wayne Journal Gazette writes today in an editorial that begins:

If recycling really bad bills helped the environment, the Indiana legislature would get a green award every year.

In fact, one of the worst legislative bills being considered once again this session is an anti-environmental-regulation measure that Rep. David Wolkins, R-Winona Lake, has been pushing for years.

House Bill 1082, popularly called the “no more stringent than” bill, would forbid Indiana officials from making or enforcing any environmental rule that is stronger than rules established under federal law.

Yes, that’s right. Under this proposal, Indiana, where support for “state rights” over “federal mandates” usually comes as naturally as breathing, would voluntarily cede its ability to respond to state or regional environmental problems to the dreaded U.S. Environmental Protection Agency or other federal rulemakers.

The bill supposedly would make it easier for multistate companies to do business in Indiana. Anyone who’s familiar with our state’s conservative approach to pollution control might find that rationale shaky.

But what does seem clear is that the “no more stringent than” rule would severely limit Indiana’s ability to respond to environmental hazards that might be vaguely addressed by federal law but that require specific solutions at the state or local level.

The bill is among those that will be heard at 10:30 this morning in the House Environmental Affairs Committee - watch here.

Posted by Marcia Oddi on Wednesday, January 20, 2016
Posted to Indiana Government

Courts - SCOTUS grant of cert in challenge to Obama immigration effort

The Diane Rehm show on WFYI this morning at 10 am will discuss "The Supreme Court To Review President Obama’s Immigration Plan."

Lyle Denniston of SCOTUSblog discusses the grant yesterday in U.S. v. Texas.

SCOTUSblog
also has a good background piece on the case here.

Posted by Marcia Oddi on Wednesday, January 20, 2016
Posted to Courts in general

Ind. Gov't. - Senate Judiciary Committee hearing this morning [Updated]

The Senate Judiciary meeting started this morning at 9 am. - watch here. Its long agenda includes SB 152 on medical malpractice. See ILB post here from Jan. 18.

[Updated at 11:38]
SB 152, med-mal, not heard, will apparently be next week, maybe Monday. May have fiscal impact requiring rreview by Appropriations...

Posted by Marcia Oddi on Wednesday, January 20, 2016
Posted to Indiana Government

Tuesday, January 19, 2016

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

In USA v. Julius Lawson (ND Ind., Springmann), a 22-page opinion, Judge Kanne writes:

Defendant‐Appellant Julius W. Lawson and his confederate attempted to commit robbery in a United States branch post office located at a shopping center in Fort Wayne, Indiana. In the post office, the confederate pointed a firearm at a patron while Lawson looked for property to steal. Lawson was later apprehended because he left his cell phone, palm print, and fingerprints on the post office counter. His confederate was never identified.

A jury convicted Lawson on all three counts related to aiding and abetting firearm use during the attempted robbery of the post office.

Lawson appeals his convictions on three grounds. First, he argues that there was insufficient evidence for the jury to find that a “firearm” was used. Second, he contends that the jury was improperly instructed on the theory of aiding and abetting firearm use in light of Rosemond v. United States, 134 S. Ct. 1240 (2014), entitling him to a new trial. Third, he claims that he is entitled to a new trial because the government withheld evidence of an investigator offering a “bribe” to a witness and a police officer’s disciplinary record in violation of Brady v. Maryland, 373 U.S. 83 (1963). We disagree and affirm the judgment of the district court.

Posted by Marcia Oddi on Tuesday, January 19, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending January 15, 2016

Here is the Clerk's transfer list for the week ending Friday, January 15, 2016. It is one page (and 2 cases) long.

Two transfers were granted last week, both with opinions:

For summaries, see this ILB post from Jan. 14, 2016.

Posted by Marcia Oddi on Tuesday, January 19, 2016
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (3):

In Amici Resources, LLC and Solid Foundation Investment Properties, Inc. Partnership; Solid Foundation Investment Properties, Inc.; Gary Hippensteel; et al. v. The Alan D. Nelson Living Trust, et al., a 15-page opinion, Judge Bradford writes:

Sabine Matthies obtained a judgment against Solid Foundations Investment Properties, Inc. (“SFIP”) on December 10, 2012. Gary Hippensteel is the director and president of SFIP. SFIP subsequently purchased a property located on Central Avenue in Indianapolis (the “Central Avenue property”). In order to purchase the property, SFIP borrowed money from the Alan D. Nelson Living Trust (the “Nelson Trust”). In exchange for the necessary financing, SFIP executed a mortgage granting the Nelson Trust a security interest in the Central Avenue property. SFIP also signed a Promissory Note, in which it promised to repay the funds borrowed from the Nelson Trust. SFIP also entered into a partnership with and borrowed money from Amici Resources, LLC (“Amici”) to cover renovations to the Central Avenue property. SFIP executed a secondary mortgage granting Amici a security interest in the Central Avenue property.

Matthies subsequently sought to enforce her judgment lien against SFIP. The Nelson Trust argued that it held a purchase-money mortgage, and therefore had first priority against the Central Avenue property. The Central Avenue property was sold on June 2, 2014. Pursuant to a court order, $40,000 of the sale proceeds was held in escrow by the Marion County Clerk’s Office.

On May 28, 2015, the trial court issued an order in which it determined that the Nelson Trust’s lien against the Central Avenue property had first priority and that Amici’s lien against the Central Avenue property had second priority. The trial court ordered that the $40,000 be paid to the Nelson Trust. The trial court also entered a $39,000 judgment against Hippensteel and SFIP, jointly and severally, in favor of Amici.

On appeal, Matthies contends that the trial court erred in determining that both the Nelson Trust and Amici liens had priority over her lien. Concluding that the Nelson Trust lien had priority over Matthies’s lien but that Matthies’s lien had priority over Amici’s lien, we affirm the judgment of the trial court in part, reverse in part, and remand with instructions. We also deny the Nelson Trust’s counter-claim request for appellate attorney’s fees.

In Cary R. Coleman v. State of Indiana, a 7page opinion, Judge Altice writes:
Cary R. Coleman appeals a judgment against him for the civil infraction of Speeding. Coleman presents a number of issues, one of which we find dispositive: Did the trial court err in concluding that the altered speed limit established by Lawrence County Ordinance 5-2-1 was effective in the absence of signage giving motorists notice of the altered speed limit? We reverse. * * *

[I]t is undisputed that there are no signs on Leesville Road notifying northbound motorists of the altered speed limit. Thus, pursuant to I.C. § 9-21-5-6(c), the altered speed limit was not effective as to northbound traffic, and the default speed limit of 55 miles per hour was applicable. Because Coleman was alleged to have been traveling at 46 miles per hour, he did not commit the civil infraction of speeding.

We reject the State’s argument that judgment against Coleman was nevertheless appropriate because he had actual knowledge of the 35-mile-per-hour speed limit due to his familiarity with the area and the presence of other speed limit signs nearby, including one on Leesville Road facing southbound traffic. I.C. § 9-21-5-6 sets forth the procedure a local jurisdiction must follow for an altered speed limit to be effective, including placing signs notifying motorists of the altered speed. A specific motorist’s subjective knowledge of the speed limit is irrelevant. Even if we assume the southbound sign was valid, a point Coleman disputes, the fact remains that there were no speed limit signs controlling northbound traffic on Leesville Road. Indeed, the State conceded as much in its motion for summary judgment, noting that there were no signs facing northbound traffic and that the sign facing southbound traffic was “irrelevant.”
Because there were no “appropriate signs giving notice of the altered speed limit” to northbound drivers on Leesville Road, the statewide default speed limit of 55 miles per hour was applicable. See I.C. § 9-21-5-6(c). As Coleman did not exceed that speed, the judgment against him was in error.

In Chauncy Rhodes v. State of Indiana, 14-page decision with three opinions, Judge May writes for the majority:
Chauncy Rhodes appeals his conviction of Class D felony possession of marijuana with a prior conviction of possession of marijuana. As the trial court abused its discretion when it admitted evidence obtained from an inventory search of Rhodes’ vehicle, we reverse. * * *

The State did not provide sufficient evidence of police procedure and Officer Greathouse’s compliance therewith. Therefore, the trial court abused its discretion when it admitted the marijuana found in Rhodes’ car. Accordingly, we reverse Rhodes’ conviction of Class D felony possession of marijuana with a prior conviction. Reversed.

Barnes, J., concurs with separate opinion. [which begins, at p. 10] I fully concur with Judge May’s conclusion that the search here fell far short of the requirements for a constitutional inventory search.

I write to explicitly and directly address the concerns that may arise as a result of our decision. * * *

Crone, J., dissents with separate opinion. [which begins, at p. 12] I respectfully disagree with the majority’s conclusion that the scope of Officer Greathouse’s inventory search of Rhodes’s vehicle was unreasonable. I believe that the majority unduly emphasizes what the record does not show about IMPD’s inventory search procedure instead of what the record does show.

NFP civil decisions today (2):

Eric P. Hewitt v. Buckingham Management, LLC (mem. dec.)

Paula R. (Brenay), now Hicks v. David C. Brenay (mem. dec.)

NFP criminal decisions today (2):

Hobert C. Lamb v. State of Indiana (mem. dec.)

Shamir Chappell v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, January 19, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "No more stringent" back again

Rep. Wolkins' "no more stringent" bill is back again this session. See this list of many ILB posts on this issue over the years.

The digest of the bill, HB 1082:

Environmental rules and standards. Prohibits the environmental rules board from adopting a rule or standard that is more stringent than the corresponding regulation or standard established under federal law. Makes corresponding changes in the law concerning the adoption of environmental rules.
The bill will be heard tomorrow, Jan. 20, at 10:30 in the House Environmental Affairs Committee, which is chaired by Rep. Wolkins.

Posted by Marcia Oddi on Tuesday, January 19, 2016
Posted to Environment | Indiana Government

Ind. Gov't. - "Blight bills take aim at zombie homes and squatters"

This front-page Indianapolis Star story today by Brian Eason begins:

Lawmakers from two of the state's hardest-hit housing markets — Gary and Indianapolis — have introduced four bills this session targeting urban blight, but those hoping for a major overhaul of Indiana's distressed property laws will have to wait at least another year.

The overarching message from the Statehouse: Cities need to use the tools they've been given before pushing for further reforms. That puts the onus squarely on the shoulders of Indianapolis Mayor Joe Hogsett to make progress on an issue on which he campaigned heavily.

Posted by Marcia Oddi on Tuesday, January 19, 2016
Posted to Indiana Government

Ind. Courts - Kristine Bunch suit accusing investigators of hiding and fabricating evidence that resulted in her murder conviction

As the ILB wrote on in this post on August 17, 2015: "ILB readers may recall the Indiana case of Kristine Bunch, with posts going back to 2009." The post goes on to quote from an April 7, 2015 Greensburg Daily News story on lawssuits Bunch had filed since her exoneration:

In a lawsuit filed March 19, 2014 with the Indianapolis Division of the U.S. District Court for the Southern District of Indiana, Bunch alleges that Indiana State Fire Marshal Investigators Bryan Frank and James Skaggs “deliberately suppressed evidence which showed that the fire was not arson, but was in fact accidental.”

In February, Bunch filed a similar lawsuit in the same court against the United States of America, alleging that Frank and Skaggs, with the help of a now-deceased investigator of the Bureau of Alcohol, Tobacco, Firearms and Explosives, falsified a report that indicated that they found traces of an accelerant in the home’s living room and the boy’s bedroom. An accelerant is a substance that is used to accelerate the spread of a fire. The presence of such a substance would have supported the investigators’ claim that Bunch set the fire.

Today Kristine Guerra of the Indianapolis Star has a long story on the Bunch lawsuits, headed "Stolen Freedom: Officials falsified evidence to convict mother in son's death, suit says."

Posted by Marcia Oddi on Tuesday, January 19, 2016
Posted to Indiana Courts

Monday, January 18, 2016

Ind. Gov't. - Bill may impact pending decision re sales tax on online travel sites

On Jan. 17, 2014, in the case of Orbitz, LLC v. Indiana Dep't of State Revenue (49T10-0903-TA-10), the Indiana Tax Court held a hearing on the parties' motions for summary judgment on whether online travel sites are subject to sales tax and on what basis.

(Earlier, in 2013, in the same case, the Court had ruled affirmatively on "Orbitz, LLC’s request to have certain documents within the judicial record placed under seal so they cannot be accessed by the general public.")

According to the docket in the Orbitz case, there has been no Tax Court decision yet from the Jan. 17, 2014 hearing.

Senate Bill 309, concerning state and local taxation, which is to be heard in the Committee on Tax & Fiscal Policy tomorrow, Jan. 19, 2016, appears to deal with this pending issue. From the fiscal note:

Sales Tax (Taxation of Accommodations): The bill specifies tax collection requirements for a facilitator who markets lodging accommodations located in Indiana through the Internet.

It defines "accommodation" as any hotel, motel, inn, tourist camp, tourist cabin, house, or any other place in which rooms or lodgings are furnished for consideration.

It defines "facilitator" as a person who: (1) contracts with a retail provider of an accommodation to market the accommodation online; and (2) accepts payment from the consumer for the accommodation.

The bill provides that a facilitator who receives payment for an accommodation must collect and remit: (1) the state gross retail or use tax; and (2) any innkeeper's tax due. The bill specifies that the calculation of the tax must be based on the total amount paid by the consumer to a facilitator, including any charge or fee of the facilitator.

See SECTION 15 of the bill, beginning on p. 16.

Posted by Marcia Oddi on Monday, January 18, 2016
Posted to Ind. Tax Ct. Decisions | Indiana Courts | Indiana Government

Ind. Courts - Interviews for new justice to begin Wed., Feb. 17th

According to a news release from the Indiana Courts, "Applications for an upcoming vacancy on the state's highest court are due January 25, 2016 by noon." More:

The commission will review applications and interview qualified candidates February 17-19 with a likely second round of interviews March 3-4.

Interviews will take place at the Indiana State House in room 319. The interviews will be open to the public.

After interviews and deliberations in an executive session, the commission will publicly vote to send the three most qualified names to Governor Mike Pence.

The Governor has 60 days to select Indiana's next justice.

Justice Brent E. Dickson is retiring on April 29

Posted by Marcia Oddi on Monday, January 18, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Gov't. - "Environmental, consumer groups join settlement with Duke Energy on Edwardsport plant"

The ILB has had many, many posts on various issues relating to the Duke Energy Edwardsport coal gasification plant. Re the issue of charging ratepayers for certain costs, Rod Spaw reported Friday in the $$ Bloomington Herald-Times in a story that began:

Nine years of litigation over the cost of Duke Energy’s Edwardsport coal gasification plant could end if the Indiana Utility Regulatory Commission accepts a proposed settlement filed Friday with the state agency.

If it is approved, Duke Energy ratepayers will not be charged a total of $87.5 million in operating and maintenance costs incurred since Duke declared the Edwardsport power plant operational in June 2013.

Coupled with an earlier cap on construction costs for the 618-megawatt, coal-fired electric generating plant, ratepayers will not be charged for about $1 billion in costs disallowed during the years of litigation.

“We look back at the long slog, and we feel good about our work to date,” said Kerwin Olson, executive director of the Citizens Action Coalition, one of the intervening groups. “It’s time to recognize what our mission is, and our mission is to protect ratepayers to the best of our ability."

Plant construction costs that Duke can recover through electric rates were capped at $2.595 billion in a separate 2012 agreement, which left an estimated $900 million in plant costs to be borne by the utility and its shareholders.

If accepted by the IURC, Olson said, the new settlement effectively will end litigation through the end of 2017 related to the Edwardsport plant, which is located in Knox County.

John Russell has a story headed "Edwardsport plant foes finally reach settlement with Duke" in the IBJ.

Posted by Marcia Oddi on Monday, January 18, 2016
Posted to Indiana Government

Ind. Gov't. - More on "Police could refuse to release video footage in new Indiana bill"

Updating this ILB post from Jan. 13th, HB 1019 was passed out of committee on the same day and is now eligible for second reading.

The Goshen News had a long editorial on Friday, Jan. 15, headed "OUR VIEW: Public should have access to police videos." Some quotes:

The Indiana General Assembly is not known for taking progressive action, but a proposed bill to limit the public’s access to police videos falls so far short of being in touch with the nation’s accountability movement that it is astonishing.

House Bill 1019, which passed unanimously out of committee this week, greatly restricts the public’s right to view and copy recordings created by police, especially video recordings from body cameras and squad car dash cameras. This proposed law comes at a time when the public is demanding better accounting of police actions and while there is a growing effort across the country by local politicians to equip their police departments with body cameras. Those cameras both protect a police officer from nefarious allegations and lawsuits about their conduct and also holds them to a high standard of conduct. Justice is better served when police wear body cameras.

HOUSE BILL 1019 is an attempt to nullify this accountability movement. We can’t imagine why such a law is needed. * * *

STEVE KEY, the lobbyist for the Hoosier State Press Association made an excellent point about House Bill 1019 when he told the Fort Wayne Journal Gazette, “This is a bill that leaves all the cards in law enforcement hands. If you are going to have an accountability tool you have to make it public.” We agree wholeheartedly. The public should view this bill as an attempt to limit their scrutiny of their local police departments. Let us remind our legislators, nothing good ever comes from hiding information from the public.

When viewed in its totality, we think House Bill 1019 is nothing more than an effort to protect police from public scrutiny and no legislator should ever support such an effort.

Some quotes from a news release from the Indiana Broadcasters Association:
Indianapolis, IN – January 15, 2016 – A proposal to clamp down on publicly recorded government videos is headed to a vote at the Indiana House of Representatives, in a move that could keep all public video recordings secret. Indiana House Bill 1019, which sailed through a House committee with a unanimously favorable vote, “restricts public records requests for law enforcement recordings” and requires a court order to release recorded police body camera video. The bill was introduced by Hartford City Republican Representative Kevin Mahan.

“This outrageous proposal takes government secrecy to a new level, keeping public records completely under wrap,” said Dave Crooks, chairman of the Board of the Indiana Broadcasters Association (IBA), which represents more than 300 Indiana radio and TV broadcasters. Crooks served in the Indiana General Assembly from 1996 to 2008. “As drafted, the 22-page bill would allow law enforcement agencies to refuse to share public video records and require the public to file a lawsuit against an agency, prove a need for disclosure of the video, and have those asking for the video to bear the legal costs of such a request – unless you’re actually in the video." * * *

The Indiana Broadcasters Association believes the current bill eliminates access to public video recorded by law enforcement agencies and is clearly contrary to current State of Indiana policy regarding public records that favors the release of public documents.

IBA also concurs with the Hoosier State Press Association, which says that “law enforcement has no legal incentive to make video available to the public under H.B. 1019 unless it exonerates the officer involved. The current language gives police chiefs and sheriffs carte blanche to decline all requests from the public or press solely on the basis that they don’t want to make videos available.”

From the Elkhart Truth, this editorial headed "Passing Indiana body cam bill would be a mistake." Some quotes:
The video footage being gathered from body cameras worn by police officers could be locked away and those affected by the events being recorded may never see it.

The House government committee, including State Rep. Doug Miller, R-Elkhart, voted unanimously last week to advance a bill that places the burden on those seeking video to prove that its release is merited.

It would be a mistake to make the bill Indiana law. A giant mistake. * * *

The point of cameras is to increase transparency and be used as another tool to build trust between a police department and the community it protects.

Body cameras are becoming standard issue. Departments have and will continue to gather footage, which would often show officers doing the right thing and acting responsibly to protect and serve. Yet under House Bill 1019, as it’s now phrased, a sheriff or police chief could lock down the release of any copies if the video contains something that could embarrass the department and its officers.

A family member or someone shown in the video could watch it, but if police refuse to release a copy they would have to go to court to fight to get a copy of it. Even if the victim or family of a victim won such a lawsuit, the law doesn’t afford that they’d be reimbursed for their legal costs. All this may keep justice from prevailing.

Though not in our community, relations between police and the public is tense in many areas of our country. Police video of confrontations between the two aren’t always pretty and even judging right or wrong from them can be difficult, but allowing Indiana police agencies to lock down video and force those outside the department to go to court by default is wrong.

Taxpayers pay for police protection. We now live in a world where video footage of police actions is commonplace. But where Indiana is starting on how agencies handle the footage isn’t transparent. It’s locking video in a box and then playing keep away with the key. That’s just wrong.

Posted by Marcia Oddi on Monday, January 18, 2016
Posted to Indiana Government

Ind. Courts - More on "ACLU Lawsuit against Indiana Governor Seeks Relief for Syrian Refugees" [Updated]

This Nov. 24, 2015 ILB post linked to the complaint filed by the ACLU of Indiana in Exodus Refugee Immigration, Inc. v. Mike Pence, et al., which was filed in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on November 23, 2015.

This Dec. 31, 2015 story by Brian Slodysko of the AP began:

A federal judge denied Indiana's request to delay a court hearing until a refugee relocation group that sued Gov. Mike Pence hands over years' worth of requested documents.

U.S District Court Judge Tanya Walton Pratt on Tuesday granted the state a small delay, postponing a January hearing until February. But she said the hearing won't be postponed again, even if Exodus Refugee Immigration doesn't turn over the documents that the state wants.

That, she ruled, is because there is an urgency to the request made by Exodus, which wants to overturn Pence's order barring state agencies from participating in the resettlement of Syrian refugees in Indiana. * * *

ACLU attorney Ken Falk said in a court filing that the state's request for about five years' worth of documents was "breathtaking" in scope and had "nothing to do with the issues in this case."

"Given that all Exodus does is resettle refugees" the state is basically demanding "all documents about all aspects of (Exodus) functions since 2011," he said.

Molly Gillaspie, a spokeswoman for Attorney General Greg Zoeller, whose office represents Pence in the case, disputed the ACLU's characterization.

"The state's discovery requests in this case are not unusually broad in size or scope, rather they are typical for cases of this magnitude," she wrote in a statement.

Gillaspie also insisted the judge's ruling was a decision that "granted everything" the attorney general's office has asked for.

On Jan. 15 Indiana's AG "filed in federal court both its formal answer to the complaint and its response to the plaintiff’s motion for a preliminary injunction."

Here is the 21-page answer filed by the State of Indiana on Jan. 15, 2016.

[Updated 2/5/16] Here is the plaintiff Exodus Refufee Immigration reply brief, filed 1/29/16.

Posted by Marcia Oddi on Monday, January 18, 2016
Posted to Indiana Courts

Ind. Law - "GOP plots revamp of medical malpractice law"

Lengthy, must-read Jan. 16th article by Hayleigh Colombo in the IBJ. A sample:

A Republican lawmaker’s plan to raise the caps on successful medical malpractice claims and increase doctors’ liability—legislation that Indiana Senate Republicans included on their 2016 legislative agenda—wouldn’t normally be the preferred option for Indiana health care providers.

But there’s widespread belief that, if the maximum damage caps aren’t raised for the first time in 17 years, the law could be susceptible to a constitutional challenge—which could rock the health care system even more than a steady stream of increases.

From later in the story:
Meanwhile, the Indiana Trial Lawyers Association has deemed the legislation a “good start,” but trial attorney Dan Ladendorf said it won’t fully address patients’ needs.

“We believe there should never be a cap on damages,” said Ladendorf, a governing board member for the association. “You are minimizing a person’s responsibility for a harm they’ve caused. That just doesn’t seem like a fair measure of justice.”

Republican Senate leadership sees the bill as a last-ditch effort to preserve the Medical Malpractice Act, which both sides agree could otherwise be overturned in court.

“The goal is not to punish anyone,” said Senate President Pro Tem David Long, R-Fort Wayne. “It’s to preserve an outstanding law, [and] makes sure it’s modernized to avoid a constitutional attack, which I think it is vulnerable to.”

Though 35 states and jurisdictions impose a limit or cap on damages, according to the National Conference of State Legislatures, the caps have been vulnerable to court challenges. * * *

The Illinois Supreme Court struck down a similar law in 2010 that capped jury payouts, ruling they were unconstitutional under the Illinois Constitution’s “separation of powers” clause because juries were not able to determine fair damages. [ILB: see this post and links]

Caps have also been ruled unconstitutional in Alabama, Georgia, Oregon, New Hampshire and Washington.

But opponents in Indiana so far haven’t been successful—though not without trying.

The Indiana Supreme Court in 2013 ruled that plaintiff Timothy Plank, who lost his wife to alleged medical malpractice, forfeited his opportunity to challenge the constitutionality of the law because he failed to make a pretrial motion regarding his intent or mention anything during the trial.

Now, a high-profile case in Evansville challenging the constitutionality of the law is on deck. An Evansville couple says medical malpractice is the reason their daughter is a quadriplegic. A Vanderburgh County judge is expected to take up the case.

ILB: The bill that is the focus of this story is SB 152. It is scheduled to be heard in Senate Judiciary on Wed., Jan. 20th.

Posted by Marcia Oddi on Monday, January 18, 2016
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/18/16): Next week's oral arguments before the Supreme Court (week of 1/25/16): Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/18/16):

Wednesday, January 20

Next week's oral arguments before the Court of Appeals (week of 1/25/16):

Tuesday, January 26

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, January 18, 2016
Posted to Upcoming Oral Arguments

Friday, January 15, 2016

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

For publication opinions today (1):

In Debra R. Sorrells v. Karen Reid-Renner, M.D., an 11-page opinion, Judge Crone writes:

Debra R. Sorrells filed a medical malpractice complaint against Karen Reid-Renner, M.D. (“Dr. Reid-Renner”), alleging that Dr. Reid-Renner failed to communicate to her the results of a blood test which were indicative of her early-stage leukemia. Sorrells claimed that this resulted in a delay in diagnosis which, in turn, caused her injury and damages. Sorrells submitted her claim to a medical review panel as required by Indiana law. The panel opined that Dr. Reid-Renner indeed breached the applicable standard of care. However, the panel also opined that such breach was not a causative factor in any resultant injury or damages. Dr. Reid-Renner moved for summary judgment based upon the panel’s opinion as to lack of causation. Sorrells responded by coming forth with expert testimony to rebut the panel’s opinion. Following a hearing, the trial court entered summary judgment in favor of Dr. Reid-Renner. Concluding that Sorrells met her burden to establish that a genuine issue of material fact remains for trial, we reverse. * * *

In sum, we conclude that Dr. Dayton’s expert testimony, when viewed in the light most favorable to Sorrells, is sufficient to demonstrate a genuine issue of material fact as to whether Dr. Reid-Renner’s alleged negligence was the proximate cause of the injuries and damages complained of. Those injuries and damages include additional aggressive and expensive medical treatments and procedures that would have been unnecessary had Dr. Reid-Renner complied with the applicable standard of care, as well as the emotional distress suffered as a result of the chain of events that transpired. Based upon the record before us, we consciously choose to err on the side of letting this case proceed to trial on the merits, rather than risk short-circuiting a meritorious claim. See Hughley, 15 N.E.3d at 1004. The trial court’s entry of summary judgment is reversed.

NFP civil decisions today (0):

NFP criminal decisions today (1):

Melvin Duarte v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, January 15, 2016
Posted to Ind. App.Ct. Decisions

Thursday, January 14, 2016

Ind. Decisions - 7th Circuit decides one Indiana case today, re SS disability insurance benefits

In Kevin Loveless v. Carolyn Colvin (ND Ind., Van BokkelenO, a 13-page opinion, JudgeKanne writes:

Kevin Loveless applied for Disability Insurance Benefits claiming that he could not work because of a shoulder impairment, diabetes, and pancreatitis. An Administrative Law Judge concluded, however, that Loveless could perform light work with restrictions. The Appeals Council and the district court upheld that determination, but Loveless insists that the ALJ erred by minimizing the opinion of his personal physician and disbelieving his own testimony about the limiting effects of his impairments. We reject these contentions. * * *

The ALJ’s decision is supported by substantial evidence. Accordingly, the district court’s judgment is affirmed.

Posted by Marcia Oddi on Thursday, January 14, 2016
Posted to Ind. (7th Cir.) Decisions

Indiana Decisions - Supreme Court decides two today

In Leandrew Beasley v. State of Indiana, a 10-page, 5-0 opinion, Justice Massa writes:

Leandrew Beasley appeals his convictions for the murder of James Allen, the attempted murder of Gerald Beamon, and unlawful possession of a firearm by a serious violent felon. We now grant transfer with respect to a single issue raised by Beasley on appeal: whether the trial court abused its discretion in admitting Beamon’s testimony that Allen told Beamon he had shot Beasley the day before Allen’s murder, on the grounds his statements “had so great a tendency . . . to expose the declarant to civil or criminal liability” such that “a reasonable person in the declarant’s position would have made [the statement] only if the person believed it to be true,” as permitted by Indiana Evidence Rule 804(b)(3). We find that it was not error for the trial court to admit Beamon’s challenged testimony on that basis, and thus affirm. * * *

For the foregoing reasons, we affirm the admission of Gerald Beamon’s testimony regarding James Allen’s recount of his altercation with Leandrew Beasley, as such statements fell within the hearsay exception of Indiana Evidence Rule 804(b)(3). In all other respects, we summarily affirm the holding of our Court of Appeals below.

In James Beasley v. State of Indiana, a 2-page, 5-0 opinion, Justice Massa writes, in full:
James Beasley appeals his convictions for the murder of James Allen and the attempted murder of Gerald Beamon. For the reasons set forth in our companion decision of Leandrew Beasley v. State, also issued today, we grant transfer and affirm the trial court’s admission of Beamon’s hearsay testimony regarding statements Allen made to him on the day he died. We find the trial court could have reasonably determined that Allen’s statements were against his interests, and were thus admissible pursuant to Indiana Evidence Rule 804(b)(3). In all other respects, we summarily affirm the holding of our Court of Appeals below, pursuant to Indiana Appellate Rule 58(A)(2).

Posted by Marcia Oddi on Thursday, January 14, 2016
Posted to Ind. Sup.Ct. Decisions

Courts - How much of the sky above your property do you own? Kentucky to decide

Some quotes from a really interesting story today in the Washington Post, reported by Andrea Peterson and Matt McFarland, and headed "You may be powerless to stop a drone from hovering over your own yard." Some quotes:

William Merideth had just finished grilling dinner for his family when he saw a drone hovering over his land. So he did what he said any Kentuckian might do — he grabbed his Benelli M1 Super 90 shotgun, took aim and unleashed three rounds of birdshot.

“The only people I’ve heard anything negative from are liberals that don’t want us having guns and people who own drones,” said the truck company owner, now a self-described “drone slayer.” Downing the quadcopter, which had a camera, was a way to assert his right to privacy and property, he said.

The drone was owned by John Boggs, a hobbyist, who told authorities he was trying to take pictures of the scenery. He argues in a lawsuit filed this month in U.S. District Court in Louisville that Merideth did not have the right to shoot the craft down because the government controls every inch of airspace in America.

More from the long story:
For decades, the issue of who controls the nation’s air didn’t matter much to everyday Americans. * * *

“There is gray area in terms of how far your property rights extend,” said Jeramie Scott, national security counsel at the Electronic Privacy Information Center. “It’s going to need to be addressed sooner rather than later as drones are integrated into the national airspace.” * * *

According to the Federal Aviation Administration, every inch above the tip of your grass blades is the government’s jurisdiction. “The FAA is responsible for the safety and management of U.S. airspace from the ground up,” said an agency spokesman, echoing rules laid out on its website.

But common law long held that landowners' rights went “all the way to Heaven.” And today, it’s clear that they have some rights.

After all, developers and even cities sometimes sell off rights to the air above their buildings. And if a neighbor has a tree limb hanging over your fence, you generally can chop it off.

The rise of air travel initially sparked questions about where those rights end and flyable space begins. The issue reached the Supreme Court during the 1940s in a case called United States v. Causby after a farmer brought a suit against the government over low-flying military planes' taking off and landing from a nearby airport. The planes, he said, forced him out of the chicken business -- and he wanted compensation.

The Court gave it to him -- and said that a property owner owns “at least as much of the space above the ground as he can occupy or use in connection with the land.”

But even then, the justices didn’t clearly define a precise aerial boundary for landowners -- leaving a gray area that Boggs is hoping to clear up for the burgeoning drone market.

The ILB has located the 9-page complaint in Boggs v. Merideth, filed 1-4-16.

Posted by Marcia Oddi on Thursday, January 14, 2016
Posted to Courts in general

Ind. Gov't. - "St. Joseph County transparency fight moves to Statehouse"

That is the headline to a story today by Jeff Parrott of the South Bend Tribune. Some quotes:

The battle over a St. Joseph County Council ordinance that would require more public disclosure of county contract details has made its way to the Indiana General Assembly.

Rep. Curt Nisly, R-Goshen, introduced a bill Wednesday [ILB - HB 1391] to let the council adopt an ordinance establishing requirements for the billing of professional services to the county. The bill specifies that it applies to “St. Joseph County’s legislative body,” which is the council. It was assigned to the House Local Government Committee but hadn’t yet been scheduled for a hearing.

Meanwhile, the Indiana attorney general Wednesday told the South Bend Tribune that it will decline a request from county commissioners to issue an advisory opinion on whether commissioners can be required to implement the ordinance.

The Taxpayer Protection and Transparency Ordinance, authored by Republican St. Joseph County Council member Jamie O’Brien, would have required more public disclosure on how county money is spent on professional services provided by outside vendors, such as law firms, engineers, accountants and consultants. The biggest change from current procedures would be a stipulation that services provided for anything other than hourly fees, such as a fixed fee, would have to list the amount of time spent on the work so that an average hourly rate could be listed. * * *

Bryan Corbin, spokesman for Attorney General Greg Zoeller, said that office won’t give a non-binding legal opinion because it only does so for its “state government clients” and “cannot render legal advice to county government officials.” Corbin said the office was in the process of preparing a formal letter and would soon mail it to commissioners.

The ILB has an earlier post on this same issue, from Nov. 23, 2015, again quoting a story by reporter Parrott, this one headed " "How much do contractors charge St. Joseph County taxpayers?"."

Posted by Marcia Oddi on Thursday, January 14, 2016
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (3):

Pecan Shoppe of Whitestown, Inc. v. SJC, Inc. (mem. dec.)

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

David R. Neal v. Mark Sevier and the Indiana Department of Correction (mem. dec.)

NFP criminal decisions today (6):

Rodney Mosby v. State of Indiana (mem. dec.)

Dennis Hankins v. State of Indiana (mem. dec.)

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

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

Tobie Wilson v. State of Indiana (mem. dec.)

Shawn D. Harbert v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, January 14, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "No conflict of interest on bill about police records at Indiana colleges?"

Updating four earlier ILB posts on HB 1022 [see footnote], the South Bend Tribune today has an interesting story by Margaret Fosmoe headed " No conflict of interest on bill about police records at Indiana colleges, legislator says: Sits on panel of group tied to measure." Some quotes:

In the wake of a legal fight that started early last year over records by Notre Dame Security Police, state Rep. B. Patrick Bauer took a strong stand, declaring that records by police departments at private colleges and universities in Indiana should be subject to public disclosure.

“We need to either abolish these private police forces or do what’s right,” Bauer told The Tribune in April. “Notre Dame shouldn’t be hiding behind this. It’s worse than silly … it’s just wrong.”

Earlier this month, Bauer, D-South Bend, indeed followed up and co-sponsored a bill on the topic for this session of the General Assembly. But critics have argued it falls well short of making private university police forces more transparent. The bill, in fact, is limited to making public some information related to arrests or incarcerations for criminal offenses.

The bill was drafted with the help of Independent Colleges of Indiana. Notre Dame, which is embroiled in a legal fight with sports giant ESPN over its police records, is a member of the organization. And Bauer has served on the group’s board of directors for at least five years.

Bauer on Wednesday said there is no conflict of interest. His board seat is unpaid, Bauer said, and the proposed legislation would not benefit him. He insisted the bill is intended to increase the amount of information available to the public regarding police investigations on private campuses. * * *

He said that as he started drafting legislation, Independent Colleges “offered to work with me on it, and we came up with this bill.”

The group “helped me write parts of the bill because they have the expertise,” he added.

Last week, Notre Dame spokesman Dennis Brown said by email that the university “offered its support, perspective and assistance to the leaders of the Independent Colleges of Indiana as they worked with Rep. Bauer.” * * *

The bill, HB 1022, passed the House Government and Regulatory Reform committee this week.

The bill would not make private university police departments subject to Indiana’s public records law, such as city, county and public university police agencies are. Steve Key, an attorney and executive director of the Hoosier State Press Association, has said the legislation does not go far enough and “doesn’t put private university police departments on an equal footing” with public police departments.

Seven other Indiana legislators also sit on the Independent Colleges board, including Sen. John Broden, D-South Bend. The organization represents 31 private colleges and universities in the state.

For a list of all the ILB posts on the ESPN vs. Notre Dame lawsuit, see here.

________________________

Posted by Marcia Oddi on Thursday, January 14, 2016
Posted to Indiana Government

Ind. Courts - "All eyes on Carmel in traffic lawsuit " [Updated]

Following up on this Jan. 12th ILB post, which includes a copy of the complaint in Lennon v. City of Carmel, this post on a story earlier on Jan. 12th from Chris Sikich, and this initial Jan. 7th story in the Kokomo Tribune, reporter Sikich writes today in a long Indianapolis Star story:

Cities and towns across Indiana are worried that a recent court ruling declaring Carmel's traffic ordinance is illegal will create a flood of court challenges to local traffic laws.

The state Court of Appeals on Dec. 11 tossed out an Indianapolis man's speeding ticket in a construction zone after unanimously ruling that Carmel's ordinance improperly duplicated state law. The city also faces a potential class-action lawsuit from other motorists who received tickets under the ordinance.

Now, the Indiana Association of Cities and Towns has joined Carmel's effort to appeal the ruling to the Indiana Supreme Court. The organization in a court filing said the decision "would have widespread and damaging effects regarding the enacting and enforcement of speed limits in Indiana."

The concern is that cities and towns would not be able to enforce local traffic ordinances.

"This decision not only curtailed the city's ability to enforce its own speeding ordinance, but puts in jeopardy all similar ordinances throughout Indiana," Carmel attorney Doug Haney wrote in the city's appeal.

Not everyone, however, agrees that is the case. Ed Bielski, the Indianapolis lawyer behind the class-action lawsuit, called the idea that the appeals court ruling would prevent local cities and towns from enacting and enforcing speed limits and other traffic ordinances absurd.

The legal problem, he said, is not that Carmel enforces local traffic laws. It's that Carmel violated state law in the way it wrote part of its traffic ordinance.

"They are trying to turn this ruling into an indictment of a city's ability to monitor traffic," Bielski said, "and in reality there is a whole structure of law detailing how to create traffic ordinances. The problem is Carmel's law."

Carmel filed Monday to appeal the ruling to the Indiana Supreme Court. [ILB: This is an appeal of the Dec. 9, 2015 COA decision in Jason J. Maraman v. City of Carmel] The Indiana Association of Cities and Towns, which has heard from many of its members concerned about the Appellate Court ruling, hired Noblesville-based Church, Church, Hittle & Antrim to file its legal brief that urges the court to hear the appeal. * * *

Bielski said both Carmel's appeal and the Indiana Association of Cities and Towns' brief were clouding the issue. [ILB: Bielski has filed a separate, federal class action lawsuit.]

He said the Indiana General Assembly clearly outlines the method for establishing and enforcing local traffic ordinances. Carmel, he said, did not follow that method and simply is trying to pull in other cities in an attempt to appear to make the ruling an indictment against local laws.

"The request to transfer (to the Supreme Court) is a clever verbal sleight of hand that attempts to recast the Appellate Court's ruling as an indictment of Indiana's local ordinance system," he said. "The Indiana legislature has identified the method for a municipality to establish a local traffic ordinance. But the legislature specifically said that a city, like Carmel, cannot just duplicate a state law and pretend that it is a local ordinance. "

Local communities create their own traffic ordinances because they feel they are more qualified than state government to determine which speed limits and other controls to use on local roads. But they also have a monetary interest. Local communities collect more money from tickets issued under local ordinances.

Bielski is investigating whether Carmel is citing traffic offenders under a local ordinance rather than a state statute to keep a larger share of money from fines, which typically are divided among entities that can include the local city, county and state.

[Updated March 2, 2016] The Indianapolis Star today has a lengthy story by Chris Sikich on the federal lawsuit. It begins:
Attorney Ed Bielski is seeking an injunction in federal court to prevent the city of Carmel from collecting fines for traffic tickets police issued under an invalided city ordinance.

The Court of Appeals of Indiana unanimously ruled Dec. 11 that Carmel traffic ordinance 8-2 improperly duplicated state law. Now, the city faces a potential class-action lawsuit filed by Bielski in federal court on behalf of motorists who received tickets under the ordinance.

Through his effort to collect information for the federal lawsuit, Bielski said, he learned Carmel has continued to try to collect money from motorists cited under the local ordinance for traffic tickets. Carmel's fines can be more than three times as much as the state's fines for the same infraction, he said.

Posted by Marcia Oddi on Thursday, January 14, 2016
Posted to Indiana Courts

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

Updating this long list of earlier posts, yesterday the Appellees filed their brief in CAC v. Koch, the House email/public records case. You may now access the 53-page brief of appellees Eric Koch and Indiana House Republican Caucus here.

Here again is appellants' brief, filed Nov. 9, 2015.

Posted by Marcia Oddi on Thursday, January 14, 2016
Posted to GA and APRA

Ind. Gov't. - Some bills on 2nd reading today ...

Among the Senate bills eligible for 2nd reading today (via today's calendar) are SB 109 (regulation of hunting preserves)(note 7 proposed amendments) and SB 195 (ownership of wild animals). The Senate convened at 9 AM and can be watched here.

Here is the House daily calendar. The House convenes at 10 AM and you can watch it here. Among the House bills eligible for 2nd reading today is HB 1088 (death certificates) (note currently 1 proposed amendment).

Posted by Marcia Oddi on Thursday, January 14, 2016
Posted to Indiana Government

Wednesday, January 13, 2016

Ind. Courts - Former Justices and Federal Judges Attend State of the Judiciary Today

This afternoon Indiana Chief Justice Loretta H. Rush addressed the Governor and a joint session of the Indiana General Assembly for the annual State of the Judiciary. You may now view photos of the event and a transcript of the speech here. Archive video of the State of the Judiciary will also be available.

Among the luminaries in attendance were former Chief Justice Randall Shepard and former Associate Justice Frank Sullivan.

House Speaker Brian Bosma also introduced federal judges Sarah Evans Barker, Jane Magnus-Stinson, Tanya Walton Pratt, and bankruptcy judge Robyn Moberly, noting: "I don't recall federal judges attending before."

All six jurists are seated together in this photo: Pratt, Moberly, Magnus-Stinson, Barker, Sullivan and Shepard.

Posted by Marcia Oddi on Wednesday, January 13, 2016
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil decisions today (2):

Ashlee A. Trammel v. Jeffery S. Trammel (mem. dec.)

Jerry Washington v. Phyllis Washington (mem. dec.)

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Wednesday, January 13, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Obama Nominates Three to Fill Judicial Vacancies"

Good story from Dan McCue of Courthouse News on the three nominees, 2 to the 7th Circuit and one to the SD Ind. A quote:

At present, including those announced Tuesday, a total 32 Obama judicial nominees await votes. Thus far, the Judiciary Committee has approved 13 of them.
More here, from ILB.

Posted by Marcia Oddi on Wednesday, January 13, 2016
Posted to Indiana Courts

Ind. Gov't. - "Pence punts LGBT civil rights question to Legislature"

That is the headline to Dan Carden's story in the NWI Times. Some quotes:

The governor tried to carefully thread a course between the two sides by insisting Hoosiers do not tolerate discrimination of any kind, while Hoosiers also cherish the religious liberties enshrined in Indiana's Constitution.

Pence said he's not certain whether it is possible, or even necessary, to reconcile those two values, and did not endorse any of the nearly one dozen legislative proposals seeking to do so.

Instead, he signaled that any anti-discrimination legislation lacking significant exceptions for individuals or organizations that might possibly be classified as religious would be met by his veto pen.

"I will not support any bill that diminishes the religious freedom of Hoosiers or interferes with the constitutional rights of our citizens to live out their beliefs in worship, service or work," Pence said.

In all, Pence spoke for less than four minutes on an issue that he claims to have been "studying" since April, when a hastily adopted fix to the 2015 Religious Freedom Restoration Act controversy put an end to threatened Indiana business and tourism boycotts from across the country.

State Rep. Linda Lawson, D-Hammond, said following the speech she can't believe Pence waited months to essentially say nothing on an issue that has roiled the General Assembly and made Indiana a national laughingstock.

"I'm disappointed. I'm really disappointed," Lawson said. "I believe in my heart that's he's absolutely wrong. It has nothing to do with religion. It's a discrimination issue."

From Niki Kelly's story in the Fort Wayne Journal Gazette:
Gov. Mike Pence appeared to favor religious freedom over equality Tuesday night, saying he would not sign a bill that diminishes the rights of citizens to live out their beliefs in worship, service or work.

He addressed the controversy between faith and anti-discrimination protections for gay, lesbian, bisexual and transgender Hoosiers at the end of his fourth State of the State address, and made clear the topic isn’t a priority.

“The question before you as the elected representatives of the people of Indiana is whether it is necessary, or even possible, to reconcile these two values in the law without compromising the freedoms we hold dear,” Pence told lawmakers assembled in the Indiana House.

Hoosiers have been waiting since March to see where the governor stands on the issue that thrust Indiana into a national spotlight. * * *

Pence did say he doesn’t believe anyone should be harassed or mistreated because of who they are, who they love or what they believe. But he focused more fervently on freedom of faith.

“Hoosiers also cherish faith and the freedom to live out their faith in their daily lives,” Pence said. “No one should ever fear persecution because of their deeply held religious beliefs.”

Democrats and other supporters of adding gender identity and sexual orientation to the state civil rights code along with gender, race and national origin said Pence whiffed.

“He punted to the legislature and cloaked it in some hard-to-understand principles in an effort to simply have the whole matter go away,” said House Democrat Leader Scott Pelath of Michigan City.

Mike Perleberg reports at Eagle County 93.3FM in a story headed "Pence Doubles Down On Religious Freedom Over LGBT Rights":
Indiana Governor Mike Pence is pushing for lawmakers to strengthen religious freedom over enacting new protections for lesbian, gay, bisexual, and transgender Hoosiers. * * *

It wasn’t until the end of his speech that Pence touched on the LGBT rights debate that has overshadowed Indiana for the past 10 months. The debate has been happening since Pence signed a religious objections law, the Religious Freedom Restoration Act, last year. * * *

Before Tuesday night, Pence was reluctant to stay where he stood on proposals to add protections for LGBT citizens into Indiana law. The opinion voiced by the socially conservative governor wasn’t what LGBT rights supporters had hoped to hear.

Pence said he will not support any bill that diminishes religious freedom or interferes with the constitutional rights of citizens to live out their beliefs in worship, service, or work.

“Hoosiers also cherish faith and the freedom to live out their faith in their daily lives. Whether you worship in a church, synagogue, temple or mosque, religion brings meaning to the daily lives of millions of Hoosiers. And, no one should ever fear persecution because of their deeply-held religious beliefs,” Pence said.

The governor said that the Indiana Supreme Court has made it clear that the Indiana Constitution protects both belief and practice.

“Our constitution not only protects the ‘right to worship Almighty God… according to the dictates of (our) own consciences,’ but, it also provides that ‘No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, nor interfere with the rights of conscience,’” he said.

Pence told state lawmakers listening that legislation sent to his desk must be consistent with the state constitution. The question before the representatives and senators, he said, “is whether it is necessary or even possible to reconcile these two values in the law without compromising the freedoms we hold dear.”

Pence’s doubling-down on religious protections despite the RFRA rift didn’t sit well with gay rights supporters. Freedom Indiana, an organization fighting to update Indiana’s civil rights law, released a statement calling Pence’s downplaying of the LGBT rights issue “a complete letdown.”

“In his speech tonight, after 10 months of allegedly listening to Hoosiers, Governor Pence chose to punt the critical issue of civil rights protections for gay and transgender people to Indiana lawmakers. We are disappointed in his lack of leadership on an update that we know a majority of people in our state support,” said Freedom Indiana campaign manager Chris Paulsen.

Indiana House Democrat Leader Scott Pelath said Pence is avoiding a mess he helped create by signing the RFRA legislation last year.

“And if you think that washing your hands of legislation to end discrimination shows Solomonic wisdom, I think you are avoiding a mess you helped create for our state. There is a simple answer: add four words and a comma to Indiana’s civil rights statute to protect Hoosiers for their sexual orientation and gender identity, and the problem goes away,” Pelath said in a statement.

[More] Here is the long Indianapolis Star story by Stephanie Wang, Chelsea Schneider and Brian Eason, headed "In LGBT rights debate, Pence urges lawmakers to guard religious freedom." A quote:
Pence's statement on religious freedom was made, in part, to reclaim support from religious Hoosiers, political analysts say.

“He has chosen his side — the religious extremists. The people who really do not believe that gay and lesbian Hoosiers should be entitled to equal rights. And he is certainly entitled to do that, but I think politically it was suicide,” said Sheila Suess Kennedy, a professor at Indiana University-Purdue University Indianapolis and former director of the Indiana Civil Liberties Union.

Paul Helmke, a former Republican mayor of Fort Wayne and now an Indiana University professor, said Pence was "trying to have it both ways."

“He clearly sides with the evangelical side of the issue, but I think he left the door open a little,” Helmke said. "I think it does put the business community on notice that he's leaning more the other way, but there's still possibly a chance they can get something through."

The way Pence handled the issue also sends a message that lawmakers will need to do the lifting, if anything is going to pass to his desk.

“He didn’t give any sort of indication he’s eager to sign a civil rights bill and that means it’s back to the legislature, and we’ll see what they do. Boy, when a governor sends a signal he’s not favorably disposed to changing the law, it doesn’t seem to suggest that the Republican supermajority is going to go through a lot of exertion to pass a bill with an uncertain future,” said Robert Dion, an University of Evansville professor.

Still, it remains unclear whether Pence would support any kind of legislation extending LGBT rights that lawmakers may hash out. Many conservative groups have said giving protected-class status based on sexual orientation or gender identity would elevate LGBT rights above religious rights, infringing on people's ability to live by their beliefs.

Posted by Marcia Oddi on Wednesday, January 13, 2016
Posted to Indiana Government

Ind. Gov't. - "Police could refuse to release video footage in new Indiana bill"

Jill Disis reports in the Indianapolis Star on yesterday's hearing on HB 1019. Some quotes from the long story:

A newly proposed Indiana bill would allow police departments to decide whether to release video footage captured on body-worn or dashboard cameras to the general public.

House Bill 1019 immediately drew criticism from the Hoosier State Press Association, which argued the bill could undermine the purpose of such cameras in the first place: to increase police transparency and allow the public to hold law enforcement accountable.

The proposed legislation would compel police departments to show recordings of law enforcement actions only to either the person depicted in the video or that person's relatives or attorney. For anyone else, the decision to release is up to the department.

Should the agency say no, the bill says, the person requesting the video would have to take the department to court and argue for the video's release.

That's a potentially costly option without a guaranteed result, said Steve Key, executive director of the press association.

"When you get to the crux of it, it's still a bill that leaves all the cards in the law enforcement's hands," Key said during testimony Tuesday, when lawmakers began looking at the bill.

Key said that some police departments only would be motivated to release a video when it clearly exonerates their officer, adding: "The public has a right to know what police departments are doing."

Posted by Marcia Oddi on Wednesday, January 13, 2016
Posted to Indiana Government

Ind. Gov't. - "Bill to make some campus police records public advances"

Updating this ILB post from Monday, on House Bill 1022, this brief story today in the South Bend Tribune reports that the bill passed out of committee 13-0, apparently without amendment.

Posted by Marcia Oddi on Wednesday, January 13, 2016
Posted to Indiana Government

Ind. Courts - "County judicial election system now in lawmakers’ lap"

The $$$ IBJ had a good story Jan 9, reported by Hayleigh Colombo, on what may replace the law governing the selection of Marion County judges, post the 7th Circuit's opinion in Common Cause Indiana v. Indiana Election Comm. A sample from the long story:

Lawmakers can look across the state for a way to proceed: Most of the 92 counties use traditional, partisan elections to choose judges. Vanderburgh and Allen counties use non-partisan elections. And St. Joseph and Lake counties use a “merit selection” process that has a committee vet candidates, with the governor making the appointment from a list of finalists.

Republican state Sen. Mike Young, a lawyer from Indianapolis who is the ranking member of the Senate Judiciary Committee, said he plans to file a bill that would establish a system that keeps partisan balance on the bench. But he declined to elaborate on specifics.

“We want to ensure we have a system similar to what we have now where the makeup of the judiciary we have is divided equally and that voters have a meaningful way to participate,” Young said. “There won’t be slating as we know it anymore.”

But he said he’s not keen on the idea of having a nominating commission recommend judges, especially without elected officials on the commission.

“Some people want to have all the power and not have voters have power in picking judges,” Young said.

“Somebody has to pick them,” he said. I’d be more afraid of one person picking them than letting all the voters decide.”

But [IU McKinney Law professor Joel] Schumm said an election that required a balanced partisan outcome could end up running into similar legal issues.

“If his proposal is that there’s an equal number of Democrats and Republicans that win, some of the candidates who get elected are not going to be the people who get the most votes,” Schumm said. “I think there could be a legal challenge from voters who question how their vote counted if the candidates who win are not the ones with the most votes.”

State Rep. Ed Delaney, D-Indianapolis, said he appreciates Young’s goal to have both parties represented but agreed the desire for a “50-50” split is a dilemma.

“I have been thinking about minimum seats for parties as opposed to equal seats, which would reflect more what the electorate is like,” Delaney said.

ILB: Here is SB 352, authored by Sen. Young.

Posted by Marcia Oddi on Wednesday, January 13, 2016
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - Gun bills being heard in two committees today

HB 1085 - Firearms and certification, in House Public Policy at 9 AM

SB 36 - Handgun licenses and alcohol, in Senate Judiciary at 9:30

Posted by Marcia Oddi on Wednesday, January 13, 2016
Posted to Indiana Government

Ind. Courts - State of the Judiciary at 2 PM today

Watch live here at 2 PM. From the news release:

Indiana Chief Justice Loretta H. Rush will address the Governor and a joint session of the Indiana General Assembly for the annual State of the Judiciary. The formal update on the work of the judicial branch will be held Wednesday, January 13, 2016 at 2:00 p.m. EST in the chamber of the Indiana House of Representatives.

Posted by Marcia Oddi on Wednesday, January 13, 2016
Posted to Indiana Courts

Tuesday, January 12, 2016

Ind. Courts - Obama nominates Selby, Ong, to federal court seats - updated

The AP is reporting (via FWJG):

President Barack Obama has nominated former Indiana Supreme Court Justice Myra C. Selby to serve on the U.S. 7th Circuit Court of Appeals.

Selby, who served on the state supreme court from 1995 to 1999, is a partner at Ice Miller LLP in Indianapolis, where she practices commercial litigation with an emphasis in health care, the White House said in a statement.

In addition, according to a tweet from Megan Banta of the Bloomington H-T, Obama "has nominated Winfield D. Ong to serve on U.S. District Court for the Southern District of Indiana."

Here is more, tweeted by @WIBC_EricBerman:

Another IN judicial nomination from Obama: former IN Supreme Ct Justice Myra Selby for seat on 7th Circuit. John Tinder retired in '15.

Obama nominates former Asst US Atty Winfield Ong to federal judgeship for IN's Southern Dist being vacated by retiring Sarah Evans Barker.

ILB: Not to be a wet blanket, but these nominations are likely honorific, given the time left for Senate confirmation, and the environment.

[More] See this long Politico story today, headed "No more Obama nominees."

Posted by Marcia Oddi on Tuesday, January 12, 2016
Posted to Indiana Courts

Courts - "Cook County judge to review police records on secret Stingray cellphone tracking system"

Jason Meisner reported yesterday in the Chicago Tribune in a story that begins:

The Chicago Police Department must turn over records involving its use of a secret cellphone tracking system as part of an ongoing open-records lawsuit, a Cook County judge ruled Monday.

In denying the city's motion to dismiss the lawsuit, Judge Kathleen Kennedy rejected the city's argument that information about the Police Department's use of "cell site simulators" — sometimes known as Stingray devices — was exempt from public disclosure.

The judge ordered the city to produce the records so she can inspect them in her chambers before deciding whether any need to be withheld. She asked the lawyers to return to her courtroom next month.

The decision marks the second recent blow to the city's efforts to combat open-records requests involving police. In November, a different Law Division judge ordered the release of the now-infamous police dashboard camera video depicting a Chicago police officer shooting 17-year-old Laquan McDonald 16 times, killing him. * * *

Stingray devices can scan cellphones for call logs and text messages and have long been criticized as a potentially illegal way for police to monitor civilians without having to explain to a judge the reason for their surveillance. Police departments in at least 15 states have cell site simulators, according to the American Civil Liberties Union, which has been involved in several lawsuits aimed at releasing public documents connected to Stingray use.

The ILB has a long list of entries on the stingray tracking device, including this one from Dec. 19, 2013, headed Ind. Gov't. - Still more on: "Indiana State Police tracking cellphones — but won’t say how or why."

Posted by Marcia Oddi on Tuesday, January 12, 2016
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 10 NFP memorandum decision(s))

For publication opinions today (3):

In In the Matter of the Guardianship of Natalie N. Stant Adult, Jeffrey Stant v. William Stant and Natalie Stant, a 7-page opinion, Judge Kirsch writes:

Jeffrey Stant (“Jeffrey”) appeals the trial court’s order denying his “Action in Mandamus to Compel Delivery of Accounting” (“Mandamus Action”). Appellant’s App. at 26-27. In this interlocutory appeal, Jeffrey raises the following consolidated and restated issue: whether the trial court erred when it construed Indiana Code section 30-5-6-4 to apply only to powers of attorney created after July 1, 2012 and held that Jeffery was not entitled to request and receive a copy of an accounting of his mother’s finances. We reverse and remand.
In Michael G. Hays v. Shanna Hays, a 26-page opinion, Judge Robb writes:
In 2008, the marriage of Michael Hays (“Father”) and Shanna Hays (“Mother”) was dissolved pursuant to a Stipulated Decree of Divorce (“Decree”) in the State of Wyoming. The Decree made provisions for the custody and support of the parties’ three children, fixing Father’s arrearage through November 2007 at $27,372.00 and ordering him to pay support of $777.00 per month. In 2011, Father filed petitions for modification of child custody and visitation in both Wyoming and Wisconsin, where he and the parties’ oldest child then resided. Wyoming transferred jurisdiction of the proceeding to Wisconsin. In January 2012, Mother registered the Decree and petitioned for modification of child support in Indiana, where she and two of the children were residing. The parties agreed Wisconsin would have jurisdiction regarding the oldest child and Indiana would have jurisdiction regarding the two younger children. Father then filed a petition to determine his child support arrearage in the Wyoming court. The Wyoming court—after a hearing Mother did not attend—reduced Father’s arrearage to $0.00. Father was eventually given legal custody of all three children. In December 2014, on Mother’s Trial Rule 60(B) motion, the Indiana court declared the Wyoming court’s order on Father’s arrearage null and void.

At the end of 2012, both parties requested allocation of the tax deductions for the children. At the beginning of 2013, the trial court ordered that neither party claim the children as dependents on their federal, state, or local tax returns pending further order of the court. The trial court’s December 2014 order is silent as to the tax exemptions and the order that neither party claim the children on their taxes remains in effect.

Father now appeals, raising two issues for our review: 1) whether the trial court erred in declaring the Wyoming order on arrearage to be null and void; and 2) whether the trial court erred in failing to address the tax exemptions.
Concluding the trial court’s grant of Trial Rule 60(B) relief to Mother by
declaring Wyoming’s arrearage determination null and void is erroneous, we reverse. Concluding further that the trial court’s order precluding either party from taking the dependent exemption on their taxes should be vacated, we remand.

In Christopher Rondeau v. State of Indiana , a 24-page opinion, Judge Bailey writes:
Christopher Rondeau (“Rondeau”) was convicted of Murder, a felony, and sentenced to fifty-five years imprisonment. Proceeding pro se, he subsequently sought post-conviction relief. Rondeau’s petition for relief was denied, and he now appeals that denial. * * *

Rondeau has failed to establish bias on the part of the post-conviction court. The post-conviction court did not abuse its discretion with respect to various aspects of post-conviction proceedings. The post-conviction court did not err when it concluded that Rondeau did not receive ineffective assistance of trial counsel and appellate counsel. Affirmed.

NFP civil decisions today (4):

Paul R. Black and Jane I. Black v. Deutsche Bank National Trust Company as Trustee for Ameriquest Mortgage Securities, Inc., Asset-Backed Pass-Through Certificates Series 2006-R2 (mem. dec.)

Stephanie Olson v. Capital First Realty, Inc., Williamsburg Manor Corp., and Williamsburg Manor Limited Partnership, Williamsburg Manor MHC, LLC (mem. dec.)

Essam Otefi v. Doaa Ebrahim (mem. dec.)

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

NFP criminal decisions today (6):

Enemias Mezo-Reyes v. State of Indiana (mem. dec.)

Harrison Lime v. State of Indiana (mem. dec.)

Richard Lee Nicholson v. State of Indiana (mem. dec.)

Paul D. Newcomb, Jr. v. State of Indiana (mem. dec.)

Armando Gonzalez, Jr. v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Tuesday, January 12, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Variety of LGBT proposals set to be considered at Statehouse"

Dan Carden's story yesterday in the NWI Times begins:

INDIANAPOLIS — The question of extending civil rights protections to lesbian, gay, bisexual and transgender Hoosiers already is proving to be the most controversial and complicated issue of the 2016 legislative session.

Members of the Republican-controlled General Assembly have filed several proposals providing LGBT individuals various degrees of protection from discrimination, with numerous exemptions for religious organizations and providers of wedding services.

Other measures set to be considered by lawmakers would get state government involved in regulating public bathroom use, out of fear that men or women might pretend to be transgender to gain access to opposite-sex facilities.

Tuesday is the deadline for senators and representatives to file legislation this year.

Here's a look at the proposals, in numerical order, currently eligible for Senate and House committee action.

The story then summarizes Senate Bill 2, Senate Bill 35, Senate Bill 66, Senate Bill 100, Senate Bill 170, Senate Bill 344, House Bill 1041, and House Bill 1079. See them all on this list.

Dave Bangert of the Lafayette Journal-Courier had a story Jan. 9th subheaded "You need a scorecard to keep up with gay rights bills at Statehouse."

Posted by Marcia Oddi on Tuesday, January 12, 2016
Posted to Indiana Government

Ind. Gov't. - "Panel OKs fenced hunting rules"

Yesterday's meeting of the Senate Natural Resources Committee featured two bills, as noted in this ILB post:

Niki Kelly of the Fort Wayne Journal Gazette, who has followed the Indiana high fenced hunting issue for years, has this long, worth reading in full, report today.

SB 195, approved by the committee, appears to put the DNR back in the business of protecting and managing wild animals in Indiana, except for "legally owned captive bred cervidae." The bill was made necessary by a COA opinion ruling last year.

SB 109, also approved by the committee, legalizes fenced hunting of captive deer, as well as "certain types of exotic sheep and goats." Read the story for the details. A sample:

Several speakers urged the senators to move the other direction and ban the operations altogether. They pointed to the dichotomy of treating the deer as privately owned livestock but allowing them to be hunted, which isn’t allowed for other livestock.

“This is not hunting. This is shooting livestock,” avid hunter Joel Wieneke said. “Call it what it is. The statute makes them livestock. Don’t call it hunting. This is target practice.”

For background, see this long list of many past ILB posts.

Posted by Marcia Oddi on Tuesday, January 12, 2016
Posted to Indiana Government

Ind. Courts - "Carmel faces federal class action lawsuit over traffic law"

Updating this ILB post from earlier this morning, Lindsey Erdody of the IBJ now has a story on the federal class action lawsuit. It begins:

The city of Carmel is facing a class action lawsuit in federal court for its enforcement of a local traffic ordinance a state appeals court has already struck down.

Attorney Edward Bielski, president of Bielski Law LLC and former partner of Stewart & Irwin P.C., filed the lawsuit on behalf of Greenwood resident Lawrence Lennon and Fishers resident Robert Sanford in U.S. District Court in Indianapolis on Dec. 30.

The complaint argues that the city knowingly enforced an illegal traffic ordinance and wrongly collected money from citations issued based on the traffic infractions “for the purpose of maximizing revenue to the city of Carmel.” It also alleges that the city should have been required to share that revenue with the county and state.

The ILB has obtained a copy of the 16-page federal complaint in Lennon v. City of Carmel, filed Dec. 30th. Access it here.

Posted by Marcia Oddi on Tuesday, January 12, 2016
Posted to Indiana Courts

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

That was the headline to this Dec. 18, 2015 ILB post. It quoted a headline in the Milwaukee Journal-Sentinel. Today, a new long story in the Journal-Sentinel, by the same reporter, Mary Spicuzza. The headline: "Records Board backtracks amid public outcry on access." A few quotes:

Faced with a fierce backlash from members of the public and open government groups, state officials have rescinded a recent move that's been used to limit citizen access to some records.

The state Public Records Board voted unanimously Monday to revoke its August decision that expanded the definition of records considered to have temporary significance, known as transitory records. Such records could be immediately destroyed by government officials.

The board's decision came after nearly 1,900 emails and letters poured in from around the state in advance of its meeting in Madison, with hundreds of Wisconsinites writing to say they opposed the changes. The emails were posted to a state website before the meeting, and more than a dozen others spoke out against the changes at the meeting. * * *

Blessing, the head of the board, initially said the move to cut back on requirements for maintaining some records was not significant enough to warrant advance public notice. But just a few days after the open meetings violation complaint was filed, Blessing said the board would re-evaluate the matter in hopes of avoiding an expensive court battle.

Before the board's August vote, transitory records were described as "correspondence and other related records of short-term interest which have no documentary or evidentiary value." The new definition expanded that description 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 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.

It's also the last in a string of actions taken in Wisconsin over the past year aimed at limiting open records.

In July, just before Independence Day weekend, Republicans on the Joint Finance Committee unexpectedly amended the state budget to put sweeping limits on open records. Under withering criticism from both Democrats and other Republicans, GOP leaders quickly retreated, saying they would instead appoint a study committee to consider how to treat the matter.

The governor's office has withheld some records that include internal deliberations, saying that releasing them could inhibit the free exchange of ideas within his administration. State law doesn't specifically recognize that as a reason for withholding records.

In an interview Monday before the Public Records Board met, Attorney General Brad Schimel said he was glad it was revisiting the issue.

"I very much favor erring on the side of openness," the Republican attorney general said.

He added that he saw a need for stronger guidance to public employees about what records they need to retain. And he'd like to see the open records law updated to account for changes in technology, noting government business is now sometimes conducted by text messages and instant messages.

"Any time anybody tries to make changes to the open government laws, they should do so very cautiously. It's a place that you can make errors that will cause a lot of trouble," Schimel said.

Posted by Marcia Oddi on Tuesday, January 12, 2016
Posted to Indiana Government

Ind. Gov't. - "Why Indy is worried the NRA could sue the city" Or, why is Indy worried?

That is the heading of Brian Eason's story in the Indianapolis Star. Some quotes:

A little known provision of a 2011 Indiana gun statute has made it easier for groups like the National Rifle Association to sue cities if they pass their own firearm regulations.

Now, five years later, that provision has come into sharp focus as Indianapolis looks for new ways to combat rising gun violence without running afoul of the law and risking a costly lawsuit.

The state pre-emption law — like many others like it around the country — prevents local government agencies from regulating guns, giving the General Assembly complete control over gun-related matters. But it also contained unusual language giving gun membership organizations special standing in court to sue cities and counties that attempt to pass their own regulations.

So what does that matter? It depends on whom you ask.

Some view the provision as usurping the typical process of establishing court standing.

Others see it as a fairly minor shift — after all, interest groups such as the NRA, American Civil Liberties Union and Sierra Club sue all the time on behalf of their members. And as long as they follow state law, cities shouldn't have to worry about a lawsuit.

Posted by Marcia Oddi on Tuesday, January 12, 2016
Posted to Indiana Government

Ind. Decisions - More on "Attorney: Court ruling makes Peru's speeding ordinance unenforceable"

Updating this Jan. 7th ILB post, quoting a Kokomo Tribune story concerning a Dec. 11th Court of Appeals opinion, Jason J. Maraman v. City of Carmel, Indiana, about which the ILB posted on Dec. 11, "the reasoning is worth reading," the Indianapolis Star today, Jan. 12, takes note of the decision and expands on it, in a story by Chris Sikich headed "Lawsuit: Carmel illegally ticketed drivers." Some quotes:

A court's decision to throw out a speeding ticket issued in Carmel last month could have significant repercussions for the city.

Jason J. Maraman of Indianapolis was ticketed for driving 30 mph in a 20 mph zone last year, but in December he successfully argued that Carmel's traffic ordinance is invalid under state law. Now, the city faces a potential class-action lawsuit from other motorists who received tickets under the ordinance.

Maraman alleged that Carmel's traffic ordinance 8-2 was invalid because it simply copied the state code governing traffic.

The problem? The state's Home Rule Act says local governments can't simply duplicate a state statue, Maraman argued in court. If local governments adopt a traffic ordinance, he argued that under the Home Rule Act they have to write a local statute detailing their specific interests.

The state Court of Appeals unanimously agreed with Maraman and tossed the ticket in December. Maraman could not be reached for comment.

Carmel officials told The Indianapolis Star that the city will appeal the ruling to the Indiana Supreme Court.

“The City will appeal the court’s decision," officials said in a news release issued by spokesman Dan McFeely. "We believe our Code of Ordinances complies with Indiana law and incorporating certain state law violations into City Code is permissible under Home Rule and other applicable state law. Pending traffic cases are being reviewed. In no event will justice be denied or traffic violators be relieved of their obligation to atone for their actions as a result of this decision.”

But Carmel now faces a broader legal challenge. After reviewing the Court of Appeals' decision, Indianapolis attorney Edward G. Bielski filed a class-action lawsuit Dec. 30 against the ordinance in federal court. The court has not yet decided whether to give the case class-action status.

Bielski called Carmel's ordinance a gross abuse of the legal process and a systemic problem.

He has two clients who were ticketed under the ordinance: Lawrence B. Lennon of Greenwood, on a count of speeding and Robert Sanford of Fishers, on a count of passing on the left. Bielski plans to add clients in the coming weeks and months.

Bielski is seeking the return of the fines for his clients, plus other monetary relief that includes attorney fees, court costs, rising insurance costs and damages due to infringed driving records for anyone who joins the lawsuit. He also is asking the court to force Carmel to stop using ordinance 8-2.

ILB: Notably, Jason J. Maraman, who is not an attorney, successfully represented himself in the Court of Appeals case.

Posted by Marcia Oddi on Tuesday, January 12, 2016
Posted to Ind. App.Ct. Decisions

Monday, January 11, 2016

Ind. Gov't. - Some bills being heard in committee this week #2

Another Committee hearing now scheduled with bills of interest to ILB:

The ILB had a post on HB 1022 earlier today, "More on: Does Bauer bill impact pending ESPN/Notre Dame police records lawsuit?"

Alicia Kelly of the Marion Chronicle-Tribune had a story this weekend on HB 1019, headed "Indiana House bill lets law enforcement agencies put video under wraps." (Here via Indiana Economic Digest) The long story begins:

Under a bill authored by State. Rep. Kevin Mahan, R-Hartford City, law enforcement agencies would be able to decide what police videos from body camera and patrol car cameras could be released to the public.

The preliminary draft of Indiana House Bill 1019 proposes that law enforcement agencies will release video footage at their own discretion.

Steve Key, executive director and general counsel for Hoosier State Press Association, said the bill would put the media at the mercy of what law enforcement agencies want the public to see.

“What this bill does is hand all the records to law enforcement as far as the release of cruiser or body camera footage,” Key said. “It creates a category that says they can use the footage at their own discretion and keep it confidential without pretext to protect an ongoing investigation.”

Key said the proposed bill, a product of the Regulatory Reform Committee that met three times during summer 2015, was considered to be a work in progress by members of the committee.

“I think a lot of the members thought the bill was a work in progress, but wanted to spark something to get the bill filed in this legislative session,” he said. “I would call this a hurried approach to draft something. When the committee meets on Tuesday I hope they take that draft and move forward.”

Key said the Hoosier State Press Association will be attending the committee hearing and is seeking major changes to the bill.

“There are a multitude of reasons for them to not make a video recording available, but the only incentive for them to make it available is when it makes the law enforcement agency look good to the public,” Key said. “The burden will not be on the agency. It will be on the individual or public to convince a judge that the recording should be released. The concern from law enforcement is that they don’t want to be in the situation where they have to constantly go to court to fight it.”

Posted by Marcia Oddi on Monday, January 11, 2016
Posted to Indiana Government

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

In William I. Babchuk, M.D., P.C. v. Indiana University Health, Inc (SD Ind., Magnus-Stinson), an 8-page opinion, Judge Posner writes:

Dr. William Babchuk, a radiologist, brought this suit against Indiana University Health Tipton Hospital, Inc. (Tipton Hospital for short), under 42 U.S.C. § 1983, which creates a federal remedy for violations of constitutional rights by what are called “state actors.” See West v. Atkins, 487 U.S. 42, 49–50 (1988). In 2003 Tipton awarded Babchuk medical staff privileges, and either then or later also gave his professional corporation an exclusive contract to provide radiology services at the hospital. The suit charges that the hospital and its administrators deprived him of property without due process of law, in violation of the Fourteenth Amendment, when in 2012 it cancelled both his medical privileges and his corporation’s contract. His professional corporation is an additional plaintiff. The defendants include besides Tipton Hospital the hospital’s owner, Indiana University Health, Inc., plus some persons employed by the corporate defendants—but we can ignore those persons.

The district judge granted summary judgment in favor of all the defendants. She reasoned that the plaintiffs had failed to prove they had a federally protected property interest in Dr. Babchuk’s hospital privileges or in the contract between his professional corporation and the hospital. An alternative ground for affirmance urged by the defendants is that the conduct of which Babchuk complains is not state action and is therefore not actionable under 42 U.S.C. § 1983. * * *

So this is not a case in which “it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis in original). The fact that some of Tipton Hospital’s revenues are siphoned off to the state university no more makes the hospital a state actor than the fact that tax laws siphon income from private companies and individuals to state and federal treasuries. The university may well exert pressure direct and indirect on Tipton Hospital, just as federal and state governments in manifold ways exert pressure on private institutions. Government is omnipresent; that doesn’t make all employees of private entities state actors.

The judgment in favor of the defendants is AFFIRMED.

Posted by Marcia Oddi on Monday, January 11, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Indianapolis lawyer suspended for his advertisements

From In the Matter of Brent Welke, a 2-page Supreme Court order filed Jan. 7th:

Respondent’s advertisements on his website and in the Yellow Pages included the following statements concerning debtor bankruptcy: (1) “Screwing Banks Since 1992”; (2) “Keep your property”; (3) “Stop wage garnishments”; (4) “Stop home foreclosure”; and (5) “Stop vehicle repossession.” * * *

The parties agree that Respondent violated Indiana Professional Conduct Rule 7.1, which prohibits making a false or misleading communication about the lawyer or the lawyer’s services, including a communication that contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading. * * *

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning February 18, 2016.

Posted by Marcia Oddi on Monday, January 11, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (2):

John W. Kimbrough, III v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Monday, January 11, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Wait is over for IBTR decisions from Dec. 2015 ...

Updating this ILB post from last Friday, the Indiana Board of Tax Review's decisions webpage has now been updated to include the Dec. 2015 decisions.

Posted by Marcia Oddi on Monday, January 11, 2016
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending January 8, 2016

Here is the Clerk's transfer list for the week ending Friday, Jan. 8, 2016. It is one page (and 17 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, January 11, 2016
Posted to Indiana Transfer Lists

Ind. Courts - Justice Dickson's last day on bench will be Fri., April 29th

In a letter dated Jan. 11, 2016, Justice Dickson notifies Governor Pence that April 29, 2016 will be his final day on the Court, adding:

I trust that today's naming of April 29 as my retirement date will afford sufficient time for the Indiana Judicial Nominating Commission to nominate three candidates for the resulting vacancy, and then thereafter for you to make the final selection.

It has been an enormously gratifying experience and privilege to have served the citizens of Indiana and our state judiciary for thirty years.

Posted by Marcia Oddi on Monday, January 11, 2016
Posted to Indiana Courts | Vacancy on Supreme Court - 2016

Ind. Gov't. - More on: Does Bauer bill impact pending ESPN/Notre Dame police records lawsuit?

Updating this ILB post from Jan. 6th, Kim Kilbride of the South Bend Tribune reported this weekend:

State Rep. Patrick Bauer, D-South Bend, is attempting to change state law to make certain police records at private universities public.

House Bill 1022, authored by Bauer and Rep. Casey Cox, R-Ft. Wayne, was introduced on Tuesday. If passed, it will require that private university police department records relating to arrests or incarcerations for criminal offenses be considered public records.

The move comes nine months after ESPN lost a lawsuit against the University of Notre Dame over access to police records. ESPN appealed the case to the Indiana Court of Appeals, and oral arguments are scheduled for Feb. 24.

More from the story:
Notre Dame has a police force with arrest powers but historically has not made records available to the public, as municipal forces do. The university has an online blotter of crimes reported to NDSP, but the blotter generally does not contain specific locations, names and a general description of the alleged crime, as city, county and state police agencies Indiana are required to provide.

Steve Key, an attorney and executive director of the Hoosier State Press Association, said while it’s obvious Bauer and others think there should be greater transparency on the part of private university police forces, he doesn’t believe the legislation goes far enough.

For example, Key said, public police departments must legally provide daily log information detailing requests for assistance.

“If Notre Dame police arrest someone,” Key said, “you would get information. But if there’s a request for help and no arrests, I’m not sure you’d get anything.”

ESPN in its suit claims that Notre Dame is violating Indiana’s public records law. Notre Dame’s lawyers argued that the private university is not subject to the state’s public records requirements.

Indiana Attorney General Greg Zoeller in August filed a brief in support of ESPN, arguing that Notre Dame should be required to release information from police reports.

A spokesman for Zoeller said via email on Friday that the attorney general typically doesn’t take a position on pending bills. However, the email said, Zoeller has ‘long been an advocate of transparency in public records.’

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

Bauer didn’t respond to requests to be interviewed on Friday. As for his bill, it’s pending in the House Government and Regulatory Reform Committee.

But with ESPN’s appeal pending, Key said he’d be surprised if the bill passes this session.

Posted by Marcia Oddi on Monday, January 11, 2016
Posted to Indiana Government

Ind. Gov't. - "Bill could lead to alcohol at Dunes State Park pavilion"

Adding to the many, many ILB posts on issues relating to the Indiana Dunes Pavilion project, Rob Earnshaw of the NWI Times reported Friday:

CHESTERTON — A new bill could pave the way for alcohol to flow at the Indiana Dunes State Park pavilion.

State Sen. James Merritt, R-Indianapolis, has introduced Senate Bill 188, which would require the Alcohol and Tobacco Commission to issue a three-way permit to the Department of Natural Resources for one or more state parks if a proper application is made. The bill would exempt a local board investigation and hearing on the application.

Pavilion Partners LLC is appealing a decision in October by the ATC to uphold a local board's decision to deny a liquor license for a restaurant in the pavilion being restored at the state park.

Dunes Action, an opponent of a liquor license, released a statement Friday calling for all Indiana residents to contact their state senators and ask them to strongly oppose the bill.

“This appears to be an attempt to circumvent the normal permitting process,” said Desi Robertson, of Dunes Action. “If this bill passes, it would eliminate public input and local board approval for any alcohol permit applied for by the IDNR." * * *

“We were afraid of this,” said Jim Sweeney of the Porter County Chapter of the Izaak Walton League."The state needs to fund our parks adequately so we don’t have to sell booze or auction off public assets for funding.”

Merritt said Indiana has a lot of state parks and alcohol permits are economic drivers. Merritt referenced the inn being built at Potato Creek State Park, where a celebration of the state's bicentennial anniversary is being planned.

"To depend on things like a caterer to have a liquor permit is just another inefficient way," he said.

The bill also exempts requirements regarding the character of the permit applicant. In December Chuck Williams, principal of Pavilion Partners, filed a defamation lawsuit against the operators of a website that has accused him of public corruption and spreading alleged defamatory statements to others in order to undermine the pavilion project.

Merritt said he has not spoken with Williams, nor is the bill a slap at the hundreds who turned out to oppose the pavilion liquor license at the local board hearing.

That said, Merritt doesn't think the bill will go anywhere. "I sincerely doubt it gets a hearing," he said.

The Chesterton Tribune has this story by Kevin Nevers that reports:
Dunes Action is urging Hoosiers to protest Senate Bill 188, which the organization said could allow increased sales and consumption of alcohol in Indiana state parks.

Introduced by State Sen. James Merritt, R-31st--whose district includes portions of Marion and Hamilton counties and Fort Harrison State Park--the bill would require the Indiana Alcohol and Tobacco Commission (IATC) to issue a liquor permit to the Department of Natural Resources on behalf of a state park “if a proper application is made.”

SB 188 more specifically exempts the DNR from “local board investigation and hearing on the application,” from “quota restrictions,” and from “requirements regarding the character of the permit applicant and the location of the permit.”

“This appears to be an attempt to circumvent the normal permitting process,” said Desi Robertson of Dunes Action. “If this bill passes, it would eliminate public input and local board approval for any alcohol permit applied for by the IDNR,” she said. “It looks as if they are trying to undermine local control.”

“The IDNR should not be exempt from the normal application review process,” Robertson added. “This bill would eliminate public notice and public comment in the case of all IDNR liquor applications, and would also reduce the authority of the Alcohol and Tobacco Commission to deny a license.”

More than 500 Northwest Indiana residents attended a public hearing last year to protest the issuance of a liquor license to Pavilion Partners LLC at Indiana Dunes State Park, and more than 1,200 have signed a petition or sent letters to the Indiana Alcohol and Tobacco Commission stating their opposition to any reintroduction of alcohol in the park, Robertson noted.

Dunes Action speculated that driving the bill might be a DNR plan to use alcohol sales to paper over funding shortfalls. “We were afraid of this,” said Jim Sweeney of the Porter County Chapter of the Izaak Walton League. “The state needs to fund our parks adequately so we don’t have to sell booze or auction off public assets for funding.”

The story goes on to quote Senator Merritt:
Merritt, for his part, told the Chesterton Tribune that he hadn’t been expecting the “slew” of calls his office received on Thursday from unhappy people in Valparaiso.

“This has struck a nerve,” he conceded. But it’s a nerve whose rawness Merritt said he’s “just barely” acquainted with.

“I have not invested any time in familiarizing myself” with the Pavilion flap, Merritt said. “I have no in-depth understanding of it.” So he was glad to have his colleague in the Senate, Ed Charbonneau, R-Valparaiso, brief him. “That was enlightening.”

In fact, Merritt said, the point of the bill is a simple one: “My intent was to make state parks competitive with their competition.”

More specifically, Merritt’s intent is to make the Fort Harrison State Park Inn--with the Garrison Restaurant and Conference Center and the Fort Golf Resort--more competitive with the many restaurants, hotels, and recreation options in the area. “It’s simpler for operations if the state park has the permit and doesn’t have to worry about its caterers getting one,” he said. “The park doesn’t have to worry about insurance and other things. Liquor permits are part of economic development and the simpler economic development is, the better, I think.”

Merritt was emphatic on one point: Northwest Indiana residents who don’t share his view about the value of SB 188 should absolutely contact their legislators and voice their displeasure. “Make sure your representative knows how you feel,” he said. “This bill is not on grease. It still has to come out of committee. It’s not going to skid through to home plate. I’m quite transparent about it. If it’s not popular, it’s not going to pass. Maybe in other parts of the state, people won’t like it. I don’t know.”

Posted by Marcia Oddi on Monday, January 11, 2016
Posted to Indiana Government

Ind. Courts - Judiciial Center's "Bills of interest to the judiciary" is back, but changed

In past years the ILB has directed readers during the session to the very useful weekly summaries (Legislative Updates) of "bills of interest to the judiciary" put out by The Indiana Judicial Center. Here is the final entry, from the conclusion of the 2015 session.

This year the Legislative Update is back, but with a new format. So far, the ILB finds the new structure confusing and hard to follow, particularly since 2015 and 2016 bills are intermixed, and focus on the various committees seems to be diminished. Also, there is no weekly overview.

Posted by Marcia Oddi on Monday, January 11, 2016
Posted to Indiana Courts

Ind. Gov't. - Some bills being heard in committee this week

Last week the ILB pointed to the deadlines for the 2016 General Assembly. The last day for 3rd reading in the first house is Feb. 3rd. That means there are only three weeks ahead for bills to come out of committee in the first house. Anticipate no more than one weekly meeting for each committee.

So the calendars of upcoming meetings are very important if you are following bills. Here is this week's calendar for the Senate. There are many bills listed; here are a few of the Senate bills of interest to the ILB:

Here is this week's calendar for the House. There are many bills listed; here are a few of the House bills of interest to the ILB:

Note the House calendar only goes through Tuesday as of this writing; note also that both calendars are subject to change. You can see a list of all the standing committees here, click on a committee (and then click on "bills assigned to this committee) to see all the bills that have been assigned to it so far.

Posted by Marcia Oddi on Monday, January 11, 2016
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/11/16): Next week's oral arguments before the Supreme Court (week of 1/18/16): Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/11/16):

Thursday, January 14

Next week's oral arguments before the Court of Appeals (week of 1/18/16):

Wednesday, January 20

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, January 11, 2016
Posted to Upcoming Oral Arguments

Friday, January 08, 2016

Ind. Gov't. - Waiting for posting of IBTR decisions from Dec. 2015 ...

Waiting for posting of IBTR decisions from Dec. 2015 ...

When posted, they will be accessible here, at the Indiana Board of Tax Review decisions page.

Last Dec. (2014) came the Meijer and Kohl's "dark box" rulings.

Oral argument in the first appeal to the Tax Court, Kohl's Indiana LP v. Howard County Assessor, is set for Jan. 15 before Judge Wentworth - see ILB post with details here.

Posted by Marcia Oddi on Friday, January 08, 2016
Posted to Indiana Government

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 (1):

In In the Matter of Ordinance #2013-09, as amended, the South and West Area Annexation Ordinance, et al v. The City of Logansport, Indiana, acting by and through Ted Franklin, et al (mem. dec.), a 28-page opinion, Judge Crone writes:

The City of Logansport (“the City”), acting by and through the Logansport Common Council (“the Council”), introduced an ordinance proposing to annex territory to the south and west of the City’s boundaries (“the Annexation Territory”). The Council and Logansport Mayor Ted Franklin (“the Mayor”) adopted a written fiscal plan for the proposed annexation. After a public hearing, the Council amended and adopted the annexation ordinance, which the Mayor approved. Landowners in the Annexation Territory filed remonstrance petitions objecting to the proposed annexation. The landowners and the Cass County Commissioners (collectively “the Remonstrators”) filed a complaint against the City. The trial court held a hearing and entered a judgment ordering that the annexation take place.

On appeal, the Remonstrators argue that the trial court’s judgment is clearly erroneous, claiming that (1) the ordinance does not adequately describe the Annexation Territory’s boundaries; (2) the City did not present sufficient evidence regarding the requisite contiguity of its boundaries with those of the Annexation Territory; (3) the City did not present sufficient evidence that the Annexation Territory is needed and can be used for its development in the reasonably near future; (4) the City’s fiscal plan is inadequate; and (5) the Remonstrators established that the annexation will have a significant financial impact on residents or landowners. We disagree in all respects and therefore affirm the trial court.

NFP criminal decisions today (0):

Posted by Marcia Oddi on Friday, January 08, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "A primer on the different civil rights proposals that Indiana lawmakers are considering this session"

Stephanie Wang of the Indianapolis Star has prepared a brief "compare and contrast" of the introduced versions of four bills:

For each bill, the story explains: what it proposes; why it is liked; why it is criticized; where it stands.

Much more about SB 344 here (IndyStar) and here (Niki Kelly of the Fort Wayne Journal Gazette, headed "Rights bill omits transgender issue: Gives some protections to gays but exempts small firms").

Posted by Marcia Oddi on Friday, January 08, 2016
Posted to Indiana Government

Ind. Gov't. - Legislator ethics traning in IN and KY

Both the Kentucky and the Indiana General Assembly this week conduced ethics training for their legislators.

The $$$ Wall Street Journal's Rebecca Davis O’Brien reported on Kentucky in a Jan. 6th story that began:

FRANKFORT, Ky.—Preet Bharara, the U.S. attorney in Manhattan who recently secured the convictions of two top New York lawmakers, on Wednesday said the blame for corruption lies not only with bad actors but also with the “good people” who don’t try to stop it.

“People knew, and did nothing,” said Mr. Bharara, referring to the corruption cases in Albany during a speech before the Kentucky Legislature. “This, perhaps, is the most unfortunate feature of the status quo in my home state—the deafening silence of the many individuals who…saw something and said nothing.”

Mr. Bharara’s speech at the Kentucky General Assembly’s annual ethics training was his first before a full state legislature. It came at the request of Kentucky state officials.

“Something like this has always been on my bucket list: To be in a room full of legislators who are required to be here, while I still have subpoena power,” said Mr. Bharara, eliciting laughter. “You are not being wiretapped. At this moment. At least not by my office.” * * *

In Kentucky, during an address that lasted about 45 minutes, Mr. Bharara drew occasional laughter, nodding approval and gasps of disbelief, particularly when he quoted wiretapped phone conversations and other evidence from recent public corruption trials.

Meanwhile, Indiana's legislators on Jan. 6 attended a 153-page slide show that begins on p. 2 with a picture of a kitten. You may watch the archived video here.

Here are more details on the Kentucky Ethics Commission's January legislator and lobbyist training.

Last year the Indiana General Assembly created an Office of Legislative Ethics and appointed a director, but the ILB is unable to find information online.

Posted by Marcia Oddi on Friday, January 08, 2016
Posted to Indiana Government

Thursday, January 07, 2016

Ind. Courts - "3 of the Elkhart Four - Blake Layman, Levi Sparks and Anthony Sharp - sentenced for burglary convictions"

Updating this morning's ILB post, Sharon Hernandez of the Elkhart Truth is now reporting in a story that begins:

GOSHEN — At least two of the Elkhart Four who originally faced prison sentences of 50 years or more each for felony murder could be out of prison this year, and a third will spend less than 10 years in prison.

Blake Layman, Levi Sparks and Anthony Sharp, originally charged with felony murder when an attempted burglary turned deadly, were sentenced Thursday on lesser burglary charges after the murder convictions were overturned by the Indiana Supreme Court in September.

Layman and Sharp were sentenced to 10 years and Sparks to nine years.

Posted by Marcia Oddi on Thursday, January 07, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Some coming legislative deadlines

Here are the deadlines for the 2016 session. Some highpoints this week and next:

Posted by Marcia Oddi on Thursday, January 07, 2016
Posted to Indiana Government

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

Updating this ILB post from Oct. 28, 2015, Bill Dolan reports today in the NWI Times:

CROWN POINT — Lake County Surveyor Bill Emerson Jr. is letting operators of a controversial quarry near Lowell resume work.

Emerson said Wednesday he is lifting a stop-work order he issued last week after reviewing and approving new plans for a redesign of drainage ponds being excavated on the 600-acre site to hold ground water to be pumped out of the quarry.

"Absolutely ridiculous," Linda Cosgrove, a Lowell resident, said after learning of the decision. She has opposed the excavation on grounds the quarry-pumping could dry local wells and flood downstream drainage ditches. * * *

Cosgrove raised fresh concerns late last year that workers were digging the ponds in different locations than those specified to state and local officials.

Emerson said Wednesday the ponds had to be relocated to avoid damaging historic artifacts. Workers last summer found human remains believed to be from prehistoric communities.

Cosgrove said the location of the archaeological sites had been known for years. She also complained, "They were blasting stone last week contrary to a Sept. 24 letter issued by Emerson that there would be no blasting until requested documents are in. They weren't in and blasted anyway."

Emerson said it was a misunderstanding between him and Singleton. "I told them don't take any stone out of there until I know the (ponds') capacity is the same after the redesign. They came up with the calculations, gave them to me, but went ahead and blasted before we could review."

Emerson said the new design will increase the capacity of the ponds to hold groundwater drainage out of local ditches during storm flooding.

He said Singleton can resume rock removal for site construction, but his staff must verify the design for the finished stormwater drainage system before they start commercial production.

Posted by Marcia Oddi on Thursday, January 07, 2016
Posted to Indiana Government

Ind. Decisions - COA posted third ruling yesterday, another NFP criminal decision

Super easy to miss ..., it hadn't been posted on the COA website at 3:00 PM yesterday afternoon, although it apparently had been filed at 8:49 AM.

Amanda Pearson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, January 07, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Attorney: Court ruling makes Peru's speeding ordinance unenforceable"

Carson Gerber reports in the Kokomo Tribune:

PERU – A ruling by the Indiana Court of Appeals has rendered all of Peru’s speeding laws unenforceable, according to City Attorney Pat Roberts.

The appeals court ruled in December that a speeding ticket issued to a driver in the City of Carmel was null and void because the city’s traffic ordinances violated the state’s “Home Rule” laws.

Those laws state in part that cities cannot enforce an ordinance that duplicates a penal statute of Indiana.

In Carmel, the city adopted state speeding laws as its own ordinance.

“Carmel’s wholesale adoption of chapters of Indiana Code resulted in its ordinance being nothing more than a ‘duplicate’ of already existing state law,” the court said in its written opinion.

Roberts said Peru’s speeding ordinance does the same thing. The ordinance says “state traffic laws regulating the speed of vehicles shall be applicable on all streets within this city.”

With the appeals court ruling now standing as state law, Peru’s speeding ordinance has been rendered void and unenforceable, he said.

“I’m not going to prosecute anyone under the city code for violations, and I don’t want the police exposed to liability enforcing an ordinance that in my opinion, and everybody else’s opinion, is unenforceable,” Roberts said. “We owe that to the public.”

Roberts said he has instructed officers in the Peru Police Department to continue writing speeding tickets, but rather than citing city code on the tickets, officers will cite state code.

The tickets will also stop being processed through Peru City Court, which doesn’t have a prosecutor assigned to it, and be sent to Miami County Superior Court, he said.

Roberts informed Peru City Council members Monday about the ruling. He said the council will need to take action soon to remedy the issue.

What that remedy will be, however, is still unknown. Roberts said he’s investigating options to bring the city’s ordinance in line with the court’s ruling, and will present those options to the council.

He said he’s also investigating how the move will affect the city court, which operates almost solely as a traffic court. * * *

The City of Carmel still has the option to appeal the ruling to the Indiana Supreme Court, which can grant or deny a review of the case.

If the Supreme Court decides to take the case and overturns the ruling, Peru’s ordinance could still stand.

The ILB earlier remarked upon the 11-page, Dec. 11th Court of Appeals ruling in Jason J. Maraman v. City of Carmel, Indiana, saying "the reasoning is worth reading."

Posted by Marcia Oddi on Thursday, January 07, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "New sentences come today in Elkhart Four case after murder charges dismissed"

Updating this post from Dec. 9th, the sentencing hearing began at 8:30 a.m. today, Jan. 7, for Levi Sparks, Blake Layman and Anthony Sharp. The same judge, Elkhart Circuit Court Judge Terry Shewmaker, who presided in August 2013, will preside over the re-sentencing hearing.

Kristine Guerra of the Indianapolis Star has this story today. A quote:

The new sentencing hearing for three of four men who have come to be known as the Elkhart Four is likely the end of a saga that brought attention to a controversial and highly criticized law that allows prosecutors to charge someone with murder even in accidental or unintended deaths. Under Indiana's felony murder statute, a person can be charged with murder if someone is killed while he or she is committing a violent crime.

Elkhart Circuit Judge Terry Shewmaker will re-sentence Levi Sparks, Blake Layman, Anthony Sharp for burglary after the Indiana Supreme Court ruled that that is the only crime the three are guilty of. The high court's five justices threw out the young men's murder convictions last September.

Sharon Hernandez of the Elkhart Truth has this long story this morning. Hernandez is at the courthouse this morning. She tweets:
We're not allowed to use our phones in the courtroom, but I'll be sending updates as I can.

Posted by Marcia Oddi on Thursday, January 07, 2016
Posted to Indiana Courts

Wednesday, January 06, 2016

Ind. Decisions - "Showgirl club dealt new court loss"

Mike Marturello reports in the Kendallville KPC News in a story that begins:

ANGOLA — A request by Showgirl owners to rehear an appeal to the U.S. Court of Appeals for the Seventh Circuit was denied by the court on Tuesday.

Attorney Bradley Shafer appealed the recent decision by the Chicago-based court that denied the original appeal filed on behalf of Showgirl owners Alva and Sandra Butler. Showgirl is a stripclub group started by Alva Butler in Fort Wayne. He has been trying to open a similar club in Angola since August 2012 when he purchased the former Slider’s Bar and Grill property at 310 W. Wendell Jacob Ave.

A document filed Dec. 21 by Shafer requested the panel of three judges who heard the case in oral arguments on Nov. 4, 2014, or all of the judges on the Seventh Circuit reconsider application of a recent legal precedent set by the U.S. Supreme Court.

“On consideration of the petition for rehearing … no judge in active service has requested a vote on the petition for rehearing en banc, and all of the judges on the original panel have voted to deny rehearing,” the judges ruled late Tuesday morning.

Shafer and his associate Matt Hoffer argued that the court didn’t treat laws enacted by Angola with strict scrutiny as required with ordinances that deal with content.

On Dec. 7 the Court of Appeals ruled against Butler, upholding decisions made in U.S. District Court in January 2014. Those rulings were appealed in January 2014 and heard in oral argument on Nov. 4, 2014.

The ILB reported on the Nov. 4, 2014 oral argument. It also summarized the Dec. 7th opinion: the case was titled BBL, Incorporated v. City of Angola.

Posted by Marcia Oddi on Wednesday, January 06, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - COA posts second ruling today, a NFP civil decision

Easy to miss ...

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

Posted by Marcia Oddi on Wednesday, January 06, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today [Updated]

In R.E. v. M.S., a single paragraph, per curiam opinion, the Court writes in full:

R.E. appealed the trial court’s issuance of a protective order against her in favor of M.S. The Court of Appeals affirmed in a memorandum decision. Among other things, R.E. requested that the Court of Appeals redact her full name from its decision, and identify her by initials only. The Court of Appeals denied her requests. R.E. seeks transfer, which we now grant for the purpose of substituting R.E.’s name with her initials in our opinion. In all other respects we summarily affirm the Court of Appeals’ decision. See Ind. Appellate Rule 58(A)(2).
ILB: Here are the 7/17/2015 and 9/1/2015 COA orders on the "Appellant's Motion to Substitute Appellant's Name with Initials" and the "Motion to Reconsider" same, respectively. The latter states in full:
Appellant, by counsel, has filed a Motion to Reconsider and Ammend [sic] and Redact Appellant’s Full Name in the Memorandum Decision Issued June 12, 2015, Pursuant to Statute and Administrative Rule 9.

Having reviewed the matter, the Court finds and orders as follows:

Appellant’s Motion to Reconsider and Ammend [sic] and Redact Appellant’s Full Name in the Memorandum Decision Issued June 12, 2015 is denied.
[Updated] ILB: Supreme Court does not cite basis in statute or court rule for redaction of defendant's name in a protective order case.

Posted by Marcia Oddi on Wednesday, January 06, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Can States Protect LGBT Rights Without Compromising Religious Freedom?"

That is the title to a long Atlantic article today by Emma Green. A few quotes:

The irony of gay marriage becoming legal in the United States is that it has made discrimination against LBGT people easier. For example: Many newlywed couples may be asking their employers for spousal benefits for the first time. Depending on where they live, it may or may not be illegal for that employer to respond by firing them—something that happened in a number of states in 2015. Some state legislatures have tentatively taken on this issue; Pennsylvania and Idaho, for example, both saw bills introduced in 2015. But in many places, these efforts are complicated by a tangled political question: Should these laws make exceptions for religious individuals and organizations that object to employing and providing services to gay people?

This question could produce some of the biggest political fights of 2016. Gay-rights advocates are planning to push hard for discrimination protections, while religious-liberty groups continue to raise concerns about protecting people’s freedom of conscience. Meanwhile, state-level legislators are caught in the middle, no longer able to avoid a contentious set of issues many would rather have ignored.

In Indiana, a draft bill outlawing discrimination, which also offers exemptions for some religious objections, is scheduled for a first reading this week in the Senate. After the state took a political beating last spring for a wide-ranging religious-freedom-protection proposal, many businesses threatened to boycott the state. LGBT organizations are preparing to invest money and advocacy resources there. A renewed political fight was coming to the state, even without the Republican proposal. “It's smart for them to initiate the discussion,” said Doug NeJaime, a law professor at UCLA. “They're going to put out the first model.”

Posted by Marcia Oddi on Wednesday, January 06, 2016
Posted to Indiana Government

Ind. Gov't. - Does Bauer bill impact pending ESPN/Notre Dame police records lawsuit?

Readers may remember this South Bend Tribune quote from a Dec. 26, 2015 ILB post:

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.

For all the documents in the ESPN/Notre case, see this Aug. 17th, 2015 ILB post headed: "ESPN files its brief in its state court appeal to obtain access to the reports of the Notre Dame police."

Rep. Pat Bauer has this week introduced HB 1022 re "Private university police departments."

Posted by Marcia Oddi on Wednesday, January 06, 2016
Posted to Indiana Government

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 (1):

In Anthony Fisher v. Charles Nightingale (mem. dec.), a 4-page opinion, Judge Robb writes:

Anthony Fisher, pro se, appeals the small claims court’s order dismissing his complaint for failure to prosecute. Fisher raises a single issue on appeal, whether the small claims court denied Fisher his constitutional right to bring a civil action. We reverse. * * *

Despite knowing it was impossible for Fisher to attend trial due to his incarceration, the small claims court nonetheless ordered Fisher be present at trial, and made it clear that if Fisher failed to attend, the small claims court would dismiss the cause of action. The small claims court’s order completely, and prematurely, foreclosed any avenue for Fisher to prosecute his claim. See id. Therefore, when the small claims court dismissed the cause of action after Fisher did not attend the scheduled trial date, the small claims court denied Fisher’s constitutional right to prosecute his claim.

By foreclosing any alternative avenue for Fisher to maintain his claim, the small claims court denied Fisher’s constitutional right to prosecute his claim. Accordingly, we reverse the dismissal of his small claims action.

NFP criminal decisions today (0):

ILB: Notice today's opinion been added to the ILB's "Why is this NFP?" category.

Posted by Marcia Oddi on Wednesday, January 06, 2016
Posted to Ind. App.Ct. Decisions | Why is this NFP?

Ind. Gov't. - "Republican-controlled Indiana General Assembly are pushing measures intended to expand access to firearms"

That is the lede to a story today in the Indianapolis Star reported by Tony Cook and Chelsea Schneider. Some quotes:

One measure would get rid of Indiana’s licensing requirement to carry a handgun. Another would allow guns at public universities and state office buildings. And a third would make it easier for repeat alcohol offenders to get a handgun license. * * *

One of them, House Bill 1056 [Handgun license repeal and reciprocity licenses], would repeal an Indiana law that requires people to get a license to carry a handgun on their person or in their car. The other, House Bill 1055, would prohibit state agencies, including public universities, from regulating firearms in public buildings or land.

A third bill [SB 36 - Handgun licenses and alcohol], filed last week by Sen. Jim Tomes, R-Wadesville, would repeal a law that prevents those with repeat alcohol offenses, such as drunken driving or public intoxication, from getting a handgun license.

Posted by Marcia Oddi on Wednesday, January 06, 2016
Posted to Indiana Government

Courts - "The most important Supreme Court battle over abortion in a generation ..."

On Nov. 13, 2015, the SCOTUS granted cert in the case of Whole Woman’s Health v. Cole. Amy Howe of Sctousblog has a good introduction to the significance of this case on a post from the same day. Here is the beginning, and the conclusion, of the long post:

In recent years, the Supreme Court has mostly stayed out of the decades-long battle over abortion rights. But today the Justices stepped back into the abortion wars in a big way. They announced this afternoon that they would review a challenge to a Texas law that, abortion rights supporters say, would close seventy-five percent of the clinics in Texas. Texas officials counter that the law is intended to protect women’s health, and that women will still be able to obtain abortions, even if they may have to drive a little further to do so. * * *

The Court is likely to hear oral arguments in the case in February or March, with a decision expected by late June. However it rules, the decision is likely to be a blockbuster. On a practical level, several other states – including Wisconsin, Louisiana, and Alabama – have similar laws, and a decision upholding the requirements could prompt more states to follow suit. But the true impact could be much broader, providing insight into how the Roberts Court may rule in future cases challenging other abortion restrictions as “undue burdens.” And it will do so during the middle of the 2016 presidential election, bringing the Court squarely into the fore and potentially galvanizing both sides of the debate. Stay tuned.

This week SCOTUSblog is publishing a multi-part symposium on Whole Woman's Health.

Here is the SCOTUSblog casepage, including all the briefs that have been posted so far. Richard Wolf of USAToday writes about some of those briefs today, in this lengthy story, headed "Abortion case at Supreme Court gets personal." Some quotes from the story:

WASHINGTON — The most important Supreme Court battle over abortion in a generation took on a starkly personal tone Tuesday as scores of women — including lawyers, doctors and elected officials — came forward to tell the justices their own stories of ending pregnancies.

From more than 100 women in the legal profession to an actress, an author and an anthropologist, women from all walks of life signed "friend-of-the-court" briefs intended to humanize what for most members of the high court is an abstract issue.

“Individual women have stepped forward, not anonymously but by using their own names," said Nancy Northup, president of the Center for Reproductive Rights, which is challenging restrictions in Texas that threaten to leave the state with just 10 abortion clinics. “They are fighting the stigma that surrounds the subject of abortion.”

Their tales of mostly decades-old abortions — chosen because of medical complications, rapes or the unintended pregnancies of youth — highlight an array of 45 briefs submitted to the court by doctors and nurses, business and religious leaders, state and local governments and the Obama administration, all urging that the law be struck down. * * *

With the court expected to be closely divided on the issue, personal tales on both sides could prove important — particularly with Justice Anthony Kennedy, the court's perennial swing vote. Kennedy wrote the court's 5-4 opinion upholding a ban on late-term abortions in 2007, famously asserting that "some women come to regret their choice to abort the infant life they once created and sustained."

To counter that conclusion, a brief submitted by 10 professional women asserts that they "have never regretted their decisions to have an abortion."

"To the contrary," the brief says, "they strongly believe that the right to access an abortion was and is crucial to their and every woman’s ability to define her own existence, determine her future, achieve her dreams and aspirations, and be an equal participant in our society."

Here is that brief: Brief amici curiae of Kate Banfield, et al.

Posted by Marcia Oddi on Wednesday, January 06, 2016
Posted to Courts in general

Indiana Courts - "Lawsuit: Allen county's public defender system 'set up to fail poor people'"

Last October the ILB has three posts headed "Class Action Lawsuit to be Filed Over Inadequate Johnson County Public Defense System."

Today Kristine Guerra of the Indianapolis Star reports on a similar federal lawsuit filed against Allen County. A few quotes from today's story:

This lawsuit comes only a few months after a similar one was filed in Johnson County. A group of inmates facing felony charges there say they've received little to no assistance from their court-appointed attorneys, according to court records. Some accuse the Johnson County public defenders of forcing them to accept plea deals.

Unlike the Johnson County case, no individual attorneys were named as defendants in the Allen County lawsuit.

The lawsuit, which seeks class-action status, was filed on Thursday in the U.S. District Court for the Northern District of Indiana against Allen County and governing bodies in charge of setting aside tax dollars and approving staffing levels for the public defender's office. The Allen County Council, Allen County Board of Commissioners and Allen County Public Defender Board are named as defendants. * * *

Allen County, Indiana's third-most-populous county, contracts private attorneys to serve as full-time and part-time public defenders. Hammond, the chief public defender, also is contracted by the county and maintains a private practice in Fort Wayne.

Part-time public defenders earn between $8,000 and $24,000 annually, regardless of how many cases they handle or how much time they devote to each case.

Only three, sometimes four, part-time public defenders handle more than 1,500 misdemeanor cases every year, court records show. One part-time public defender handles double, triple and sometimes even quadruple the maximum number of cases allowed by state standards, court records say. This number does not include cases from their private practices.

In 2014, for instance, a public defender's misdemeanor caseload ranged from 343 to 560 cases, according to court records. The maximum should be 150 cases a year for one part-time public defender.

The situation is different in Marion County, which has a more adequately staffed public defender agency. But because of the excessive number of caseloads in Allen County, situations like Wilson's have become common, Frank said.

Indigent defendants often aren't adequately informed of their legal rights, the lawsuit says. Attorneys rarely invest more than an hour on a case, and they rarely meet with their clients outside of court, according to the 18-page complaint.

Such scenarios violate the sixth and 14th amendments of the U.S. Constitution, the complaint says.

"If you or someone in your family was charged with a crime, whether or not you think they actually did it, under our system of justice, that person is at least entitled to a fair shot," Frank said.

The lawsuit also alleges that Allen County officials have long been aware of the problem of excessive caseloads, but "have taken little or no action to properly fund, regulate, or manage public defense in Allen County."

"I'm not here to fault the attorneys or even the chief public defender," Frank said. "The problem is that the system is broken, that it's set up to fail poor people charged with crimes."

Posted by Marcia Oddi on Wednesday, January 06, 2016
Posted to Indiana Courts

Ind. Courts - Allen Superior Court Magistrate Vacancy

The ILB has received this note:

Magistrate Robert Ross of Allen Superior Court’s Criminal Division is retiring effective February 29th, 2016. As a result, the Court is searching for a Magistrate who will serve in the Misdemeanor and Traffic Division, located at the Bud Meeks Justice Center in downtown Fort Wayne. The deadline for applications is 4:30 p.m. on Friday, January 29th. The job description, compensation information and application are attached.

Thanks in advance for any help you can give us in getting the word out! Magistrate openings are rare and of great interest to members of the Bar. We received applications for our 2015 openings from all over the state.

John McGauley, Court Executive

The 7-page job description/application has been posted by the ILB here.

Posted by Marcia Oddi on Wednesday, January 06, 2016
Posted to Indiana Courts

Ind. Gov't. - Criminal Code Recodification to be discussed in House Committee

Today, Wed. Jan. 6th at 1:30 PM in the House Chambers, there will be an "information update" on the criminal code codification, according to this agenda.

Posted by Marcia Oddi on Wednesday, January 06, 2016
Posted to Indiana Government

Tuesday, January 05, 2016

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

In Tracy Williams v. Brandon Brooks (SD Ind., Magnus-Stinson), a 17-page opinion, Judge Flaum writes:

Defendant Officer Brandon Brooks conducted a traffic stop of plaintiff Tracy Williams for failing to activate his turn signal prior to changing lanes. Williams did not cooperate with the instructions of Officer Brooks and Defendant Officer Kehl, which led to a physical confrontation. Defendant Sergeant Shannon Trump then arrived at the scene. Officer Brooks arrested Williams for resisting law enforcement, and after a bench trial, a state court judge granted Williams’s motion to dismiss the charge. Williams sued defendants in federal district court pursuant to 42 U.S.C. § 1983, alleging false arrest, excessive force, and failure to protect in violation of the Fourth Amendment. The district court granted defendants’ motion for summary judgment. We affirm.

Posted by Marcia Oddi on Tuesday, January 05, 2016
Posted to Ind. (7th Cir.) Decisions

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

No opinions so far this month.

Posted by Marcia Oddi on Tuesday, January 05, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Plaintiffs sue for special election do-over of 2014 Marion County Superior Court election

The plaintiffs in the case of Gregory Bowes and Christopher K. Starkey v. Secretary of State on Jan. 4th filed a motion for summary judgment in federal court (SD Ind.). The lawsuit is tied to the result in Common Cause Indiana v. Indiana Election Comm. From the introduction to the brief in support of the summary judgment motion:

On November 4, 2014, Marion County, Indiana, conducted an election to fill sixteen vacancies in the office of Marion Superior Court Judge. The vacancies occurred due to the expiration of a six-year term. The statute that was used to conduct the election had just recently been ruled unconstitutional by this Court. See Common Cause Ind. v. Sec’y of State, 60 F. Supp. 3d 982 (S.D. Ind. 2014).

Before the election, Plaintiffs filed this case, and immediately requested a preliminary injunction to force the defendants to include their names on the general election ballot. The Court denied that motion. (Doc. 36.) Since the 2014 general election, the Court of Appeals for the Seventh Circuit upheld the determination of unconstitutionality. Common Cause Ind. v. Individual Members of the Ind. Election Comm’n, 800 F.3d 913 (7th Cir. 2015).

This Court ruled in Common Cause that Ind. Code § 33-33-49-13(b), which restricts the number of nominees one political party may present in a general election to half the number being elected, is unconstitutional. The Court stated, “[T]he Statute still precludes full representation of each party on the general election ballot. This, in turn, means that voters are denied the opportunity to meaningfully vote for a full slate of candidates from their chosen party.” 60 F. Supp. 3d 982 at 989. Plaintiffs now seek summary judgment based on the Seventh Circuit ruling.

Plaintiffs were among the eleven candidates for Marion Superior Court Judge in the Democratic Party Primary Election in 2014. If the election had been conducted in a constitutional manner, they would have been among the Democratic Party’s nominees on the general election ballot, because they garnered the 10th and 11th most votes in the Primary Election. Plaintiffs ask the Court to order a special election to vindicate their First and Fourteenth Amendment rights.

Posted by Marcia Oddi on Tuesday, January 05, 2016
Posted to Indiana Courts

Ind. Courts - "Objections raised as courtrooms go digital"

The Boston Globe today has a story by Michael Levenson (h/t How Appealing) that reports:

Superior Courts across the state have started installing a new digital recording system that does not require a court reporter to take a live transcript of the proceedings, a $5 million project that will eventually encompass 455 courtrooms in 100 courthouses.

The change has stirred deep anxiety among some lawyers, judges, and other officers of the tradition-bound courts, who worry that transcripts will be riddled with errors and inaudible passages if they are not taken by an attentive court reporter witnessing the trial.

But in an era when technology is improving and court budgets are shrinking, legal specialists say that courts across the country are inevitably turning to digital recording systems.

Six states, including New Hampshire and Vermont, already use digital systems to record all or most of their trials, according to the National Center for State Courts.

Massachusetts has already replaced court reporters with recording equipment in most civil trials. The remaining 40 court reporters in the state document criminal trials, in which accurate transcripts are vital because they form the basis of most appeals. * * *

Lewis H. Spence, the state’s trial court administrator, declined to answer questions about the new system.

But in a recent e-mail to judges and staff, Spence wrote, “the transition to digital recording represents a significant change for the court, one that will expand capability and apply technology in important new ways.”

The digital recordings will be uploaded to a central server, making them easier to track and locate, officials said. The system, made by an Australian company called For The Record, is used in 65 countries to record court, government, and law enforcement proceedings, according to the company’s website. * * *

Lee Suskin, a former court administrator in Vermont, said digital recording systems can work if the courts use “courtroom monitors” to ensure that the systems are recording properly and to write down names, unusual terms, and the start and end times of proceedings. That way, a typist listening to the recording can make an accurate and complete transcript, he said.

Massachusetts officials have not indicated whether they plan to hire “courtroom monitors.”

“As far as I know, the states that have put that into effect have been able to make a record successfully, and there have not been any issues in making a transcript,” Suskin said. “If you just turn on the machine and everyone starts talking, you have a problem.”

ILB: Indiana tried this via a pilot project a few years back, designating several trial courts. The project seems to have withered away, with few supporters ...

Here is a quote from a 2012 ILB post quoting an article in Government Technology:

Looking to follow in Kentucky’s footsteps, three courts in Indiana are participating in a yearlong pilot project to make audio tape recordings the official court record. The Indiana courts aren’t looking to cut costs, said David Remondini, chief deputy executive director of Indiana’s division of state court administration. Instead, they want to shorten the time it takes to get a transcript for an appeal, down from the current allotted time of 90 days to nearly no time at all, since the tape recording of the trial is the official record and no transcription is needed.

Remondini stresses that the pilot isn’t designed to put publicly employed court reporters out of work — quite the opposite, actually. “Since courts are under such a tight budget crunch and they’re getting more work with no more staff,” Remondini said, “even if a court reporter never typed another transcript they’d have plenty of work to do.”

Less than one month into the pilot, it’s already producing some unexpected results: in one instance, an attorney used some of the audio from parts of a trial and played it back to the jury as part of his closing arguments.

Posted by Marcia Oddi on Tuesday, January 05, 2016
Posted to Indiana Courts

Ind. Gov't. - "T.S.A. Moves Closer to Rejecting Some State Driver’s Licenses for Travel"

Remember the federal "Real ID" law. The ILB last wrote about it in 2014, in the latter part of this post.

The NY Times had a long story Dec. 28, 2015, by Jad Mouawad, that begins:

As soon as next year, a driver’s license may no longer be enough for airline passengers to clear security in some states, if the Department of Homeland Security has its way.

Federal officials said they would soon determine whether Transportation Security Administration agents would start enforcing a 10-year-old law that required states to comply with a set of federal standards when issuing driver’s licenses.

The issue is quickly intensifying, and the debate over identification and privacy has grown after the recent terrorist attacks in Paris and California.

But some states have bitterly opposed these requirements out of privacy concerns, and more than a dozen have passed laws barring their motor vehicle departments from complying with the law, according to the National Conference of State Legislatures. The new standards require more stringent proof of identity and will eventually allow users’ information to be shared more easily in a national database.

Privacy experts, civil liberty organizations and libertarian groups fear the law would create something like a national identification card.

Federal and state officials have been arguing for years about the merits of the law, called the Real ID Act, which was enacted by Congress in 2005 on the recommendation of the 9/11 Commission. Its proponents argue that it is a necessary tool to reduce identity theft and fraud, and enhance the nation’s security.

The federal government cannot force states to adopt these identification standards, but it can gain compliance in other ways. In October, it began requiring that visitors to military bases, nuclear plants and federal facilities produce a driver’s license from a state that complies with the law, or show another form of government ID, like a passport.

But the biggest leverage the government has over the states is commercial air travel.

According to a chart accompanying the story, Indiana currently is in compliance.

Posted by Marcia Oddi on Tuesday, January 05, 2016
Posted to Indiana Government

Ind. Gov't. - "Indiana bills flying under the radar this session"

This story, from the Kendallville KPC News and reprinted by Indiana Economic Digest, written before the session convenes today, highlights 8 bills reported to be "flying under the radar."

They are all Senate bills because, as discussed by the ILB yesterday, House bills have not yet been released to the public.

Posted by Marcia Oddi on Tuesday, January 05, 2016
Posted to Indiana Government

Ind. Gov't. - "Gay rights a no-show on Pence's '16 agenda"

That is the headline to Niki Kelly's Jan. 5th story in the Fort Wayne Journal Gazette. Today is, of course, the first day of the 2016 session. The story begins:

INDIANAPOLIS – Gov. Mike Pence on Monday announced his full legislative agenda for 2016 – with no mention of the expected debate over civil rights protections for gay, lesbian and transgender Hoosiers.

He has been “studying” the issue of whether to add anti-discrimination protections to state law since March.

"Pence doesn't take position in civil rights debate" is the heading to Dan Carden's story this morning in the NWI Times, that begins:
INDIANAPOLIS — Gov. Mike Pence is not saying whether he supports or opposes civil rights protections for lesbian, gay, bisexual and transgender Hoosiers, despite spending nearly six months "studying" the issue that's expected to dominate the 2016 legislative session.

The Republican made no mention of gay rights, or, conversely, religious freedom, in the policy agenda he announced Monday, less than 24 hours before the 100 Hoosier representatives and 50 senators convene at the Statehouse.

Instead, Pence touted his $1 billion state road funding plan that several top House Republicans have said is dead-on-arrival, because it relies on one-time surplus funds and $240 million in borrowing, and does not address the state's long-term infrastructure needs.

Both stories go on to detail the Pence 2016 agenda.

Posted by Marcia Oddi on Tuesday, January 05, 2016
Posted to Indiana Government

Monday, January 04, 2016

Ind. Gov't. - Rep. Borders asks AG Zoeller for an advisory opinion on the constitutionality of various provisions of the Senate Bill 100

From a news release issued by the Indiana Family Institute, via attorney James Bopp:

Representative Bruce Borders today asked Indiana Attorney General Greg Zoeller for an advisory opinion on the constitutionality of various provisions of the Senate Bill 100 which confers special non-discrimination rights to people based on their sexual orientation and gender identity. Rep. Borders made the advisory opinion request at the suggestion of the Indiana Family Insitute.

"There are series questions about the constitutionality of certain provisions of Senator Holdman's Senate Bill 100 that the Attorney General needs to answer," said Rep. Borders. "We need to know what special rights are given under the Bill and whether it is clear enough for businesses to know what is required of them."
Here is the actual 6-page formal request for an advisory opinion submitted to AG Zoeller.

ILB: A check of the Indiana Code re the duties of the attorney general turns up this provision, dating back to 1889:

IC 4-6-2-5 Opinions
Sec. 5. The attorney-general shall give his legal opinion to the
governor upon request, touching upon any question or point of law
in which the interests of the state may be involved. He shall give his
opinion to any other state officer touching upon any question or point
of law concerning the duties of the officer; and also, to either house
of the general assembly or to any legislative agency created pursuant
to action of the general assembly, on the constitutionality of any
existing or proposed law, upon request by resolution of the house or
legislative agency, and he shall not be required to advise any other
officer or person.
(Formerly: Acts 1889, c.71, s.8; Acts 1959, c.230, s.1.)

Posted by Marcia Oddi on Monday, January 04, 2016
Posted to Indiana Government

Ind. Gov't. - Why are there no House bills available yet?

In a post earlier today, the ILB wrote:

The list [of introduced bills] has nearly doubled since Dec. 22, when a slew of Senate bills were listed for the first time. But no House bills have yet been added. The difference may be that the House does not make a bill public until it has "gone across the front desk" - meaning that it is read and assigned to Committee while the General Assembly is convened. (Can anyone confirm?)
Dan Carden, Statehouse reporter for the NWI Times, has sent the ILB this note:
You are correct that House bills don't get posted until they go across the desk because House rules permit a bill to be killed on first reading. I've never seen it happen in my seven years covering the legislature, but I do recall Democrats unsuccessfully tried to kill right-to-work on first reading. The Senate doesn't have the same rule. Here is the House rule:
115. Introduction and First Reading. The reading of each bill by number, title and author and committee reference shall be the introduction and first reading. The first reading of a bill is for information.

116. Rejection or Assignment to Committee. If a member objects to a bill on first reading the question shall be: Shall the bill be rejected? If the question to reject is defeated, the bill shall be referred to a committee.

Posted by Marcia Oddi on Monday, January 04, 2016
Posted to Indiana Government

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

Nothing ...

Posted by Marcia Oddi on Monday, January 04, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "New version of mycase.in.gov website coming soon"

The Indiana Courts website announces:

In early January, the mycase.in.gov website will be updated with an improved design and new features, including:
  • Access to court orders
  • Fewer clicks for basic search
  • Mobile-friendly
  • Less intrusive captcha
View a screen shot of the new site.
ILB: These will be welcome improvements! Captcha has been the topic of earlier ILB concerns (see this Sept. 4, 2013 post).

"Access to court orders" on the trial level will be awesome.

[More] A reader tweeted, then quickly removed: "This could be the best thing, or the worst thing. Fingers crossed."

Posted by Marcia Oddi on Monday, January 04, 2016
Posted to Indiana Courts

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

Part I, from Dec. 22nd, looked at the Indiana Constitution and then moved on to bill introduction. It ended with a pointer to the 2016 Indiana General Assembly webpage of bills for the 2016 session.

The list has nearly doubled since Dec. 22, when a slew of Senate bills were listed for the first time. But no House bills have yet been added. The difference may be that the House does not make a bill public until it has "gone across the front desk" - meaning that it is read and assigned to Committee while the General Assembly is convened. (Can anyone confirm?)

A look at the current list of introduced bills, all Senate, shows that the committee assignment of each bill is given. For example, clicking on Senate Bill 1, then clicking on "Bill Actions," shows that it is assigned to Judiciary. "Latest Version" reveals that it is a 119-page bill: "Replaces administrative law judges and environmental law judges with an administrative court that conducts administrative hearings and other duties formerly conducted by administrative law judges and environmental law judges."

The next step for any bill after introduction and committee assignment is what happens to it in committee. The standing committees are listed here. Notice the "Upcoming Meetings/Calendar" box on the right side of the page.

Looking at the powerful Senate Judiciary Committee page, you can see a link to all the bills currently assigned to the committee.

The first meeting of the Senate Judiciary Committee is set for Jan. 13th. Currently, four bills will be considered. If you click on Agenda, you can see the topics of the four bills. Note also that three of the four bills were authored by committee members. The fourth, SB 36, Handgun licenses and alcohol, is the subject of a story in today's Indianapolis Star.

It is also useful to know that the GA website allows you to quickly see all the bills introduced by a specific legislator, eg Senator Steele.

The committee hearings are videocast, most of them are also archived. If you are interested in a bill, you will want to watch the committee hearing. The committee will commonly vote on a bill at the end of testimony and discussion by members, but it may be amended, or held over.

Many bills never get a committee hearing at all. Sometimes this may be because it is introduced by a member of the minority party, or it may be because the author never intended the bill to move. The committee chair sets the agenda.

How to know what bills to follow.

Read the papers. In the past week a number of stories have highlighted (Senate) bills introduced so far. For example:

In addition, read the list of introduced bills yourself. Or go to the committee sites where bills you are interested in will likely be assigned. Keep a list of bills you are interested in and check on them frequently.

Sometimes, reporters will not give the bill number of proposals they describe, which means you will need to try to track down the bill number yourself if you want to read the bill.

A caution. This is the "short" session of the General Assembly. Events move very quickly. See "'Fast and furious' session on tap for Indiana lawmakers" by Dan Carden of the NWI Times.

Next time. Floor action.

Posted by Marcia Oddi on Monday, January 04, 2016
Posted to Indiana Government

Ind. Courts - Top court rulings of 2015, and cases to watch in 2016

Kristine Guerra of the Indianapolis Star has a story in two parts. The first, from Dec. 20, 2015, is headed, "What were some of the top court rulings of 2015?." Included are rulings on "0INK" license plates, Marion County's system of electing its judges, same-sex marriage, the Elkhrt Four, access to legislative emails with lobbyists.

"10 cases to watch out for in 2016" is the second story, from Jan. 1st, the looks at, among others, lawsuits dealing with the Right to Farm, the Governor's power to block Syrian refugees from resettling in Indiana, the Purvi Patel feticide conviction.

Posted by Marcia Oddi on Monday, January 04, 2016
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending Jan. 1, 2016

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

Posted by Marcia Oddi on Monday, January 04, 2016
Posted to Indiana Transfer Lists

Ind. Courts - "Wells County to lead state in court e-filing"

Ron Shawgo reported Jan. 2nd in the Fort Wayne Journal Gazette - some quotes:

At ease with email, e-commerce, e-cards and e-journals, computer users also are becoming accustomed to e-filing.

Now it’s coming to Indiana courthouses, and Wells County will be one of the first to implement it this year. Like filing tax returns electronically, e-filing will allow legal paperwork to be submitted from distant computers, saving law firms time and money and easing the workload for courthouse staff. For everyday Hoosiers, a world of online courthouse documents will open up.

Wells County is among six Indiana counties that will implement e-filing in the first half of 2016. Wells County Superior Court Judge Andrew K. Antrim said he hopes his courthouse will go live in March or sooner.

Allen County will be part of the statewide rollout, likely sometime later in 2016 or early 2017, a court official said. Hamilton County, north of Indianapolis, was the first to accept court documents online last summer.

“In Hamilton County, where it’s been in since July of this year, they had a really good reception.” Antrim added.

While greater access to files for residents is a component, savings from paper reduction is an important aspect of e-filing, he added. Antrim was unsure of general savings, but he said it will be especially attractive to legal staff in other counties who now must travel to file documents in Wells. * * *

In Wells, some court rules have to be tweaked for online access, Antrim said. For example, some confidentiality issues have to be addressed, including configuring party and attorney names on online documents. The default program lists a person representing themselves as the attorney, which is unacceptable, he said.

Social Security numbers, birth dates, some addresses in divorce and child support cases are among details that need to be confidential, Wells County Court Clerk Yvette Runkle said.

In the long run, e-filing should be more efficient and less costly than paper rec­ords, Runkle said. But currently, old records have to be scanned for computer use, which is time-consuming, she added.

Antrim noted that federal courts have mandated e-filing and that Indiana is ahead of many other states in implementing it statewide.

E-filing is something John McGauley knows well.

As the Allen County recorder, he started e-filing in that office. Now, as court executive for Allen Superior Court, he is on a statewide committee helping the move to court e-filing.

“It’s an enormous efficiency tool when it comes to everything from office costs, postage …” McGauley said of his recorder experience. “We had an enormous benefit just to workflow efficiency over there, because we weren’t opening mail. We weren’t scanning documents. … And it will be pronounced when it arrives in the courts.”

E-filing will be free to counties and free to users, he said. Filing costs will be the same.

McGauley said he did a presentation about e-filing to paralegals, who do the legwork for law firms. “They’re very excited about it because the efficiencies,” he said. “Just not having to run to the courthouse five times a day. Just the obvious benefit of being able to do it from their desk versus at the end of a line at the courthouse.”

Posted by Marcia Oddi on Monday, January 04, 2016
Posted to E-filing

Ind. Courts - Oral argument set before Tax Court in first big-box/dark box appeal

The ILB has had a number of posts on the appraisal/assessment of big box stores.

The first post, from nearly a year ago, Jan. 18, 2015, was headed, simply, "Appraisal/assessment of big box stores."

The post focused on the Dec. 1, 2014 Indiana Board of Tax Review decision in Meijer Stores LP v. Marion County Assessor. But the post concluded:

In addition to the Dec. 1, 2014 Meijer opinion, linked at the beginning of this post, on Dec. 31, 2014 the Indiana Board of Tax Review issued a 54-page decision in Kohl's Indiana LP v. Howard County Assessor, that begins:
The parties offered valuation opinions from two experts who fundamentally disagree about how a built-to-suit big-box store like the subject property should be appraised. Much of the dispute lay in the experts’ differing interpretation of Indiana’s true tax value standard. The Assessor’s expert viewed that standard as being closely focused on the business model of the property’s current owner—Kohl’s. That led him to give little weight to approaches other than the cost approach and to recognize no external obsolescence, despite the oversupply of retail properties and the economic recession and slow recovery that spanned the valuation dates at issue. By contrast, the expert for Kohl’s focused much less on the owner and its business model and more on the property’s general retail use. And unlike the Assessor’s expert, she did not view the property as special purpose. We are more persuaded by the opinions of the expert for Kohl’s, which more closely follow the Indiana Tax Court’s interpretation of true tax value and more appropriately characterize the nature of the property. [ILB emphasis]
See also starting at p. 38 of the ruling.
Oral argument in the Kohl's case is now set for Jan. 15th, 2016, before Judge Wentworth of the Indiana Tax Court. It will be videocast. Here is the docket.

Posted by Marcia Oddi on Monday, January 04, 2016
Posted to Ind. Adm. Bd. Decisions | Ind. Tax Ct. Decisions | Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 1/11/16):

Webcasts of Supreme Court oral arguments are available here.


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

Wednesday, January 6

Next week's oral arguments before the Court of Appeals (week of 1/11/16):

Thursday, January 14

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, January 04, 2016
Posted to Upcoming Oral Arguments

Friday, January 01, 2016

Ind. Courts - Reacting to troubles with e-filing is discussed in end-of-year COA opinion

The 33-page, Dec. 31, 2015 opinion in East Point Business Park, LLC, Fieldview Properties, LLC, and Karen Rusin v. Private Real Estate Holdings, LLC, authored by Judge Mathias, has a discussion, beginning on p. 13 and extending through several pages, of how Trial Rule 86 contemplates and provides for occurrences where counsel may experience technical difficulty with the e-filing system.

Notably, the author of Thursday's opinion, Court of Appeals Judge Paul Mathias, along with Supreme Court Justice Steven David, leads the Indiana Courts e-filing initiative. From the opinion:

[26] At the September 3, 2014, summary judgment hearing, counsel for the Defendants explained the delay by claiming that he had experienced technical difficulties with the Lake County e-filing system that prevented him from filing the designated materials with the court on August 22. PREH responded by informing the court that, if the Defendants’ counsel did have technical difficulty with the e-filing system, then he was required to have filed a notice of manual filing or declaration pursuant to local court rules. * * *

[28] We have no reason to doubt that the Defendants’ counsel experienced technical difficulty with the e-filing system, and we sympathize with counsel in such a situation. Indeed, as e-filing is implemented throughout Indiana, we expect that in some rare instances, technical issues might prevent or delay an electronic filing. Indeed, Trial Rule 86 contemplates and provides for such occurrences, with the expectation that an appropriate and timely record will be made of the difficulties encountered, so that courts can consider and rule on the effect of such difficulties. In similar fashion, we now look to the clear language of the Local Rule 16, which clearly anticipates such situations and sets forth the steps to follow in the case of such technical difficulties.

[29] Pursuant to the applicable rule, counsel was required to file with the trial court as soon as possible a document notifying the court of his inability to electronically file the document. Here, counsel simply informed the trial court of the difficulties at the summary judgment hearing and did not file any such notification with the court until sixty-one days after the date the designated materials were due. We cannot say this constitutes “as soon as possible,” nor did counsel’s notification to the court indicate that he unsuccessfully attempted to file electronically at least two times, separated by at least one hour, after noon on each day of the delay, as required by the rule. In absence of compliance with the provisions of this rule, the trial court was required to reject the delayed filings. See Lake County Rule of Civil Proc. 16(J).

Posted by Marcia Oddi on Friday, January 01, 2016
Posted to E-filing | Ind. App.Ct. Decisions | Indiana Courts