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Monday, February 29, 2016

Ind. Decisions - Federal Judge Pratt rules against State of Indiana's efforts to withhold federal funds from groups from bringing Syrian refugees into the state

Updating earlier ILB posts on the ACLU Lawsuit against Governor Pence seeking relief for Syrian refugees, federal Judge Pratt has ruled against State of Indiana's efforts to withhold federal funds from groups from bringing Syrian refugees into the state. The case is Exodus Refugee Immigration, Inc. v. Mike Pence, et al., 1:15-cv-01858-TWP-DKL. The order in short:

ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION - Accordingly, Exodus's Motion for Preliminary Injunction is GRANTED. (Filing No. 6.) Pursuant to Federal Rule of Civil Procedure 65(d), the Court ISSUES A PRELIMINARY INJUNCTION prohibiting the State from taking any actions to interfere with or attempt to deter the resettlement of Syrian refugees by Exodus in the State of Indiana, including by withholding from Exodus funds and services due Exodus and the refugees it serves. Because the State has not disputed Exodus's position that the State will not incur monetary damages from this injunction, Exodus need not post a bond. (See order for further information). Signed by Judge Tanya Walton Pratt on 2/29/2016. (JLS) Modified on 2/29/2016 (JLS). (Entered: 02/29/2016)
The 36-page order, issued Feb. 29,2016.

[More at 4:52 PM] The Governor has instructed the Office the Indiana Attorney General to seek an immediate stay and appeal of the order.

Posted by Marcia Oddi on Monday, February 29, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 18 NFP memorandum decision(s))

For publication opinions today (4):

In Edward Skillman v. Ivy Tech Community College, an 11-page opinion, Judge Barnes writes:

Edward Skillman appeals the trial court’s grant of summary judgment in favor of Ivy Tech Community College (“Ivy Tech”) on Skillman’s claim under the Indiana Wage Payment Act (“WPA”), Indiana Code Chapter 22-2-5. We affirm.

The sole restated issue we need address is whether Ivy Tech was governed by the overtime compensation provisions of the Indiana Minimum Wage Law (“MWL”), Indiana Code Chapter 22-2-2. * * *

Ivy Tech is not an “employer” for purposes of the MWL because it is “subject to” FLSA requirements, even if Skillman cannot personally enforce FLSA requirements against Ivy Tech. Therefore, Skillman was not entitled to overtime compensation from Ivy Tech under the MWL and he has no cause of action under the WPA. We affirm the grant of summary judgment in favor of Ivy Tech.

In Town of West Terre Haute, Indiana v. Jody Roach, a 13-page opinion, Sr. Judge Shepard writes:
The Town of West Terre Haute discharged its employee Jody Roach in the course of addressing an audit of the Clerk-Treasurer’s office. The trial court hearing Roach’s suit against the Town and other government actors granted summary judgment to all defendants except the Town, which now appeals. We reverse and remand. * * *

We agree with the Town that there is no genuine issue of material fact precluding summary judgment in its favor. The court erred by denying the Town’s motion on this point.

In William Cox v. State of Indiana, a 5-page opinion involving a pro se appellant, Judge Pyle writes:
Appellant/Petitioner, William Cox (“Cox”), appeals the post-conviction court’s denial of his petition for post-conviction relief. On appeal, he argues that the post-conviction court erred when it failed to transfer his petition to the State Public Defender’s Office after he requested representation by the Public Defender and attached an affidavit of indigency to his petition. We agree that the post-conviction court’s failure to transfer the petition to the State Public Defender’s Office was reversible error, and we reverse and remand with instructions for the post-conviction court to transfer the petition.
Brice Hinton v. State of Indiana, a 7-page opinion, Judge May writes:
Brice Hinton appeals his conviction of Class B misdemeanor public intoxication that endangers a person. We affirm. * * *

While there is no allegation Hinton pointed the bow and arrow at anyone, the State is not required to prove “actual harm or injury occur[red]” to satisfy the element of endangerment. Davis, 13 N.E.3d at 503. We hold because Hinton was in close proximity to others and had the bow and arrow in a position from which he could immediately shoot the weapon, the State provided sufficient evidence he endangered other people while publicly intoxicated. See, e.g., Al-Saud v. State, 658 N.E.2d 907, 908 (Ind. 1995) (“the brandishing of a firearm in a congested area or during a dispute can create a variety of risks of bodily injury to others, regardless whether the weapon is loaded”). This is not to say mere possession of a bow and arrow would satisfy the endangerment element of the statute; instead, what is important is the state of the bow and the arrow at the time of police intervention. Hinton’s argument to the contrary is an invitation for us to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge the credibility of witnesses).

NFP civil decisions today (5):

Termination of the Parent-Child Rel. of J.R., et al.; M.S., et. al. v. Indiana Department of Child Services (mem. dec.)

Dexter Rogers v. Anonymous Hospital A, et al. (mem. dec.)

Darren L. Simmons v. Michelle D. Simmons (mem. dec.)

Shequita Avery v. Purdue University-IPFW (mem. dec.)

In the Term. of the Parent-child Relationship of: N.J.L., Minor Child, N.L. Father, and T.R. Mother v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (13):

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

Glenn Carpenter v. State of Indiana (mem. dec.)

Aljerome Hill v. State of Indiana (mem. dec.)

Adam K. Bales v. State of Indiana (mem. dec.)

Barry R. Hasche v. State of Indiana (mem. dec.)

Lynn Wooden v. State of Indiana (mem. dec.)

Robert J. Hicks v. State of Indiana (mem. dec.)

Esmeralda Villarreal v. State of Indiana (mem. dec.)

William M. Hardison v. State of Indiana (mem. dec.)

Luther Riddell v. State of Indiana (mem. dec.)

Mark W. Gregory v. State of Indiana (mem. dec.)

Marven Lemock v. State of Indiana (mem. dec.)

Cortez Laquez McDonald v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, February 29, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending February 26, 2016

Here is the Clerk's transfer list for the week ending Friday, February 26, 2016. It is one page (and 10 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, February 29, 2016
Posted to Indiana Transfer Lists

Ind. Courts - Federal lawsuit challenges state law effectively barring some mentally ill from voting

Thursday the Civil Liberties Union of Indiana, on behalf of the Indiana Protection and Advocacy Services Commission, filed suit in federal court challenging the constitutionality of IC 3-5-5-17, which:

... provides that persons who are adjudged as mentally ill and are committed to an Indiana institution for individuals with mental illness do not gain residency for voting purposes in the precinct where the institution is located. This, despite the fact that Indiana law specifically allows persons who reside in a veterans home to be a resident of the precinct where the home is located and college students to vote in the precincts where their schools are located. The statute poses a particular hardship for persons who have been committed to a state institution for lengthy periods of time who have no other home precinct where they could register and vote. Indeed, it appears that under Indiana law the named plaintiff, Patricia Featherston, has nowhere in Indiana where she can legally vote. The statute also imposes a hardship on institution residents who reasonably view the institution and the area where it is located as their home and therefore wish to be able to vote in local elections so as to influence issues of local concerns.
Here is a copy of the lawsuit. And here is a story from David Wells of the Courthouse News Service, that begins:
NEW ALBANY, Ind. (CN) - An Indiana law robs people who live at mental health facilities of their right to vote, residents claim in a federal class action.

The 13-page class action lawsuit filed Thursday claims that Indiana Code §3-5-5-17 denies residents who are committed to mental health facilities their right to vote by not allowing them to claim residency where the facilities are located.

Filed against Indiana Secretary of State Connie Lawson, Indiana Election Commission members, the Jefferson County Clerk and the state itself, the lawsuit claims that the law is unconstitutional and violates federal disability law.

The Indiana Protection and Advocacy Services Commission, represented by the Indiana Chapter of the American Civil Liberties Union (ACLU), and lead plaintiff Patricia Featherston sued on behalf of a proposed class of all adults who cannot vote in the same precinct as their mental health institution because of the state law.

Posted by Marcia Oddi on Monday, February 29, 2016
Posted to Indiana Courts

Vacancy on Supreme Court 2016 - Columbus native among 15 finalists

Olivia Covington of the Columbus Indiana Republic reported Feb. 26th. Some quotes from the long story:

A Columbus native is in the running to become the next justice of the Indiana Supreme Court.

The state’s Judicial Nominating Committee, which screens potential Supreme Court justices, named Mark Lienhoop as one of 15 semifinalists chosen to interview for an upcoming open spot on the state’s highest court.

Lienhoop’s interview has been scheduled for 10 a.m. Friday.

If selected, Mark Lienhoop would replace Supreme Court Justice Brent Dickson, who is retiring from the five-member court in April.

Lienhoop, 59, the younger brother of Columbus Mayor Jim Lienhoop, was born and raised in Columbus. He graduated from Columbus North High School in 1974 before moving to the northern part of the state to attend Valparaiso University and Valparaiso University School of Law.

The younger Lienhoop stayed in northern Indiana after finishing law school to take a job as an associate attorney with the law firm of Newby, Lewis, Kaminski and Jones in LaPorte in 1983. He continues to work there as a managing partner today. * * *

Mark Lienhoop, 59, graduated from Columbus North High School in 1974. He attended Valparaiso University, where he earned a political science degree in 1978. He then enrolled in Valparaiso’s School of Law and graduated in 1981 as a Top 10 student.

From 1981 to 1983, Lienhoop clerked for Robert Staton, a third district judge for the Indiana Court of Appeals. Lienhoop joined the law firm Newby, Lewis, Kaminski and Jones in LaPorte as an associate attorney in July of 1983. He became a partner of the firm in 1989 and a managing partner in 1987, a position he still holds today.

Posted by Marcia Oddi on Monday, February 29, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - "Two Recent Indiana Contract Cases Discuss Parol Evidence Issues"

In a Feb. 25th article in The National Law Review, Laura E. Gorman, Barnes & Thornburg, reviews two recent Court of Appeals decisions. The intro:

When interpretation of a written contract is in dispute, Indiana courts apply the “four corners rule,” also known as the “parol evidence rule,” to determine the intent of the parties in entering into the contract. If the language of a contract is clear and unambiguous, the parol evidence rule prevents the introduction of evidence of prior or contemporaneous negotiations and agreements that contradict, modify or otherwise vary the terms of the contract, and a court will enforce the contract as written. However, there are some exceptions to the parol evidence rule that permit a court to look beyond the four corners of the contract to determine the intent of the parties. Two recent decisions by the Indiana Court of Appeals analyzed the effects of the parol evidence rule in interpreting the intent of contracting parties, and whether exceptions to the rule were appropriate given the precise language of the written agreements.

Posted by Marcia Oddi on Monday, February 29, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - One of the last bills being heard in committee this morning ..

One of the final bills being heard this morning in 2nd house committee is the Uniform Fiduciary Access to Digital Assets Act, SB 253. It has not been amended since introduction. House Judiciary at 10:30 AM.

See this ILB post from Jan. 25th, 2016 for background. The heading is ""When You Die, Who Can Read Your Email?"," and particularly this one from Feb. 4, 2015.

Posted by Marcia Oddi on Monday, February 29, 2016
Posted to Indiana Government

Ind. Gov't. - Oral argument date set in the House email/public records case

The date for oral argument in the Indiana House email/public records case, Citizens Action Coalition of Indiana, et al. v. Indiana House Republican Caucus, et al., has now been announced by the Indiana Supreme Court. Argument will take place at 9:00 AM on Thursday, March 17, 2016.

See this Feb. 1st ILB entry to access the filings in the appeal.

Posted by Marcia Oddi on Monday, February 29, 2016
Posted to GA and APRA | Indiana Courts | Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/29/16):

Wednesday, March 2

Next week's oral arguments before the Supreme Court (week of 3/7/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/29/16):

Wednesday, March 2

Next week's oral arguments before the Court of Appeals (week of 3/7/16):

Friday, March 11

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, February 29, 2016
Posted to Upcoming Oral Arguments

Friday, February 26, 2016

Ind. Decisions - Supreme Court decides one today - reversing trial court in impoundment challenge

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

Both the Federal and State Constitutions protect Hoosiers’ private property from unreasonable State intrusion. And so, every inquiry into a warrantless impoundment and inventory search of a vehicle—like any other warrantless search or seizure—ultimately depends on whether those measures were reasonable based on the surrounding facts.

Here, police impounded Defendant’s car from a parking lot because he was arrested for driving while suspended, the registered owner (his sister) was not present, and the car’s windshield and bumper were damaged. Police then began to inventory the car and found a handgun inside, resulting in Defendant being charged with, and ultimately convicted of, carrying a handgun without a license.

Although such discretionary impounds may be permissible as part of law enforcement’s community-caretaking function, they require proof of, among other things, an established depart-mental procedure that authorized the impoundment. Fair v. State, 627 N.E.2d 427, 433 (Ind. 1993). Here, the State presented only the officer’s bare assertion that such a policy existed and that his actions were consistent with the policy—but just as in Fair, there was no evidence of the particulars of that policy. We therefore hold that the State failed to prove an established departmental procedure as Fair requires, and thus failed to prove that the impoundment was reasonable. Consequently, the search that followed was unreasonable and the handgun obtained pursuant to the invalid search was inadmissible. We accordingly reverse Defendant’s handgun conviction. * * *

At a bench trial, the court admitted the handgun over Wilford’s objections and convicted him of carrying a handgun without a license and driving while suspended with a prior suspension—both as Class A misdemeanors. He was sentenced to 365 days, with 357 days suspended to probation, and a $100.00 fine. The Court of Appeals affirmed, holding the impoundment and inventory search satisfied Fair’s requirements because the damaged, unsafe car posed a threat to the community or itself and the testimony from the impounding officer (a twenty-three-year IMPD veteran) sufficed as evidence of departmental procedures. Wilford v. State, 31 N.E.3d 1023, 1031–32 (Ind. Ct. App. 2015). We now grant transfer, thus vacating the Court of Appeals opinion, Ind. Appellate Rule 58(A)(2), and reverse Wilford’s handgun conviction. * * *

We reiterate our holding in Fair—impoundment under the community-caretaking function is reasonable only pursuant to established police routine or regulations, and generalized assertions about such a policy are inadequate to make that showing. Since the State failed to prove an established police routine or regulation supporting impoundment under these circumstances, the impoundment and subsequent inventory were unreasonable. We therefore reverse Wilford’s conviction for carrying a handgun without a license.

Posted by Marcia Oddi on Friday, February 26, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 8 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

In the Matter of the Involuntary Term. of the Parent-Child Relationship of R.G.M. (Minor Child) and R.M. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

In the Termination of the Parent_child Relationship of: J.W. (Minor Child) and P.T. (Mother) & R.W. (Father) v. The Indiana Dept. of Child Services (mem. dec.)

NFP criminal decisions today (6):

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

Hiram S. Edens, Jr., v. State of Indiana (mem. dec.)

Joshua D. Darner v. State of Indiana (mem. dec.)

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

Camille R. Fincher v. State of Indiana (mem. dec.)

Dylan Theobald v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, February 26, 2016
Posted to Ind. App.Ct. Decisions

Courts - "Dow Chemical Settles Lawsuit, Citing SCOTUS Position After Scalia’s Death"

From a fascinating story in the $$ WSJ this morning, by Joshua Jamerson, subheaded "Company, using two Scalia-written decisions for its legal position, says his death has changed its risk assessment," this quote:

Dow Chemical Co. said Friday that it would settle a class-action lawsuit for $835 million, as its petition against the suit at the Supreme Court was less likely to succeed after the recent death of Justice Antonin Scalia.

The move highlights potential implications for businesses following the death of one of the most conservative judges in the U.S.’s highest court and the ensuing political battle over his replacement.

“With the untimely, unfortunate death of Justice Scalia, it leaves in question the current structure of the court,” Dow Chemical spokeswoman Rachelle Schikorra said. “With this changing landscape, the unknowns, we just decided to put this behind us.”

Dow Chemical said in a statement that changes in the court meant an “increased likelihood for unfavorable outcomes for business involved in class-action suits,” which changed how the company viewed its likelihood of success.

Posted by Marcia Oddi on Friday, February 26, 2016
Posted to Courts in general

Environment - "Passel of bills presents a mixed bag for ecology"

A Fort Wayne Journal Gazette editorial this morning begins:

Lawmakers are delivering the proverbial “good news/bad news” for Indiana’s environment this session. We’ll begin with the good ...
What follows is a good overview, including "no more stringent," banning plastic bags, and solid waste districts.

Tonight WFYI's "Indiana Lawmakers" show, a don't miss resource during the session, will focus on this session's environmental legislation:

Environmental legislation is drawing significant attention as the 2016 session of the General Assembly winds to a close. What's best for Indiana, widely regarded as one of the worst-polluted states in the nation? How can Hoosier health and the environment be balanced against the needs of the state's manufacturers, farms, and other employers?

These questions and more are discussed on this week's Indiana Lawmakers. Host Jon Schwantes sits down for a thoughtful and lively conversation with Representative David Wolkins, R - Winona Lake; Representative Matt Pierce, D - Bloomington; and Tim Maloney, Senior Policy Director for the Hoosier Environmental Council.

ILB: In the judicial arena, Indiana Public Media's Becca Costello reported yesterday:
The 6th Circuit U.S. Court of Appeals announced Monday it will review a challenge from Indiana and 17 other states against the Environmental Protection Agency’s Waters of the U.S. rule.

Last year, the EPA expanded the definition of “Waters of the U.S.” in the Clean Water Act to include tributaries that flow into navigable waterways.

This broad definition includes personal property, meaning farmers will have to get expensive permits to dig fertilizer runoff ditches on their own land.

The Sixth Circuit has already placed a stay on the new interpretation until the court makes a decision.

If the appeal makes it all the way to the Supreme Court, there’s likely to be an even split on the bench now that Justice Scalia’s death leaves an opening.

“I think we can expect to see a four/four split in the Supreme Court, which certainly raises the stakes for how the court of appeals will decide the case,” says Robert Fischman, Law Professor at the IU Maurer School of Law. “Because if the supreme court is split four/four, then the court of appeals decision will stand.”

Posted by Marcia Oddi on Friday, February 26, 2016
Posted to Environment

Ind. Decisions - "Supreme Court rules sex offenders who move to Indiana must register"

Dan Carden of the NWI Times reports today in the NWI Times on the two Indiana Supreme Court decisions issued yesterday (see ILB summaries here). Some quotes:

A sex offender required to register in any other state must also register with Indiana police if he or she relocates to the Hoosier State, regardless of when the initial sex crime was committed.

The Indiana Supreme Court ruled 5-0 Thursday that it is not an unconstitutional retroactive punishment for the state to require sex offenders with registration obligations elsewhere to also register in Indiana.

Posted by Marcia Oddi on Friday, February 26, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "A Tribute to Justice Brent Dickson's Contributions to Indiana Constitutional Law"

Indiana University McKinney School of Law is holding a 2.5 hour CLE: "A Tribute to Justice Brent Dickson's Contributions to Indiana Constitutional Law" on Tuesday, March 29th at 1:30pm. Here is the program, it sounds outstanding. The seating is limited ...

Posted by Marcia Oddi on Friday, February 26, 2016
Posted to Indiana Courts

Ind. Courts - More on: Will the public have online access to e-filed public documents - appellate briefs, trial court orders, complaints, etc.

A reminder: The Supreme Court's Task Force on Remote Access to and Privacy of Electronic Court Records will hold its firsy meeting today, Friday, Feb. 26th, from noon to 2PM, at Indiana Government Center South, Conf. Rm. A.

With the implementation of e-filing, what will be the ability of the public to access the court documents online? Federal court documents have long been accessible via PACER. This group will be making the recommendations re Indiana's court records.

For background, see this ILB post from Feb. 23rd and this one from Feb. 4th.

Posted by Marcia Oddi on Friday, February 26, 2016
Posted to E-filing | Indiana Courts | Indiana Government

Vacancy on Supreme Court 2016 - Interview schedule for round #2

Here is the interview schedule for schedule for Round #2, just released:

The Judicial Nominating Commission (JNC) will conduct public interviews of fifteen finalists for a vacancy on the Indiana Supreme Court. The interview schedule is as follows:

March 3 (Thursday)

9:30 a.m. – 10:00 a.m. – Mr. Peter J. Rusthoven
10:00 a.m. – 10:30 a.m. – Hon. Vicki L. Carmichael
10:30 a.m. – 11:00 a.m. – Hon. Steven R. Nation

(Break)

11:15 a.m. – 11:45 a.m. – Mr. Thomas M. Fisher
11:45 a.m. – 12:15 p.m. – Hon. Paul R. Cherry

(Lunch – Executive Session)

1:45 p.m. – 2:15 p.m. – Hon. Darrin M. Dolehanty
2:15 p.m. – 2:45 p.m. – Hon. Frances C. Gull
2:45 p.m. – 3:15 p.m. – Hon. Steven L. Hostetler

(Break)

3:30 p.m. – 4:00 p.m. –Hon. Matthew C. Kincaid
4:00 p.m. – 4:30 p.m. – Hon. James R. Ahler

March 4 (Friday)

9:30 a.m. – 10:00 a.m. – Rep. Thomas W. Washburne
10:00 a.m. – 10:30 a.m. – Mr. Mark A. Lienhoop
10:30 a.m. – 11:00 a.m. – Hon. Thomas J. Felts

(Break)

11:15 a.m. – 11:45 a.m. – Mr. Thomas E. Wheeler, II
11:45 a.m. – 12:15 p.m. – Mr. Geoffrey G. Slaughter

12:30 p.m. – JNC 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.

Posted by Marcia Oddi on Friday, February 26, 2016
Posted to Vacancy on Supreme Court - 2016

Thursday, February 25, 2016

Ind. Decisions - Supreme Court decides two today, re sex offender registration

In Sidney Lamour Tyson v. State of Indiana, a 13-page, 5-0 opinion, Justice Massa writes:

Sidney Lamour Tyson is charged with failing to register as a sex offender in Indiana, the basis of that requirement being his obligation to register in Texas because of a delinquency adjudication. Tyson has moved to dismiss that charge, arguing he does not fit our statutory definition of a sex offender under Indiana Code section 11-8-8-5(b), and alternatively, his duty to register upon moving to Indiana violates our Ex Post Facto Clause as applied to him since the definition was amended after he committed the underlying offense. Because Tyson is required to register in another state, we find he satisfies our statutory definition, and he must do so here. And, holding today that maintaining a registry requirement across state lines does not amount to a punitive burden, we see no ex post facto violation. We affirm.

In State of Indiana v. Scott Zerbe, a 5-0, 6-page opinion, Justice Massa writes:

In an opinion handed down today, Tyson v. State, we concluded that the Indiana Sex Offender Registration Act’s amended definition did not violate our Constitution’s prohibition against ex post facto laws as applied to an offender with an out-of-state obligation to register. We reach the same conclusion here. Because Scott Zerbe was required to register as a sex offender in Michigan, we find maintaining that requirement in Indiana does not retroactively punish him. Thus, we reverse the trial court’s grant of Zerbe’s petition to remove his designation.

Posted by Marcia Oddi on Thursday, February 25, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Another comment on Court's proposed e-filing rule amendments

A reader asks:

Comment period closes on March 10th. Any idea when we might know for sure whether the changes went through? I have appendices backing up on my desk that need to be created, and I'm in limbo.
See a list ofall the ILB e-filing posts here.

Posted by Marcia Oddi on Thursday, February 25, 2016
Posted to E-filing

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

For publication opinions today (2):

In Gary Bowling and Mable Bowling v. Christopher Nicholson and Shelley Nicholson, a 12-page opinion, Judge Altice writes:

Gary and Mable Bowling (the Bowlings) appeal from the trial court’s denial of their motion for a preliminary injunction against Christopher and Shelley Nicholson (the Nicholsons). The Bowlings present five issues for our review, which we restate as follows: Did the trial court err in denying the Bowlings’ motion for preliminary injunction? We reverse and remand. * * *

[ILB - This case involves an outdoor wood-fired boiler (OWB), about which there has been controversy for years - see ILB posts]

Here, there are competing interests – the Bowlings’ right to quietly enjoy their own property and the Nicholsons’ right to operate their OWB on their property. The competing interests identified give rise to a private nuisance claim, which arises when it has been demonstrated that one party has used his property to the detriment of the use and enjoyment of another’s property. See Woodsmall v. Lost Creek Twp. Conservation Club, Inc., 933 N.E.2d 899, 903 (Ind. Ct. App. 2010), trans. denied. Contrary to the trial court’s conclusion, however, the fact that the Nicholsons’ operation of their OWB does not violate the law or regulations is not dispositive of whether a preliminary injunction would disserve the public interest. To hold such would bar injunctive relief in all cases of nuisance per accidens, i.e., where an otherwise lawful use may become a nuisance by virtue of the circumstances surrounding the use.6 Id. Thus, the trial court’s conclusion with respect to the public interest element is clearly erroneous in that it is based solely on the fact that the Nicholsons’ operation of the OWB has not violated any laws or regulations.

In summary, we conclude that the trial court’s conclusions are either based on an incorrect standard or on the mistaken conclusion that the alleged harm was in the form of loss of property value or physical damage. The conclusions of law are therefore clearly erroneous and cannot support the court’s decision to deny the Bowlings’ motion for a preliminary injunction. We therefore reverse the trial court’s order and remand with instructions to reconsider the matter in light of the above discussion. Judgment reversed and remanded.

In John H. Hill v. State of Indiana, a 10-page opinion, Judge Riley writes:
Hill raises one issue on his appeal, which we restate as follows: Whether the State improperly interfered with Hill’s defense by preventing his witness from testifying. * * *

Looking at the record and the arguments before us, we conclude that the trial court did not abuse its discretion in excluding Ashley’s testimony. We first note that motions in limine do not preserve errors for appeal, the defendant must reassert his objection at trial contemporaneously with the introduction of the evidence. Shoultz v. State, 995 N.E.2d 647, 654 (Ind. Ct. App. 2013). Failure to object to instances of improper prosecutorial remarks during trial, similarly, results in waiver on appeal. Heavrin v. State, 675 N.E.2d 1075, 1082 (Ind. 1996). Because Hill failed to object to the prosecutor’s statements and the trial court’s ruling, Hill therefore waived these claimed errors on appeal.

NFP civil decisions today (2):

Segun M. Rasaki v. Tammy Lynn (mem. dec.)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of: A.H. & W.H. (Minor Children) and C.H. (Mother) & R.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

Mark Matthew Fritz v. State of Indiana (mem. dec.)

Derrick Michael Means v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Thursday, February 25, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decided one Indiana case Feb. 24th

In Kirk Homoky v. Jeremy Ogden (ND Ind., Springmann), an 11-page opinion, Judge Williams writes:

Police Officer Kirk Homoky was under investigation by the Hobart Police Department for officer misconduct. As part of the investigation, he was ordered to submit to a voice stress test, a type of lie detector test, and if he did not he would be subject to dismissal. Homoky refused to sign a release form because his participation was not voluntary, and he was charged with insubordination and placed on administrative leave. He claims that by forcing him to sign the release form under threat of dismissal, he was giving up his right against self-incrimination in violation of the Constitution. We disagree. The department informed him that any statement made would not be used against him in a criminal proceeding, so it was free to compel him to answer any question, even incriminating ones. For the first time on appeal, Homoky also asserts a stigmaplus due process claim. Because it was not presented to the district court, Homoky waived this argument, and we will not review its merits.

Posted by Marcia Oddi on Thursday, February 25, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Bill: "Dogs and cats dispatched to new homes by local shelters should be sterilized"

Maureen Hayden, CNHI State Reporter, has this story in a number of Indiana papers today. Some quotes:

INDIANAPOLIS – Dogs and cats dispatched to new homes by local shelters should be sterilized, according to lawmakers who want to reduce the millions of dollars spent keeping, and often euthanizing, unwanted animals.

A measure awaiting Gov. Mike Pence's signature aligns Indiana with 33 other states that require shelters to spay or neuter pets as a condition of their release.

“Without this, thousands and thousands of dogs and cats will continue to be killed each year,” said Rep. Linda Lawson, D-Hammond, who wrote the bill.

Lawson, a self-described animal lover, has pushed a similar measure for years after seeing pit bulls abandoned in her community.

Her bill never got a hearing, she said, and was stymied by conservative lawmakers wary of mandating rules for pet ownership.

This time her bill was recast as a policy with long-term savings, since it pledges to pare back the estimated $50 million spent by local governments each year on impounding and destroying homeless animals. * * *

Rep. Mike Karickhoff, R-Kokomo, said he signed on to this year’s bill after seeing numbers from other states that have mandatory sterilization laws. He noted a New Hampshire study that found local governments save $3 in impoundment costs for every $1 invested in spay and neuter programs.

But communities must first bear the upfront costs of sterilizing animals. Procedures run from $50 to $100 per cat, and up to $300 for a dog.

Because of that investment, the legislation gives local governments until 2021 to implement the new rules.

“It’ll be a burden but one we should take on,” said Maleah Stringer of the Animal Protection League, which runs the animal shelter in Anderson.

Though the law applies to every shelter, humane society and animal rescue group – public or private - it does exempt puppies and kittens too young to be sterilized.

The law requires shelters charge a $75 fee to adopt those animals, however, which is refundable once the new owner can prove the procedure has been done.

Despite the promised savings, the law's true fiscal impact will be unknown since the state doesn’t track local animal control facilities. The measure asks the state Board of Animal Health to create a new registry of animal care facilities and eventually to track compliance with the law.

ILB: Here is the bill, HB 1201. Good bill, IMHO.

Posted by Marcia Oddi on Thursday, February 25, 2016
Posted to Indiana Government

Ind. Gov't. - "Dunes pavilion alcohol plan advances to Senate"

The ILB has had many posts on the Dunes pavilion issues - see the list here, dating back to 2006.

Dan Carden reported late yesterday in the NWI Times:

The Senate Public Policy Committee endorsed House-approved legislation Wednesday that could allow alcohol sales at the Indiana Dunes State Park pavilion.

House Bill 1247, a proposal authorizing the Indiana Department of Natural Resources to obtain “state park” alcohol permits without being subject to local review and approval, was incorporated into House Bill 1386 and advanced to the full Senate.

The committee vote was 7-2. State Sen. Jim Arnold, D-LaPorte, supported the plan; state Sen. Rick Niemeyer, R-Lowell, voted no.

It’s not uncommon for multiple pieces of legislation, especially alcohol-related measures, to be merged into one proposal.

That maneuver generally gives lawmakers plenty of reasons to support the combined proposal, even if they object to some parts of it.

Altogether, seven bills (1247, 1274, 1118, 172, 294, 169 and 177) were packed into House Bill 1386, which almost certainly will go to a House-Senate conference committee if approved next week by the Republican-controlled Senate.

The potential for alcohol sales at a renovated Dunes pavilion has provoked outrage among some Region residents who fear alcohol will destroy the family-friendly beach atmosphere and lead to additional development in the state park.

Many also object to the Legislature seemingly doing an end-run around the local alcohol permit review board, which twice denied an application from developer Pavilion Partners.

Project supporters say alcohol is needed to ensure the renovated pavilion becomes a dining and wedding destination for tourists and residents alike.

A Feb. 23rd story by Kevin Nevers of the Chesterton Tribune begins:
A dozen private citizens -- and not all of them from Northwest Indiana --made the trip to Indianapolis on Monday to testify against HB 1247 before the Senate Public Policy Committee.

Joining them were representatives of the Hoosier Environmental Council, the Hoosier Chapter of the Sierra Club, and the Citizens Action Coalition.

Joining them too was State Sen. Karen Tallian, D-Portage, herself, who in 2012 sponsored the original bill permitting the sale of alcohol at the Pavilion. On Monday Tallian made her position on HB 1247 clear: it’s an “end-run,” she told her colleagues on the Public Policy Committee, a developer’s attempt to salvage victory from a “battle” he “lost,” and an “abuse of the process.”

Ten persons--none of them private citizens--spoke in favor of HB 1247, the Chesterton Tribune was told today: nine of them were lobbyists and the paid representatives of tourism, economic development, construction, and labor; the tenth was DNR Director Cameron Clark, to whom at least one senator put a pointed question or two.

Posted by Marcia Oddi on Thursday, February 25, 2016
Posted to Indiana Government

Ind. Gov't. - Plastic bags and Tesla autos (and loansharks) - our GA at work

Some quotes from an opinion piece today by Indianapolis Star columnist Tim Swarens. First, plastic bags:

In some strange and exotic places in the world, say California, stores charge customers a few cents to pack their Fruit Loops in plastic. The rationale for the levy, or for outright bans in some cities, is that the production and disposal of all of those plastic bags — billions and billions a year given the collective mass of the American Shopper — puts a strain on the environment. If customers have to pay a few cents more per bag, or so the thinking goes, they are more apt to bring their own reusable bags, and thus help keep tons of plastic out of the waste stream.

That’s actually not a new or radical concept. I’m old enough to remember pulling a little red wagon packed with pop bottles to the grocery store to collect a few bucks on empties retrieved from road sides and empty lots. Stores back then charged the original purchaser of a Coke, Pepsi or RC Cola a few cents for the glass bottle as an incentive to return the empty. Which in turn gave an industrious child who picked up after the lazy and the careless an opportunity to earn enough to buy an extra pack or two of baseball cards.

But these days, in the Indiana General Assembly, a surcharge on plastic bags is seen as a new and dangerous imposition on commerce.

The state Senate on Tuesday passed legislation that would block local governments from taxing or restricting the use of plastic bags at grocery stores and other retail outlets. Since the House has already passed the measure, it will soon land on Gov. Mike Pence’s desk. (If you’re holding out hope for a veto, I have a beach on the White River to sell you).

This — this! — is what our lawmakers have accomplished? In a state where education and income levels badly trail the national averages? Where health standards are behind the curve? Where environmental measurements are below par?

I can see the end of session legislative mailers now: “Yes, critics say our air isn’t clean enough and our kids weigh too much, but we courageously stood against the statists in the People’s Republic of Bloomington. Plastic bags continue to breathe free in the great Hoosier state!”

As justification for the ban, Sen. Brent Steele, R-Bedford, told the Associated Press that the bill is necessary because industry groups oppose regulations on the use of plastic bags. Well, if industry groups are against it, then that surely settles it.

Next, Teslas:
This issue is about far more than plastic bags blowing in the wind. Far too often in the Statehouse, the desires of the wealthy and the connected trump the needs of ordinary Hoosiers.

On Thursday morning, a Senate committee is scheduled to debate legislation that could effectively block the sale of Tesla vehicles in Indiana. General Motors has backed the bill because the giant automaker claims that Tesla’s business model — it sells directly to consumers instead of using auto franchises — creates unfair competition.

Perhaps. Or perhaps it’s time to re-evaluate a century-old model for doing business. Whatever the case, let’s allow consumers and the marketplace, not government, to decide.

And even more:
In another Senate committee room Thursday morning, lawmakers are scheduled to discuss a bill that would allow payday loan operators to charge customers interest rates of up to 180 percent a year. That rate actually would be more than double what is considered by law to be loan sharking in Indiana.

Posted by Marcia Oddi on Thursday, February 25, 2016
Posted to Indiana Government

Ind. Decisions - "Court of Appeals voids Indy recycling deal"

Brian Eason of the Indianapolis Star reports today on yesterday's Court of Appeals decision in Graphic Packaging Int'l, Inc.; Rock-Tenn Converting Co. and Cathy Weinmann v. City of Indianapolis and the City of Indianapolis Public Works (see ILB opinion summary here). Some quotes:

The Indiana Court of Appeals on Wednesday found that the city of Indianapolis violated competitive bidding laws when the Ballard administration awarded a long-term recycling contract to Covanta in 2014.

The 19-page decision reversed a lower court ruling and ordered the Marion Superior Court to void a deal that would have brought a $45 million commingled trash-recycling center to Indianapolis. * * *

Barring an appeal, the decision likely represents the final nail in the coffin for the disputed facility, which had long been opposed by environmentalists who disparagingly referred to it as "dirty recycling." Mayor Joe Hogsett had already announced a temporary suspension of the deal, which he said needed additional public review, even as the city continued to defend the contract's handling in court.

The decision was a stinging rebuke to Ballard's administration, which had long insisted the contract was legal.

The deal extended Covanta's existing contract to incinerate the city's trash, locking Indianapolis into a $112 million commitment through 2028. But the Court of Appeals found that the contract violated the state waste disposal statute on two fronts:

• The amendment had the effect of extending the contract beyond a 40-year maximum term set by law. The original deal was struck in 1985, but the city had argued that it didn't begin until 1989, when the trash facility was fully operational.

• It should have been publicly bid as a separate contract, rather than negotiated as an extension of an existing contract. The city had argued that the public bidding requirements set out in section 4 of the waste statute didn't apply, because it was an extension.

The court disagreed.

"When a contract goes well above and beyond the provision of services by requiring the construction of a massive facility, it walks and quacks like the proverbial section 4 duck we deem it to be," wrote Judge John Baker.

Recycling advocates, who had long opposed the commingled trash pickup, cheered the court's decision and said they hoped it would open the door to a more robust curbside recycling program. * * *

While the Hogsett administration had already signaled a willingness to walk away from the deal, it remained unclear how the administration would proceed on the legal matter. The city could still appeal the matter to the state Supreme Court, and it may have reason to do so. If the ruling that Indianapolis mishandled the contract stands, Covanta could have a legal claim against the city. Until agreeing to a contract suspension, the company was acquiring permits and had expected to begin construction later this year.

Posted by Marcia Oddi on Thursday, February 25, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Farm to fork" concept is target of HB 1267

Updating this ILB post from Feb. 2nd, HB 1267 is being heard today at 9 AM in Senate Commerce and Technology.

Posted by Marcia Oddi on Thursday, February 25, 2016
Posted to Indiana Government

Wednesday, February 24, 2016

Ind. Courts - "ESPN, Notre Dame argue police records case before Court of Appeals"

The South Bend Tribune has published this story about this morning's oral argument before a Court of Appeals panel comprised of Chief Judge Vaidik, plus Judges Robb and Pyle. Some quotes:

INDIANAPOLIS — During a hearing today before the Indiana Court of Appeals, attorneys for ESPN and the University of Notre Dame argued the matter of whether private university police records are public documents.

The sports media company sued Notre Dame last year after the university refused to release campus police records about possible crimes involving student athletes. Notre Dame maintains that, even though it employs sworn police officers with arrest powers who enforce state laws, its records are not public under Indiana law.

ESPN lost at the lower court level and appealed the case.

In arguments today, ESPN attorney Margaret Smith noted that Notre Dame describes its campus police department as a fully authorized police department with investigative and arrest powers both on and off campus. Police power is quintessentially a state power, and therefore Notre Dame Security Police should be subject to the same public access requirements as Indiana's public universities, she told the three-judge panel of Nancy Vaidik, Margaret Robb and Rudolph Pyle III.

Notre Dame police exercise powers granted to them by the university's board of trustees, not the state, said Damen R. Leichty, a Barnes & Thornburg attorney representing the university. Indiana's public records law doesn't state that legislators intended the law to apply to private university police departments, and legislators have had years to correct it if that's what they intended, he said.

If the court finds that professional police departments at private universities are subject to the public records law, it also would impact police departments at privately owned hospitals and perhaps other types of institutions, Leichty said.

The judges made mention of HB 1022, which is moving through the General Assembly. The bill, written with the help of Notre Dame and Independent Colleges of Indiana, would assure that private colleges would remain exempt from following the same crime reporting requirements as other law enforcement agencies, including those serving public colleges.

Posted by Marcia Oddi on Wednesday, February 24, 2016
Posted to Indiana Courts

Ind. Gov't. - "Police body camera bill clears hurdle in Senate"

Jill Disis of the Indianapolis Star reports on the outcome of this morning's Senate Judiciary hearing on HB 1019, police body cameras. Some quotes:

An early version of the bill was slammed by critics who argued it gave too much power to law enforcement to publicly withhold the release of incidents recorded on body-worn or dashboard cameras. But supporters said public access to footage might compromise the privacy of a person shown in the video.

Sen. Rodric Bray, a Republican, introduced a number of amendments to the bill he said alleviated those concerns. Chief among them:

  • While the original version compelled police to show video footage to a person in some cases, it also allowed departments to refuse to release to most of the public, and required the public to justify in court their reason for wanting the video's release. The amended version flips that burden of proof, and requires police to justify why the video should be kept private. Exceptions that would allow the department to withhold video include whether the footage would create bias or prejudice for a court trial, or if it would affect an ongoing investigation.
  • The new bill also requires police to let anyone look at or copy a video if it depicts evidence pertaining to the excessive use of force or a civil rights violation. By releasing the video, however, the department would not be admitting any wrongdoing.
The legislation also allows police to obscure sensitive information in the footage before release, such as images of confidential informants and undercover officers, nudity or personal medical information. * * *

One of the original bill's biggest critics, Hoosier State Press Association Executive Director Steve Key, said he is happy with the changes.

"We think the bill before you now ... is an improvement over what came over from the House side," Key said during testimony.

Others expressed some concerns with the new version. West Lafayette Police Chief Jason Dombkowski, representing the Indiana Association of Chiefs of Police, said he feared the language regarding the release of video pertaining to excessive use of force or civil rights violations created due process concerns.

"We feel those things are best determined before a judge," Dombkowski said.

After the committee hearing, Bray said lawmakers will continue finessing the language of the bill. If there is a disagreement between a police department and the public over whether a video contains evidence related to excessive use of force or a civil rights violation, he said, perhaps a judge could step in.

ILB: The Committee Report with the new language is not yet available; neither, of course. is the reprinted bill, watch for it tomorrow.

"I feel like today we made a big step on this bill," Bray said. "We wanted to put together a policy that allows law enforcement to use (body cameras). We think there's a real benefit in these body cameras, and if we do it wrong, I think they'll put them on the shelf, or just not buy them at all."

Posted by Marcia Oddi on Wednesday, February 24, 2016
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (3):

In Graphic Packaging Int'l, Inc.; Rock-Tenn Converting Co. and Cathy Weinmann v. City of Indianapolis and the City of Indianapolis Public Works, a 19-page opinion, Judge Baker writes:

In 2012, the City of Indianapolis amended a contract with the company that provides city residents with waste disposal services. The amendment went above and beyond the provisions of services, however, as it required the construction and maintenance of a $45 million facility. By including provisions related to the design, construction, and maintenance of this new facility, the amendment fell under the purview of section 4 of the Waste Disposal Statute, which requires, among other things, public bidding and public participation in the process. That did not occur. Therefore, the contract is void for failing to comply with the statute.

Graphic Packaging International (Graphic Packaging), Rock-Tenn Converting Co. (Rock-Tenn), and Cathy Weinmann (collectively, the Plaintiffs) appeal the trial court’s order granting summary judgment in favor of the City of Indianapolis (the City) and the City of Indianapolis Board of Public Works (the Board) (collectively, the Government) on the Plaintiffs’ complaint against the City. The Plaintiffs argue that the trial court erred by concluding that:

(1) there is no private right of action to raise these claims against the City under
(a) the Waste Disposal Statute;
(b) the Public Lawsuit Statute;2 or
(c) the Uniform Declaratory Judgment Act;3

(2) the Plaintiffs do not have standing under
(a) traditional standing analysis; or
(b) the public standing doctrine; and

(3) the contract at issue does not violate the Waste Disposal Statute.

We find that the Plaintiffs have a right of action under the Waste Disposal Statute, that they have standing under the public standing doctrine, and that the contract at issue violates the Waste Disposal Statute as a matter of law. Therefore, we find that the trial court erred by awarding summary judgment in favor of the Government, reverse that judgment, and remand with instructions to enter summary judgment in favor of the Plaintiffs.

ILB: See this Feb. 11th ILB post for background on the disputed Covanta recycling center contract challenge.

In Billy Luke v. State of Indiana , a 40-page, 2-1 opinion, Judge Brown writes:

In this consolidated appeal, Billy Luke appeals his convictions for three counts of invasion of privacy as class D felonies and stalking as a class C felony, as well as the revocation of his probation. Luke raises seven issues which we consolidate, revise, and restate as:
I. Whether his convictions for invasion of privacy and stalking violate double jeopardy principles;
II. Whether the trial court abused its discretion in admitting evidence of other bad acts;
III. Whether the evidence is sufficient to sustain his convictions for invasion of privacy;
IV. Whether the court abused its discretion in instructing thejury; and
V. Whether the evidence is sufficient to revoke his probation.
We affirm in part, reverse in part, and remand. * * *

For the foregoing reasons, we remand to the Dearborn Circuit Court with instructions to vacate Luke’s conviction for stalking as a class C felony, and we affirm Luke’s convictions for invasion of privacy as class D felonies, as well as the revocation of his probation. Affirmed in part, reversed in part, and remanded.

Riley, J., concurs.
Altice, J., concurs in part and concurs in result as to issue I. [beginning on p. 38] With respect to the first issue, I agree with my colleagues that Luke’s conviction for stalking cannot stand because his dual convictions for stalking and invasion of privacy violated the actual evidence test and, thus, constituted a double jeopardy violation. I do not agree, however, with the majority’s reliance on Ind. Code Ann. § 35-41-4-3(a)(1). This statute is not applicable because the subsequent prosecution for stalking was not “for commission of the same offense” (i.e., invasion of privacy) for which Luke had already been convicted. I.C. § 35-41-4-3(a). These are different statutory offenses and double jeopardy issues arose here only because the State failed to parse the evidence and carefully establish each with different evidence.

The circumstances presented in this case would more likely fall under I.C. § 35-41-4-4 * * *

In Michael B. Purdue v. State of Indiana, a 13-page opinion, Judge Kirsch writes:
Michael B. Purdue (“Purdue”) appeals the sentencing order entered upon his plea of guilty to one count of theft as a Level 6 Felony and one count of resisting law enforcement as a Class A Misdemeanor. On appeal, he raises the following restated issue: whether he was denied full credit time for his pre-sentence confinement. We reverse and remand.
NFP civil decisions today (4):

In the Matter of the Termination of the Parent-Child Relationship of A.T., Minor Child, and J.M., Father v. Department of Child Services (mem. dec.)

Randolph Paul Badger, Jr. v. Jennifer Diane Badger (mem. dec.)

Henry Shell v. Vicki Shell (mem. dec.)

In re the Paternity of Ember Mazzotti-Dill: Sherry Mazzotti v. Heath Dill (mem. dec.)

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Wednesday, February 24, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decided one Indiana case Feb. 23rd

In USA v. Christopher Seals (ND Ind., Springmann), a 17-page opinion, Judge Pallmeyer (Rebecca R. Pallmeyer, United States District Court for the Northern District of Illinois, sitting by designation) writes:

Three armed men robbed a bank in Fort Wayne, Indiana on Valentine’s Day 2013. A jury determined that Christopher Seals was one of those men, convicting him in September 2014 of armed bank robbery, brandishing a firearm during a crime of violence, and pos-session of a firearm after a felony conviction. The district court sentenced Seals to 272 months in prison. On appeal, Seals argues that his conviction should be reversed because the government introduced improper propensity evidence. He also argues that his sentence should be vacated due to the district court’s allegedly erroneous application of two different sentencing enhancements. We affirm Seals’ convic-tion, but vacate his sentence, and remand for resentencing. * * *

This circuit has never explicitly reached the question of whether § 1B1.3(a) demands that either enhancement at is-sue here—U.S.S.G. §§ 2K2.1(b)(6)(B) and 3C1.2—be related to the offense of conviction. But the plain language of the Guidelines as well as decisions from numerous other circuits suggest that the answer is “yes.” * * *

In this case, the district court made no findings that would support the conclusion that the offenses of convic-tion—all of which stem from the robbery on February 14, 20135—were connected to the behavior underlying the two enhancements applied here (i.e., the possession of a firearm and the reckless flight). Application of the enhancements without such a finding constitutes error.

The district court’s application of §§ 2K2.1(b)(6)(B) and 3C1.2 is also plagued by another misstep: the court made no factual findings regarding Seals’ participation in the March 20 car chase. * * *

We note, however, that the district court’s error may well have been harmless had the court not tied its sentencing decision so closely to the Guidelines. Post-Booker, district courts are free to move away from the details of the Guidelines and consider conduct, such as the car chase here, for the light it sheds on the defendant’s incorrigibility and dangerousness. For instance, remand would not be necessary had the district judge stated that she would have imposed the same sentence with or without the enhancements, because she deemed the car chase significant regardless of its effect on the Guidelines calculation. In this vein, the district court may well impose a reasonable sentence equal in length to the original sentence by exercising its judgment under 18 U.S.C. § 3553(a).

Posted by Marcia Oddi on Wednesday, February 24, 2016
Posted to Ind. (7th Cir.) Decisions

Courts - More on "Abortion foes’ strategy faces a key test at the Supreme Court"

Yesterday the ILB had a long post on the pending SCOTUS case, Whole Woman’s Health v. Hellerstedt.

On January 6th, the ILB had this post, headed "The most important Supreme Court battle over abortion in a generation ..."

Here is the SCOTUSblog case page on this appeal by the State of Texas. The SCOTUS oral argument will be Wed., March 2nd.

A reader this morning has pointed out to the ILB that our Indiana Attorney General and our Solicitor General, Gregg Zoeller and Thomas M. Fisher, have authored and submitted to the SCOTUS on Feb. 3rd an amicus brief on behalf of the citizens of the State of Indiana, supporting the Texas position. Indiana's brief is joined by Ohio, Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Kansas, Louisiana, Michigan, Mississippi, Montana, Nebraska, Nevada, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, And Wyoming.

Posted by Marcia Oddi on Wednesday, February 24, 2016
Posted to Courts in general

Tuesday, February 23, 2016

Vacancy on Supreme Court 2016 - Some Thoughts on the First Round and Looking Forward to the Second

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

For those who have expressed surprise or concern about the results of the first round of interviews—or simply want some additional perspective—I offer the following commentary from sitting through nearly all of the first round interviews, reviewing the applications, and discussing the process with others this round and during the three previous selections in 2010 and 2012.

The Interview is Only Part of the Process

In 2012, I titled a blog post after the first round of interviews for the Sullivan vacancy (ultimately filled by Justice Rush), “The Interview Really Matters; Law School Grades Do not.” Much of what was said there continues to apply in 2016. Those with the top 10 GPAs of the pool were just as likely as the applicants within the lowest 10 GPAs of the applicant pool to advance to the next round: exactly half (5/10) of each group made the cut.

Far more important than grades are the applications and letters of recommendation (and the career and public service activities they address).

That said, the interview provides a good, albeit imperfect and incomplete, window of some important characteristics of the applicant. During the interview, can you picture the applicant asking probing and insightful questions at oral argument, giving engaging speeches, discussing cases civilly and articulately at conference, leading important commissions or committees of the judiciary, and more generally working well and collaboratively with the other justices and others on important projects for the judiciary, bar, and broader public? A measure of humility is also an asset.

In light of the many other considerations, applicants do not enter the interview with the same chance of success. Although no written rules or procedures exist, a finalist from an earlier vacancy is almost certain to advance to the second round of a later vacancy, as is a state legislator or an applicant with especially influential and vocal promoters whose support is likely grounded in years of impressive work experience.

An imperfect analogy would be the weight of oral argument compared to the briefs in an appellate case. Often the briefs (and the underlying facts and law) are skewed in favor of one side, which will likely win in an evenly matched oral argument—and may even win with a poor performance. A case that appears challenging based on the brief may ultimately be won with an exceptional oral argument; a mediocre argument is probably not going to do it. Finally, even the best oral advocate may not be able to win some cases.

Applying the analogy to the selection process, the interview may help or hurt, but in some (or most) cases is not going to make much of a difference.

Put another way, the fifteen applicants who advanced did not necessarily have the fifteen best interviews. Most of them did well or very well, as did some of those who did not advance. Not everyone will agree on which interviews were the strongest and why, but even though three candidates did not interview at all well, one of those applicants advanced.

Not Public Enough?

The Commission members spent many hours (I’m guessing, conservatively, at least 50 each) preparing for the interviews. Preparation includes not only reading the applications and letters of recommendation but also pre-interview, one-on-one meetings or telephone calls with most applicants (generally anyone who asked for that opportunity).

Beyond the letters of recommendation, Commission members sometimes receive calls or make calls to discuss specific applicants. The public and press see, or read snippets of, a 20 minute interview; the Commission members know and have discussed many other things.

I’m a big proponent of making decisions based on as much reliable information as possible, but the transparent, public nature of the process (and value of the public interview) is arguably diminished if a lot of information, including some of it that is harmful if not fatal to an applicants’ chances, is gleaned from a one-on-one meeting that is wholly outside the public record (interviews, application, reference letters, etc.).

Judges and Men Advanced at Much Higher Rates than Practitioners and Women

Now to the thornier concerns. First, 9/12 (75%) of judges but only 4/13 (31%) of private practitioners made the cut. (I have excluded State Rep. Washburne and Mr. Fisher, Indiana’s solicitor general, from either category. Both made the cut. I’ve also excluded Mr. Chipman, a county prosecutor, and Mr. Cook, the Director of the Alcohol & Tobacco Commission, both of whom did not advance.)

Judges/Practitioners Advancing to Second Round
Year Judges Private Practice
2010 4/16 (25%) 2/13 (15%)
2012-1 4/6 (67%) 0/5 (0%)
2012-2 6/9 (67%) 4/11 (36%)
2016 9/12 (75%) 4/13 (31%)

The four advancing practitioners are not representative the Indiana bar or the applicant pool as a whole. Mr. Rusthoven, Mr. Slaughter, and Mr. Wheeler are from large Indianapolis firms and have significant political connections and experience. Mr. Lienhoop practices at the largest firm in LaPorte County and may not have the same political connections but certainly has impressive practice experience and interviewed very well.

Why did so many judges and so few practitioners advance? As a whole, judges often have a better rounded application and interview better than those without judicial experience. Becoming and remaining a judge often includes an expectation, if not obligation, to engage in community, judicial, and bar activities. Judges should have a judicial demeanor and often have a track record that makes a case for impartiality and fairness that may remain a question mark for applicants who have spent their lives as advocates.

Second, although 13/23 (57%) of the male applicants made the first cut, only 2/6 (33%) of the female applicants did. Three of the four unsuccessful female applicants were practitioners, including the two youngest applicants. Each applicant brings a variety of strengths to the process, and the gender composition of the finalists is not surprising in light of all the considerations discussed above.

First Round Applicants Advancing to Second Round
Year Total Applicants Semifinalists Overall Percent Percent Women
2010 34 applicants (19 women/15 men) 9 semifinalists (4 women/5 men) 26% 21%
2012-1 15 applicants (7 women/8 men) 7 semifinalists (3 women/4 men) 47% 43%
2012-2 22 applicants (16 women/6 men) 10 semifinalists (6 women/4 men) 45% 38%
2016 29 applicants (6 women/23 men) 15 semifinalists (2 women/13 men) 52% 33%

Imagine that a 44-year-old Lafayette practitioner with a strong reputation as a trial lawyer had applied for this vacancy. Would the Brent Dickson of 1985 have made it to the second round? Would the Commission have voted him through, believing that he would be a model of civility among the justices and provide three decades of impressive judicial work—or would other candidates thought to have a more established track record or higher level connections have prevailed instead? I don’t have the answers, but the questions are worth pondering.

Looking Ahead to Round Two

Because it took more than four hours to winnow the field from 29 to 15, one might expect an especially long deliberation to narrow the more competitive field of 15 to three. As in the past, the ILB will provide summaries of each of the second round interviews. I will be there Thursday, March 3; Cara Wieneke will be there Friday, March 4.

I also plan to review the letters of recommendation submitted on behalf of the remaining 15 applicants. As noted in a 2012 post, Commission members have emphasized the importance of quality over quantity (although applicants with a lot of letters generally fare well in the process). Letters are largely written upon request of the applicant and are various shades of glowingly positive.

Perhaps the Commission or the bar should solicit broader input—both positive and negative—from the state’s lawyers and judges about applicants as well. For example, the Lake County Bar Association does a survey that is shared with the Commission that selects judges there. Granted, some disgruntled and irrational comments would have no or very little value, but I suspect some useful information, beyond what is already available, would be added.

Finally, it remains to be seen whether questioning during the second round will be tougher and more probing than the first. Will applicants be pressed to follow up more with specifics? Will they be asked about negative or potentially embarrassing things from their background or past? As I noted in a 2012 post, the second round questions were tougher and deeper. Some candidates did better than others in providing answers that were thoughtful, clear, and concise. If I struggle to find a way to summarize the answer, chances are at least some members of the Commission are struggling to understand it as well.

If You Can, Attend in Person

I know many of you reading this post have jobs that make it difficult or impossible to pick up and go to the Supreme Court conference room to watch the interviews. For those who can get away, though, you really should. During the first round, the room was nearly empty (rarely were there more than ten spectators). The experience is much different in person than reading a summary on the blog. Although I try to include major points, I can’t capture everything, especially interpersonal dynamics and presence. I suspect the final round will draw more spectators, but those interested in seeing the process first-hand should consider attending.

Posted by Marcia Oddi on Tuesday, February 23, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - 7th Circuit decide one Indiana case Feb. 22, re SSA, a reversal

In Kathy Stark v. Carolyn Colvin (ND Ind., Van Bokkelen), a 9-page opinion, Judge Manion writes:

Kathy Stark, aged 60, applied for disability insurance benefits, primarily asserting that she is disabled by degenerative disc disease that causes severe back, neck, and hip pain. The ALJ denied her application largely on the basis that she did not testify credibly about the severity of her pain. We agree with Stark that the credibility analysis was flawed and remand the case to the agency for further proceedings. * * *

In assessing Stark’s credibility about the disabling effects of her pain, the ALJ should have acknowledged Stark’s efforts to continue work while experi-encing significant pain and undergoing numerous surgeries and other treatments to relieve it. See Pierce, 739 F.3d at 1051 (criticizing ALJ for failing to consider claimant’s “dogged efforts” to work in deciding claimant’s credibility); Flores v. Massanari, 19 F. App’x 393, 404 (7th Cir. 2001) (criticizing ALJ for failing to acknowledge claimant’s solid work history of 13 years).

We REVERSE the district court’s judgment and REMAND this case to the Commissioner for further proceedings.

Posted by Marcia Oddi on Tuesday, February 23, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

K.R. v. Indiana Department of Child Services (mem. dec.)

In re the Termination of the Parent-Child Relationship of: C.A.M., J.M. v. The Indiana Dept. of Child Services (mem. dec.)

NFP criminal decisions today (2):

Justin Corbin v. State of Indiana (mem. dec.)

Marquen Coker v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, February 23, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Will the public have online access to e-filed documents - appellate briefs, trial court orders, complaints, etc.

Updating this ILB post from Feb. 4th, which itself has been updated several times, the Supreme Court yesterday announced a link to a webpage for its "Task Force on Remote Access to and Privacy of Electronic Court Records." The page announces that the first meeting of the Task Force will be this Friday, Feb. 26th, from noon to 2PM, at Indiana Government Center South, Conf. Rm. A.

With the implementation of e-filing, what will be the ability of the public to access the court documents online? Federal court documents have long been accessible via PACER. The agenda for the meeting sets out some of the documents the Task Force will consider:

ILB: Apparently the meetings will not be videocast. There is no mention of whether comprehensive minutes will be made available.

Interestingly, no member from a group representing the public, such as ICOG (Indiana Coalition for Open Government), has been appointed to the Task Force. This may be an oversight.

Posted by Marcia Oddi on Tuesday, February 23, 2016
Posted to E-filing | Indiana Courts | Indiana Government

Courts - "Abortion foes’ strategy faces a key test at the Supreme Court"

A fascinating, lengthy, and very comprehensive, story today in the Washington Post, reported by Sandhya Somashekhar - some quotes:

When the Supreme Court meets next week to hear its first abortion-related case in nearly a decade, the justices will consider the most significant challenge to an argument that has become central to the antiabortion cause: that abortion hurts not just a fetus but also its mother.

That idea wasn’t always at the heart of the movement, which for years spent more time highlighting what it considered the plight of the unborn child. But as the social and legal landscape has changed, the focus on women has taken center stage. And that shift has paid dividends, with state legislatures across the country enacting laws in the name of protecting women from allegedly unsafe conditions at abortion clinics.

At issue in the court case is part of a Texas law that imposes strict new requirements on clinic facilities and the doctors who work in them. * * *

Abortion rights groups counter that abortion is one of the safest medical procedures available, citing research showing that abortions in the first trimester, when the vast majority of abortions occur, have very little risk of major complications that might require hospitalization.

Since a Republican sweep of legislatures and governor’s mansions in 2010, states have enacted nearly 300 abortion restrictions, according to the Guttmacher Institute, a reproductive rights think tank. Many of those laws are predicated on possible harms that may come to women from unsafe conditions at abortion clinics.

The restrictions range from multi-day waiting periods and state-approved counseling to mandatory ultrasounds and regulations governing the physical nature of abortion clinics.

Among the questions the Supreme Court will ponder in the Texas case, Whole Woman’s Health v. Hellerstedt [SCOTUSblog case page], on March 2 is: When considering such laws, do courts have to look at the scientific evidence supporting them? A lower court concluded that they do not and that legislatures have broad leeway to make these decisions.

One of the Texas provisions at issue requires abortion clinics to meet the standards of ambulatory surgical centers. Typically, abortions early in pregnancy are performed in settings more closely resembling doctor’s offices.

Supporters of this rule say the invasive nature of surgical abortions suggests they must be done in hospital-like environments. Critics, however, with the backing of major medical groups such as the American Medical Association, argue that such requirements are unnecessary. They call this regulation a smokescreen to force clinics, particularly low-volume clinics in rural areas that can’t afford to comply, to shut down.

The other provision in question requires doctors to obtain admitting privileges at local hospitals, which would allow the doctors to treat patients there in case of emergency. Supporters call this another common-sense measure to protect women. But opponents note that hospitals will accept any patient in an emergency. Moreover, they say abortion providers often can’t get such privileges because they live too far away or because hospitals are unwilling to jump into the abortion debate, among other reasons.

Abortion rights activists say they have watched the evolution of the antiabortion strategy with deep skepticism.

“I think those who oppose abortion have been consistently opportunistic since the ’80s and will promote whatever argument gets them closer to overruling Roe and, as a practical matter, making abortion unavailable,” said Dawn Johnsen, a law professor at Indiana University and a former Clinton administration official who long worked in the abortion rights arena.

These activists call the idea that women need protection from their own decisions condescending and deeply offensive. * * *

Even as this strategy is being litigated, abortion foes are pushing a new raft of state bills, many of which echo the days when the fetus was more often at the center of their arguments. These measures gained momentum last summer after an antiabortion activist mounted an undercover “sting” targeting Planned Parenthood, the large women’s health nonprofit and abortion provider, purporting to show that the organization illegally sells fetal tissue for a profit.

So far, state and federal investigations have turned up no evidence of wrongdoing on the part of Planned Parenthood, but a grand jury in Texas indicted the activists behind the project for falsifying government documents as part of their ruse.

Several states are considering bills to require “humane” disposal of fetal tissue, in some cases mandating that the material be buried or cremated.

Other states, citing concerns for the fetus, are considering bans on abortion after 20 weeks of pregnancy or earlier. Some states are cutting off funding to Planned Parenthood.

At least two states are considering bills that would bar women from obtaining abortions if the reason is a prenatal diagnosis of Down syndrome. If enacted, these bills would create a paradox — allowing abortion if no reason is given but barring the procedure if the reason is the fetal anomaly.

ILB: The reader may recognize that many of the laws and legislative proposals mentioned in the story have been enacted, or proposed, in Indiana.

Posted by Marcia Oddi on Tuesday, February 23, 2016
Posted to Courts in general

Ind. Courts - More on: "Inmates' access to law files at issue"

Updating yesterday's ILB post quoting a long Feb. 14th story by Rebecca S. Green of the Fort Wayne Journal Gazette, here is a second, earlier (Feb. 2) story by reporter Green, that begins:

A potential class-action lawsuit was filed against Allen County Sheriff David Gladieux in federal court, accusing the jail of failing to provide access to legal research material.

Filed late Friday by Patrick Hodgin, an inmate awaiting sentencing on a charge related to the dumping of methamphetamine waste, the lawsuit accuses the sheriff of violating both the U.S. and Indiana constitutions.

Through his attorney David Frank, Hodgin is seeking class-action status.

The ILB has obtained a copy of the 10-page complaint, Hodgin v. Gladieux, filed Jan. 29, 2016 in ND Ind., Fort Wayne Division.

Posted by Marcia Oddi on Tuesday, February 23, 2016
Posted to Indiana Courts

Ind. Gov't. - "Senate committee OKs college police records bill"

HB 1022 is the subject of this AP story in the South Bend Tribune that begins:

Police departments operated by private colleges would remain exempt from following the same crime reporting requirements as other law enforcement agencies, including those serving public colleges, under a measure approved Monday by a Senate committee.

The bill sponsored by Rep. Pat Bauer, D-South Bend, was approved by the Civil Law committee on a 7-0 vote. It would require the University of Notre Dame and the 9 other private colleges in Indiana with police departments to comply with a limited number of provisions of the state's Public Records Act.

Critics, however, say private college police departments would not be required to do anything that they aren't already required to do under federal law.

"It doesn't make any changes from what they are living under now. It just makes it state law," Hoosier State Press Association Director Steve Key said. "Whether it's a municipal, county or a public university (police department), what they have to give is much more detail."

The measure comes amid a court battle between ESPN and Notre Dame over the university's refusal to release records about possible crimes involving student athletes. On Wednesday, a state appellate court will take up ESPN's appeal of a lower court ruling in Notre Dame's favor.

For more on the bill and the ESPN v. Nortre Dame lawsuit, see this list of ILB posts.

Posted by Marcia Oddi on Tuesday, February 23, 2016
Posted to Indiana Government

Ind. Decisions - More on: Trial court dismisses ACLU challenge to DCI staffing levels

Updating yesterday's ILB post (which includes a copy of the ruling), Marisa Kwiatkowski of the Indianapolis Star has a long story today on the trial court ruling - some quotes:

In its motion to dismiss, the Indiana attorney general's office did not deny the state's failure to comply with mandated caseload standards. Instead, its attorneys argued DCS' employees' caseloads are a matter for the legislature to decide, not the courts.

Ken Falk, attorney and legal director of the ACLU of Indiana, disagreed. In his response to the state's motion, Falk argued the law limiting caseloads "leaves nothing to the discretion of the government."

"The context here is clear — 'shall' means 'shall' and 'must' means 'must,'" he wrote in court records. "DCS is obligated to maintain the caseload rations specified by Indiana code."

Kelly Jones Sharp, spokeswoman for ACLU of Indiana, said the organization will be filing an appeal. She declined further comment on the judge's order.

In a 12-page ruling, Welch said the proper venue for Price's complaint is the State Employee Appeals Commission, an administrative board under the executive branch. She agreed with the Indiana attorney general's office, which argued the law was created to benefit the public not family case managers.

Posted by Marcia Oddi on Tuesday, February 23, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Evansville City Council votes to strengthen LGBT civil rights protections"

Zack Evans reports in the Evansville Courier & Press in a long story that begins:

While they've been a protected class for four years in the city, lesbian, gay, bisexual and transgendered people now have backing to protect against discrimination.

After a lengthy discussion that included more than 20 speakers from the public, the City Council Monday night voted 7-2 to amend its human rights ordinance to give the Human Relations Commission enforcement and investigatory powers into claims of discrimination on the basis of sexual orientation and gender identity.

Under the old city ordinance, sexual orientation and gender identity were included as a protected class in the city's Human Relations Commission code, but investigations were voluntary.

That meant a homosexual or transgendered person could be fired from a private business, denied housing, refused service or kicked out of school, and the case would be closed if the accused party didn't comply with an investigation.

Under the amendment approved Monday night, accused parties can't opt out of an investigation. That gives the Human Relations Commission authority to investigate claims of discrimination against the LGBT community the same as it does for race, sex, age, religion, disability, national origin or ancestry.

The story links to a copy of the amended ordinance.

Posted by Marcia Oddi on Tuesday, February 23, 2016
Posted to Indiana Government

Monday, February 22, 2016

Ind. Decisions - Trial court dismisses ACLU challenge to DCI staffing levels

Thanks to Kara Kenney of WRTV6 for forwarding a copy of this afternoon's 12-page opinion by Marion Superior Court Judge Heather Welch in Mary Price v. Indiana DCS. The Court granted the State's motion to dismiss, concluding:

In this case, DCS is an administrative body within the executive branch under the control of the Governor. The Governor appoints the Director, who is charged by statute with using her/his discretion to "determine the best manner of organizing the department to provide the necessary services throughout Indiana to fulfill the purposes of this article." I.C. § 31-25-2-3. Furthermore, the Legislature entrusted discretion in the Director as to staffing, by providing that:
"The director may employ necessary personnel to carry out the department's responsibilities subject to:
(1) the budget agency's approval under I.C. § 4-12-1-13; and (2) I.C. § 4-15-2. I.C. § 31-25-2-2."
This Court finds there are no set of facts or circumstances when considered in favor of the Plaintiff that would result in a favorable outcome for Plaintiff on a mandate action because an adequate remedy at law exists under I.C. 4-15-2.2-42 for the Plaintiff. Therefore, the Court hereby GRANTS the Defendants' Motion to Dismiss under Ind. T.R. 12(b)(6).
Here is an earlier (July 14, 2015) story on the lawsuit, including a copy of the complaint.

Kenney just tweeted:

@ACLUIndiana says they will appeal judge's decision in #DCS case.

Posted by Marcia Oddi on Monday, February 22, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Update on Dunes Pavilion liquor bill

HB 1247, the bill the would allow 3-way liquor permits in state parks (including the Dunes State Park and the controversial Dunes Pavilion project) without (1) publication of notice or investigation before a local board; and (2) regard to quota provisions, is on the Senate Public Policy schedule for Wed., Feb. 24th.

Here are earlier ILB posts on the Dunes pavilion project.

Posted by Marcia Oddi on Monday, February 22, 2016
Posted to Indiana Government

Ind. Gov't. - "No more stringent" stripped in committee

Dan Carden of the NWI Times reports on the Senate committee hearing this morning on HB 1082:

A House-approved plan requiring Indiana's environmental regulations be no more stringent than the minimum federal standards was rewritten Monday by a Senate committee.

House Bill 1082, sponsored by state Sen. Ed Charbonneau, R-Valparaiso, now requires the Indiana Department of Environmental Management submit an annual report to the General Assembly detailing all the rules adopted or proposed by the agency in the past year.

Charbonneau said his revision satisfies the House goal of reaffirming the policy-making role of the General Assembly and preventing IDEM from going regulation-crazy, but without taking away the agency's ability to protect Indiana's environment.

"We can review and judge for ourselves whether the policies we've established for clean air, land and water are being properly implemented," Charbonneau said.

The Senate Environmental Affairs Committee approved the revised legislation, 8-0. It now goes to the full Senate for an expected vote on whether to send the new proposal to a House-Senate conference committee.

Posted by Marcia Oddi on Monday, February 22, 2016
Posted to Indiana Government

Ind. Courts - "Black legislators oppose proposal for selecting Marion County judges"

SB 352, about which the ILB last posted on Feb. 17th, is eligible for 2nd reading today.

I have just looked on the bill status and currently 71 proposed 2nd reading amendments have been filed ....

Kristine Guerra writes in the Indianapolis Star, in a story filed earlier this afternoon:

Legislation that would create a new way to select Marion County judges is facing criticism from African-American legislators who say the bill is unfair to people of color.

Senate Bill 352, authored by Sen. Michael Young, R-Indianapolis, would form a 14-member committee that would select and nominate judges for six-year terms. Voters can then decide through retention elections whether or not judges can stay on the bench. Those who run must first receive a recommendation from the committee.

Members of the Indiana Black Legislative Caucus say SB 352 encourages disenfranchisement of minority voters because it does not require the committee to have minority or diverse members. Sen. Jean Breaux, D-Indianapolis, said she's concerned the current proposal would result in a judiciary that's too slanted toward one race or toward one political party affiliation and does not represent diversity in Marion County.

Check the story for more.

Posted by Marcia Oddi on Monday, February 22, 2016
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: K.C. (Minor Child) and R.M. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

A.H. and J.H. v. State of Indiana (mem. dec.)

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

Manuel Ocasio, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, February 22, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending February 19, 2016

Here is the Clerk's transfer list for the week ending Friday, February 19, 2016. It is one page (and 12 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, February 22, 2016
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit decides one Indiana case Feb. 19th

In USA v. Lon Campbell (SD Ind., Pratt), a 7-page opinion, Judge Hamilton writes:

Appellant Lon Campbell pled guilty to using a social security number fraudulently. The dis-trict court sentenced him to 21 months in prison followed by three years of supervised release. He waived his right to ap-peal the sentence in the written plea agreement. He has ap-pealed nonetheless, contending that several conditions of his supervised release are unconstitutionally vague. We enforce the appellate waiver and dismiss the appeal.

Posted by Marcia Oddi on Monday, February 22, 2016
Posted to Ind. (7th Cir.) Decisions

Courts - A story on the Hoosier native mentioned for SCOTUS

Stories about who President Obama may nominate to succeed Justice Scalia have included 8th Circuit Judge Jane Kelly, who was born in Greencastle, Indiana, although that is not mentioned in this very long story by Grant Rogers of the Des Moines Register that begins:

An Iowa judge whose name is making the lists of potential replacements for U.S. Supreme Court Justice Antonin Scalia would bring a unique resume to the nation’s highest court, according to friends, politicians and court watchers.

Former prosecutors, government lawyers and scholars make up most of the bench today. Jane Kelly stands out as a federal public defender who represented several of the most recognizable names to face criminal prosecution in Iowa courtrooms.

The Harvard-educated attorney, who spent almost two decades working out of Cedar Rapids, won legal battles with grace and intelligence in a system where victory for a client charged with serious drug or gun crimes can mean shaving as little as three years off a prison sentence of 25 years, former co-workers told The Des Moines Register.

“It’s tough,” said Casey Jones, now an Iowa associate district court judge who worked as a public defender under Kelly for two years. “It’s a grind, and you’re having to break horrible news to people about how much time they’re facing under the federal sentencing guidelines. It’s hard to do that on an everyday basis, but you never got the sense that she was beat down. She was always positive.”

She has also won past support from Senate Judiciary Committee Chairman Chuck Grassley, who has sent conflicting messages on whether he would follow the Republican Party line and oppose hearings for any nomination by President Barack Obama before the November presidential election. Republicans hold the archconservative Scalia with the same reverence as President Ronald Reagan and have vowed to fight any nomination that would make the high court more ideologically liberal.

But journalists and court watchers are pointing at Kelly, 51, as a credible option to replace Scalia, because of her moderate leanings and her work as a public defender.

Kelly, a judge on the U.S. Court of Appeals for the 8th Circuit, graduated from Harvard Law School in 1991 alongside Obama. The two students were reportedly acquaintances, though not close friends.

Posted by Marcia Oddi on Monday, February 22, 2016
Posted to Courts in general

Ind. Courts - "Inmates' access to law files at issue"

Here is a long, interesting story from Rebecca S. Green of the Fort Wayne Journal Gazette, that looks at the kind of access county inmates have to legal research materials. Some quotes:

Around the state, incarcerated men and women file lawsuits on behalf of themselves challenging conditions, their criminal cases or other issues.

Earlier this month, Allen County inmate Patrick Hodgin filed a federal lawsuit against Sheriff David Gladieux, alleging his constitutional rights were violated by what he perceives as a lack of access to legal materials.

When he filed his case in federal court in Fort Wayne, Hodgin asked for class-action status on behalf of himself and other Allen County Jail inmates.

Access to legal research material is something the Indiana Department of Correction looks at when it conducts annual inspections of each county jail.

Allen County’s practice is different from that of many other northeast Indiana jails, but the sheriff is confident it will survive the legal attack.
Failed claim sparked current one

According to Hodgin’s lawsuit, filed with the help of a local law firm, the Allen County jail requires that inmates request specific legal materials or ask a specific legal question they wish to research.

If the inmate is not specific enough – not specifying the exact law or issue – the jail staff will not respond to the request, according to court documents. * * *

According to Hodgin, if he wants to research anything, he must provide the specific information to a jail staff member, who will look it up using an online search engine and print the results. Hodgin said the inmate will only be provided the printed material after paying for it, according to court documents.

Hodgin claims the lack of access violates the U.S. and Indiana constitutions. He is seeking an injunction forcing the Allen County Jail to do things differently.

Gladieux said this is not the first time he or the department has been down this particular path, and he said the department’s policies have withstood scrutiny.

“If things have changed, we’ll remedy the problem,” he said.

But Gladieux believes Allen County is doing what the law requires.

A 1996 U.S. Supreme Court ruling – in the case of Lewis v. Casey, concerning access to legal documents by inmates in the Arizona Department of Correction – seemed to limit the requirements for jails and prisons in providing access to legal documents.

In the split decision, Justice Anthony Scalia wrote that earlier decisions guaranteed prisoners open access to the courts, but that didn’t mean that a fully functioning law library had to be built in the jail. The opinion gives wide latitude to prison officials to determine how to provide that access to the courts and what would be done in specific institutions in the states.

At the state level, inmates are given access to a minimum of 18 different legal materials, according to the department’s policies.

Those materials include a prisoner’s self-help litigation manual, rules of Indiana court, Indiana code and appellate rulings.

According to Indiana Department of Correction spokesman Douglas Garrison, most county jails have the legal research software Lexis Nexis.

Local sheriffs also provide access to digital legal research material using a set of CDs and DVDs that inmates can access one at a time on computers in the jail.

Wells County and Steuben County said they have similar programs.

Read the story for more.

Posted by Marcia Oddi on Monday, February 22, 2016
Posted to Indiana Courts

Ind. Gov't. - "Pence said Indiana won't comply with a federal rule to reduce greenhouse gas emissions, even if legal challenges fail"

Updating a list of earlier ILB posts on this rules, Maureen Groppe of the Star Washington Bureau reported Feb. 20th in a story headed: "Pence to defy coal plant rules: Gov. Mike Pence said Indiana won't comply with a federal rule to reduce greenhouse gas emissions, even if legal challenges fail." Some quotes:

WASHINGTON — Indiana won’t come up with its own plan for reducing greenhouse gas emissions from power plants, even if a federal reduction requirement is upheld in court, Gov. Mike Pence said Saturday.

The federal rule, known as the Clean Power Plan, recently was put on hold by the Supreme Court until legal challenges are finished.

That left states in the position of deciding whether to keep working on how to achieve the reductions if the plan is upheld.

The attorneys general of West Virginia and Texas, who had taken the lead in the multi-state challenge to the rule that Indiana also joined, have told states they should “put their pencils down.”

Pence said he already had decided Indiana would not move forward with its own plan. * * *

If the emissions reduction requirement is upheld, states that don’t submit a plan for achieving the reductions will have one imposed by the Environmental Protection Agency. * * *

And an official with the Edison Electric Institute, the largest trade association of electricity providers, told the state legislature last month that the Clean Power Plan is likely to be upheld.

“It appears that EPA has crafted a very legally defensible rule,” the institute’s Karen Obenshain told a Senate panel. “Even though the court’s decision may nibble around the edges of the rule, we think the guts will remain intact at this time, unless the Supreme Court does something dramatic.”

Obenshain’s comments, however, came before the unexpected decision of the Supreme Court to put the rule on hold. But that 5-4 decision was made before the death of Justice Antonin Scalia.

States had been working to meet a September deadline for either submitting a compliance plan, or asking for an extension of up to two years. Emissions reductions were to begin in 2022. * * *

The EPA estimates electricity rates in the region that includes Indiana would only be about 1 percent higher in 2030 than they would be without the rule. The EPA also argues the health and other benefits delivered by the reductions outweigh the cost. In addition to reducing carbon dioxide emissions, the proposal has the side effect of reducing other pollutants, such as those that contribute to soot and smog. * * *

Jodi Perras, the Indiana representative for the Sierra Club's Beyond Coal Campaign, said Indiana can’t ignore the ongoing shift away from coal, regardless of what happens to the Clean Power Plan.

“We can put our head in the sand and pretend it’s not going to happen,” Perras said. “But I think a wise leader of the state of Indiana would start to work on that transition and not play politics with it.”

The Sierra Club wants Indiana to focus on replacing coal-fired electricity with renewable fuels, including wind and solar, and by increasing energy efficiency. That would create jobs in Indiana as well as provide health and environmental benefits over burning more coal or even natural gas, environmentalists argue.

Indiana, along with Ohio and Pennsylvania, have the highest annual damages from energy production because of the amount of coal-fired power generation there, according to an analysis published last month in the journal Energy Policy. * * *

The Court of Appeals for the District of Columbia Circuit will hear arguments in the case in June and could have a decision by the end of summer. The losing side is expected to appeal to the Supreme Court, which could rule in 2017.

Posted by Marcia Oddi on Monday, February 22, 2016
Posted to Environment | Indiana Government

Ind. Gov't. - Some bills the ILB is following

Looking at the Senate Committee Calendar for this, the last week for bills to come out of committee in the second house, here are some bills the ILB is following that are on the schedule:

Looking at the House Committee Calendar for this, the last week for bills to come out of committee in the second house, here are some bills the ILB is following that are on the schedule:

Here is the Senate Floor Calendar for today, Monday, Feb. 22.

Here is the House Floor Calendar for today, Monday, Feb. 22.

Here are the 2016 session bills still alive (blue).

Posted by Marcia Oddi on Monday, February 22, 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 2/22/16):

Next week's oral arguments before the Supreme Court (week of 2/29/16): Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/22/16):

Monday, February 22

Wednesday, February 24

Thursday, February 25

Friday, February 26

Next week's oral arguments before the Court of Appeals (week of 2/29/16):

Wednesday, March 2

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, February 22, 2016
Posted to Upcoming Oral Arguments

Friday, February 19, 2016

Vacancy on Supreme Court 2016 - Finalists announced after 5 hours of deliberation

The Judicial Nominating Commission (JNC) held a public vote this evening, as required by statute, to complete the winnowing process from the 29 applicants it has interviewed over the past three days. The JNC has been conducting deliberations in executive session since it completed its first round of interviews shortly after noon today.

Here the the names of the finalists (or is it semi-finalists?), from which the JNC on March 4th will arrive at 3 names to send to the Governor.

==============

The Judicial Nominating Commission (JNC) named fifteen finalists for the 109th Supreme Court judicial position. The JNC conducted public interviews of twenty-nine applicants February 17-19. The following applicants will be invited to second interviews with the JNC in March:

Hon. James R. Ahler

Hon. Vicki L. Carmichael

Hon. Paul R. Cherry

Hon. Darrin M. Dolehanty

Hon. Thomas J. Felts

Mr. Thomas M. Fisher

Hon. Frances C. Gull

Hon. Steven L. Hostetler

Hon. Matthew C. Kincaid

Mr. Mark A. Lienhoop

Hon. Steven R. Nation

Mr. Peter J. Rusthoven

Mr. Geoffrey G. Slaughter

Rep. Thomas W. Washburne

Mr. Thomas E. Wheeler, II

=============

[MORE] Looking quickly at the list of 15, there are 9 judges, one state representative, the solicitor general, TWO women (both of them judges), four private practitioners.

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Finalists to be announced at about 5 PM

@Indiana Courts just tweeted at 4:45 that:

JNC to vote in 15 mins in SH room 319 on finalists for SC. West entrance of SH open. Finalists interviewed in March then 3 nominees to Gov.
Watch this space!

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - Supreme Court decides one today, re confrontation clause

In Dee Ward v. State of Indiana, a 20-page, 3-2 opinion, Chief Justice Rush writes:

Dee Ward was charged with battering J.M., his girlfriend. During treatment for her injuries, J.M. told a paramedic and a forensic nurse that Ward was her attacker. When J.M. failed to appear for depositions or to testify at trial, the State relied on her statements to the paramedic and the forensic nurse to implicate Ward, over Ward’s objection that the evidence was “testimonial hearsay” that violated his federal and State confrontation rights.

We hold the statements are non-testimonial. Asking J.M. who attacked her was not aimed at obtaining a substitute for trial testimony—rather, it was a vital part of providing appropriate medical and psychological treatment and service referrals, as the applicable standard of care requires. Accordingly, J.M.’s hearsay statements were properly admitted into evidence. We therefore affirm Ward’s convictions for C-felony battery and A-misdemeanor domestic battery. * * *

As a general matter, identifying a domestic-violence victim’s attacker is integral to the medical standard of care for such cases—and nothing in the particular circumstances of this case leads us away from that conclusion. Accordingly, J.M.’s hearsay statements to the Paramedic and Forensic Nurse identifying Ward as her assailant were not testimonial, and were properly admitted into evidence. Ward’s convictions are affirmed.

David and Massa, JJ., concur.

Rucker, J., dissents in part with separate opinion in which Dickson, J., concurs. [J.Rucker's dissent begins on p. 16] I respectfully dissent from that portion of the majority opinion declaring as non-testimonial the statements J.M. made to the Forensic Nurse identifying Ward as her attacker. It is certainly true there are circumstances under which the identity of an alleged abuser is necessary to enable medical personnel to provide appropriate diagnosis and treatment. But here the majority goes a step further and essentially takes the position that in all cases involving a medical care provider—no matter the facts—the identity of the alleged abuser is necessary, non-testimonial, and admissible in the face of a Sixth Amendment Confrontation Clause challenge. I cannot agree because this sets a dangerous precedent for future cases. * * *

In sum J.M.’s statements to the Forensic Nurse were testimonial and thus inadmissible in the face of a Sixth Amendment Confrontation Clause challenge. In the paraphrased words of the Davis Court, I “do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking [Forensic Nurse] recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition.” Davis, 547 U.S. at 826. I therefore respectfully dissent from the majority’s contrary position on this point. Otherwise I concur.

Dickson, J., concurs.

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Ind. Sup.Ct. Decisions

Vacancy on Supreme Court 2016 - Day 3: Report on interview #29, Hon. Steven R. Nation

This is Prof. Joel Schumm's report on the 8th (and final) interview of Day 3

Hon. Steven R. Nation, Noblesville (photo) (application)

It has indeed been a lengthy three days, and Mr. Christie said early in the interview, to laugher, “Thank you for your application and mostly for being our last interview.”

When asked to address his judicial philosophy, Judge Nation noted that courts are there to resolve problems. People should feel judges are fair and give them an opportunity to speak. “We live by the rule of law,” and people will not come to the courts if they do not think they were treated fairly.

Asked about whether speed or justice should prevail, Judge Nation said he listens to attorneys and gives them time to properly litigate the case before him. If a person is in jail and needs a quick hearing, though, he will stay later at night if necessary to make sure they have a speedy hearing.

When asks about serving on a court of five instead of individually as a judge, Judge Nation cited his work with Youth Assistance, which involves working with many different people in making decisions.

Asked about working with the police as the county prosecutor, Judge Nation recounted that when he became prosecutor, Hamilton County only had 60,000 people. Fishers had one marshal and one deputy. Early on, (prosecutor) Nation had to ensure resources (such as evidence technicians) were available to all parts of the county. He or a deputy prosecutor wanted to be involved with police in cases early on to make sure the case was handled properly.

In ten years, Judge Nation, age 65, would see himself as “two years from retirement.” He would “want to serve a full term.” [Editor’s note: This does not appear possible with the current mandatory retirement age of 75.] He would log many miles on his car talking to judges around the state. He wants to pass on the importance of the rule of law to his grandson.

Judge Nation will next read Killing Reagan, which a juror in a recent trial was reading and recommended to him.

Mr. Feighner noted that Judge Nation did not apply for a 2012 vacancy because he was presiding over the Charlie White trial. The only issue Judge Nation has seen in high publicity cases is selecting a jury. He has used individual voir dire to avoid polluting the jury pool.

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 3: Report on interview #28, Ms. Karen A. Wyle

This is Prof. Joel Schumm's report on the 7th interview of Day 3

Ms. Karen A. Wyle., Bloomington (photo) (application)

Her practice is primarily appellate work and she has voluntarily used e-filing. She was surprised by how “bug-free” the process has been. She said there is a learning curve with changes to page numbering, headers, and so on. She said the proposed rule amendments could be clarified about the length of extension when a snafu occurs.

She is highly skilled as a writer, which could be helpful to the Court. As an appellate attorney, she has sometimes argued for a change in law while other times arguing for the status quo. She would be able to address those issues with her colleagues if appointed.

When asked about judicial philosophy, Ms. Wyle said the Court must protect constitutional rights while noting that deference to trial courts is important but not absolute. She is closer to textualism than believing that the Constitution is a living document. The Constitution is not an etch-a-sketch. Judges should apply enduring principles.

“Thoughtful” is the one word she would use to describe herself.

Ms. Wyle participates in Facebook discussions of issues, some of which involve politics. One of her letters was very complimentary of her posts. Ms. Wyle also posts and re-Tweets about writing.

She said joining the Indiana Supreme Court would be a “dream job.” Even if she won the recent Powerball jackpot, she would still want this job. She also recited that others have said Harvard is known for producing judges.

Ms. Wyle said that President Obama is entitled to nominate a replacement for Justice Scalia but should not expect confirmation. She believes the replacement is a proper campaign issue.

She most recently read Rogue Lawyer by John Grisham.

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 3: Report on interview #27, Mr. Lyle R. Hardman

This is Prof. Joel Schumm's report on the 6th interview of Day 3

Mr. Lyle R. Hardman, South Bend (photo) (application)

Mr. Hardman keeps up on Indiana law by reviewing decisions on the court’s website at the end of each day. He said Williams v. Tharp has been an important decision to his practice, as has Stanley v. Walker.

Mr. Hardman has administrative experience working with committees in managing the firm and has broad experience with products liability, civil rights, and whole gamut of civil litigation.

His judicial philosophy is textualism, and if any interpretation is necessary there are constraints on what that interpretation will be. In response to a later question about addressing constitutional issues, he would start and end with the language of the document, although he may consider other things. He sees a significant danger when lawyers substitute their own opinions.

He is currently reading Scalia/Garner’s book, Reading the Law, which was a birthday gift.

The one-word he would use to describe himself is “integrity.”

Mr. Hardman believes that merit selection is the best way to select judges, and the method should be used for all judges in the state. Mr. Hardman is also a member of the Michigan bar, and people would be appalled by all the name-calling there. He had to remove himself from some listservs. He later added that Indiana lawyers treat each other much better and do not engage in ad hominem attacks, which are more common in Michigan.

His law firm does not have a social media policy. Lawyers in the firm have discussed the issues and attended CLEs.

His most meaningful contribution has been serving on the state bar’s legal ethics committee, which is on the forefront of addressing issues that have not yet been addressed.

He said there is merit selection in Lake and St. Joseph County because of a “history of corruption.”

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - 7th Circuit posts one Indiana case today (re texting while driving), decided yesterday, a reversal

In USA v. Gregorio Paniagua-Garcia (SD Ind., Magnus-Stinson), a 6-page opinion, Judge Posner writes [ILB emphasis]:

An Indiana statute forbids drivers to use a telecommunications device (normally a cellphone) to type, transmit, or read a text message or an electronic-mail message, Ind. Code § 9-21-8-59(a)—in short it prohibits “texting” (sending or receiving textual material on a cellphone or other handheld electronic device; also called “text messaging” or “wireless messaging”) or emailing while operating a motor vehicle. All other uses of cellphones by drivers are allowed, Joel M. Schumm, “Recent Developments in Indiana Criminal Law and Procedure,” 45 Indiana L. Rev. 1067 (2012): making and receiving phone calls, inputting addresses, reading driving directions and maps with GPS applications, reading news and weather programs, retrieving and playing music or audio books, surfing the Internet, playing video games—even watching movies or television. Most of these activities seem dangerous—though no more so, and maybe less so, than texting—and because a driver is more likely to engage in one or more of them than in texting * * * the most plausible inference from seeing a driver fiddling with his cellphone is that he is not texting.

An Indiana police officer, in the course of passing a car driven by Gregorio Paniagua-Garcia (whom for the sake of brevity we’ll call just Paniagua) on an interstate highway, saw that the driver was holding a cellphone in his right hand, that his head was bent toward the phone, and that he “appeared to be texting.” Paniagua denies that he was texting, the officer has never explained what created the appearance of texting as distinct from any one of the multiple other—lawful—uses of a cellphone by a driver, and the government now concedes that Paniagua was not texting—that as he told the officer he was just searching for music. An examination of his cellphone revealed that it hadn’t been used to send a text message at the time the officer saw him fussing with the cellphone.

Almost all the lawful uses we’ve listed would create the same appearance—cellphone held in hand, head of driver bending toward it because the text on a cellphone’s screen is very small and therefore difficult to read from a distance, a finger or fingers touching an app on the cellphone’s screen. * * *

Indiana is right to be worried about the dangers created by persons who fiddle with their cellphones while driving, but probably wrong to outlaw such fiddling only with respect to texting—if only because the effect of slicing up drivers’ use of cellphones in this way has been to make the Indiana statute largely inefficacious, such is the difficulty of distinguishing texting from other uses of cellphones by drivers by glancing into the driver’s side of a moving automobile. The contrast with Illinois, which has a “hands-free” law, 625 ILCS 5/12-610.2 (a driver is forbidden to use a cellphone with his hands, as distinct from using bluetooth or other technologies that enable the driver to communicate without manipulating his cellphone), is striking. For while in 2013 only 186 citations were issued for violations of the Indiana texting law, more than 6700 citations were issued in Illinois for violations of the Illinois hands-free law. (These figures are from Zach Myers, “Texting Tickets: Police Unable to Enforce Indiana’s Texting and Driving Law,” FOX 59, May 21, 2014, http://fox59.com/2014/05/21/3-years-later-police-say-indianas -texting-and-driving-law-remains-unenforceable/ (visited February 16, 2016).) REVERSED AND REMANDED

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

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

For publication opinions today (2):

In In the Matter of the Adoption of A.A. and L.A. (Minor Children) J.B. and S.B. v. R.C. and N.C., an 18-page opinion, Judge Bailey writes:

J.B. and S.B. (“Parents” or “Adoptive Parents”) petitioned for guardianship and later adopted A.A. and L.A. (“Children”). In 2012, the trial court granted R.C. and N.C. (“Grandparents” or “Maternal Grandparents”) grandparent visitation rights and ordered a specific visitation schedule. Parents, however, denied Grandparents the court-ordered visitation, prompting Grandparents to file numerous contempt motions to enforce the order. Parents in turn filed a petition to terminate grandparent visitation rights. Following consolidated hearings on the motions and petition, the trial court found Parents in contempt of court, ordered Parents to pay Grandparents’ attorney fees of over $17,000 (plus $2,000 in previously-awarded fees) as a sanction for contempt, and denied Parents’ petition to terminate grandparent visitation rights. We affirm. * * *

The trial court did not abuse its discretion in finding Parents in contempt and ordering Parents to pay $17,282.50 in attorney fees (plus $2,000 in previously-ordered attorney fees) as a sanction for contempt. The trial court’s order denying Parents’ petition to terminate grandparent visitation rights was not an abuse of discretion.

In Richard W. Lorenz and any Successor Trustee, as Trustee, of the Bankruptcy Estate of Willie R. Gauldin v. Anonymous Physician #1, et al., a 17-page opinion, Judge Robb concludes:
The trial court erred in granting the Medical Providers’ motions for preliminary determination as neither lack of standing nor judicial estoppel serves as a basis for dismissing the proposed complaint. The judgment of the trial court is reversed.
NFP civil decisions today (1):

Ashley Poythress and LaVenita Burnett v. Esurance Insurance Company (mem. dec.)

NFP criminal decisions today (3):

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

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

DeJuan McIntyre v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2016 - Day 3: Report on interview #26, Mr. Thomas M. Fisher

This is Prof. Joel Schumm's report on the 5th interview of Day 3

Mr. Thomas M. Fisher, Jr., Indianapolis (photo) (application)

Chief Justice Rush began by asking about administrative initiatives of the Court, specifically the pilot project involving pretrial incarceration of low-level offenders who cannot post bail. Mr. Fisher said he is “generally aware” of the issue but noted the importance of “public safety,” noting there might now be other technological ways to better monitor people.

If appointed to the Court, how would he would be able to “change hats.” He said he often wishes he could put on a “judge hat” when writing briefs and mentioned his earlier work as a law clerk for the Seventh Circuit. We would welcome the opportunity to hear both sides and decide.

In discussing dissents, Mr. Fisher said the nature of the disagreement would be important, and the audience will vary. The dissent could persuade colleagues in future cases. The audience is sometimes the bar, which may pursue cases in the future. The public and its understanding of the issue is also important.

When asked about different dissenting opinions among courts, Mr. Fisher said the ones from Indiana (compared to the U.S. Supreme Court) are “more even-tempered and mild,” which he likes about the Court.

His interest in constitutional law, which he also teaches, is grounded in its implications for individual liberty and the importance of the meaning of our founding documents.

In discussing the relative differences between the federal and Indiana Bill of Rights, Mr. Fisher said the federal rights were early in our history while the Indiana rights came later and were based in part on the practice and provisions of other states.

When asked about state court challenges, Mr. Fisher identified challenges with pro se litigants, mentioning his work on a federal court committee on a guidebook to help them better understand the rules and process.

Mr. Fisher described his judicial philosophy as originalist and a textualist. He cited Justice Dickson’s state constitutional jurisprudence, which emphasizes the text and intent of the framers at the time it was included. Words have a fix meaning.

Mr. Fisher said it can be helpful that Indiana does not have legislative history, which allows people to sneak in ideas about meaning that might not be widely held among legislators. He also said, to laughter, that courts could “listen to friendly neighborhood Solicitor General” in determining intent.

Preparing for U.S. Supreme Court arguments involves cloistering himself in his office and not taking calls. It is important to understand the record, internalize all aspects of the case, and think through the likely questions.

When asked to describe himself in one word, Mr. Fisher said “wow”—to laughter. After a pause he said, “honest.”

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 3: Report on interview #25, Rep. Thomas W. Washburne

This is Prof. Joel Schumm's report on the 4th interview of Day 3

Rep. Thomas W. Washburne, Evansville (photo) (application)

Rep. Washburne said his legislative experience has exposed him to many different issues and enhanced the ability to spot issues. Although the judiciary considers issues after the fact and the legislature looks at issues going forward, the goals are similar.

His clerkship with Judge Dillon was the “greatest experience” he has had. He had the benefit of 30-page well-written briefs. When later asked about his personal approach to decision-making (after Mr. Feighner pointed out that Judge Dillon was probably not viewed as a strict constructionist), Rep. Washburne said Judge Dillon made the decisions; the law clerks were subservient, as he was when he worked for a Congressman.

Mr. Berger said Judge Dillon never saw a summary judgment motion he did not like. He “liked” the Hughley opinion, which Chief Justice Rush added that “everyone has said” (to laughter). He does not think it is harmful to say there is a presumption that cases go to trial or to expect the moving party to lay out the nuances not required in federal court. He thinks Indiana has done a good job in preserving the right to trial.

Rep. Washburne discussed his work on a bill to bring law clerks to state trial courts. A pilot project will begin this year under a bill involving the Indiana Judicial Center. Many trial court judges are on the bench for much of the week, and they will now have resources to help write decisions without diminishing their role in decisionmaking in the case.

In discussing judicial philosophy, Rep. Washburne said our country was “founded on ideas,” and those ideas are in our Constitutions—a compact between the people and the government. To understand that relationship, the words are important. He is a strict constructionist and an originalist. It is important what the words meant at the time they were used.

When asked about his leadership style through Committee work, he thinks members would say he is fair, thorough, and seeks out their opinions and input. His Committee has been working on a solution for selection of judges in Marion County, which has included many meetings with interested groups and individuals in trying to find a consensus. “It’s not going to work” if they go at it without a consensus.

When asked about his legacy: if appointed he would be fair, honest, well-reasoned, and cared deeply about the principles of the country. He said Justice Scalia embodied all of those things.

If appointed, Rep. Washburne would plan to move to Indianapolis, although that would not happen on a permanent basis immediately. (He has five kids and raises sheep, chickens, and bees.)

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 3: Report on interview #24, Hon. Paul R. Cherry

This is Prof. Joel Schumm's report on the 3rd interview of Day 3

Hon. Paul R. Cherry, Hammond (photo) (application)

Chief Justice Rush began by noting the different administrative responsibilities on the federal bench. Judge Cherry manages his own chambers (two law clerks and an assistant). He participates in District-wide meetings of the Northern District. He has participated on committees selecting two magistrates and the current clerk.

When he became a federal magistrate, he did not maintain his me
mbership in the state bar association but is still a member of the Dekalb bar.
Judge Cherry discussed a cases as prosecutor where he filed murder charges in a case but “anguished” over whether to file the death penalty. After talking to an elderly judge he decided to file the death penalty and prosecuted the case himself, and the death penalty was imposed. The case has been addressed several times by appellate and federal courts and upheld.

In response to a question from Mr. Berger, Judge Cherry discussed a speech at Huntington University about Micah 6:8. Do justice, have mercy, and walk humbly are important principles in his life.

Judge Cherry discussed the different Indiana and federal summary judgment standards. He said summary judgment is granted more often in federal court where the standard focuses more if this a case that shouldn’t go to a jury realistically. He has read the Hughley case, agrees with it, and has no problem with it. The Indiana standard is “easier, cleaner, and leaves the issues to the fact-finder.”

Although Judge Cherry has been a trial judge for nearly 30 years, serving on the appellate court would be a grand “way to expand his public service.” He would bring a “deep well” of experience: private practice, prosecutor, state trial judge, federal magistrate. He tries to “laser focus” on the facts and law. He emphasized the importance of restraint. He also said the Indiana Supreme Court has a tradition of issuing opinions that pass the “common sense test” and is not overreaching, which he would continue.

Judge Cherry said he is “not a political ideologue or a social ideologue.” He would carefully listen to the other justices and let that inform his decision-making. He cited his work on the board of Huntington University for more than 20 years (including several as president).

When asked about his teaching experience, Judge Cherry said teaching civil litigation at Calumet College, which is near Chicago and admits “marginal students” that cannot attend other colleges, has been the most challenging. He also discussed teaching trial practice and an advanced discovery course at Valparaiso, which he has enjoyed very much.

To provide important context to this interview, I would be remiss if I did not mention that Judge Cherry appeared to be looking down or not directly at Commission members for much of the time when answering questions.

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Some photos

You can see a number of photos of the 2016 interview process here, via the Supreme Court.

Here is photo of the 7-member Judicial Nominating Commission. I will try to add the names later.

And below is a closeup of Prof. Joel Schumm, hard at work:

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Are later interviewees at an advantage?

In a word, "No."

Judicial Nominating Commission counsel Adrienne Meiring has this covered. Here are some quotes from a last minute reminder that went out to the applicants earlier this week:

As a courtesy to other candidates, you are not permitted to watch the interviews of other candidates. There will be chairs outside the Conference Room where you can wait until your interview time. The Chief Justice will come outside and bring you into the room when it is time for your interview.

Also, to ensure fairness to all applicants, the Commission would request that you refrain from reviewing social media accounts about the interviewing process while the interviews are taking place. Once your interview is completed, it is fine to look at the social media accounts. The Commission members just kindly request that you not review those accounts as the interviews are taking place if your interview has not been completed. (*Note – this does not mean that you cannot review social media accounts and interviews from prior vacancies. That is fine.)

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 3: Report on interview #23, Hon. Kit C. Crane

This is Prof. Joel Schumm's report on the 2nd interview of Day 3

Hon. Kit C. Crane, New Castle (photo) (application)

Chief Justice Rush first asked about Mr. Crane’s time as defense counsel at Gitmo (a few months of which overlapped with Justice David’s time as Chief Defense Counsel). Mr. Crane said “our role was not popular” and the work was “challenging and difficult.”

Mr. Feighner said many prosecutors later become judges, and asked how he approached that role change. Judge Crane said he was worried initially but spoke to a couple of other judges. He said the former prosecutor told him it’s sometimes as important to decide who not to prosecute as who to prosecute. He always strived to be fair.

He described his judicial philosophy as trying to be fair and specifically mentioned the importance of separation of powers. He said judges should “not say what law ought to be but what the law is.”

In response to a question about grants of transfer in civil cases, Judge Crane said he did not have an opinion on whether the Court took it too much or too few. He mentioned the changes regarding summary judgment, and he said he was reversed a few years ago in a case where he granted summary judgment. His philosophy on summary judgment is “if it wasn’t intended to be used, it shouldn’t be there.”

In response to a question about the administrative work of the Court, he would do what the Chief Justice asked of him.

When asked about capital cases, Judge Crane said he did not believe mandatory review took the onus off the trial court (or prosecutor). Everyone involved takes those cases very seriously. He said he decided not to pursue the death penalty in the Bostick case because of a lack of DNA and other evidence—instead pursuing life without parole. He said juries expect proof “beyond any doubt.”

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 3: Report on interview #22, Mr. Bryce D. Owens

This is Prof. Joel Schumm's report on the 1st interview of Day 3

Mr. Bryce D. Owens, Pendleton (photo) (application)

Chief Justice Rush asked about balancing safety and constitutional rights with the use of school resource officers. Mr. Owens has served as a deputy prosecutor in the juvenile court in Madison County. He said SROs perform complementary but conflicting duties, and the goal should be to ensure students are safe in school but some of the information should not be used against the child in a delinquency proceeding.

He mentioned a recent Supreme Court decision that involved modifying maintenance orders for disabled adults are a significant one. It provided guidance on a recurring issue.

In response to a question about judicial philosophy, he said judges should carefully consider the cases that come before it, apply relevant precedent, and not lose sight that circumstances may have changed when confronting an issue 100 years later.

When asked about his “real world experience” that would help in decision-making, Mr. Owens mentioned the breadth of his experience working on a wide range of legal issues. He said the Court is “Indiana Judiciary, Inc.,” and he has had business.

Mr. Owens raises llamas and alpacas, which he described as very friendly animals like a “giant dog.” They harvest the “fiber” (similar to wool) once each year.

Mr. Owens listens to audio books rather than reading, most recently Dreamland, a book about America’s opiate epidemic, which he discussed.

When asked about research preparing for the interview (and his knowledge of the administrative work of the Court), Mr. Owens said he “reads everything” and reviewed justice biographies and attended the ISBA CLE in January. He keeps abreast on recent decisions through the Court’s website.

Mr. Owens said his father, who was also an attorney, has been a mentor to him. Although lawyers often want to get right to the facts, his father emphasized the importance of listening and getting the whole story.

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - "Waggoner withdraws high court candidacy"

Earlier this week the Supreme Court announced that the interview schedule would be adjusted to account for the withdrawal of one of the candidates. Christina M. Seiler, managing editor of the $$ Rochester Sentinel, had this story on Feb. 17:

Rochester Attorney Ted Waggoner on Tuesday withdrew his application for a vacant spot on the Indiana Supreme Court.

He took his name out of the equation after reading, on the Indiana Law Blog, that one candidate didn’t follow the proper instructions for submitting their application. It was him, he said.

He was to have his first interview with the Indiana Judicial Nominating Commission on Friday morning.

His application was removed from an online database Tuesday afternoon. * * *

Indiana University law school professor Joel Schumm, who went to review the applications, found one application stapled together instead of in a binder. It was Waggoner’s. Schumm wrote about it in a blog posting. That’s when Waggoner realized his mistake – which he said was not reading the instructions.

If he were interviewing someone and they didn’t follow instructions he probably would not hire them, Waggoner said. Not wanting to hold himself to a different standard, he withdrew his candidacy.

“I probably could have gone and had the interview, but I didn’t want to waste anybody’s time, he said.

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - How Many Semi-Finalists Will Be Named This Afternoon?

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

After interviewing the final eight applicants this morning, the Judicial Nominating Commission will meet in executive session at about 12:45 to discuss the candidates and vote on the semi-finalists. Based on recent practice, this process could take as little as an hour or as long as a few hours.

Many people have asked me about the number of semifinalists. The Commission has complete discretion on this number, and the numbers from the past three vacancies varied widely:

From the Past 3 Supreme Court Vacancies
Year Total Applicants Semifinalists Percent
2010 34 applicants (19 women/15 men) 9 semifinalists (4 women/5 men) 26%
2012-1 15 applicants (7 women/8 men) 7 semifinalists (3 women/4 men) 47%
2012-2 22 applicants (16 women/6 men) 10 semifinalists (6 women/4 men) 45%

Over the past three vacancies, an average of 40% of the first round applicants has advanced to the second round. With 29 applicants, we might thus expect 12 semi-finalists, although the 2010 experience could suggest that a large applicant pool will result in a lower percentage of applicants advancing.

For a number of reasons, I suspect we will see at least 12 semi-finalists. The Court and Commission seemed to go to great lengths to encourage applications. Mass emails were sent to the state’s lawyers and judges from both Chief Justice Rush and Justice Dickson. The topic came up frequently at CLEs and other settings. The state bar offered a free CLE on the judicial selection process to a sold-out crowd in January. The Commission has been exceedingly complimentary to candidates during the public interviews. Although I suspect the vast majority of applicants will tell you this was a positive experience, those who make the first cut will feel much better about it. Even if they do not make the final list of three sent to the Governor, they are more likely to apply again or encourage others to apply for future vacancies, which are expected on both the Supreme Court and Court of Appeals in the relatively near future.

The Commission has set aside March 3 and 4 for second-round interviews. It can easily interview more than a dozen applicants in those two days. I would be a little surprised if more than half (15) of the applicants advance, but that number is not out of question. Based on the first 21 interviews (and the applications), I think seven applicants are a virtual lock to advance—and today includes a 2012 finalist, a state legislator, a well-respected judge with 27 years of judicial experience, to name a few.

As in the past the semi-finalist pool is likely to be diverse (except as to race; this was an all-white applicant pool): male/female, judge/practitioner, a wide variety of ages, and from different parts of the state.

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Gov't. - "Big box tax appeal could cost municipalities big dollars"

Updating a long list of earlier ILB posts on the big box/dark box property tax assessment issue, including this one yesterday about St. Joe County, today Karen Caffarini has this lengthy story in the Gary Post-Tribune. The story begins:

A state tax court ruling that changes the way big box stores are assessed could take a significant financial toll on some local communities, according to financial consultants, who are warning government officials to be prepared in case they have to cover possible shortfalls.

"You can plan for a disaster if you know it's happening," Jim Bennett, Merrillville's financial consultant, told the Town Council recently.

A December 2014 ruling by the Indiana Board of Tax Review found a Meijer store in Marion County should have been assessed according to the value of similar stores nearby that were vacant and sold, not on the sales taking place inside its building.

As a result, the court decided the Marion County store should be assessed at $30 per square foot instead of the $83 per square foot it was being assessed.

The case is still pending before the Indiana Tax Court, and a court conference call is scheduled for Tuesday on the matter, according to online court records.But communities are now bracing for appeals from Meijer and other big box stores — such as Wal-Mart, Target, Lowe's and Costco — which could see the stores' tax bills cut substantially as a result.

What's more, the appeals could cover the past 10 years or more, which means some communities would have to give refunds to stores.

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Indiana Government

Vacancy on Supreme Court 2016 - Day 3: Interviews begin at 9:20 AM

Here is today's interview schedule. Today marks the end of the first round of interviews.

February 19 (Friday)

9:20 a.m. – 9:40 a.m. – Mr. Bryce D. Owens (photo) - Owens and Owens, Pendleton

9:40 a.m. – 10:00 a.m. – Hon. Kit C. Crane (photo) - Henry Circuit Court 2, New Castle

(Break)

10:15 a.m. – 10:35 a.m. – Hon. Paul R. Cherry (photo) - Magistrate Juddge, USDC, ND Ind., Hammond

10:35 a.m. – 10:55 a.m. – Rep. Thomas W. Washburne (photo) - Old National Bancorp, Evansville

10:55 a.m. – 11:15 a.m. – Mr. Thomas M. Fisher (photo) - Indiana Solicitor General, Indianapolis

(Break)

11:30 a.m. – 11:50 a.m. – Mr. Lyle R. Hardman (photo) - Hunt Suedhoff Kalamaros LLP, South Bend

11:50 a.m. – 12:10 p.m. – Ms. Karen A. Wyle (photo) - Wyle Law Office, Bloomington

12:10 p.m. – 12:30 p.m. – Hon. Steven R. Nation (photo) - Hamilton Superior Court 1, Noblesville

(Break)

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


The applications of each of the candidates are linked on this page.

The interviews Wednesday morning were reported by IU-McKinney student, Alexandra Blackwell. Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, will be covering the remainder of the interviews this week.

Disclaimer:
The goal of ILB coverage of the Supreme Court selection process is to provide a window into an important public process in an objective and thoughtful manner. That ILB correspondents may have assisted applicants in various stages of the process does not alter the commitment to present interview summaries, application details, and other commentary to ILB readers objectively.

Note that a list of all the ILB posts on the 2016 Supreme Court vacancy may be accessed via this link.

Posted by Marcia Oddi on Friday, February 19, 2016
Posted to Vacancy on Supreme Court - 2016

Thursday, February 18, 2016

Supreme Court Vacancy 2016 - Even more tomorrow!

There are eight more interviews tomorrow morning, beginning at 9:20 am. The Judicial Nominating Commission is expected to announce its selections for the Round 2 interviews sometime tomorrow afternoon.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 2: Report on interview #21, Ms. Elizabeth C. Green

This is Prof. Joel Schumm's report on the 12th interview of Day 2

Ms. Elizabeth C. Green, Indianapolis (photo) (application)

One recent case that has had an impact in her civil, transactional practice is the Hughley case.

Ms. Green is always involved reading more than one book. She cited three: Scalia/Garner’s Reading the Law, a John Grisham book, and a child’s book (for her son) Things That Go.

As regards her youthful age, Ms. Green would bring a different perspective and would learn from people with more life and legal experience. She could serve as a “bridge to the future,” by serving for decades to come and later sharing her experience with newer justices.

Her judicial philosophy of “constraint” and “restraint.” A judge should look at the law as drafted and apply it.

When asked about complementary skills she would bring to the Court, Ms. Green cited her transactional work experience in light of the recent establishment of commercial courts.

Chief Justice Rush asked Ms. Green to finish this sentence: “I wish the Supreme Court would….” Ms. Green responded: “continue with its initiatives on the technology front,” noting the ability to receive service documents immediately and other conveniences and access.

As to legacy, Ms. Green would want to be remembered for “thoughtful and well-reasoned decisions” and as an authentic leader.

As to writing dissents, Ms. Green would be respectful and well-reasoned. Future decisions would be the audience for a dissent.

She is seeking the appointment because (1) her ability to research, analyze, and write and (2) the broad opportunity for service.

She would describe herself with the one word: “authentic.”

When asked what she would say to the Governor if selected by the Commission, Ms. Green would say many of the same things she has said to the Commission. She noted the many voices of encouragement she received shortly after the vacancy was announced last year, just weeks after her ten years of service as a lawyer that make her eligible for consideration.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 2: Report on interview #20, Hon. Darrin M. Dolehanty

This is Prof. Joel Schumm's report on the 11th interview of Day 2

Hon. Darrin M. Dolehanty, Richmond (photo) (application)

Judge Dolehanty was involved and supportive of the effort to ensure that children in delinquency cases are represented by counsel. (Criminal Rule 25) Although adults may be able to give up the right to counsel, a child thinks differently and cannot knowingly and voluntarily give up that right unless first given a lawyer with whom to discuss the important right.

In addressing how he would fill the void left by Justice Dickson, Judge Dolehanty said no one can fill the void but anyone given the opportunity can fill parts of the void. “Everyone brings a little something to the table.” He brings civility, leadership, collegiality, and decision-making.

“Who wouldn’t want to” serve on the Supreme Court? The U.S. Supreme Court is the highest court in the land, but the Indiana Supreme Court is a close second. He knows many people content where they are, but he “wants more” and “different,” somewhere he can apply his skills with a wider impact.

When asked about the difference between the federal Bill of Rights and the Indiana Constitution, Judge Dolehanty said that Indiana often provides more rights to its citizens.

Judge Dolehanty has taught at the National Judicial College and in Indiana, and many of the same problems are seen in different counties and different states. How do we fund courts? How do we make resources (services, professionals) equally available to small, medium, and large jurisdictions?

Judge Dolehanty participates in duatholons (running and biking). He learned to swim at 48, which allows him to do triathlons. Both require preparation and commitment to succeed. If someone is not willing to put in the work to be a judge, they should get out of the way and let someone who will. These are the best jobs out there.

The most important quality for the new justice is “patience.” All other issues, like a lack of knowledge, can be resolved with patience. With patience comes consideration and being intentional. He also cited Chief Justice Roberts’ comments at his confirmation hearing about modesty and humility.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 2: Report on interview #19, Hon. Frances C. Gull

This is Prof. Joel Schumm's report on the 10th interview of Day 2

Hon. Frances C. Gull, Fort Wayne (photo) (application)

Judge Gull said she would like to take the committee work she has done in Allen County to the state-level. She won an award recently for her work with jury service.

When asked about being raised in a military family, Judge Gull said she was “always the new kid.” She needed to rely on herself when frequently moving. She was also exposed to vastly different cultures and people.

Judge Gull shows dogs; her cocker spaniels that has won 12 awards. The recent book she is “devouring” is a new book of regulations for showing dogs.

When asked about a recent Supreme Court opinion that has impacted her work as a trial judge, she cited Hughley and a case limiting abusive litigants, noting the applicability of many civil cases to the criminal realm.

As to judicial philosophy, she is a “rules follower.” The Legislature creates the laws that she applies.

When asked how she gets along with other judges in the Allen County system, Judge Gull said they have a “collegial group” and she gets to work with experts in the field, citing Judge Pratt and Judge Boyer. People can “disagree without being disagreeable.” She is currently the chief administrative judge of the criminal courts.

In discussing qualities for next justice, she mentioned the legal side of the job, which requires being “meticulous” with an “attention to detail.” The bigger part of the job is the administrative work, which many people do not understand. She would carry out Chief Justice Rush’s vision and whatever tasks were assigned.

The one word to describe herself is “innovative” before adding “tenacious.”

She is a big supporter of problem-solving courts, which have been proven to work in changing the individuals and that of their families and friends. Such courts should be available for all counties in the state. When asked about specialized courts, she said “judging has changed” and some specialization with such things as commercial courts may be desirable.

When asked about public defenders, Judge Gull said it was important to reach out to law students and educate them about the importance of the work. She said the pay must also be increased to draw quality lawyers.

The most valuable asset of the state is its “citizens.” If capital punishment is imposed, the sentence should be reviewed by some of the best minds in the state to make sure it was proper.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 2: Report on interview #18, Ms. Leanna K. Weissmann

This is Prof. Joel Schumm's report on the 9th interview of Day 2

Ms. Leanna K. Weissmann, Lawrenceburg (photo) (application)

The Chief Justice started the interview by noting the “excellent job” Ms. Weissmann has done in arguing cases before the Court.

Ms. Weissmann recited the diversity of her experience, as a law clerk for then-Judge Rucker and then in practice doing a wide variety of cases. She has also served on the Criminal Justice Institute and the Disciplinary Commission.

When asked about ways to improve the work of the Disciplinary Commission, she mentioned being more proactive and watch for signs of concern. For example, when a lawyer goes from a large practice into a small practice, they may need help understanding trust accounts. They could be sent a checklist to help keep them from getting into trouble.

Her approach to interpreting the Constitution would be based on what the framers intended while realizing that morals may change. We should stick to what our forefathers intended.

Ms. Weissmann said her experience working with Judge Rucker set her on a good path for realizing the importance of quality work, checking and double-checking.

Although working primarily on her own, she has worked in a group setting through the Criminal Justice Institute and Disciplinary Commission, places where diverse individuals contribute to discussion and decision-making. Her approach is direct and gentle, pointing out relevant facts and law. She is not argumentative and would not yell to make a point.

Ms. Weissmann would only write a dissenting opinion after understanding her colleagues’ positions. She tends to be a consensus-builder. As to audience, if a case involved a statute, the dissent might be directed to the Legislature. Otherwise, the audience is the public. A dissent would not be used for personal reasons.

When asked about working at home versus working in the office, Ms. Weissmann said she would “do whatever she needed to do.” Her children are teenagers, and if she were to move it would be a couple years down the road.

Significant recent decisions include Hughley, the Court’s recent summary judgment opinion, and personally for her, Matter of O.R., a case of hers.

Ms. Weissmann is a member of the state bar but is not actively involved. She is engaged with the Indiana Public Defender Council.

Ms. Weissmann does not read many books but listens to books on tape while she runs. The most recent is My Beloved World by Justice Sotomayor.

Confronted with concerns of being “speedy and just,” Ms. Weissmann said justice is more important. In working with public defender clients, it is important to help them understand that they were heard and why they lost.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 2: Report on interview #17, Mr. E. Nelson Chipman, Jr.

This is Prof. Joel Schumm's report on the 8th interview of Day 2

Mr. E. Nelson Chipman, Jr., Plymouth (photo) (application)

Mr. Chipman tries to “embrace technology as it comes.” He initially thought the Internet was a “passing fad.” More recently as prosecutor, his office bought two drones for law enforcement. He later learned of a statute restricting their use without a search warrant. Drones can be very helpful in providing photographs of car crashes, to which those involved should have access.

Mr. Chipman said trial lawyers need to be experts at being experts. His time as city attorney taught him to “jump in with both feet.”

In response to a question from Mr. Yakym about strategies as a prosecutor for addressing the methamphetamine problem, Mr. Chipman said he has been aggressive and earned a reputation as being “really hard on methamphetamine cooks.”

When asked about the one word to describe himself, Mr. Chipman replied, “One word is really tough.” Then, “You made us better.” He had helped colleagues, interns, and staff become better at what they do, which makes him better.

Mr. Chipman described his judicial philosophy by referencing recent discussion of Justice Scalia’s death. He believes in “originalism” and would stand by the text of the Constitution. As a judge pro tem, he decided that a motorized bicycle did not qualify as driving under a statute, which was later affirmed by the Court of Appeals.

When asked about people sitting in jail unable to bond, Mr. Chipman said he knew of pilot projects based on evidence-based practices. He urged his county’s community corrections program to adopt those, even though they were not part of the pilot project. When a lawyer called him about his client sitting in jail for a drunk driving offense who was going to lose his job, Mr. Chipman called the jail to have him released on his own recognizance.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 2: Report on interview #16, Hon. Steven L. Hostetler

This is Prof. Joel Schumm's report on the 7th interview of Day 2

Hon. Steven L. Hostetler, South Bend (photo) (application)

When asked about the unique qualities he would bring to the Court, Judge Hostetler mentioned that beyond his judicial experience his early years of practice involved assisting family farmers and representing businesses.

He discussed one of the significant cases listed on his application, which involved governance of a religious organization. Applying precedent, he decided that courts could not get involved in every disagreement within a religious organization. The judiciary should stay out of those disputes.

Judge Hostetler described his judicial philosophy is one of “judicial restraint.” He cited his decision in ESPN v. Notre Dame as an example of this. In response to later questions, he explained the language of the statute at issue could only be interpreted in one way. “The legislature says what it means and means what it says.”

When asked about applying for the Court at this point in his career, Judge Hostetler said the last three years as a trial judge has highlighted some of the problems and areas for concern that he would like to be able to address “using the bully pulpit” of the Indiana Supreme Court.

Judge Hostetler is 80% done with the first Maya Angelou biography. “Her use of language is unbelievable.”

When appointed and before taking the bench, Judge Hostetler attended and observed court and read books to help prepare. He said about half litigants in domestic relations cases are self-represented. He said the cases are problematic when children are involved. He would like to see the forms available online be channeled through Legal Services, which can then talk to litigants first and see if they qualify. “Use of forms is a two-way sword,” and can send the message that lawyers are not necessary.

When asked about mandatory pro bono, Judge Hostetler said there are ways to encourage pro bono without making it mandatory. He thinks the current requirement of reporting pro bono is important. Giving awards, as in St. Joseph, is also a good idea.

Regarding his legacy if appointed, he replied, “justice for all”—that he did everything to make justice available to everyone.

When asked about the effect of mandatory review of capital cases, Judge Hostetler said trial courts take the cases very seriously and the Supreme Court appropriately gives deference to jury decisions.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - Supreme Court decides one today

In In Re the Termination of the Parent-Child Relationship of V.A. (Minor Child), and A.A. (Father) v. Indiana Department of Child Services, an 18-page, 5-0 opinion, Justice Rucker writes:

In a joint proceeding the trial court terminated the parental rights of Mother and Father to their daughter concluding there is a reasonable probability that the conditions that resulted in the child’s removal will not be remedied and that termination is in the child’s best interests. Determining the evidence in this case does not clearly and convincingly support termination of Father’s parental rights, we reverse the judgment of the trial court. * * *

In a Memorandum Decision the Court of Appeals rejected Father’s claims and affirmed the trial court’s judgment. See In re V.A., No. 02A04-1405-JT-233, at *11-14 (Ind. Ct. App. Dec. 18, 2014). We now grant Father’s transfer petition and reverse the judgment of the trial court. * * *

Here, the goal of permanency may best be served by allowing V.A. to remain with her current foster family while DCS pursues the goal of reunification with Father as he receives the appropriate services that enable him to better understand how to parent his child while simultaneously caring for his mentally ill wife. This is particularly so considering Father has maintained an appropriate relationship with his daughter throughout the CHINS proceedings, provided for her throughout the foster care placement, maintained consistent employment, acquired suitable housing, complied with the requirements that DCS mandated for him in the Parent Participation Plan, and has already taken steps to understand how to better care for Mother’s mental health needs.

Of course, the trial court may ultimately determine that Mother’s mental condition presents a sufficient danger to V.A. that reunification with Father is not possible while he continues cohabitating with Mother. And this is so regardless of any improvement in Father’s understanding of his wife’s illness. In that eventuality—where neither termination of parental rights nor reunification appear to be viable options—DCS is not left without a remedy. Our statute governing permanency plans allows for the appointment of a legal guardian for the child “that is intended to be permanent and self-sustaining,” as the legal guardian receives the parental rights of “[c]are, custody, and control of the child.” I.C. § 31-34-21-7.5(c)(1)(E). Although the current DCS plan is that of adoption, the record is silent on whether the guardianship option was ever considered. In any event, employing that option in this case—should reunification prove unfeasible—would be consistent with our well-established precedent that “involuntary termination of parental rights is an extreme measure that is designed to be used as a last resort when all other reasonable efforts have failed.” In re C.G., 954 N.E.2d 910, 916 (Ind. 2011).

Conclusion. The evidence in a case involving the termination of a parent’s constitutional right to parent his or her child must meet the heightened burden of clear and convincing. The evidence in this case does not meet that burden. We thus reverse the judgment of the trial court and remand this cause for further proceedings.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Ind. Sup.Ct. Decisions

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

In USA v. William Bell and Lenard Dixon (SD Ind., Magnus-Stinson), a 24-page opinion, Judge Rovner writes:

A jury convicted William Bell and Lenard Dixon of first‐degree murder and being an accessory after the fact to the murder, respectively, in the death of a fellow inmate at the federal penitentiary in Terre Haute, Indiana. Each appeals the sufficiency of the evidence underlying his conviction: Bell contends in particular that the evidence is insufficient to establish that he premeditated the murder, and Dixon contends that the evidence is insufficient to establish that he aided Bell with the intent to prevent Bell from being held to account for the murder. Bell additionally challenges the decision to admit evidence concerning an inculpatory statement he made regarding the murder, and Dixon challenges the decision to shackle his legs during the trial. We affirm the convictions.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Ind. (7th Cir.) Decisions

Vacancy on Supreme Court 2016 - Day 2: Report on interview #15, Mr. John H. Shean

This is Prof. Joel Schumm's report on the 6th interview of Day 2

Mr. John H. Shean, Bloomington (photo) (application)

Mr. Shean said he would bring a heart and passion for public service to the position. Although some are concerned the position could be “isolating,” Mr. Shean would welcome the opportunity to serve on boards and commissions and do other administrative work.

In discussing an issue on which his opinion has changed when learning more information, he mentioned the recent ruling involving an iPhone used by the terrorists in San Bernardino.

In discussing his charity work, Mr. Shean cited his work as President and on the Board of Directors of Crisis Pregnancy Center of Bloomington. The group plans to offer mobile ultrasounds and testing for sexually transmitted diseases in the future.

In discussing a recent case that has affected his practice, Mr. Shean cited Stanley v. Walker, which affects the way cases go forward both pretrial and at trial.

Mr. Shean said he believes he is more effective in bench trials or administrative work than in jury trials. Judges in the Monroe County or members of the Worker’s Comp Board know his reputation, which is a benefit for his client. Because many judges limit voir dire in jury trials to 30 minutes, though, Mr. Shean does not have an opportunity to ferret out their views. He agreed that jurors get it right “more often than not.”

In response to a question about legacy, Mr. Shean said would want to be remembered as “passionate for justice” and “fairness in approach.” He said people need to “do the right thing when no one is looking.”

When asked if there is a cultural difference in trying cases in different parts of the state, Mr. Shean said there are definite regional differences. He has not tried cases in Lake County, but it is more like Chicago. When he tried a case in Orange County, nearly everyone knew his opponent.

In describing his judicial philosophy, Mr. Shean cited the second paragraph of Meredith v. Pence (the school voucher case): “Whether the Indiana program is wise educational or public policy is not a consideration germane to the narrow issues of Indiana constitutional law that are before us. Our individual policy preferences are not relevant. In the absence of a constitutional violation, the desirability and efficacy of school choice are matters to be resolved through the political process.”

Mr. Shean said meeting the needs of civil litigants through pro bono work would benefit from getting people involved and interested before they become lawyers, such as college and law school.

When asked to describe in one word, Mr. Shean said he needed to use two: “renaissance man.”

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 14 NFP memorandum decision(s))

For publication opinions today (2):

In Demetrius Holloway v. State of Indiana , a 9-page, 2-1 opinion, Judge Crone writes:

A police officer arrested Demetrius Holloway for operating a motor vehicle while intoxicated (“OWI”) and took him to jail, where Holloway threatened to “f[*]ck [the officer] up.” Tr. at 23. Holloway pled guilty to class A misdemeanor OWI, and the trial court found him guilty of level 6 felony intimidation. On appeal, he challenges the sufficiency of the evidence supporting his intimidation conviction. We affirm. * * *

The gist of Hollway’s argument appears to be that his profane statement to Officer Stitsworth did not constitute a threat because it was brief and he was handcuffed and in jail when he uttered it. Holloway attempts to contrast his statement with that of the defendant in Townsend v. State, 753 N.E.2d 88 (Ind. Ct. App. 2001), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). After Townsend was arrested, handcuffed, and placed in a patrol car, he told the arresting officer, “I'm going to get you and I’m going to get your family. You’re not safe from me anywhere. No matter how long it takes me, I will get you.” Id. at 90. He was convicted of intimidation and argued on appeal that “there was no proof” that his statements could be viewed as a threat. Id. at 91. We disagreed and held that “the jury could reasonably conclude that Townsend communicated a threat to” the officer. Id.

We find no basis for distinguishing Townsend’s threat from Holloway’s. * * * Affirmed.

Vaidik, C.J., concurs.
Bailey, J., dissents with opinion. [that begins at p. 6, and concludes] Being a police officer is often fraught with danger and unpleasantness. But to affirm under these circumstances seems to me perilously close to rendering illusory the right to appeal a conviction such as this. See Milam v. State, 14 N.E.3d 879, 881 (Ind. Ct. App. 2014) (observing that “[a]n impossible standard of review under which appellate courts merely ‘rubber stamp’ the fact finder’s determinations, no matter how unreasonable, would raise serious constitutional concerns because it would make the right to an appeal illusory.”) I therefore respectfully dissent.

In David W. Gerth v. State of Indiana , a 14-page opinion, Judge Barnes concludes:
Gerth argues that the two hearsay tips in the probable cause affidavit lacked sufficient indicia of reliability to support the issuance of a search warrant. When deciding whether to issue a search warrant, the issuing magistrate must “‘make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” State v. Spillers, 847 N.E.2d 949, 952-53 (Ind. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). * * *

The issuance of the search warrant was also based on the later, completely anonymous tip that Gerth was selling marijuana. There is absolutely no indication of this informant’s credibility, even less than for the previously-mentioned CI. The State contends nonetheless that the two informants reciprocally corroborated each other’s information, thereby lending credibility to both of them. We disagree. * * *

The probable cause affidavit failed to include sufficient evidence of probable cause to support issuance of the search warrant, particularly when the omitted material information regarding the CI’s credibility is considered. And in light of that recklessly omitted information, we conclude that application of the exclusionary rule is warranted and the good faith exception to that rule is not.

NFP civil decisions today (7):

In Jesse Clements v. The Honorable Robert R. Altice (mem. dec.), a 7-page opinion, Judge Mathias writes:

Jesse Clements (“Clements”) appeals pro se the Marion Superior Court’s entry of summary judgment in favor of the Honorable Robert Altice (“Judge Altice”) concerning his claim that Judge Altice violated Indiana’s Access to Public Records Act.

Concluding that the trial court erred when it entered summary judgment without holding a hearing as required by Trial Rule 56, we reverse and remand for proceedings consistent with this opinion. * * *

On September 27, 2013, Clements filed a written records request with Judge Altice and requested that the requested audio recordings be made available to him “in a format that is well established and can be used across both Mac and PC formats like Windows Media Player.” Clements also alleged that Judge Altice violated the Indiana Access to Public Records Act by charging him $50 for the recording of the September 23 hearing. Clements argued that the court could only charge him $25 for the recording. * * *

Clements raises four issues in this appeal, but the following claim is dispositive: whether the trial court erred when it granted Judge Altice’s motion for summary judgment without holding a hearing. Clements filed a timely response to Judge Altice’s motion and simultaneously requested a hearing on the motion. * * * We therefore reverse the trial court’s entry of summary judgment and remand for a hearing.

Gierly Perrigo Ingco v. William D. Anderson, Jr. (mem. dec.)

Angela K. Scanlon v. Stephen L. Scanlon (mem. dec.)

Max McClain, II v. Brittney Kinsey (mem. dec.)

Tammy J. Russell f/k/a Tammy J. Betancourt v. John A. Betancourt (mem. dec.)

Delmas Sexton, II v. Keith A. Barand, Brian T. Taylor, and Ryan A. Masoner (mem. dec.)

Serenity Salon and Day Spa, Inc. v. Amanda Pennington (mem. dec.)

NFP criminal decisions today (7):

James Stewart v. State of Indiana (mem. dec.)

Demarkco Ray Arthur v. State of Indiana (mem. dec.)

Myron Stephen Davisson v. State of Indiana (mem. dec.)

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

Lewis R. Ross, III v. State of Indiana (mem. dec.)

James Wade v. State of Indiana (mem. dec.)

Akheem J. Purnell v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2016 - Day 2: Report on interview #14, Hon. Larry W. Medlock

This is Prof. Joel Schumm's report on the 5th interview of Day 2

Hon. Larry W. Medlock, Salem (photo) (application)

In response to a question about the unique perspective he would bring, Judge Medlock mentioned his “perspective from the South.” He is also a Purdue graduate like Justice Dickson (and Chief Justice Rush). He has heard a wide variety of cases in his court. He was born of modest means and lived in a trailer. He had to achieve in order to be recognized.

When asked about the benefits of his Masters of Public Affairs degree, Judge Medlock discussed the emphasis of using analytical tools to social situations.

In response to a question about his perspective from a small county, Judge Medlock said, “People are people no matter where they are from.” They face the same issues but on a smaller scale.

Judge Medlock is a coin collector and stamp collector.

When asked about his legacy if selected, Judge Medlock hopes people will remember “that he did the right thing” and that people “could trust him.” He said he beat a 30-year incumbent based on the trust of people in his county.

When asked about his prior experience, Judge Medlock said it is easy to represent one side or the other (advocating as hard as you can for them) but judges need to sort through the arguments and decide what the facts and justice require.

When asked if the “law and facts take you in different directions” by Chief Justice Rush, Judge Medlock said “you have to apply the law.”

Mr. Feighner described the election and merit selection systems in Allen County, and Judge Medlock said he saw advantages to both. He said voters in his county get to know candidates and make the right decision, but at the Supreme Court level the general public does not understand the issues sufficiently to decide.

In response to a question about a recent civil or criminal case that has affected his work as a trial court judge, Judge Medlock said he could not identify a recent one. Judge Medlock said he “has been overruled in a couple of bench trials.” One he probably should have been; the other he is not so sure.

Judge Medlock keeps updated on the law through the Judicial Center’s Case Clips. His secretary prints them out, and he initials them. He agreed that trial judges would benefit from having law clerks. He has had three unpaid interns over the years.

Judge Medlock described his judicial philosophy as “to make the right decision.” He said he should not “cram something down the throats” of parties. He prefers agreed resolutions.

In response to a question about the work of public defenders (he was one for ten years), Judge Medlock said that public defenders do wonderful work with limited resources. They could use more resources.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 2: Report on interview #13, Ms. Jaime M. Oss

This is Prof. Joel Schumm's report on the 4th interview of Day 2

Ms. Jaime M. Oss, Michigan City (photo) (application)

Chief Justice Rush complimented Ms. Oss’s leadership in the bar association and noted she had been managing partner of her firm for the past five years. Ms. Oss explained those responsibilities require her to “basically run the firm,” which includes managing and hiring staff, marketing, and working with the bookkeeper on issues like billing.

Ms. Oss described her judicial philosophy as “conservative.” She mentioned Justice Scalia and said judicial interpretation should be reasonable. When construing a statute, she would consider the plain meaning. If there was ambiguity, she would consider the legislative intent.

In response to a question about her confidence in juries to receive and consider complex information, Ms. Oss said jurors may not always pick up on the things the lawyers think are important but “by and large they make the right decision.”

In discussing important characteristics for the next justice, mind “open to change, “fair” “good critical thinker” and legal writer.

In response to a question about recent, significant opinions, Ms. Oss mentioned the case “where the jury can consider the health insurance write-offs.” (The Chief Justice later mentioned it was Stanley v. Walker.) Ms. Oss said the case has made it easier on the defense side to settle cases.

Chief Justice Rush noted that Ms. Oss attended the 2015 Legal Education Conclave by invitation. Ms. Oss said law schools need to do what Valparaiso has done in making law school more practice-focused, noting many students have left with the ability to hang out their own shingle. In response to a question about moving to the Uniform Bar Exam, Ms. Oss said she was not sure what that is.

Mr. Christie pointed out that Ms. Oss is the youngest applicant and asked what advantage that brings. Ms. Oss said she could bring a voice for her generation. She said she is technologically savvy and could help in that area. She believes it would be good for lawyers to see what can be accomplished at a fairly young age.

In response to a question from Ms. Long, Ms. Oss said her firm does not have a social media policy but has discussed it. She said only one partner has a Facebook page, and she does not.

In response to a question about her recent appellate experience, Ms. Oss said she worked on the brief but not have oral argument. She said she has spoken to two appellate judges, who both enjoy oral argument and wish more lawyers would request them.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Gov't. - "Big box/dark box property tax fight: St. Joseph County vs. big box stores"

Jeff Parrott of the South Bend Tribune reports today:

St. Joseph County officials could soon gear up for a fight with big box stores over their property tax bills.

If the stores win, as they’ve already done in cases near Indianapolis and Kokomo, the county and the cities of South Bend and Mishawaka stand to lose substantial amounts of tax money.

The county would also have to refund millions of dollars the stores have paid in property taxes, plus interest, from past years, said Frank Agostino, deputy county attorney who represents county assessor Rosemary Mandrici’s office.

Big box stores have increasingly been appealing their assessments in recent years, including the Meijer store on Grape Road in Mishawaka. Meijer is appealing a 2011 assessment valuing that property at about $17 million.

Meijer is proposing that it instead be valued at about $7.7 million, a difference of nearly $9.4 million. That could mean an annual property tax loss of nearly $282,000, Agostino said.

The county would have to refund Meijer that amount annually back to the 2011 tax year, adding up to well over $1 million, not including interest. * * *

Agostino pointed to two reasons for big box stores filing appeals:

• In 2012, the state released new cost tables for assessors to use on retail stores. The cost tables resulted in substantially lower assessments because they were based on real estate values that had dropped significantly during the recession.

Retailers saw the new, lower assessments and began to question the accuracy of the process in general, emboldening more stores to appeal.

• In December 2014, the Indiana Tax Review Board ruled in favor of a Meijer store in Indianapolis and a Kohl’s store in Kokomo. The stores argued that their assessments should be partly based on the sale prices of vacant stores, known in the industry as “dark sales.”

Agostino said the county opposes dark sales comparisons and should hire appraisers to appraise stores that appeal their assessments. Appraisers already have told him that they would base their appraisals on the rents that nearby stores are paying, he said.

Agostino estimated it could cost at least $500,000 to hire appraisers and additional attorneys to defend the county’s assessments of the stores, but that’s much less money than the county could lose if it doesn’t defend its assessments in the appeals process.

The ILB has a long list of earlier posts on the big box/dark box property tax assessment issue.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Indiana Government

Vacancy on Supreme Court 2016 - Day 2: Report on interview #12, Hon. Matthew C. Kincaid

This is Prof. Joel Schumm's report on the 3rd interview of Day 2

Hon. Matthew C. Kincaid, Lebanon (photo) (application)

In response to a question about significant Indiana Supreme Court opinions in the past three years, Judge Kincaid mentioned “interesting opinions on expert testimony” reaching the ultimate issue, mostly in criminal cases, which affects what he does as a trial judge.

When asked if the Court grants transfer in the appropriate number of cases, Judge Kincaid does not have an opinion because “he is not on the inside.” He acknowledged the correct decision is often not to decide a case and cited recent statistics (about 100 opinions/year). He is excited about the possibility of working with other justices in making those decisions.

In response to a question about what made him want to become a judge, he said his father (a judge) and mother often discussed issues, and he has always had a respect for and interest in the law. He thinks he now has a good ability to sort out the important issues.

He described his judicial philosophy as being “there to decide when people can’t decide for themselves,” using as little power as necessary to achieve a just result based on the law.

In response to a question about mentoring, Judge Kincaid mentioned having a law student and undergraduate extern last year (11 over the past several years) and that discussing issues with them helps sharpen his skills.

In response to a question about filling the void left by Justice Dickson, Judge Kincaid mentioned the importance of professionalism and civility, noting that Justice Dickson was approachable, cerebral, and thoughtful. He also discussed the importance of his Christian faith.

In discussing a recent book, Judge Kincaid mentioned The Tipping Point by Malcolm Gladwell.

In interpreting constitutional provisions, Judge Kincaid would “read them, first of all.” It is a fixed document; judges do not have the “right to tinker with it.” He would also consider what terms mean from prior cases.

In response to a question about why he would apply now, Judge Kincaid mentioned the encouragement from Justice Dickson to all judges and lawyers upon his retirement. When asked about the importance of the Court’s administrative work, Judge Kincaid said he would do whatever is asked of him.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 2: Report on interview #11, Hon. Sally A. McLaughlin

This is Prof. Joel Schumm's report on the 2nd interview of Day 2

Hon. Sally A. McLaughlin, Lawrenceburg (photo) (application)

Chief Justice Rush pointed out that Judge McLaughlin attended law school later in life while working in the medical field and raising children. Judge McLaughlin explained how her work as a nurse and prosecutor enabled her to deal with expert witnesses and better understand issues in tort cases.

In response to a question about challenges facing the judiciary, Judge McLaughlin said it was important to serve the people while having a vision for the future.

In response to a question about legacy, she said she would want people to remember the way she used her wisdom. She also mentioned the importance of humility, patience, a sense of humor, and tenacity.

In response to a question from Mr. Tinkey about the traits gained as a prosecutor, attorney, and judge, Judge McLauglin said she has gained a diversity of experience that would benefit her work on the court.

In response to a question from Mr. Feighner about jury trial experience, Judge McLaughlin said the current way in which lawyers prepare is appropriate. They take complicated information and make it simple or understandable.

She believes humility, strong work ethic, and a desire to make an impact of the legal field are important characteristics for the next justice. She pointed out that Abraham Lincoln did not attend the best schools but learned from life experience. She acknowledged she is not a “typical candidate” and did not think of herself as a worthy candidate until recently.

In response to a question about using the grant of transfer too little or too much, she responded the justices “do it at a right pace.” She makes several decisions every day in a case, and she respects that the Supreme Court can take the time to consider issues.

She is a member of a book club, where each person does a presentation on a different book. She learns from each. She did not cite a specific favorite book in the last year.

In response to a question about judicial philosophy, she again mentioned Lincoln and the importance of working to accomplish common goals with “malice for none and charity for all.” In making decisions, she looks to legal research while also considering common sense from her life experience.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 2: Report on interview #10, Hon. James R. Ahler

This is Prof. Joel Schumm's report on the 1st interview of Day 2

Hon. James R. Ahler, Rensselaer (photo) (application)

The Chief Justice began by asking Judge Ahler about his service on the Public Defender Commission, and he commented “we have come a long way” in terms of both quality and quantity. Lawsuits have been filed, however, and might expand. Judge Ahler said the state should look at whether our current standards are most appropriate and consider whether we should look to a statewide public defender system and mentioned that a study of that had been launched.

He believes there is a substantial difference between Commission counties that meet the standards and non-Commission counties. He mentioned minimum experience for certain types of cases but questioned whether that was enough.

In response to a question from Mr. Yakym about skills he would bring to the Court, Judge Ahler discussed “diversity of experience.” He has been a practitioner for ten years, doing primarily commercial litigation. He worked at one of the largest firms in the country and in a small county. He has managed a court for eight and a half years. His experience clerking for two different judges on the Seventh Circuit has given him the experience of how judges decide cases in a way that “can be put in a book and relied upon for years.”

In response to a question from Mr. Berger about one word to describe himself, Judge Ahler said, “motivated.” He gets excited about certain things, like the judiciary, and puts energy into it.

In response to a question from Mr. Christie about his five most significant cases, which included two medical malpractice cases with different results (one a bench trial and one a jury), Judge Ahler explained hearing days of heart-wrenching testimony at a bench trial and being given days to consider it under advisement, which differed from jurors who had to make a decision more quickly and with fewer resources (like Westlaw). He gained a tremendous respect for what jurors have to do.

He explained his judicial philosophy as “judicial restraint.” The judiciary should not make the law but apply it.

In response to a question from Mr. Tinkey about whether he has read something that has caused him to change his opinion on an issue, he mentioned We can simplify: he mentioned an adoption case [perhaps this one]. The correct way to resolve a case is often to avoid addressing the constitutionality of a statute.

He discussed how his experience at the Seventh Circuit taught him a lot about writing and how to get along with others at the judiciary.

In response to a question about resolving a constitutional issue, Judge Ahler said he would start with the text and, if ambiguous, consider the purpose of the provision. He mentioned Chief Justice Roberts.

In response to a question about the federal and state summary judgment standard from Mr. Berger, Judge Ahler cited the Hughley case, which does “an exceptionally good job” of explaining the difference. The state approach “better preserves the right to a jury trial.”

In response to a question about being an Eagle Scout, Judge Ahler said he had an opportunity to meet Governor Orr who encouraged him and other scouts to consider a life of public service.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Gov't. - Massive overload next week in General Assembly?

Niki Kelly just tweeted: "Lawmakers are really holding pretty much everything of major consequence for a vote until next week. Going to be a chaotic time."

Next week the last week for bills to come out of second house committee. The committee vote on most controversial bills has been postponed till next week, even if there have been hearings this week or last.

For instance, this story yesterday by Zach Osowski of the Evanville Courier&Press is headed: "Body cam bill delayed another week; amendment filed flipping burden of proof." It begins:

A vote on an Indiana House bill regulating police body cameras was pushed off for another week to give committee members more time to think about the bill and a proposed amendment.

House Bill 1019 was scheduled to for amendments and a vote Wednesday but was delayed by Senate Judiciary Committee Chairman Sen. Brent Steele, who said he wanted to give committee members more time feel out the bill before voting. Next week will be the final week to get a bill out of committee.

HB 1019 would institute statewide laws regarding police body camera videos. The main sticking point for the Senate has been who has access to the video and how a video can become public. The bill's author, Rep. Kevin Mahan, R-Hartford City, placed the burden of proof on the public for the release of a video. That version of the bill passed the House along partisan lines.

Since being heard last week, the Senate has been working to flip the burden of proof to the law enforcement agency. Under a proposed amendment the committee will consider next week, instead of a member of the public having to prove the video should be released, the police will have to prove to a court why a video shouldn't be released.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Indiana Government

Environment - "Cement plant sparks heated public meeting"

From the Louisville Courier-Journal, a story by James Bruggers that begins:

Sellersburg: An overflow crowd of more than 200 people packed a Sellersburg auditorium Wednesday for a contentious public meeting on the local cement plant's plan to burn hazardous liquid wastes.

"I don't want the facility to close down," John Croucher, who lives next to the plant in Speed, said. But too often, he said, he sees plumes of smoke at night and environmental regulators don't seem to care.

Richard Stock said air pollution was already an area problem, citing failing grades in recent American Lung Association reports: "Are we putting profitability ahead of the health of citizens?"

The meeting was held by Indiana Department of Environmental Management, which is weighing a new air permit for the Essroc Cement plant in Speed, and took issue with many residents' assertions.

IDEM official told residents that Clark County has good air quality that meets federal standards for smog, or ozone. They said the county only fails to meet federal standards for fine particles pollution because of problems with unreliable data collected in Louisville.

"The air quality is a lot better than what it used to be, and monitors show attainment for all standards," meeting officer Doug Wagner said at Ivy Tech State College South Central Auditorium.

A third shift worker at the plant, Frank Everage, drew strong applause from many in the room after he said most of what comes from the stack is steam and that the workers take environmental compliance seriously. The company's proposal, he said, would result in less pollution because the hazardous waste would replace some of the coal burned in the cement kilns, and "coal is the polluter - it really is."

Earlier this week, IDEM and Essroc officials said burning hazardous waste would not increase toxic lead emissions, as part of a draft air quality permit had suggested.

But they acknowledged it will allow the plant to emit somewhat more of other types of pollution associated with the burning of petroleum-based products such as paints and solvents.

Matt Stuckey, the air permits branch chief at one point threatened to have one man removed after he repeatedly interrupted the discussion from his seat. He also told the audience that IDEM officials believe the permit satisfies federal and state air requirements.

"This is not a vote," he said when asked if there was any way citizens could stop it.

Before the meeting, he said lead and other heavy metals are in the coal - not the liquid wastes that the company seeks to add to its fuel mix. That is why state officials actually expect fewer emissions of those metals with the new fuel mix.

There is much more to read in the story.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Environment | Indiana Government

Vacancy on Supreme Court 2016 - Day 2: Interviews begin at 9:30 AM

Here is today's interview schedule:

February 18 (Thursday)

9:30 a.m. – 9:50 a.m. – Hon. James R. Ahler (photo) - Jasper Superior Court, Rensselaer

9:50 a.m. – 10:10 a.m. – Hon. Sally A. McLaughlin (photo) - Dearborn Superior Court 2, Lawrenceburg

10:10 a.m. – 10:30 a.m. – Hon. Matthew C. Kincaid (photo) - Boone Superior Court 1, Lebanon

(Break)

10:45 a.m. – 11:05 a.m. – Ms. Jaime M. Oss (photo) - Huelat Mack & Kreppein P.C., Michigan City

11:05 a.m. – 11:25 a.m. – Hon. Larry W. Medlock (photo) - Washington Circuit Court, Salem

11:25 a.m. – 11:45 a.m. – Mr. John H. Shean (photo) - Shean Law Offices, Bloomington

(Lunch – Executive Session)

1:30 p.m. – 1:50 p.m. – Hon. Steven L. Hostetler (photo) - St. Joseph Superior Court, South Bend

1:50 p.m. – 2:10 p.m. – Mr. E. Nelson Chipman, Jr. (photo) - Marshall County Prosecutor’s Office, Plymouth

2:10 p.m. – 2:30 p.m. – Ms. Leanna K. Weissmann (photo) - Lawrenceburg

(Break)

2:45 p.m. – 3:05 p.m. – Hon. Frances C. Gull (photo) - Allen Superior Court, Fort Wayne

3:05 p.m. – 3:25 p.m. – Hon. Darrin M. Dolehanty (photo) - Wayne Superior Court 3, Richmond

3:25 p.m. – 3:45 p.m. – Ms. Elizabeth C. Green (photo) - Riley Bennett & Egloff LLP, Indianapolis


The applications of each of the candidates are linked on this page.

The interviews Wednesday morning were reported by IU-McKinney student, Alexandra Blackwell. Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, will be covering the remainder of the interviews this week.

Disclaimer: The goal of ILB coverage of the Supreme Court selection process is to provide a window into an important public process in an objective and thoughtful manner. That ILB correspondents may have assisted applicants in various stages of the process does not alter the commitment to present interview summaries, application details, and other commentary to ILB readers objectively.

Note that a list of all the ILB posts
on the 2016 Supreme Court vacancy may be accessed via this link.

Posted by Marcia Oddi on Thursday, February 18, 2016
Posted to Vacancy on Supreme Court - 2016

Wednesday, February 17, 2016

Ind. Courts - SB 352, selection of Marion Superior judges, passes 2nd house committee with amendments today [Updated]

[Updated 2-18-16 - here now is the House committee report adopted yesterday - later today the reprinted version of SB 352, incorporating these chaneges, should be available]

A newly amended version SB 352, re the selection of Marion County Superior Court judges, has passed out of the House Courts and Criminal Code Committee this afternoon by a vote of 8-2. Here is a summary prepared for the ILB:

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Indiana Courts

Vacancy on Supreme Court 2016 - Day 1: Report on interview #9, Mr. Mark A. Lienhoop

This is Prof. Joel Schumm's report on the 9th interview of Day 1

Mr. Mark A. Lienhoop, LaPorte (photo) (application)

In response to a question from Chief Justice Rush about a significant recent opinion, Mr. Lienhoop cited Hughley, which clarified the summary judgment standard from Jarboe.

In response to a question from Mr. Yakym about a case cited on his application involving death of a child on a reduced contingency, Mr. Lienhoop said some lawyers want to be the jockey instead of the horse. Lawyers sometimes want to go to trial because it’s in their best interest or brings publicity—but is not best for their clients. In response to a later question, he emphasized that lawyers must give advice but then do what a client wants. He said cases are “usually not about money” but rather about trying to prevent something bad from happening again. Instead of a large financial recovery, a marker and a stoplight could be the best resolution.

In response to question from Mr. Berger about the last book he read, Mr. Lienhoop said Reptile.

In response to a question about judicial philosophy from Ms. Long, Mr. Lienhoop said he has always been committed to the rule of law and that judges should always be impartial. Referencing separation of powers in the Indiana Constitution, Mr. Lienhoop would correctly interpret the law and apply it to the facts—not create the law, which is the Legislature’s role.

In response to a question from Mr. Feighner, Mr. Lienhoop described his civil jury trial experience, appellate writing, experience managing a firm, and work ethic. He has worked 60 hours/week for 30 years. He plans to continue working that much and would take on any administrative task assigned by the Chief Justice.

After Mr. Yakym began to mention the long drive from LaPorte to Indianapolis, Mr. Lienhoop interjected, “I would move here.”

In response to a question from Chief Justice Rush about whether his firm has a social media policy, Mr. Lienhoop said a different lawyer is now responsible for the policy but the policy was “don’t do it at work” and employees were informed of the risks and concerns with posting things for wide public view.

In response to a question from Chief Justice Rush about keeping updated on new cases, Mr. Lienhoop said he started an outline early in his career and continues to update it, reading slip opinions when they are issued and adding them in the appropriate category.

In response to a question about whether the Court should be taking more cases on transfer, Mr. Lienhoop said he does not know if the issue is a lack of time, as it was when the Constitution was amended in 1988 and again in 2000, or if the Court has enough time to take all of the case that it should.

In response to a question from Mr. Feighner about whether logic or creativity drives his decisions, Mr. Lienhoop said and explained how it’s “intuitive.”

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 1: Report on interview #8, Mr. Curtis E. Shirley

This is Prof. Joel Schumm's report on the 8th interview of Day 1

Mr. Curtis E. Shirley, Indianapolis (photo) (application)

In response to a question from Chief Justice Rush, Mr. Shirley discussed changes in the practice of law regarding Trial Rule 76 venue in other counties and whether some form of the old practice should be restored.

In response to a question from Mr. Christie about his extensive work with the Legal Aid Society, Mr. Shirley said he increased the size of the board from seven to 30 members and got prominent judges and lawyers to join. When he began, United Way was 95% of the budget, but Legal Aid now raises hundreds of thousands of dollars to help with funding. It has also partnered with Eli Lilly, Citizens Energy, and other large entities to help provide pro bono services with the help of lawyers who do not practice in the areas of need but are willing to take cases with appropriate training. As to the broader unmet needs of indigent civil litigants, Mr. Shirley said truly attacking the problem would require a group of lawyers similar to what the state provides for public defenders.

In response to a question from Ms. Long about the most important trait of a justice, Mr. Shirley mentioned collegiality, among other things.

In response to a question from Mr. Tinkey about working as part of a legal team, Mr. Shirley said that every case in which he represents a plaintiff involves a team. Case theories and themes developed early in a case often change during discovery and throughout a case, perhaps even at trial.

In response to a question from Mr. Feighner about judicial restraint, Mr. Shirley said the term arises mostly in federal court because of its very limited jurisdiction. While clerking with Judge Nolan, he learned that it is better to decide cases on the merits instead of technicalities. Mr. Shirley then pivoted to restraint as a judicial philosophy, mentioning Justice Scalia’s view of originalism. Mr. Shirley said he does not agree with Justice Scalia upholding the administrative state. Mr. Shirley also said Justice Scalia’s dissents were “not a good example of how we relate to each other.” Mr. Shirley said Tempting America by Robert Bork best reflects his judicial philosophy.

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - 7th Circuit decides two Indiana cases today

In Alma Glisson v. Correctional Medical Services (SD Ind., Barker), a 28-page, 2-1 opinion, Judge Bauer writes:

Plaintiff-appellant, Alma Glisson (“Appellant”), sued Correctional Medical Services, Inc., also known as Corizon, Inc. (“CMS”), its employees Dr. Malaka G. Hermina (“Dr. Hermina”), Mary Combs, R.N. (“Nurse Combs”), and the Indiana Department of Corrections (“IDOC”) (collectively “Appellees”), on behalf of her deceased son, Nicholas Glisson (“Glisson”). Glisson died while incarcerated at Plainfield Correctional Facility (“Plainfield”) in Plainfield, Indiana. The lawsuit’s federal claims arise under 42 U.S.C. § 1983 (“§ 1983”), specifically alleging that Appellees did not offer Glisson constitutionally adequate medical care, and that this failure violated his Eighth Amendment rights against cruel and unusual punishment. The district court granted summary judgment in favor of Appellees on all federal claims, and remanded the remaining state law claims. Appellant now only appeals the grant of summary judgment in favor of CMS, arguing that CMS’s failure to implement a particular IDOC Health Care Service Directive (the “Directive”) violated Glisson’s Eighth Amendment rights. However, because Appellant has not produced legally sufficient evidence to demonstrate a genuine issue of material fact on this matter, we affirm summary judgment for CMS. * * *

WOOD, Chief Judge, dissenting [pp.10-28, concluding][ILB emphasis] Nicholas Glisson may not have been destined to live a long life, but he was managing his difficult medical situation successfully until he fell into the hands of the Indiana prison system and its medical-care provider, Corizon. Forty-one days after he entered custody, he was dead. On this record, a jury could find that Corizon’s obdurate failure to enact centralized treatment protocols for chronically ill inmates led directly to his death. I would reverse the judgment below and remand for a trial.

In Chad Taylor v. Sardar Biglari (SD Ind., Barker), a 10-page opinion, Judge Posner writes:
This is a shareholder derivative suit against the directors of an Indiana company, Biglari Holdings, Inc., that owns two restaurant chains, Western Sizzlin’ and Steak ‘n Shake, both of which operate some restaurants, and franchise others, in many U.S. states. * * *

Given the stringency of the Indiana standard of demand futility and the lack of strong support for the plaintiffs’ claims to demonstrate that futility, the three challenged transactions, whether examined individually or together, cannot be deemed so oppressive to shareholders as to create a substantial doubt that the transactions were the product of a valid exercise of business judgment by an unbiased and independent board. Demand futility has not been shown. The judgment of the district court is therefore AFFIRMED.

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Ind. (7th Cir.) Decisions

Vacancy on Supreme Court 2016 - Day 1: Report on interview #7, Mr. David E. Cook

This is Prof. Joel Schumm's report on the 7th interview of Day 1

Mr. David E. Cook, Indianapolis (photo) (application)

In response to a question from Chief Justice Rush about his current experience in administrative law, Mr. Cook responded that he agreed with the deference given to administrative agencies in the Court’s jurisprudence. In a later follow up question from Mr. Berger, Mr. Cook noted that agencies are the experts.

In response to a question from Mr. Feighner about his experience as both a prosecutor and public defender and how it would affect the way he would review a jury verdict, Mr. Cook agreed that the Indiana Supreme Court’s cases have provided sufficient and clear guidance on the subject.

In response to a question from Mr. Yakym about characteristics for the next justice, Mr. Cook emphasized the willingness to listen with an open mind, independence, and predictability. In response to a later question from Mr. Tinkey, Mr. Cook explained that the Marion County Public Defender Agency nearly quadrupled in size while he was Chief Public Defender, which required a lot of convincing of City-County councilors.

Mr. Christie said a Court of Appeals’ judge told him Mr. Cook was the “best trial attorney” he had ever seen. In response to a question about his five years working in immigration law, Mr. Cook said he was able to do something of value, helping people who need help. He noted that the law is pretty clear; there are not many grey areas.

In response to a question from Ms. Long, Mr. Cook said he has “always looked up to” Justice Dickson, who is “ultimate jurist.” He also admires Justice David, who is involved in educating lawyers and law students. Justice David has helped with the trial practice class Mr. Cook teaches at the law school.

Chief Justice Rush quoted the following from Mr. Cook’s application: “in my years in the legal profession I found no greater calling than indigent defense. Insuring that the least of us are properly represented is the foundation of our criminal justice system.” Mr. Cook explained that some counties do quite well with independent agencies but others, without agencies, struggle. A statewide agency could be a solution, which would allow for better measures to ensure quality performance.

In response to a question from Mr. Yakym, Mr. Cook said joining the Indiana Supreme Court would be a way to continue his public service work, which he loves. He has evolved to the point where he could make a contribution. It would be an incredible honor and opportunity.

In response to question from Mr. Berger about where Mr. Cook sees himself in ten years, Mr. Cook said he sees himself involved in the legal system and does not plan to retire. [Note: presumably he meant from the legal profession, considering the current mandatory retirement age of 75 from the Court.]

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Vacancy on Supreme Court - 2016

Courts - "'Pastafarian' wins right to wear colander in driver's license photo"

From the Milwaukee Journal-Sentinel, a story by David Paulsen - some quotes:

For his Wisconsin driver's license photo, Michael Schumacher says he wants to wear a pasta strainer on his head because it's part of his belief in Pastafarianism as a member of the Church of the Flying Spaghetti Monster.

The state's response: Just be sure to tip that colander back far enough to show your face.

It's part of a strange — but not unprecedented — legal battle that recently was won by the Madison resident, though to call it a battle may be an overstatement. After his attorney sent a letter Jan. 25 to the state Department of Transportation, the Division of Motor Vehicles responded by letter Feb. 4 to say his client's request would be accommodated. * * *

A website devoted to the Church of the Flying Spaghetti Monster (and bearing a spaghetti-fueled re-imagining of Michelangelo's "Creation of Adam") insists that it's not a joke, that it is "backed by hard science." It teaches that religion "does not require literal belief in order to provide spiritual enlightmentment."

It also teaches that humans evolved from intrepid pirates, and that the Pastafarian afterlife features a beer volcano and stripper factory.

And it has been embraced by some in the Madison atheist community, who successfully argued in December 2013 for placing a Flying Spaghetti Monster display among the holiday displays at the Wisconsin Capitol.

The specific "belief" cited by Schumacher is the one encouraging adherents to wear colanders in their driver's license photos. Because, as the website asks, "why not?"

"It seemed to be most states had just sort of allowed it," Allen said. "I thought he was on pretty sound legal ground."

That's because it's not up to the government to decide what qualifies as a religion, Allen said, and expressing one's religion through kitchen-ready headgear should be allowed at the DMV as long as it doesn't interfere with the purpose of the driver's license, specifically to identify a driver by face.

"If the government wanted to get in the business of defining what is and is not a religion, just as a mental exercise it's tough to draw that line," he said.

ILB: So what about Indiana and the First Church of Cannabis (about which little has been heard recently).

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Courts in general

Vacancy on Supreme Court 2016 - Day 1: Report on interview #6, Hon. Vicki L. Carmichael

This is Prof. Joel Schumm's report on the 6th interview of Day 1

Hon. Vicki L. Carmichael, New Albany (photo) (application)

In response to a question from Chief Justice Rush about the most important qualities of the new justice. Judge Carmichael mentioned fairness, intelligence, and building a consensus.

In response recent Indiana Supreme Court opinion that impacts trial courts, Judge Carmichael discussed the Slaybaugh case, which found no juror misconduct where a juror had hundreds of friends on Facebook, including someone involved in the case.

In response to a question from Ms. Long about emulating an Indiana Supreme Court justice, Judge Carmichael mentioned Chief Justice Shepard and his ability to work with others and work with the Legislature.

In response to a question from Mr. Tinkey abut her earlier work as a public defender, Judge Carmichael discussed her ability to oversee and administer an office (as chief public defender) as well as trial experience and dealing with opposing counsel.

In response to a question from Mr. Feighner about the “legal culture” in her county in southern Indiana, Judge Carmichael said the attorneys get along well and are well versed in the law.

In response to a question from Mr. Yakym about areas where she could help with the administration of the Court, Judge Carmichael discussed the needs of family and children, including the guardian ad litem program, as well as continuing legal education and the public defender commission.

In response to a similar question from Mr. Christie, Judge Carmichael mentioned that she has administrative experience in the Clark County court system and enjoys it.

Mr. Berger noted that Judge Carmichael, like him, was one of the rare people in the process “living and working below U.S. 40.” In response to his question, she said she was aware of incarceration for not paying debts in civil cases in her county.

In response to a question from Ms. Long about judicial philosophy, Judge Carmichael discussed the importance of open-mindedness, being objective, and doing research.

In response to a question from Mr. Tinkey about the Court hearing all capital cases, Judge Carmichael responded that she did not believe the mandatory review caused trial courts to take the case any less seriously. Indeed, they take the cases and due process rights of capital defendants especially seriously.

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 1: Report on interview #5, Mr. Peter J. Rusthoven

This is Prof. Joel Schumm's report on the 5th interview of Day 1

Mr. Peter J. Rusthoven, Indianapolis (photo) (application)

Chief Justice Rush asked about the ways Mr. Rusthoven’s background would contribute to the administrative work of court. Through his law firm, Mr. Rusthoven has worked with lawyers in many offices and was involved in public service work with the Challenger Commission and with President Reagan. When asked about specific arms of the Court where his talents could be used, Mr. Rusthoven said that the Chief Justice would know what was needed: “you point, and I march.” Mr. Rusthoven also noted his interest in civic education and juvenile diversion.

In response to a question from Mr. Yakym’s about oral argument experience in many courts, Mr. Rusthoven noted that the Indiana appellate courts may ask tough questions but treat lawyers courteously. In the past two years, a judge on another court lectured Mr. Rusthoven and then told him he was “no use to the court.” He said the “robe fever disease” does not exist in Indiana.

In response to a question from Mr. Berger about translating Mr. Rusthoven’s high-level federal experience to a state court, Mr. Rusthoven said he is from Indiana and has always wanted to be here. He would rather work for an Indiana court than a federal court. He has seen the state when he campaigned state-wide, ending third in a three-way race, he added with some self-deprecation.

In response to a question from Mr. Christie about prior judicial experience, Mr. Rusthoven said a lack of judicial experience is not a positive but the Court has always had a mix of experiences and backgrounds, mentioning Justice Sullivan and Justice Boehm as examples. He would bring other skills from his many years of experience.

In response to a question from Ms. Long about legacy if appointed, Mr. Rusthoven referenced the many things people have been saying about Justice Scalia recently and his emphasis on originalism. He would be honored if people said half as nice of things about him as they are Justice Scalia. That said, Mr. Rusthoven acknowledged the concern with the ways Justice Scalia would refer to colleagues in dissent.

In response to a question from Mr. Tinkey about changing his mind after talking with colleagues, Mr. Rusthoven noted the collaborative nature of his work, including persuasion from the “most junior” member of a team at times.

In response to a question from Mr. Feighner about the reasons to dissent and the audience for a dissent, Mr. Rusthoven noted that the Indiana Supreme Court often speaks with one voice. He contrasted a case where the statute of repose for products liability was decided in a 3-2 vote compared to application of settled principles in a contract case. He said he would be hesitant to dissent, except in particularly significant cases.

In response to a question from Mr. Yakym about “small cases,” Mr. Rusthoven mentioned a recent case involving a track of land worth only a thousand dollars, but the broader importance of that case to the bar and public. A big principle can be involved even if a lot of dollars are not.

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Day 1: Report on interview #4, Judge Thomas J. Felts

This is Prof. Joel Schumm's report on the 4th interview of Day 1

Hon. Thomas J. Felts, Fort Wayne (photo) (application)

Chief Justice Rush asked Judge Felts about taking a pro bono case, early in his career, from Judge Eshbaugh. Judge Felts learned from it how to be fair, stoic, and in command of the courtroom. Outside the courtroom, Judge Eshbaugh was kind to Felts as a young attorney. Following that example, Judge Felts now congratulates young attorneys on a job well done and offers advice when appropriate.

In response to a question from Mr. Feighner about filling the void in jurisprudence and leadership with Justice Dickson’s retirement, Judge Felts said he would need to do a lot of learning in the area of Indiana Constitutional law. But Judge Felts can add his well-rounded experience in many areas of the law and his involvement and leadership in many statewide committees. Judges and lawyers will know him because of that work. Judge Felts also has experience with the General Assembly and in education. Judge Felts also “plays the piano some,” but not as well as Justice Dickson.

In response to a question from Mr. Yakym about demeanor of a courtroom, Judge Felts emphasized being in charge of the courtroom, fairness, listening, and treating people with respect.

In response to a question from Mr. Berger about complementing the current composition of the Indiana Supreme Court, Judge Felts explained that his trial court experience should be seen as a positive. Judge Felts has heard the term “Team Supreme Court,” where each adds many things, and specifically noted the trial experience of Chief Justice Rush and Justice David and their continued hard work as trial judges on the Court. The Court needs someone to step in right away and help “the team.”

In response to a question from Mr. Christie about challenges faced by trial courts, Judge Felts explained that the Indiana Supreme Court visits half of the trial judges in the state each year through district meetings. From those meetings he emphasized the “growing need for technology in the courtroom,” explaining Indiana is still behind nationally. Judge Felts’ experience working with the General Assembly could help with funding. On the civil side, there are unmet legal needs, which he said could be better met by incentivizing lawyers to help with pro bono service.

In response to a question from Ms. Long about judicial philosophy, Judge Felts emphasized the importance of fairness, listening, and treating others with respect. He is not a preacher or lecturer from the bench. On the activism to strict constructionism spectrum, he is much closer to a strict constructionist.

In response to a question from Mr. Tinkey about the possibility of mandatory pro bono, Judge Felts said we could get to a point where, “at some point in the future,” the Chief Justice and Court might have to require “10” or “12” hours a year to help meet the needs.

In response to the final question from Chief Justice Rush about the 1000 hours Judge Felts has given to the ISBA Leadership Academy, Judge Felts explained what a “blessing” working with young lawyers has been. The “personal touch” he received as a young lawyer was invaluable, which he is able to share.

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Courts - Governor Pence appoints Jeffrey Sanford to St. Joseph Superior Court [Updated]

WNDU16 has the brief story. Sanford will fill the seat of Judge Jerome Frese, who has retired.

[Updated at 5:02 PM] Here now is a longer story headed "Jeffrey Sanford named Superior Court judge to replace Jerome Frese," by Christian Sheckler, in the South Bend Tribune. Some quotes:

Sanford has served since last year as a St. Joseph Superior Court magistrate. Before that, he ran his own law firm and worked as a criminal defense lawyer.

He also served as a deputy city attorney for South Bend, where he frequently defended city police officers against allegations of misconduct, and as a deputy county prosecutor. In 2014, he ran as a Republican for prosecutor against Democrat Ken Cotter, who won the election.

"I look forward to serving the citizens of St. Joseph County," Sanford said Wednesday afternoon. When asked if any specific qualifications helped him to earn the spot on the bench, Sanford said every candidate for the job was qualified to be a judge, though he noted his many years of trial experience.

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Indiana Courts

Vacancy on Supreme Court 2016 - Day 1: Report on the first 3 interviews

This is Alexandra Blackwell's report on the first three interviews of Day 1

Mr. Thomas P. Yoder, Fort Wayne (photo) (application)

Chief Justice Rush began by talking about the increasing amount of pro se litigants in the court room and asked Mr. Yoder how he would incentivize attorneys to do more pro bono work. Mr. Yoder said one way to increase pro bono work would to make it mandatory for attorneys. Pro bono work in Ft. Wayne is very big and the system works. In some places, he has heard that it does not work as well. Mr. Yoder thinks that attorneys just need to be asked. Setting up a program is enough to make attorneys participate.

In response to Mr. Christie’s question about Mr. Yoder’s involvement in the Indiana State Bar Association and how he has risen through the organization, Mr. Yoder said that his father always stressed to him the importance of being involved in the ISBA. He joined the Young Lawyers Division when he was a young lawyer. Mr. Yoder said he stuck around until he eventually became president. He then recounted a story about listening to Prime Minister Tony Blair and how he later ran into Justice Sandra Day O’Connor. Those experiences and the bar association have taught him that you have to just get out in the street to experience law.

In response to Ms. Long’s question about what he has learned over the years, Mr. Yoder said his time with the bar association and public service have made him interested in applying for the court. He then cited Chief Justice Rush’s letter that said if you are qualified you should apply. Mr. Yoder said he would want to make the bench better a better place if he were selected to serve on the Indiana Supreme Court. Mr. Yoder said when he is involved with something, he is all in.

In response to Mr. Tinkey’s question about his experience with mentoring, Mr. Yoder discussed how became a mentor to a young lawyer in his firm. He taught the young lawyer everything about bankruptcy and that lawyer has gone on to be very successful. Professionally, Mr. Yoder said he has always been a coach and a teacher. He believes that they are all the same thing. He has been an Iron Man coach. He has mentored attorneys in the State Bar Association. Mr. Yoder said people need to get out there and get involved in something. Make something happen. Mr. Yoder said that is why he has mentored ever since he entered the practice.

In response to a question about how his background in bankruptcy and business law would help the bench, Mr. Yoder said if they are looking for someone who is well connected and knows criminal law backwards and forwards he is not their guy. Mr. Yoder cited his background with UCC, Article 2, Article 9, labor and employment law. He mentioned how he is good friends Justice Sullivan and Justice Boehm. Mr. Yoder said he is especially interested in the new commercial court project. He stressed the fact that the project requires someone who understand commercial law and the practice.

In response to Mr. Yakym’s question about how he would balance the administrative work and writing opinions, Mr. Yoder discussed his time as the President of the ISBA. When he was president of the Bar Association, Justice Shepard would call him to ask for help on various things. He said that he learned early on that judging is only a small part of the Supreme Court Justices’ responsibilities. They are leaders in the legal community and have a responsibility to take that out into the community. He is not familiar with the administrative work of the court, but would take the responsibilities very seriously.

In response to Mr. Berger’s question about the role of a jury, Mr. Yoder cited his background as a mentor two attorneys. He has mentored female attorneys from Germany and Poland. Over in Europe the judges do it all. Mr. Yoder thinks the people need to have a say in the process. He believes that the jury system is the best system in the world even if it isn’t perfect. If there are cases based on facts, the jury should decide. He is a strong believe in the jury system. The jury system works.

In response to Mr. Christie’s question about his age, Mr. Yoder laughingly responded that he is perfect. In ten years, he would retire and ride his bike across the country. He expects that he would be ready to go in ten years. He wants to have a public voice. Mr. Yoder said that the current court is made up a lot of individuals who are about ten years younger than him. He thinks the court should be more diverse, have a broad range of ages, backgrounds, and overall diversity. He said here needs to be more geographical diversity. Mr. Yoder believes having diverse opinions and discussions is important and his age will allow him t do that.

In response to Chief Justice Rush’s question about an Indiana Supreme Court decision that has had an impact on his practice, Mr. Yoder said there are two. About 10 to 12 years ago there were two companion cases about the personal exemptions that were allowed for people who file for bankruptcy. The Indiana Constitution was vague on this issue and the cases addressed whether certain exemptions were enough. He believes the court did a good job. The Court considered the Constitution’s history and the then current legal environment. Mr. Yoder said the Court’s decision to uphold it was the right decision.

In response to Chief Justice Rush’s question about the qualities that the Commission should be looking for, Mr. Yoder cited several qualities. Number one, Mr. Yoder believes the Court needs someone who is easy to get along with. Someone like him. He said he has the personality to flourish in a 50-person law firm despite his innate personality. Number two, he said the ability to disagree and agree is also very important. Justices should write more dissents. Number three, all of the Justices have duties that continue after they take their robes off. Justices should be cheerleaders for the community.

Mr. Geoffrey G. Slaughter, Indianapolis (photo) (application)

In response to Chief Justice Rush’s question about Mr. Slaughter’s role in the Bar Foundation, Mr. Slaughter cited the civic education and the importance of providing those who are less fortunate with access to legal services and discussed the ongoing efforts to make more civil legal services more widely available.

In response to Ms. Long’s question about important traits in a Justice, Mr. Slaughter cited 1) the ability to get along with others; and 2) civility in dealing with the lawyers that come before the court. He said he is an appellate lawyer and he believes it is a pleasure to serve before our appellate courts . Mr. Slaughter said the appellate courts are hardworking, the judges read everything, they ask though questions, and they are polite. Mr. Slaughter said our Supreme Court is a treasure here in Indiana.

In response to Mr. Tinkey’s question about how he has changed someone’s opinion of something, Mr. Slaughter cited a case he worked on that involved a taking of property. He said he used an expert witness to help persuade the judge during the bench trial. Mr. Slaughter said the science was not as compelling as the economic destruction in that case. With the help of his expert witness, Mr. Slaughter said he was able to persuade the judge and won the case.

In response to Mr. Feighner’s question about how Mr. Slaughter would hand a disagreement on the court if he were in the minority, Mr. Slaughter said depending on the disagreement, he would try to bridge the gap. If they could not reconcile the difference, Mr. Slaughter said it may be important to express his opinions in a dissent. He said there is a broader audience who reads the Supreme Court decisions. He believes that it is important to let the public understand why it is deciding as it is and if there was a disagreement that they explain why.

In response to Mr. Yakym’s question about a death penalty case that Mr. Slaughter cited in his application, Mr. Slaughter said he believes that the death penalty is constitutionally permissible. However, Mr. Slaughter said he did not appreciate the full magnitude of those types of cases until he was living and breathing it during a case. Mr. Slaughter said he took away a profound understanding that someone’s life cannot be taken lightly. He stressed the importance of maintaining due process. In the Burris case, he took comfort in the fact that Mr. Burris’s attorney never argued that Mr. Burris did not commit the crime. Mr. Slaughter said he gained a profound understanding of the responsibility that we have when making those types of decisions.

In response to Mr. Berger’s question about whether he prefers the state and federal summary judgment standards, Mr. Slaughter – laughingly - said it depends on who he is representing. Mr. Slaughter cited an opinion written by Chief Justice Rush. He said for the first time, in a long time, Indiana has a court that believes Jarboe is the Indiana standard. He believes that once issues have been resolved it is time to move on. If he was asked to serve on the court, Mr. Slaughter said he would be comfortable with that standard.

In response to Chief Justice Rush’s question about what he would contribute if he was on the Supreme Court, Mr. Slaughter said he would bring a practitioner’s perspective. He said he would also bring his experience in some substantive law areas. Mr. Slaughter listed several areas of law including, antitrust, securities and administrative law. He said he use to do quite a bit of criminal law when he was at the Attorney General’s Office. He said he would also be able to synthesize a large amount of information.

In response to Mr. Feighner’s question about how his background would help with the administrative duties, Mr. Slaughter said he would be happy to help with anything. He discussed how his experience with the bar foundation and civil legal services would help him. Mr. Slaughter said he has had administrative responsibilities in the past and he can lead a team that will accomplish results. Mr. Slaughter said he is eager to learn how the new administrative office will change the roles of the members of the Supreme Court.

In response to Chief Justice Rush’s question about the challenges that the Indiana trial court are facing, Mr. Slaughter discussed the high case loads and specialty courts. He said rural communities are struggling with drug problems. Consequently, the courts are having to deal with the criminal side and family fall out. He said the system needs to address the problems that the people in the communities are facing.

Mr. Thomas E. Wheeler, II, Indianapolis (photo) (application)

In response to Chief Justice Rush’s question about how he would contribute as a member of the Supreme Court, Mr. Wheeler cited his background as a trial lawyer would allow him to bring a practitioner’s expertise. He said his background with the Indiana Election Commission would be helpful because he had to deal with budget issues, legislative issues, and worked closely with the Governor’s office.

In response to Chief Justice Rush’s question about how the judicial system could be improved, Mr. Wheeler said funding is the chief issue right now. There are counties that are poorly funded. The system of county funding creates inherent tensions between the counties and the judiciary. Mr. Wheeler said there needs to be equal funding because it would provide better access and fix conflicts.

In response to Mr. Tinkey’s question about something that has altered his opinion, Mr. Wheeler cited Justice Scalia. Mr. Wheeler said Scalia’s philosophy was based on intent. He said he used to believe in the importance of being an aggressive advocate, but that changes when you are on the Court. Mr. Wheeler said as he has been looking at discussions about Scalia’s approach and the manner in which he wrote his cases, he has started to really think about how he would approach cases if he was on the bench.

In response to Mr. Feighner's question about what Mr. Wheeler has learned from his involvement with the school corporation, Mr. Wheeler said he developed compassion for both sides of an issue. Mr. Wheeler cited his experience with special education cases. Understanding both sides can help with difficult cases. Mr. Wheeler said his understanding and compassion for both sides has made him very successful in dealing with these cases.

In response to Mr. Yakym’s question about the Charlie White case, Mr. Wheeler discussed the importance of keeping politics out of certain issues. He said there were clearly politics at play in that case, but Governor Daniels had no interest in those politics. Mr. Wheeler said the case was handled well because of the collegiality amongst those who were involved. He said it was a difficult case, but the focus was on the law and not politics.

In response to Mr. Berger’s question about how he would fix the judiciary’s funding issue, Mr. Wheeler cited methods of funding education. He said general funding is possible.

In response to Chief Justice Rush’s question about his favorite guarantees of the 1851 Constitution, Mr. Wheeler discussed the religion clauses and the right to a trial by jury. He said between 1816 and 1851, everything became more structured.

In response to Mr. Christie’s question about his experience with the recount commission and the importance of leadership, Mr. Wheeler said it is important to respect everyone’s beliefs. Give them the opportunity to talk. He said his point or opinion may not always be the best. He said he knows there are times when he is wrong. Mr. Wheeler cited the Charlie White case. He said people were unhappy with the outcome, but they had to work together and work through the issue. Mr. Wheeler noted that criminal law is not his strength. Overall, Mr. Wheeler said when you are on the Supreme Court you try to work out differences and if not that is what the dissent is for.

In response to a question from Ms. Long about important traits, Mr. Wheeler mentioned Justice Dickson and his humaneness. Mr. Wheeler recounted his encounters with Justice Dickson when he was a young lawyer. He said Dickson had no reason to be nice to him, but Justice Dickson always stopped to talk. He said it is important to try to be nice. Be a good person. Mr. Wheeler referenced CJ Shepard’s time on the bench and how he made it a court that is respected around the country.

In response to Mr. Tinkey’s question about where he would be in ten years, Mr. Wheeler said he would like to have increased funding and improved access to the justice system. Mr. Wheeler said he would like to see a unified funding system. He explained that he does not want there the be a time that the court is sued because there is not access to a sign language interpreter.

In response to Chief Justice Rush’s question about how he would increase trust within the judicial system – specifically the trial court judges – Mr. Wheeler said he would have the judges sit by designation. He said they would be more engaged and it would allow the trial court judges to see what the appellate courts look for when the cases are reviewed. Mr. Wheeler said the trial court judges would understand what happens as a case goes up on appeal and it would enhance people’s desire to serve on the court of appeals.

In response to Mr. Berger’s question about the role of juries and how they decide cases, Mr. Wheeler said loves jurors because they get it right. He said the jury system provides people with the opportunity to respond. Mr. Wheeler referenced his background in politics and said he also believes in voters. Mr. Wheeler said he likes being in front a jury because each person brings common sense.

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (3):

RYYZ, LLC; RYYZ 2, Corp.; and Joseph Jusewitz v. Fannie Mae (mem. dec.)

John Mazurak v. Erie Insurance Exchange (mem. dec.)

Danette M. Roland v. Nationstar Mortgage LLC (mem. dec.)

NFP criminal decisions today (4):

Harley R. Sims v. State of Indiana (mem. dec.)

Samantha J. Perez v. State of Indiana (mem. dec.)

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

Carlos Barrientos v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2016 - Interviews begin at 10:30 AM

Here is today's interview schedule:

February 17 (Wednesday)

10:45 a.m. – 11:05 a.m. – Mr. Thomas P. Yoder (photo) - Barrett McNagny LLP, Fort Wayne

11:05 a.m. – 11:25 a.m. – Mr. Geoffrey G. Slaughter (photo) - Taft Stettinius & Hollister LLP, Indianapolis

11:25 a.m. – 11:45 a.m. – Mr. Thomas E. Wheeler, II (photo) - Frost Brown Todd LLC, Indianapolis

(Lunch – Executive Session)

1:30 p.m. – 1:50 p.m. – Hon. Thomas J. Felts (photo) - Allen Circuit Court, Fort Wayne

1:50 p.m. – 2:10 p.m. – Mr. Peter J. Rusthoven (photo) - Barnes & Thornburg LLP, Indianapolis

2:10 p.m. – 2:30 p.m. – Hon. Vicki L. Carmichael (photo) - Clark Circuit Court 4, New Albany

(Break)

2:45 p.m. – 3:05 p.m. – Mr. David E. Cook (photo) - Indiana Alcohol & Tobacco Commission, Indianapolis

3:05 p.m. – 3:25 p.m. – Mr. Curtis E. Shirley (photo) - Curtis E. Shirley, Indianapolis

3:25 p.m. – 3:45 p.m. – Mr. Mark A. Lienhoop (photo) - Newby Lewis Kaminski & Jones LLP, LaPorte


The applications of each of the candidates are linked on this page.

The interviews this morning will be reported by IU-McKinney student, Alexandra Blackwell. Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, will be covering the remainder of the interviews over the next 3 days.

Disclaimer: The goal of ILB coverage of the Supreme Court selection process is to provide a window into an important public process in an objective and thoughtful manner. That ILB correspondents may have assisted applicants in various stages of the process does not alter the commitment to present interview summaries, application details, and other commentary to ILB readers objectively.

Note that a list of all the ILB posts on the 2016 Supreme Court vacancy may be accessed via this link.

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Applicants’ Law Schools, Grades, and Class Rank

The following commentary is from Indiana University Robert H. McKinney School of Law Professor Joel Schumm.

It has become a tradition here on the ILB to report the law school grades and class rank of applicants. First on the list of statutory “considerations” for each member of the judicial nominating commission to weigh in evaluating Supreme Court applicants is “Legal education, including law schools attended and education after law school, and any academic honors and awards achieved.” Ind. Code § 33-27-3-2(a)(1).

Question 3 on the application form directed candidates: “List all law schools, graduate schools, and post-J.D. programs attended. Include the school name; dates enrolled; degree or certificate earned; class rank; and any academic honors, awards, or scholarships you received and when.”

The second part of the question instructed: “Include with your original application a certified transcript from each school named in Subsection 3A, and attach copies of each transcript to each application copy.”

As in prior years, some applicants disclosed GPA and class rank on their applications while others did not. Although the applications are posted online, the transcripts may only be reviewed in person.

The following chart, which was compiled by reviewing both the applications and the transcripts, is sorted by GPA and offered with the caveat that grading practices at some law schools have changed over the years.

Excluded from the chart are applicants who attended law school that did not award conventional grades or calculate GPAs on a 4.0 scale. These include Mr. Rusthoven (magna cum laude) and Ms. Wyle (cum laude), who both attended Harvard Law School. Ms. Wyle’s transcript included the following notation:

Until fairly recently, Valparaiso used numeric scores and did not calculate traditional GPAs. Thus, excluded from the chart are Mr. Chipman, Judge Gull, and Mr. Lienhoop. Mr. Chipman’s application notes a class rank of 26/82, and Mr. Lienhoop’s was 10/82. Mr. Shean, who attended Loyola-Los Angeles, is also excluded because of non-conventional grades; his application lists class rank as 117/334.

Do Grades Matter?

At a 2012 IBA Young Lawyers Division Luncheon, Judge Tim Oakes asked rhetorically when was the last time a summa or magna cum laude law school graduate was chosen through merit selection. The answer would appear to be Justice Ted Boehm, a magna cum laude graduate of Harvard Law School who was appointed to the Indiana Supreme Court by Governor Bayh in 1996.

Here are links to the grades of applicants for the 2010 and 2012-1 and 2012-2 Supreme Court vacancies.

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Courts - Marion County Superior Court bill hearing today

SB 352 will be heard in House Courts and Criminal Code Committee today at 1:30 PM in Room 156-C.

ILB will be covering the Supreme Court interviews.

Posted by Marcia Oddi on Wednesday, February 17, 2016
Posted to Indiana Government

Tuesday, February 16, 2016

Vacancy on Supreme Court 2016 - Ages of Supreme Court Applicants

The following commentary is from Indiana University Robert H. McKinney School of Law Professor Joel Schumm.

As discussed in this 2012 post, Article 7, Section 11 of the Indiana Constitution provides that justices “shall retire at the age specified by statute in effect at the commencement of his current term,” which remains 75, although the mandatory retirement age for trial court judges was removed in 2011.

This year the Supreme Court applicants range in age from 37 to 69; the average age is 55.


As summarized in these ILB posts from 2010 and 2012, the age of applicants for recent Supreme Court vacancies has varied considerably, although the average on each of those occasions was 53. The successful applicants were at or below the average age: Justice David was 53 at appointment and Justice Massa was 51. But the average age of applicants for the second vacancy in 2012 was 48 with a range from 38 to 62.
Age at Appointment of Recent Justices
  • Chief Justice Shepard appointed in 1985 at age 38
  • Justice Dickson appointed in 1986 at age 44
  • Justice Krahulik appointed in 1990 at age 45
  • Justice Sullivan appointed in 1993 at age 43
  • Justice Selby appointed in 1995 at age 39
  • Justice Boehm appointed in 1996 at age 57
  • Justice Rucker appointed in 1999 at age 52
  • Justice David appointed in 2010 at age 53
  • Justice Massa appointed in 2012 at age 51
  • Chief Justice Rush appointed in 2012 at age 54
Average age = 48

Posted by Marcia Oddi on Tuesday, February 16, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - Ft. Wayne attorney suspended 30 days for sending threatening and obscene private social media message

From In the Matter of: James A. Hanson:

Stipulated Facts: Respondent sent a threatening and obscene private social media message to a client’s ex-husband. * * *

Discipline: The parties propose the appropriate discipline is a suspension of 30 days with automatic reinstatement.

Posted by Marcia Oddi on Tuesday, February 16, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 26 NFP memorandum decision(s))

For publication opinions today (5):

Lisa Costello v. Wayne Zollman

In Best Formed Plastics, LLC, and Jane Stewart v. George Shoun, a 21-page opinion, Judge Crone writes:

Best Formed Plastics, LLC (“BFP”) and Jane Stewart appeal the trial court’s entry of judgment on jury verdicts in favor of their former employee George Shoun. Shoun sustained a shoulder injury while at work and subsequently filed a worker’s compensation claim. His employment was later terminated. He sued BFP and Jane, one of its owners, for retaliatory discharge, defamation, and invasion of privacy by false light, claiming among other things, that he was fired in retaliation for filing a worker’s compensation claim.

Following a trial, the jury found in Shoun’s favor on the retaliatory discharge and invasion of privacy claims and awarded him a total of $412,680 in compensatory and punitive damages. On appeal, BFP asserts that the trial court erred as a matter of law in entering judgment on the jury’s verdict against BFP for retaliatory discharge. BFP and Jane also contend that the trial court abused its discretion in refusing certain jury instructions. Finally, BFP and Jane claim error regarding the damages awards. Finding no error or abuse of discretion, and determining that BFP and Jane have waived one of their assertions of error, we affirm.

In Secura Supreme Insurance Company, Tim O'Brien, and Sandra O'Brien v. Diana Johnson, an 11-page opinion, Judge Pyle writes:
Secura Supreme Insurance Company and its insureds, Tim and Sandra O’Brien (“the O’Briens”), (collectively “Secura”) appeal the trial court’s denial of their motion for summary judgment and the grant of summary judgment in favor of Diana Johnson (“Johnson”) in her lawsuit seeking a declaratory judgment that Nicole Alarid (“Alarid”) was an “insured” under the O’Briens’ homeowners insurance policy. Prior to seeking a declaratory judgment, Johnson had sued Alarid and the O’Briens for injuries arising out Alarid’s dog attacking Johnson and her dogs.

On appeal, Secura claims that it was entitled to summary judgment as a matter of law because Alarid is not an “insured” under the O’Briens’ insurance contract. Specifically, Secura argues that Alarid was not a “resident” of the O’Briens’ “household,” thus their insurance does not provide coverage for her. Here, the insurance contract did not specifically define the terms “resident” and “household.” Concluding that the lack of definition in the policy for the terms “resident” and “household” make the terms ambiguous and therefore subject to different and reasonable interpretations, the issue of whether Alarid was an “insured” under the Secura policy was a genuine issue of material fact precluding summary judgment in favor of either party. Accordingly, we affirm the denial of summary judgment to Secura, reverse the grant of summary judgment in favor of Johnson, and remand to the trial court for further proceedings.

We affirm in part, reverse in part, and remand.

In Frantz Jerry Sainvil v. State of Indiana, a 15-page opinion, Judge Pyle writes:
On appeal, [Sainvil] argues that the prosecutor committed misconduct that amounted to fundamental error during his rebuttal closing argument by commenting on Sainvil’s failure to testify. In addition, Sainvil argues that his sentences were inappropriate under Indiana Appellate Rule 7(B) in light of the nature of his offenses and his character. Because we conclude that Sainvil’s prosecutorial misconduct argument is moot and that Sainvil’s sentence was not inappropriate, we affirm the trial court’s decision. * * *

Here, Sainvil argues that the prosecutor improperly commented on his failure to testify regarding his ownership of the gun, and he requests that we reverse his convictions. However, the jury did not find Sainvil guilty of his charge of felony carrying a handgun without a license. Accordingly, we cannot provide “effective relief” to Sainvil because he was never convicted of the charge that the prosecutor’s statement concerned. Therefore, we determine that Sainvil’s argument is moot.

In Gary L. Mefford v. State of Indiana, a 21-page opinion, Judge Najam writes:
Gary L. Mefford appeals his convictions following a bench trial for three counts of theft, as Class D felonies. He raises the following two issues on appeal.
1. Whether the trial court erred in denying his motion for discharge pursuant to Indiana Criminal Rule 4(C).
2. Whether there was sufficient evidence to support his conviction for theft. * * *

In sum, the trial court did not err in denying Mefford’s motion for discharge under Indiana Criminal Rule 4(C), and there was sufficient evidence to support Mefford’s three theft convictions. Affirmed.

NFP civil decisions today (9):

Joseph B. Mattingly v. Nationstar Mortgage, LLC (mem. dec.)

In Re The Marriage of: Cheryl Ann Hester v. Michael D. Hester, Jr.(mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: C.A.L., B.A.L., and B.C.L. (Minor Children), C.L. (Father) and J.S. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

In Re The Marriage Of: Thomas Todd Reynolds v. Tricia Reynolds (mem. dec.)

Richard R. Hogshire v. Ursula Hoover (mem. dec.)

Angela Gamester v. Russell Gamester (mem. dec.)

Angelo Cappas v. ThruPort Intermodal, LLC (mem. dec.)

Christina Feiock v. Korey Ricciardi (mem. dec.)

Mirza Raheem, M.D. v. Pinnacle Healthcare, LLC (mem. dec.)

NFP criminal decisions today (17):

Vincent P. Wells, Sr. v. State of Indiana (mem. dec.)

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

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

Rhonda J. Mattingly v. State of Indiana (mem. dec.)

Joseph F. Cotter v. State of Indiana (mem. dec.)

Christopher J. West v. State of Indiana (mem. dec.)

Jerry L. McClure v. State of Indiana (mem. dec.)

Anthony W. Dager v. State of Indiana (mem. dec.)

James Baldwin v. State of Indiana (mem. dec.)

Blake John Drapeau v. State of Indiana (mem. dec.)

Danny R. Slawnikowski v. State of Indiana (mem. dec.)

Michael P. McCoy v. State of Indiana (mem. dec.)

Dupree M. Steward v. State of Indiana (mem. dec.)

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

Johnny J. Wesley, Jr. v. State of Indiana (mem. dec.)

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

Robert C. Summers, III v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, February 16, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today - re adverse possession and prescriptive easements

In Tom Bonnell v. Ruby A. Cotner, Douglas Wayne Cotner, Arthur J. Johnson, Jimmy J. Johnson, and Jerry L. Johnson, a 10-page, 4-0 opinion, Justice Massa writes:

Tom Bonnell purchased a 35-foot-wide strip of land from the Pulaski County Board of Commissioners, and Ruby and Douglas Cotner brought this action to quiet title, claiming that they had previously acquired ownership of a section of that land via adverse possession. The trial court disagreed, finding that the prior sale of the Strip by tax deed extinguished any interest the Cotners may have had. Nevertheless, the trial court awarded the Cotners a prescriptive easement on certain outbuildings erected on the Strip, and both parties appealed. We affirm the denial of the Cotners’ adverse possession claim, and reverse the grant of a prescriptive easement, finding that the sale of the Strip by tax deed extinguished any and all interest the Cotners previously possessed. * * *

After more than three years of litigation and two vigorous appeals, Mr. Bonnell now owns a 35—foot—by—100—foot section of land in the Cotners’ backyard, predominately covered with a pole barn, which Bonnell values at approximately $890. We affirm the denial of the Cotners’ claim of adverse possession in the disputed portion of the Strip, and reverse the grant of a prescriptive easement in the Cotners’ encroaching outbuildings.

Rush, C.J., and Dickson, Rucker, JJ., concur.
David, J ., did not participate.

Posted by Marcia Oddi on Tuesday, February 16, 2016
Posted to Ind. Sup.Ct. Decisions

Vacancy on the Supreme Court 2016 - What Does the Commission Expect of the Next Justice?

The following commentary is from Indiana University Robert H. McKinney School of Law Professor Joel Schumm.

The Judicial Nominating Commission membership changes from year to year. As the membership changes, so will some of the priorities or concerns of JNC members and the questions asked during the public interviews. The application includes an important signal.

New Application Questions: Looking for Managers, Leaders, and Collaborators

Unlike previous vacancies (and the most recent vacancy for the Court of Appeals), the application includes some clarifying questions to help gauge the extent of an applicant’s community and administrative work. Specifically, the following three questions, which have long been part of the application, now include the additional language (which I have bolded for emphasis):

Efforts to Improve the Legal System, Administration of Justice, or Society

A. Describe your efforts, achievements, or contributions (including written work, speeches, or presentations) toward the improvement of the law, the legal system, or the administration of justice. Include a description of any management or leadership roles you undertook to achieve these goals, and describe any specific instances in which your collaborative efforts helped achieve these goals.

B. Describe your efforts, achievements, or contributions (including written work, speeches, or presentations) concerning civic, political, or social issues. Include a description of any management or leadership roles you undertook in this area, and describe any specific instances in which your collaborative efforts in this area led to a successful result.

C. Describe your efforts, achievements, or contributions (including written work, speeches, or presentations) to improve your local, state, or national community through charitable work or public service. Include a description of any management or leadership roles you undertook in this area, and describe any specific instances in which your collaborative efforts in this area led to a successful result.

These questions require applicants to do more than list their committee or civic work; they must (1) explain specifics of that work and (2) describe their “collaborative efforts.” Whether these contributions were at the local, state, or national level, the revised questions require applicants to demonstrate that they have been able to lead and work with others in getting things done. With only five justices sharing many of the administrative responsibilities of the Court, strong applicants will be able to demonstrate a commitment to pitching in where needed and a track record of administrative success and working well with others.

A Big Job

Interview questions will certainly delve into other important aspects as the work of a justice, but this job involves far more than voting on transfer petitions, asking questions at oral arguments, and writing and voting on opinions. As the letter sent from the Chief Justice to all lawyers and judges put it, this job is “an opportunity for a new Court leader to step forward in service to the state.”

Posted by Marcia Oddi on Tuesday, February 16, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on the Supreme Court 2016 - Reviewing the Paper Supreme Court Applications

The following commentary is from Indiana University Robert H. McKinney School of Law Professor Joel Schumm.

Updating this post (and @incourts picture from Twitter), I visited the Supreme Court Law Library on January 30 for the public/press viewing of the paper applications. Although most parts of the application are available online, a few parts of the application, as well as grade transcripts, writing samples, and letters of recommendation, are not.

I have reviewed applications for the past three vacancies, but this was the first time when I was the only person looking through the applications. No members of the media were there. Although the applications are still available for public viewing in the library, sorting through the boxes (instead of having them neatly laid out in alphabetical order) would be considerably more onerous.

Unlike earlier vacancies in which there were no official guidelines about how to bind an application, applicants are now told to submit their application and attachments in a three-ring binder with a photograph on the cover. Most not only complied with the rule, but many also included helpful tabs. One applicant, however, simply stapled his application in the corner. Unlike one of the applications for last year’s Court of Appeals’ vacancy, each binder was modest in size. The largest one was from Tom Fisher, which is understandable considering the long writing samples (mostly Supreme Court briefs).




Although the application form does not mention a cover letter, a few applicants did include one at the front of their applications. These letters offers an opportunity for a slightly more personal introduction that can begin to strike a theme or emphasize specific strengths of a candidate.

A couple of applications included letters of recommendation; most letters, however, were submitted separately. They were not available on January 30.

The application delves into some personal matters, such as lawsuits (which includes dissolutions of marriage for many applicants) and prior criminal offenses. The part of the application not posted online includes a question about mental health treatment, and one applicant disclosed mental treatment “for a relatively common condition not involving drugs or alcohol use.”

Having reviewed nearly 100 applications since 2010, I was surprised by a couple of things this time around. First, one applicant included his CLE statement—including an unredacted password.

Another applicant included the following as the first page of his application.




Chief Justice Rush often mentions this provision as her favorite in the Indiana Constitution. The exact image appears to be copy of one posted in the Supreme Court library.



Tomorrow: We will again post a chart of the applicants' law school grades and class rank (where available).

Posted by Marcia Oddi on Tuesday, February 16, 2016
Posted to Vacancy on Supreme Court - 2016

Courts - "Scalia's death boosts legal chances for Obama's climate plan"

Supplementing this ILB post from Feb. 14th, headed "Have justices opened gates for agency challenges?" Lawrence Hurley of Reuters has a long story today - some quotes:

A vote to block the Obama administration's ambitious climate regulation was one of Antonin Scalia's last acts as a Supreme Court justice. His sudden death may have opened a new path to the rule's survival.

Scalia died Saturday. Four days earlier, he voted with the other conservative members of the high court to put a hold on the administration's plans to implement the Clean Power Plan while it is litigated.

The regulation is designed to lower carbon emissions from U.S. power plants by 2030 to 32 percent below 2005 levels. The rule is the United States' main tool to meet the emissions reduction target pledge it made at U.N. climate talks in Paris in December.

It was challenged by 27 states, along with business and industry groups, in a case now before an appeals court in Washington D.C. The Supreme Court could be asked to weigh in again later this year.

Without Scalia, the conservative members of the court no longer have a majority, at least in the short term. The sudden shift has given a boost to the supporters of the emissions rule.

"Last week, the Clean Power Plan was basically dead," said Brian Potts, a lawyer with the Foley & Lardner law firm who represents companies on environmental regulatory issues. "But with Scalia's death, everything has changed."

Environmental lawyers involved in the litigation who support the regulation told Reuters Monday that even before Scalia's death they had been hopeful the Supreme Court would ultimately uphold it upon close consideration. But they said the change in the high court bolsters the rule's chances.

"There are still no guarantees, but the Clean Power Plan faces much better odds now than it did on Friday," said Jack Lienke, a lawyer with the Institute for Policy Integrity at New York University School of Law, which backs the regulation.

Industry lawyers said they remained confident the regulation will be struck down.

"While Justice Scalia's untimely passing creates more uncertainty, the Clean Power Plan is still predicated on an extraordinarily shaky legal foundation," said Scott Segal, a lawyer with the Bracewell law firm, which represents companies that oppose the regulation.

In January, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit had unanimously rejected the same request for a stay that the Supreme Court granted last week. The appellate panel has set oral arguments on the merits of the case for June 2.

The randomly-drawn appeals court panel is viewed by lawyers on both sides as relatively favorable for the administration, featuring two Democratic appointees and one Republican appointee. One of the Democratic appointees is Sri Srinivasan, a judge many legal experts see as a leading candidate for President Barack Obama to nominate to replace Scalia.

If the appeals court upholds the rule and the challengers take the case to the Supreme Court, they would face an uphill battle in getting the five votes needed for a win without Scalia. The four liberal justices are seen as likely to uphold the rule. So, the best result the challengers would be likely to get is a 4-4 split. When the court is evenly divided, the lower court ruling stands, meaning the regulation would survive.

Posted by Marcia Oddi on Tuesday, February 16, 2016
Posted to Courts in general | Environment

Vacancy on Supreme Court 2016 - Interviews begins tomorrow morning to fill the Supreme Court vacancy resulting from Justice Dickson's coming retirement

Beginning tomorrow morning, Wed., Feb. 17, at 10:30, the Indiana Judicial Nominating Commission (JNC) will commence three consecutive days of interviews. At the end of this first round of interviews, the applicants will be narrowed down to an as-yet-undetermined number, who will undergo a second round of interviews on March 3 and March 4. At the end of the second round, the Commission will forward three names to Governor Pence.

There is no audio or video feed from the interviews, but the ILB will be reporting them for readers in real-time, as it has since 2010.

As in past years, Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, will be covering the bulk of the interviews over the next 3 days.

But the first three interviews tomorrow morning will be reported by IU-McKinney student, Alexandra Blackwell.

Indianapolis-based defense counsel and appellate practitioner Cara Wieneke will be reporting on the final day of the final round of interviews, on Friday, March 4th.

Who is on the Judicial Nominating Commission?

The Judicial Nominating Commission is made up of the current Chief Justice, Chief Justice Loretta H. Rush, who serves as chair, plus three lawyer members, elected by lawyers from each of the three Court of Appeals geographic districts, and three non-lawyer citizen members, appointed by the Governor, all serving three-year staggered terms.

The current citizen (non-lawyer) members are:

The current attorney members are:The Interview Schedule.

The Supreme Court has made the this week's schedule available here.

Names, photos, and the complete applications of all 30 candidates may be accessed here.

Posted by Marcia Oddi on Tuesday, February 16, 2016
Posted to Vacancy on Supreme Court - 2016

Monday, February 15, 2016

Ind. Gov't. - More on: Senator Delph appointed to chair Senate Select Commission on Immigration Issues

Updating this ILB post from Feb. 4th, Dan Carden of the NWI Times reported Feb. 12th in a story titled: "Immigration may be next hot button Statehouse issue -- again." Some quotes:

INDIANAPOLIS — Five years after Hoosier business, tourism and community leaders united to water down restrictive anti-immigration legislation modeled on a controversial Arizona law, the Republican-controlled Indiana Senate may be getting ready to try again.

Senate President David Long, R-Fort Wayne, this month established the Senate Select Commission on Immigration Issues to study the impact of legal and illegal immigration on Indiana. * * *

The panel is led by state Sen. Mike Delph, R-Carmel, who is known by the nickname “El Diablo,” or “The Devil,” among Hoosier Hispanics for his repeated efforts to limit immigration by punishing businesses that hire undocumented workers.

Delph also was sponsor of the original 2011 proposal requiring local police verify the immigration status of any person that an officer suspected was in the country illegally and mandating that English be used for all government business.

Long said he chose Delph to lead the immigration study, because Delph is “the resident expert on this issue in the Senate.”

Posted by Marcia Oddi on Monday, February 15, 2016
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 10 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (3):

In the Matter of the Term. of the Parent-Child Relationship of C.S., Mother, and G.G., Father, and K.G. and G.G., Children, C.S. v. Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Guardianship of Sue Ann Acott, Adult, Bobby Ray Long v. Dan L. Strahl, Steven M. Elsbury, and Gary McDonald (mem. dec.)

Jamie Lynn Vore v. Jeffrey Lee Vore (mem. dec.)

NFP criminal decisions today (7):

Takesha Lashawn Sanders v. State of Indiana (mem. dec.)

Amos Thompson v. State of Indiana (mem. dec.)

Isaiah O. Batson v. State of Indiana (mem. dec.)

Reginald D. Ivy, Jr. v. State of Indiana (mem. dec.)

Eugene Dullen v. State of Indiana (mem. dec.)

Jemel Young v. State of Indiana (mem. dec.)

Michael T. Lowry v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, February 15, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending February 12, 2016

Here is the Clerk's transfer list for the week ending Friday, February 12, 2016. It is one page (and 21 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, February 15, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - Bills being considered in 2nd house committee this week

Here is the current Senate committee schedule. Among the bills being heard:

Here is the current House committee schedule. Among the bills being heard:

Posted by Marcia Oddi on Monday, February 15, 2016
Posted to Indiana Government

Courts - Impact of the death of Justice Scalia in the short term

"Scalia’s Absence Is Likely to Alter Court’s Major Decisions This Term" - Adam Litpak, NYT

"Tie votes will lead to reargument, not affirmance" - Tom Goldstein, SCOTUSblog

"Scalia's death set to affect court's rulings in current term" - Reuters

"Scalia's death could change court on abortion, race, climate" - Politico

"On election year Supreme Court vacancies" - Volokh Conspiracy

"Scalia’s Absence Shifts Dynamics of Supreme Court" - WSJ

"High Court roundup: A look at the major cases before the U.S. Supreme Court in the 2015/2016 term" - Reuters

"Why the Court Will Lean Left Even Without a Scalia Replacement" - Politico

"Scalia's death could change court on abortion, race, climate" - Politico

Posted by Marcia Oddi on Monday, February 15, 2016
Posted to Courts in general

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/15/16):

Next week's oral arguments before the Supreme Court (week of 2/22/16): Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/15/16):

Tuesday, February 16

Friday, February 19

Next week's oral arguments before the Court of Appeals (week of 2/22/16):

Monday, February 22

Wednesday, February 24

Thursday, February 25

Friday, February 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, February 15, 2016
Posted to Upcoming Oral Arguments

Sunday, February 14, 2016

Courts - "Have justices opened gates for agency challenges?"

This ILB post from Feb. 10th reported the SCOTUS action staying the effectiveness of EPA regulations to limit carbon emissions and reduce global warming until the DC Circuit ruled on the merits of a pending challenge. Earlier (see the Jan. 22nd ILB post), as reported in a McClatchy story from Jan. 21st:

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.

The vote, last Tuesday, Feb. 9th, was 5-4... The vote was taken before Justice Scalia's death on Saturday.

From a WSJ Lawblog story by Jess Bravin and Brent Kendall on Feb. 10th:

The court, with four liberals dissenting, temporarily blocked the EPA carbon dioxide emissions initiative on Tuesday.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia last month declined to block the regulation. That court will hear oral arguments in June.

The high court’s intervention was perhaps unprecedented. Observers on both sides of the case couldn’t point to another case in which the justices had ever granted a stay on a new regulation whose legality had yet to be fully evaluated by a lower court.

​The mystery was heightened because the four liberal dissenters didn’t write an opinion explaining their position, something those on the losing end of an extraordinary action sometimes do. Had they done so, it might have prompted a response from the majority giving a glimpse at their reasoning.

The Supreme Court issues stays sparingly, and only when specific criteria are met. Those include a “reasonable probability” that four justices will agree to review a challenge, and a “fair prospect” that five will side with the challengers on the merits.

In addition, court precedents require finding that irreparable harm will result unless the stay is granted, and that public interest is served by the stay.

Such factors obviously are in play when the court is considering a last-minute plea from a condemned inmate. That five justices similarly found a risk of irreparable harm to states from a federal regulation that takes effect several years from now suggests the court’s majority holds little confidence in the Obama administration’s view of its own authority.

The case raises novel legal issues because the EPA issued the power plant rules under a section of the Clean Air Act that has been rarely used since it was enacted in 1970, meaning there is very little court precedent on the issue. The EPA argues the clean-air provision gave the agency flexibility to address newer pollution concerns, while challengers say Congress never gave such sweeping powers to the EPA.

From a $$ story in the WSJ itself, dated late Feb. 9th:
The court’s action, which divided the justices along ideological lines, came as a surprise to many observers because the court has strict criteria for granting stays. And the Environmental Protection Agency rules, issued last summer, have yet to be evaluated by lower court judges. * * *

Lawyers challenging the EPA rule called the court’s move highly unusual. “It is the first time that the Supreme Court has actually stayed a regulation,” said Jeff Holmstead, a former EPA air official under President George W. Bush and a lawyer at Bracewell & Giuliani who represents clients suing the agency over the rule. * * *

None of the justices explained their reasoning in the one-page order, which blocked the regulation until the case is litigated by an appeals court and reaches the high court.

Oral arguments at the appeals level are scheduled for June, with the possibility of a ruling later in the year, on time to be heard in the Supreme Court’s 2016-2017 term.

To what extent the stay will have an immediate impact is unclear. While the compliance deadline isn’t until 2022, the EPA set an initial deadline of this September for states to submit a plan to eventually comply with the rule, or otherwise explain why they want an extension of one to two years. The EPA has required all final plans be submitted no later than 2018.

Robin Bravender, E&E Greenwire reporter, wrote Feb. 10th under the heading "Have justices opened gates for agency challenges?" The story begins:
Many lawyers dismissed challengers' novel attempt to ask the Supreme Court to step in and block the Obama administration's climate change rule for power plants.

It had never been done before, they argued. In its bid to urge the justices to reject the request, U.S. EPA told the high court such a move would be "extraordinary and unprecedented."

But yesterday, the court granted the request, shocking EPA's friends and foes alike.

Now there's precedent, and lawyers are wondering what it means for future challenges to major regulations from EPA and other agencies.

"They've opened a door," Vermont Law School professor Pat Parenteau said. By stepping in to halt a rule before a lower court has weighed the case, he added, the court has suggested, "If you don't like what EPA is doing -- or I suppose other agencies as well -- come see us."

Simon Lazarus, senior counsel at the Constitutional Accountability Center, said, "There's no doubt that people who are disgruntled with agency rulings are going to do this." * * *

The order notes that the court was putting the rule on hold pending an opinion on the rule's legality from the U.S. Court of Appeals for the District of Columbia Circuit and perhaps until the Supreme Court ultimately decides the case, which could take years. The order did note that the court's four liberal justices disagreed with granting the stay.

Scott Fulton, who served as EPA general counsel early in the Obama administration, said he finds it problematic that the court didn't offer its reasons for granting a stay. "It is altogether devoid of that kind of analysis, so we're left to guess what was on the court's mind," he said.

Posted by Marcia Oddi on Sunday, February 14, 2016
Posted to Courts in general | Environment

Ind. Law - "Officials, parents frustrated with Park Tudor's handling of Kyle Cox probe"

Updating this lengthy ILB post from Feb. 7th, the Sunday Indianapolis Star has a front-page story headed: "Officials, parents frustrated with Park Tudor's handling of Kyle Cox probe," reported by Marisa Kwiatkowski, Vic Ryckaert and Madeline Buckley.

The very long story reports what allegedly occurred, step-by-step. A few quotes, most from near the end of the story:

The girl’s father discovered the messages. He met with then-head of school Matthew D. Miller and attorney Michael Blickman on Dec. 14 and showed them screen shots of explicit messages between [then coach Kyle] Cox and his daughter, which included a graphic picture of the girl, according to federal court records. * * *

Police said the assault was not reported to them. Two days later, detectives obtained and served search warrants at Park Tudor and Cox’s home. It was only then that Blickman told police he had received a laptop with the explicit pictures and documents from the girl’s father about three weeks earlier, court records state.

Detectives continued their investigation over the next few weeks. But it would not be until Jan. 21 — 37 days after the initial report — that detectives interviewed Miller, the head of school.

Through all of that, Park Tudor teachers and students were trying to continue the educational process.

On Jan. 23, the Park Tudor community was dealt another blow. Miller died. His death was ruled a suicide, according to the Marion County coroner's office.

On Feb. 4, seven weeks after his resignation, Cox was taken into federal custody on a charge of coercion and enticement, court records show. * * *

Multiple parents told IndyStar they felt they were being lied to by school officials during parent meetings Jan. 28, the day before Miller’s funeral.

Parents interviewed by IndyStar said much of what Blickman told them was later contradicted by details in the federal complaint against Cox, including a statement that Cox wasn’t allowed to remove property from Park Tudor. * * *

Blickman's law firm, Ice Miller, and his attorney, Jackie Bennett, urged the public to wait for the legal process to run its course before drawing a conclusion about the attorney.

"We stand by the integrity and character of Michael Blickman, an attorney who has devoted his life to family, community and excellence in the practice of law," a statement sent to IndyStar by an Ice Miller spokeswoman said.

Bennett said he could not answer specific questions due to Blickman's ethical obligation to Park Tudor as a client.

"There are still many facts that are needed in order to have a true understanding of what occurred," Bennett wrote in an email to IndyStar. "Once all of the facts are out, we are confident it will be shown that Michael Blickman met all of his professional responsibilities and served his client well." * * *

On Friday, the Park Tudor board of directors said it hired a law firm to independently investigate the situation. It also said the law firm hired someone to monitor the school's compliance with its child protection policies.

"The school's reputation may be taking a short-term hit, but the truth is that this could have happened anywhere," a third Park Tudor father told IndyStar. "There are good people at the school, and I think they are learning from this experience."

In a separate story, Marisa Kwiatkowski of the Star reported late Friday:
The Park Tudor Board of Directors has hired an attorney to conduct an independent investigation into the conduct of former basketball coach Kyle Cox and school officials, according to a letter sent Friday. * * *

Attorney Larry Mackey, of the law firm Barnes & Thornburg, will handle Park Tudor's investigation into its own handling of the situation.

The board's letter, which was addressed to faculty, parents and alumni and was signed by board President Rob Brown, said anyone with knowledge of Cox or someone else making a student uncomfortable should report it to Barnes & Thornburg.

The board said it expects the investigation to be completed within 30 days.

Barnes & Thornburg also hired John Daniel Tinder to review Park Tudor's existing child protection policies and procedures. It will monitor compliance with those moving forward.

"We can also assure you that our school will be fully cooperative with law enforcement as its investigation continues and the prosecution of Kyle Cox goes forward," Brown wrote.

Posted by Marcia Oddi on Sunday, February 14, 2016
Posted to Indiana Law

Friday, February 12, 2016

Ind. Courts - Still more on "ACLU Lawsuit against Indiana Governor Seeks Relief for Syrian Refugees" [Updated Feb. 14]

Updating this ILB post from Jan. 18th, AG Zoeller has issued a news release on the argument in federal court today, before Judge Pratt, on plaintiff's motion for preliminary injunction. Some quotes:

INDIANAPOLIS -- Today a federal judge heard oral arguments in a lawsuit over whether the State can suspend payments to a nonprofit contractor that receives public funds to subsidize refugee resettlement costs. The State argued the federal court should deny the plaintiff’s motion for a preliminary injunction and should not enjoin, or halt, the Governor’s temporary and partial suspension of payments.

The lawsuit is Exodus Refugee Immigration Inc. v. Pence and Wernert, heard in U.S. District Court for the Southern District of Indiana, case number 1:15-CV-01858.

[Update 2/14/16] Kristine Guerra of the Indianapolis Star had this story this weekend on Friday's oral argument. The long story begins:
A federal judge must decide whether Gov. Mike Pence can push forward with his decision to block funds intended to help Syrian refugees resettle in Indiana.

Federal district Judge Tanya Walton Pratt heard arguments in a nearly packed courtroom Friday, about three months after Pence and majority of the governors in the country suspended resettlement of Syrian refugees in their states. The decision was in response to terrorist attacks in Paris and statements from federal officials about security concerns involving refugees coming from Syria.

A lawsuit filed by a local nonprofit that helps refugees resettle in Indiana claims Pence does not have the authority to intrude in immigration issues, which are exclusively in federal territory. The state argued in court records that the suspension of federal funds is not intended to punish refugees who want to come to Indiana; rather, it's a response to "mounting evidence" that terrorists may attack Western countries by posing as refugees.

The nonprofit, Exodus Refugee Immigration, is asking Pratt to issue a ruling that would prevent state officials from blocking federal dollars until the case is resolved. Pratt said she will make a decision before the end of the month.

American Civil Liberties Union of Indiana Legal Director Ken Falk, who represents Exodus, said not providing the funds would harm the group financially because the nonprofit will lose funding to prepare for the arrival of refugees who have already passed federal screening and will come to Indiana, regardless of Pence's order.

Nonprofit groups like Exodus receive federal funds, funneled through state agencies, for employment training, English language classes, case management and other services for refugees. Exodus pays for those services and is reimbursed by the state.

Falk said the governor cannot "pick and choose" who should receive financial support.

"Indiana simply cannot insinuate itself in the area of foreign policy and that's exactly what it's doing here," Falk said in court. "If every state in America chose to do what Indiana did, then refugee resettlement would grind to a halt."

Accepting refugees from other countries but not those from Syria is a violation of the Equal Protection Clause of the Constitution, Falk said. He added it discriminates against someone based on national origin, a violation of Title VI of the Civil Rights Act.

Posted by Marcia Oddi on Friday, February 12, 2016
Posted to Indiana Courts

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

For publication opinions today (1):

In David J. and Susan L. MacFadyen v. City of Angola, City of Angola Plan Commission, and Trine University, Inc., a 7-page opinion, Judge May writes:

David and Susan MacFadyen appeal a decision by the Angola Plan Commission to vacate a portion of an alley on Trine University property near the MacFadyens’ property. As the MacFadyens did not show they were aggrieved by the vacation, we affirm. * * *

As the MacFadyens were not prejudiced or aggrieved by a Commission decision that did not diminish the value of their property or deprive them of access to their real property via the alley in question, we affirm the vacation of that part of the alley on Trine’s property.

NFP civil decisions today (2):

Larry D. Rittenhouse and Linda C. Rittenhouse v. City of Winchester (mem. dec.)

In the Matter of: E.G. and H.G., A.B.(Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (4):

Elizabeth Carle v. State of Indiana (mem. dec.)

James L. Harness, IV v. State of Indiana (mem. dec.)

Cory Desarmo v. State of Indiana (mem. dec.)

James J. Wyatt v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, February 12, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Final member of Elkhart 4 has sentence reduced

Sharon Hernandez and Tori Fater report today in The Elkhart Truth - some quotes from the long story:

GOSHEN — In a rare move that came at the request of the county prosecutor’s office, Jose Quiroz of the Elkhart Four was resentenced Thursday to 10 years in prison as his conviction was changed from felony murder to burglary.

The new sentence came one month after the three other defendants saw their sentences similarly reduced after their felony murder convictions were dropped. Quiroz could be released as early as October, according to his attorney, Kathleen Cleary. * * *

Quiroz was originally sentenced to 45 years in prison after pleading guilty to felony murder in Elkhart Circuit Court, just over a month after a deadly home invasion. He, as well as Blake Layman, Levi Sparks and Anthony Sharp, were accused of being responsible for the death of 21-year-old Danzele Johnson, who died when the five broke into an Elkhart home and the homeowner opened fire.

Elkhart County Chief Deputy Prosecutor Vicki Becker entered the motion in Elkhart Circuit Court Thursday asking that Quiroz be found guilty of burglary and be sentenced to 10 years in prison, and Judge Terry Shewmaker agreed.

Becker explained that because Quiroz’s co-defendants had their convictions overturned by the Indiana Supreme Court and because the prosecutor’s office did not believe Quiroz had legitimate grounds for post-conviction relief, this action was appropriate and necessary.

In Indiana, the prosecutor’s office has the power to modify a conviction and sentence, although Becker said this may have been the first time her office had done so.

Quiroz was the only one of the Elkhart Four to plead guilty. Layman, Sparks and Sharp all were found guilty at trial in August 2013, and each was sentenced to 50 years or more in prison.

Sparks was released from prison in late January, and Layman could be released this spring. Sharp is expected to get out of prison in 2018.

Posted by Marcia Oddi on Friday, February 12, 2016
Posted to Ind. Trial Ct. Decisions

Thursday, February 11, 2016

Ind. Courts - Even more comments on Court's proposed e-filing rule amendments

Supplementing earlier comments on the proposed changes to the Appellate Rules to implementing e-filing, attorney Karen A. Wyle writes:

Per your post this last Tuesday, I'm sending you the comments I just submitted on the proposed amendments to the Appellate Rules of Procedure. Thanks for encouraging discussion of these proposals!
  • Rule 2: It might be useful to have a definition of the phrase “submitted with” in the e-filing context.
  • Rule 2(AA)(2): What, if any, procedures govern how a Service Contact authorizes a Registered User to add that Contact to the Public Service List?
  • Rules 9(A) and (C), 14(A), (B), and (C), 14.1(B), and 16(H): As with the previous changes in how to file a Notice of Appeal, a grace period might be good policy – though here, the possible error would be assuming that a new procedure (e-filing) applies, rather than failing to use a new procedure.
  • Rules 9(F)(5) and 24(A)(1)(c): I concur with the concern expressed by Indianapolis attorney Cara Wieneke that court reporters’ email addresses may not be available, and with her proposal that court reporters be required to post those email addresses online. As I am doubtful that this proposal could be fully implemented by the time the proposed rules would take effect, I suggest that the requirements to include court reporters’ email addresses in Notices of Appeal and to email Notices of Appeal to court reporters either be made dependent on that address being readily available (with the alternative of a statement that the address is not readily available), or else be included as a change to take effect after some appropriate future date.
  • Rule 14(B)(2)(c) and 14(C)(3): This is nitpicking, but since the motions for leave to file these interlocutory appeals must be conventionally filed, what is the need for the change from “attachments” to “submissions”?
  • Rule 14.1(H) requires that Petitions to Transfer in expedited appeals follow App. R. 43(I) and that they “shall not exceed one (1) page in length, excluding the signature block and certificate of service.” However, App. R. 43(I) requires a front page similar to the cover for a conventionally filed brief. It would be clearer to mention that front page in the excluded material.
  • Rule 23(C): For documents such as Notices of Appeal that must be conventionally filed, there is still a need for a rule specifying the number of required copies.
  • Rule 47: It will be interesting to see whether motions to amend briefs and Petitions become more common now that e-filing will make such amendments less laborious. It might be worth considering some language about what will not constitute “good cause” for amending a brief or Petition.
  • Rule 68(F)(2): Will a failure to realize that an opposing party or counsel is not a Public Service Contact (requiring non-electronic service under 68(F)(2)) be excusable, and if so, under what circumstances?
  • Rule 68(I): If “times of required maintenance” must be posted, or emailed to Users, some set period in advance, it could prevent problems and possibly heart attacks. . . .
  • Rule 68(M)(1)(c): Since court rules may, but don’t always, supersede statutes dealing with procedural matters (see, e.g., Health and Hospital Corp. of Marion County v. Foreman, Cause No. 49A02-1504-OV-229, opinion issued February 10, 2016), I foresee at least a few cases about which deadlines “that by law cannot be extended” are or are not superseded by these Rules. Is there is a way to preclude some of these cases by more specific language?

Posted by Marcia Oddi on Thursday, February 11, 2016
Posted to E-filing

Ind. Decisions - "OFW Law Trial Team Wins Five Hog Nuisance Cases in Indiana"

Below is a story dated Feb. 10, 2016, written by Washington DC's OFW Law attorneys, Gary H. Baise and Anson M. Keller, that relates to the Indiana Right to Farm law and lawsuits involving Indiana's Maxwell Farms. The ILB has had a number of posts about these lawsuits, dating back to Dec. 23, 2009, with a post headed "Lawyers target pig, dairy farms: Attorneys seek justice for neighbors allegedly injured by pork and dairy producers." From the OFW Law story:

Beginning in late 2009 and early 2010, attorneys Richard Hailey of Indianapolis, Charles Speer and Britt Bieri of Kansas City, and Richard Middleton brought five lawsuits based on negligence and nuisance in Randolph County, Indiana, on behalf of neighbors against Maxwell Farms of Indiana and several individual farmers. The complaints stated that the basis for the suits was the odor created by the production of hogs, improper handling of manure waste and dead hogs, fly generation and leaks of manure from the barns on to neighbors’ property. Although water pollution was raised, no Clean Water Act violations were alleged. At that time, the four attorneys, who were labeled by the newspapers as “high-powered,” were reported as vowing to make Randolph County “ground zero” in a legal fight over how Indiana produces pork.

Then Governor Mitch Daniels had encouraged the development of pork production during his administration. Middleton was quoted as stating that the failure of Governor Daniels to meet his legal obligations to protect citizens from environmental threats was at the root of the cases.

OFW Law's Gary Baise and Anson Keller represented Maxwell Farms in all five cases.* In the first four cases, depositions of the plaintiffs showed that they knew nothing about improper handling of manure waste, improper handling of dead hogs, or any leaks of manure from the barns on to their property. They claimed that those allegations came from their lawyers.

OFW Law moved for summary judgment in all five cases, and at no time did plaintiffs attempt to show any evidence of negligence or negligent operation of the hog farms in any of the five cases. The trial court judge, Marianne Vorhees, a special judge sitting in Muncie, IN, found that the elements of the Indiana Right to Farm statute had been met. The farms had been in existence for more than one year before the lawsuits began, there had been no change in circumstances in the operation of any of the farms, and there was no evidence provided by the plaintiffs to show the farms had been a nuisance at the time that the farms began operation. After a thorough briefing by OFW Law and the Indiana Attorney General, Judge Vorhees also found that the Indiana Right to Farm statute was constitutional. The plaintiffs’ appealed four of the cases, but subsequently dropped the appeals.

ILB: Notably, a new lawsuit, this one challenging the constitutionality of the Right to Farm laws, was filed last fall by the Hoosier Environmental Council and is making its way through the judicial process. See this Oct. 8, 2015 ILB post.
__________
*Note that Gary Baise, a law school classmate of mine from the late 1960's, who practices farm law nationally out of his Washington DC firm, OFW Law, recently signed on as an ILB supporter.

Posted by Marcia Oddi on Thursday, February 11, 2016
Posted to Environment | Indiana Decisions | Indiana Government

Ind. Courts - No opinions today

NO opinions today from Indiana Court of Appeals.

Also, none form Supreme Court or Tax Court.

And no Indiana opinions from the 7th Circuit.

Of course, some always could be posted later ...

Posted by Marcia Oddi on Thursday, February 11, 2016
Posted to Indiana Decisions

Ind. Gov't. - More on: Institute for Justice files suit challenging Indianapolis civil forfeiture system

Updating the ILB post from yesterday, Kristine Guerra of the Indianapolis Star has a lengthy, front-page story today on the lawsuit, headed "Indy officials face lawsuit alleging misuse of civil forfeiture funds." A few quotes:

The lawsuit, which was filed today by the Institute for Justice on behalf of the Horners and four other plaintiffs, aims to invalidate a state statute that allows police and prosecutors to deduct law enforcement costs from forfeited funds as a type of reimbursement. Any remainder goes to the Common School Fund, which is used to build schools. But Gedge said the statute violates the Indiana Constitution, which says that all, not some, forfeited funds must be deposited into the school fund.

A 2014 IndyStar review of cases found that asset forfeiture laws crafted to fight organized crime, such as drug cartels and money laundering groups, sometimes snare people facing minor drug possession charges, or no charges at all. People like the Horners are forced to engage in sometimes lengthy legal battles to get back their homes, cars and savings.* * *

The lawsuit, filed in Marion Superior Court, names Marion County Prosecutor Terry Curry, Mayor Joe Hogsett, Public Safety Director David Wantz, Indianapolis Metropolitan Police Department Chief Troy Riggs, the prosecutor's office and the city of Indianapolis as defendants. * * *

The state law in question is interpreted differently by each county. Some meticulously account for the investigative costs and send the remaining dollars to the school fund. Many do not put money into the school fund. In Marion County, forfeited funds are divided between the law enforcement agency and the prosecutor's office, according to court records.

According to memorandums of agreement between the agencies, the prosecutor's office gets 30 percent of forfeited funds. The remaining 70 percent goes to IMPD or to the Metro Drug Task Force, a group of officers from Marion and neighboring counties, depending on which law enforcement body is involved in an investigation. * * *

Indianapolis law enforcement officials say asset forfeiture is a tool that allows them to target criminal organizations, and forfeited funds are a small portion of their budgets but are an important source of revenue to train officers and purchase vehicles and equipment. The Metro Drug Task Force in Indianapolis, for instance, is funded almost entirely by forfeited dollars. In an earlier interview with IndyStar, Curry said his agency uses the money to pay for the salaries and benefits of deputy prosecutors who specialize in forfeiture cases.

Officials also say forfeited funds do not fully cover their investigative costs.

According to the complaint, Marion County law enforcement agencies received an average of $888,112 in forfeited funds annually from 2003 to 2010. That number reached about $1.5 million in 2011, the complaint says.

The Virginia-based Institute for Justice considers the practice policing for profit, which "creates a dangerous incentive for police and prosecutors to seize people's property," Gedge said. * * *

In Indiana, law enforcement can seize people's property without having to charge or convict someone. State law requires law enforcement officials to show that the property, more likely than not, was used to commit a crime.

In other states, such as Montana and New Mexico, a person must be convicted of a crime before his or her property is taken.

Posted by Marcia Oddi on Thursday, February 11, 2016
Posted to Indiana Courts | Indiana Government

Ind. Courts - More on "Indy sued over $45M recycling center deal"

Updating this ILB post from Sept. 12, 2014, Brian Eason reports today in the Indianapolis Star, under the headline "City, Covanta halt deal for recycling center opposed by environmentalists." Some quotes:

The city of Indianapolis and Covanta have agreed to suspend a contract to build a $45 million commingled trash-recycling center, Mayor Joe Hogsett announced Wednesday.

The single-stream center, which would have allowed residents to throw recyclables into their city garbage bin along with their trash, had been bitterly opposed by environmental groups and Democrats since the Republican former Mayor Greg Ballard inked the deal in August 2014.

At the heart of the dispute is whether the convenience of commingled recycling is worth abandoning hopes for a more robust curbside recycling program that could have cleanly recycled more types of materials without risk of contamination.

And, in what became a recurring criticism of Ballard's last years in office, opponents bristled at a process that they felt circumvented the sort of public input that might be expected on an agreement of this magnitude. The deal, which extended Covanta's existing contract to incinerate the city's trash, locked Indianapolis into a $112 million commitment through 2028. And, to the chagrin of environmentalists, it arguably includes disincentives to conservation. The city would have incurred a $4 million annual penalty if it implemented a competing recycling program in order to recycle more goods. * * *

Hogsett said he would re-evaluate the contract over the next 90 days.

“Leadership begins with listening, and I believe Indianapolis deserves a true community conversation before we move forward with any waste and recycling plan,” Hogsett said in a release. “I appreciate Covanta’s willingness to agree to this effort as we work toward a long-term solution that best serves our neighborhoods and our environment.”

But even as Hogsett alluded to the need for more public input, the city is continuing to defend the Ballard administration's handling of the contract in court.

Hogsett's announcement came hours before the Indiana Court of Appeals heard arguments in a lawsuit challenging the way the contract was approved. The complaint, brought by two paper companies and a concerned citizen, alleged that the city didn't follow proper public hearing requirements. A lower court ruled in the city's favor.

It remains unclear what, if any, changes the Hogsett administration might seek. Taylor Schaffer, Hogsett's spokeswoman, said the agreement with Covanta allows everyone to hit the pause button and later decide between a number of options: Move forward with the Ballard deal, cancel plans for the new center or negotiate changes to the deal to appease environmental groups.

The lawsuit, argued Feb. 10 before a COA panel, is Graphic Packaging International, et al v. City of Indianapolis, et al.

ILB: Oddly, although argued in the Supreme Court Courtroom, the website indicates that there is no video of the oral argument available.

Posted by Marcia Oddi on Thursday, February 11, 2016
Posted to Environment | Indiana Courts | Indiana Government

Wednesday, February 10, 2016

Ind. Courts - Still more comments on Court's proposed e-filing rule amendments

Supplementing earlier comments on the proposed changes to the Appellate Rules to implementing e-filing, a reader writes:

So I assume that because the proposed changes posted yesterday are still open for comment, we should not yet attempt to comply with them?

This is frustrating, because I have to prepare my appendices early; I just don't have much time in my 30-day window between getting the transcript and preparing the brief. But I don't want to assume the rules are going to take effect and prepare the appendix in compliance with the new rules, only to have them not :)

Posted by Marcia Oddi on Wednesday, February 10, 2016
Posted to E-filing

Ind. Gov't. - Institute for Justice files suit challenging Indianapolis civil forfeiture system

The ILB has posted many entries on civil forfeiture and on Indiana's system.

Today the national Institute for Justice has announced that it has filed suit in Marion County challenging the constitutionality of Indianapolis' civil forfeiture practices. From the 26-page complaint:

1. This case seeks to put a stop to Indianapolis law enforcement’s practice of
diverting millions of dollars of civil-forfeiture proceeds for its own benefit, when the
Indiana Constitution requires that all forfeiture proceeds go to public schools.
2. Article 8, Section 2 of the Indiana Constitution requires that “all forfeitures
which may accrue” go to the common school fund, and nowhere else.
3. Police and prosecutors in Indianapolis and Marion County are neglecting this
constitutional command and retaining all of the proceeds of civil forfeitures for their own
use.
4. Each year, hundreds of thousands of dollars’ worth of private property—even
millions—is the subject of civil-forfeiture actions in Marion County courts, but police and
prosecutors have sent not a single penny of civil-forfeiture revenue to the common school
fund in at least the last five years.
5. Instead, all forfeited property—everything from currency to cars to
Xboxes—is being retained by and often sold for the benefit of the police and prosecutors
responsible for seizing and forfeiting it.
6. Rather than aiding public schools, therefore, the forfeiture program in
Indianapolis has evolved—in the words of the current Marion County Prosecutor—into a
“revenue source” for law-enforcement agencies.
The lawsuit has its own website; access it here.

ILB: What is the Institute for Justice? The ILB checked Wikipedia:

The Institute for Justice (IJ) is a non-profit libertarian public interest law firm in the United States. It has litigated five cases considered by the United States Supreme Court dealing with topics that included eminent domain, interstate commerce, public financing for elections, school vouchers, and tax credits for private school tuition. The organization was founded in 1991. As of 2012 it employed a staff of 65 (including 33 attorneys) in Arlington, Virginia and five regional offices across the United States. Its 2014 budget was $12.8 million.

William H. "Chip" Mellor and Clint Bolick co-founded the organization in 1991 with seed money from libertarian philanthropist Charles Koch.

Posted by Marcia Oddi on Wednesday, February 10, 2016
Posted to Indiana Courts | Indiana Government

Law - "Lorna Jorgenson Wendt, 72, Defender of Rights of Corporate Ex-Wives"

From an obituary by Margalit Fox published Feb. 5th in the NY Times:

Lorna Jorgenson Wendt, whose high-stakes, highly publicized divorce settlement of 1997 engendered a national conversation about the economic worth of corporate spouses, died on Thursday in Stamford, Conn. She was 72. * * *

Ms. Jorgenson Wendt had been married for more than 30 years to Gary C. Wendt when, in 1996, she learned that he planned to divorce her. At the time, Mr. Wendt was the chief executive of the GE Capital Corporation, the financial services arm of General Electric, which was widely described as the company’s most profitable subsidiary.

Connecticut, where the couple’s divorce played out, is not a community property state. Ms. Jorgenson Wendt, who estimated her husband to be worth more than $100 million, refused his proffered settlement of roughly $10 million, demanding 50 percent of his net worth. As a result, she became a nationally known symbol of the company wife as hardworking silent partner.

“This is not about need,” Ms. Jorgenson Wendt told The New York Times in January 1997. “I can get along on $10 million, but why should he get $90 million? I entered into this marriage as a partner. I don’t know when he decided that it was not a partnership.” * * *

Because divorce laws vary from state to state, Wendt v. Wendt was not expected to set a national legal precedent, whatever its outcome. But it did set something of a social precedent, raising the question of whether it is appropriate, or even possible, to put a price on traditional spousal fealty.

Ms. Jorgenson Wendt argued that she been a crucial associate in her husband’s climb up the corporate ladder — supporting him through business school, maintaining their home, raising their children and serving for years as an indefatigable hostess.

“I ran his family very smoothly,” she said in court. “I ran his household. He never had to question what was going on in the household with his family. He came home. He was taken care of. Now, if a man had to do this — if he had to buy his groceries, do all the things that a wife does, plus raise a family, plus keep the home — he couldn’t be where he is today if there wasn’t someone at home allowing him to do those things.” * * *

What Ms. Jorgenson Wendt was worth, according to the 519-page opinion handed down in December 1997 by Judge Kevin Tierney of the State Superior Court in Stamford, was about $20 million.

His ruling split the couple’s competing demands, giving Ms. Jorgenson Wendt half of her husband’s hard assets — including cash, securities, homes in Connecticut and Florida and $252,000 a year in alimony — while awarding her a far smaller percentage of his future earnings, 50 percent of which she had also sought.

In what The Times later characterized as “the understatement of the year,” Judge Tierney wrote, “This court is mindful that this decision will be read with a great deal of interest by corporate officers.”

Ms. Jorgenson Wendt appealed the ruling, requesting at least $35 million. In 2000, Connecticut’s Appellate Court upheld Judge Tierney’s original award.

Here is the part I just love:
The couple earned bachelor’s degrees — hers in music — from the University of Wisconsin, and in 1965, after graduating, were married. They began their wedded life, she later said, with $2,500 between them.

The Wendts moved to Cambridge, Mass., where Mr. Wendt attended Harvard Business School. Ms. Jorgenson Wendt worked as a music teacher, though she gave up her professional life for good a few years later, after the birth of their first child.

When her husband earned his M.B.A., Ms. Jorgenson Wendt was awarded a Ph.T. — an actual certificate, presented by a Harvard dean to students’ wives in those years for, in its words, Putting Hubby Through.

Posted by Marcia Oddi on Wednesday, February 10, 2016
Posted to General Law Related

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

For publication opinions today (2):

In Thomas A. Ambrose II v. Dalton Construction, Inc., a 5-page opinion on rehearing, Judge Robb writes:

In Ambrose v. Dalton Construction, Inc., 2015 WL 5320346 (Ind. Ct. App. Sept. 14, 2015), we concluded the trial court properly denied Thomas Ambrose’s motion for summary judgment and properly entered final judgment in favor of Dalton Construction, Inc., on Dalton Construction’s complaint to foreclose a mechanic’s lien. Ambrose filed a petition for rehearing, contending, in part, that our decision is erroneous to the extent it was based on alleged oral modifications to the contract between the parties. We grant rehearing to clarify our opinion with regard to this issue. * * *

On appeal, Ambrose argued in part that whether or not Mrs. Ambrose had orally changed the location of the pool—an allegation she denied—was irrelevant because the contract contained a “no oral modifications” provision. * * *

On rehearing, Ambrose cites caselaw stating that if a contract is required to be in writing, then any modifications also have to be in writing. * * *

To the extent our decision could be interpreted otherwise, we hereby clarify that there is a statutory requirement that modifications to a home improvement contract must be in writing, notwithstanding the language in Sees. This does not change the result, however. A violation of HICA only makes the contract unenforceable against the consumer. Cyr v. J. Yoder, Inc., 762 N.E.2d 148, 152 (Ind. Ct. App. 2002) (setting aside a damage award in favor of contractors where the home improvement contract failed to comply with HICA requirements). However, in the absence of a contract, a party may still recover under a theory of unjust enrichment. Troutwine Estates Dev. Co., LLC v. Comsub Design & Eng’g, Inc., 854 N.E.2d 890, 897 (Ind. Ct. App. 2006), trans. denied. A mechanic’s lien, which was the basis for Dalton Construction’s complaint here, is a statutory lien meant to prevent unjust enrichment of property owners who enjoy material improvements to their property. McCorry v. G. Cowser Constr., Inc., 636 N.E.2d 1273, 1281 (Ind. Ct. App. 1994), adopted 644 N.E.2d 550 (Ind. 1994). Non-compliance with HICA does not preclude such equitable remedies.

Subject to the above clarification, we affirm our opinion in all respects.

In Health and Hospital Corporation of Marion County v. Dennis Foreman , a 6-page opinion, Judge May writes:
Health and Hospital Corporation of Marion County (HHC) appeals an interlocutory order granting Dennis Foreman a change of judge. * * *

Because the provisions of Ind. Code § 16-22-8-31(e) and Ind. Code § 34-35-3-3 required Foreman to file an affidavit concerning why he wanted a change of judge, and Foreman did not do so, the trial court erred when it granted Foreman’s request for change of judge. We accordingly reverse and remand for proceedings consistent with this opinion.

NFP civil decisions today (5):

James E. Manley v. Keith Butts and Geo Group, Inc. (mem. dec.)

Robert Vega v. Autumn Ridge Condominium Assocation Board of Directors (mem. dec.)

In Re the Paternity of C.A.; G.C. (Mother) v. T.A. (Father) (mem. dec.)

Marion R. Williams, Jason A. Williams, and Kellie A. Williams v. Roosevelt Allen Jr., Gerry J. Scheub, and Michael C. Repay as Lake County Commissioners, et al. (mem. dec.)

In re the Involuntary Termination of the Parent-Child Relationship of: A.C. (Minor Child), and S.S. (Mother) v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (2):

James Phillips v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Wednesday, February 10, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Female legislators seek to neutralize male references in state code"

Maureen Hayden of CNHI looks into the history of gender-neutral references in the Indiana Code in a long story today in the Terre Haute Tribune Star. Some quotes:

Five of the state's top officials are women, but all get called “he” in laws spelling out their duties.

Some other female officials, from the state's General Assembly, want to change that.

A measure co-authored en masse by women in the House of Representatives would gender-neutralize more than 40 pages of state code, written in 1852, ridding it of male pronouns associated with those who hold statewide offices.

Gone will be phrases such as “he shall” and “his duties."

Instead, the law will use the official's specific title.

The idea came from state Auditor Suzanne Crouch, who took office in 2013. When reviewing her duties as Indiana's chief financial officer, she was taken aback by language that assumed she was a man.

“Words matter, and they shouldn’t have a limiting effect,” she said.

Her idea for making a few revisions picked up support from women in a building long dominated by men. * * *

According to the National Conference of State Legislatures, at least 20 states have made moves to ensure all of their official language is gender-neutral.

Some, including New York and Rhode Island, have gone so far as to revise their state constitutions.

In 1971, lawyers with Indiana's Legislative Services Agency, which drafts bills on behalf of the General Assembly, looked at revamping laws and statutes to remove any gender bias.

They pulled back once realizing the ambitious scale of the project and how gender references saturate thousands of pages of state code.

Since 1999, any new measure passed by the General Assembly is drafted to avoid gender-specific pronouns and other language, as best as possible, said George Angelone, head of the Legislative Services Agency.

Here is the bill, HB 1173.

Posted by Marcia Oddi on Wednesday, February 10, 2016
Posted to Indiana Government

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

Updating this ILB post from Jan. 27th, which includes a copy of the 63-page motion for SCOTUS stay in West Virginia & Texas et al v. EPA, signed by 29 states, including Indiana, yesterday, according to a story in the Washington Post:

The Supreme Court on Tuesday blocked a key part of President Obama’s ambitious proposal to limit carbon emissions and reduce global warming while the plan is challenged.

The court granted a stay request from more than two dozen states, plus utilities and coal companies, that said the Environmental Protection Agency was overstepping its powers. The court’s decision does not address the merits of the challenge but indicates justices think the states have raised serious questions. * * *

The stay means that questions about the legality of the program will remain after Obama leaves office. An appeals court is not scheduled to hear the case until June, and the Supreme Court’s order said the stay would remain in effect while the losing side petitions the Supreme Court. If the court were to accept the case, that would mean an ultimate decision in 2017. * * *

As is its custom in stay requests, the court did not give a reason for its action. The court’s four liberal justices — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — objected to the decision, but they did not give an explanation.

The Obama administration had told the court that the stay request was unprecedented and that it was routine for federal programs to proceed while courts considered challenges.

Posted by Marcia Oddi on Wednesday, February 10, 2016
Posted to Environment | Indiana Government

Ind. Courts - More comments on Court's proposed e-filing rule amendments

Supplementing yesterday's comments on the proposed changes to the Appellate Rules to implementing e-filing, a reader writes:

I thought the whole point of the 2000 Appellate Rules rewrite was to simplify things and make them consistent.

Why doesn't the proposed amendment stay true to that with page counting, for example?

All pages of the Addendum to Brief, including the front page (see Rule 43(I)) and table of contents, shall be consecutively numbered at the bottom beginning with numeral one; however, the front page, table of contents, and certificate of service shall not be included in the fifty (50) page length limit of this rule.

All Appendices shall be submitted bound separately from the brief. The front page shall be included in the two hundred fifty (250) page limit of this rule.

All pages of the brief, including the front page (see Rule 43(I)), table of contents, and table of authorities, shall be consecutively numbered at the bottom beginning with numeral one.

Posted by Marcia Oddi on Wednesday, February 10, 2016
Posted to E-filing

Ind. Courts - Big changes in Indiana court administration underway

The Supreme Court has announced this morning that the Supreme Court is organizing single Office of Judicial Administration.

This apparently means the Judicial Center is dissolving.

From the news release:

The Indiana Supreme Court is improving its internal governance and creating a single Office of Judicial Administration. The internal restructuring plan creates a single administrative office with an administrative team including a Chief Administrative Officer (CAO) and a Fiscal Officer (FO). Applications for both positions, available here, are due April 1, 2016 and are expected to be filled by summer.

Details for the two new positions are available online, briefly:

  • The CAO is responsible for the efficient administration of all agencies that operate under the direction of the Chief Justice and the Supreme Court. That includes 200 personnel; fiscal management; communication; technology; legal services; intergovernmental relations; services for the trial courts; and support for court boards, commissions, and committees.

  • The FO will supervise and manage the Court's fiscal staff; direct and manage the preparation budgets; and manage payment claims for judicial funds.
The Court asked the National Center for State Courts (NCSC) to evaluate its procedures and structure. After interviews with judges and court staff, comparisons to other states, and document review, the NCSC provided the Court with recommendations.

The result is a plan with a single administrative office and enhanced communication, clarification of staff responsibilities, documentation of institutional knowledge, and a plan for the succession of key personnel.

Longtime Division of State Court Administration Executive Director Lilly Judson is the Interim CAO. She intends to retire after facilitating a smooth transition to a new CAO. A national search is underway for the new positions and the full transition to an Office of Judicial Administration is expected to take a year.

Posted by Marcia Oddi on Wednesday, February 10, 2016
Posted to Indiana Courts

Ind. Gov't. - Police recordings/body cameras bill being heard in Senate committee at 9:30 [Updated]

The Senate Judiciary Committee is meeting this morning at 9:30 AM in Room 130.

Among the bills it is hearing is HB 1019, police recordings. Watch here.

See this long Feb. 8th story by Virginia Black of the South Bend Tribune headed "Who will police body camera videos in Indiana?"

[Updated at 10:30 AM] The SBT also has a long editorial today, headed "Our Opinion: Police video bill insults you — and cops."

Posted by Marcia Oddi on Wednesday, February 10, 2016
Posted to Indiana Government

Tuesday, February 09, 2016

Ind. Courts - Some comments on Court's proposed e-filing rule amendments

The ILB has received a note from Indianapolis attorney Cara Wieneke commenting on the proposed amendments to the Appellate Rules re the implementation of e-filing. If other readers have any thoughts about the proposed rule changes, the ILB would be happy to post them in order to provoke discussion. Cara writes:

I reviewed the proposed Appellate Rule changes and am concerned about the requirement that we include the email address of the court reporter in our notice. As part of my appellate practice, I deal with courts all over the state. Many of these courts will give me the name of the court reporter when I call but will not provide me with the court reporter's email address, even upon request. Ironically, just today I contacted a staff member at a court where I am the only appellate attorney in that court. I asked for the court reporter's voicemail to leave her a message and was told I could not leave her a direct message. I also could not contact her by email.

What would be extremely helpful would be for court reporters to be required to publish their email addresses online, so that attorneys can obtain this information without calling having to call the court staff during regular business hours.

One other comment about the proposed changes: Right now the transcript is consecutively paginated across all the volumes. So we can cite just to the page. But now they want us to add the volume too, except if the pages remain consecutive throughout, why do we need the volume number?

ILB: Another thought about court reporters' emails. How about requiring court reporters to register their email addresses with the Supreme Court/Clerk of the Courts (as attorneys must do), so that the reporters' email addresses all can be published in one spot? The Court already maintains a list of "Court Reporter Fees Per Page" (although it appears not to have been updated since 2012).

Posted by Marcia Oddi on Tuesday, February 09, 2016
Posted to E-filing

Ind. Courts - Legislative concurrent resolution honors Justice Dickson

Here it is, a Concurrent Resolution honoring Justice Brent E. Dickson upon his retirement from the Indiana Supreme Court after 30 years of distinguished service.

Posted by Marcia Oddi on Tuesday, February 09, 2016
Posted to Indiana Courts

Ind. Courts - Comments now being accepted on proposed rule amendments [corrected]

The Supreme Court has announced that, effective Feb. 9th, comments are being accepted on:

Posted by Marcia Oddi on Tuesday, February 09, 2016
Posted to E-filing | Indiana Courts

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

For publication opinions today (2):

In Robert Samuels and Simon Lynes v. Berney W. Garlick, Laurie A. Garlick, Deutsche Bank National Trust Company, as Trustee for Saxon Asset-Securities Trust 2007-4, and Ind. Dept. of Revenue, a 13-page opinion, Judge Crone concludes:

Here, S&L assert that the Saxon mortgage “both over- and under-describes the Mortgaged Property” and therefore “it is impossible to determine which property was intended to be mortgaged.” Appellants’ Br. at 9. We disagree. The Saxon mortgage, which is in the Garlicks’ chain of title, put prospective purchasers or mortgagees on notice of an existing mortgage on property commonly known as 8611 West 96th Street, Zionsville – the same address shown on Lot 1 of the Copper Ridge Secondary Plat, which is also in the Garlicks’ chain of title. The Saxon mortgage’s metes and bounds description is a facially valid legal description, has the same geographic starting point as that of the Copper Ridge Secondary Plat, and encompasses the western 155 feet of
that plat. As we said under analogous circumstances in Lawrence, the fact that the premises described in the Saxon mortgage encompasses more (and/or less) real estate than was owned by the Garlicks “is relevant only to the issue whether there is a valid and enforceable lien on the non-owned premises; it does not impair the validity of the lien on the mortgaged premises.” 565 N.E.2d at 359.

Consequently, we agree with the trial court that Deutsche Bank has a prior and therefore superior lien as to that part of Lot 1 in Copper Ridge Secondary Plat that is covered by the legal description in the Saxon mortgage. Accordingly, we affirm the entry of partial summary judgment in Deutsche Bank’s favor.

In Nicole Miller v. State of Indiana, an 8-page opinion, Judge Baker writes:
Nicole Miller appeals the trial court’s interlocutory order denying her motion to suppress evidence. A police officer, responding to a call of a “disturbance” but lacking probable cause or reasonable suspicion of any criminal activity, asked Miller to speak with him. When she instead walked away, she was arrested for resisting law enforcement. Reasserting the principles of Gaddie v. State, 10 N.E.3d 1249 (Ind. 2014), we find that this arrest violated Miller’s well-established right to walk away; consequently, the subsequent search incident to the arrest violated her Fourth Amendment rights. We reverse and remand. [ILB emphasis]

NFP civil decisions today (2):

Larry A. Jones v. John P. Brinson (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of L.P. and B.C., B.P. and I.P. v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (5):

Ni Kung v. State of Indiana (mem. dec.)

B.A.T. v. State of Indiana (mem. dec.)

Khampaseuth O. Lothvilaythong v. State of Indiana (mem. dec.)

James Boggess v. State of Indiana (mem. dec.)

Travion D. Kirkland v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, February 09, 2016
Posted to Ind. App.Ct. Decisions

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

In Stage v. Colvin (ND Ind., Van Bokkelen), an 11-page opinion, Judge Hamilton writes:

Debbie Stage appeals the district court’s judgment upholding the denial of her application for supplemental security income, disability insurance benefits, and disabled widow’s benefits. Stage was 56 years old at the time of the decision. She suffers from chronic back and hip problems exacerbated by obesity, caused in turn by hypothy roidism. She argues that the administrative law judge erred by discounting significant new evidence she submitted after an agency doctor had reviewed her medical records, by giving little weight to her treating physician’s opinion, by discrediting her testimony about her pain without adequate support, and by overstating her residual functional capacity. We agree with Stage that the ALJ’s evaluation of her medical evidence was unreasonable and that substantial evidence does not support his finding that she remained capable of performing light work. We reverse the district court’s judgment and remand this case to the agency for further consideration.

Posted by Marcia Oddi on Tuesday, February 09, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decided Indiana case yesterday

In Robert Hoyt v. Michael Benham (SD Ind., Young), a 12-page opinion, Judge Posner writes:

Robert Hoyt—owner since 2001 of a 40-acre lot (on which there is a cabin) in a heavily forested region about an hour’s drive from Bloomington in southwestern Indiana—has a problem. His lot is surrounded by lots owned by others, and none of the others will allow him to use any part of their land to enable vehicular access to his property. No public roads touch his land. To reach a public road he has to be able to drive through at least one of the lots that surround him. The owner of the lot directly to his north allows him to walk through that lot to and from his lot, but that’s it so far as access is concerned. So Hoyt has turned to law, thus far unsuccessfully. * * *

He brought this suit to vindicate his claims in an Indiana state court in 2001, and later added claims against the Forest Service under both Indiana law and the federal Quiet Title Act, 28 U.S.C. § 2409a, and also (though just under Indiana law) against the owners of the other two roads. The Forest Service (technically the United States) removed the suit against it to federal district court in 2008. The district court retained supplemental jurisdiction over the private defend ants, 28 U.S.C. § 1367, and as far as we’re aware there’s been no further litigation in state court.

The district judge granted motions to dismiss or motions for summary judgment in favor of the defendants on some counts of the complaint, and entered judgment for them on the remaining counts after a bench trial. So Hoyt lost his case, and now appeals. * * *

So plainly there is no public road between Hoyt’s lot and the West Burma Road in the southern lot, and equally plainly he has no right to insist on free passage from his lot to the public road over the string of roads discussed in this opinion.

There are some other issues, but they are of no general significance and we’ll let their resolution by the district court stand without further discussion—with one exception. The owners of the southern lot ask us to award them fees under Fed. R. App. P. 38 to compensate them for the cost of opposing Hoyt’s appeal, on the ground that the appeal is frivolous. But to be entitled to such fees they would have had to ask for them in a separate motion, Heinen v. Northrop Grumman Corp., 671 F.3d 669, 671 (7th Cir. 2012), which they failed to do. And so their motion for fees is denied and the judgment of the district court is AFFIRMED

Posted by Marcia Oddi on Tuesday, February 09, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court rules in Garwood appeal

The Supreme Court heard oral argument in Virginia Garwood v. Indiana Department of Revenue, the latest appeal in a case with a long history. You may watch the oral argument here.

In a unanimous one-page order filed Feb. 8 and posted this morning, the Court writes, in part:

During oral argument, the Department of Revenue's counsel argued that Garwood's tax appeal alleges tort claims seeking compensatory damages that should be decided in the civil action Garwood has filed in the Harrison Circuit Court. See Garwood v. State of Indiana, et al., No. 31C01-1105-CT-24. Garwood's counsel agreed that the tort claims arising from the sale of the dogs should be decided in the Harrison Circuit Court case. Counsels' statements bind their clients. See Koval v. Simon Telelect, Inc., 693 N.E.2d 1299 (Ind. 1998). As to whether Garwood is entitled to a tax refund, that matter cannot be resolved until a decision is reached on the amount of taxes, if any, Garwood owes, and that issue remains pending before the Department of Revenue.

Posted by Marcia Oddi on Tuesday, February 09, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "New city clerk working hard to stamp out bad habits in her office"

Here is an interesting column today in the Fort Wayne News-Sentinel, by Kevin Leininger. What may be the most significant part to many is far down in the (worth-reading in full) story:

[New Fort Wayne city clerk Lana] Keesling may have been able to trim spending even more if not for another problem discovered after she took office. It seems that at least four city ordinances passed since 2011 had not been forwarded to American Legal Publishing, which compiles laws for review by attorneys and others. One of the ordinances concerned City Council's controversial 2014 decision to eliminate collective bargaining.

Although the ordinances remain valid, their absence in legal publications can create problems, said Keesling, who said she had planned to eliminate a deputy position but will have to fill the job in order make sure all other ordinances were recorded properly.

Keesling said she has also begun to address parking enforcement issues, establishing a weekly appeals board for people who want to question the validity of tickets. Previously, she said, there was no process for reviewing appeals, creating the possibility of arbitrary decisions.

Posted by Marcia Oddi on Tuesday, February 09, 2016
Posted to Indiana Government

Monday, February 08, 2016

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

For publication opinions today (2):

In Hervin S. Talley v. State of Indiana, an 11-page opinion, Sr. Judge Darden writes:

Hervin S. Talley was convicted of possession of a firearm by a serious violent felon and two counts of resisting law enforcement. He appealed his convictions but later received permission to terminate his appeal and seek post-conviction relief. Talley now appeals the denial of his petition for post-conviction relief. We affirm.
In Antonio Miles v. State of Indiana, a 14-page opinion, Judge May writes:
Antonio Miles appeals his conviction of murder, a felony. He raises four issues for our consideration: (1) whether the court abused its discretion by admitting text messages he sent to the victim; (2) whether the court abused its discretion by instructing the jury that use of a deadly weapon in a way likely to cause death could support an inference that a killing occurred knowingly; (3) whether the prosecutor committed reversible misconduct in closing argument by suggesting Miles’ was obliged to present evidence; and (4) whether the evidence was insufficient to support Miles’ conviction. * * *

We find no reversible error in the challenged jury instruction, the admission of text messages, or the prosecutor’s slide that allegedly referenced Miles’ decision to not present any evidence. In light of the abundant evidence of Miles’ guilt, we affirm.

NFP civil decisions today (0):

NFP criminal decisions today (0):

Posted by Marcia Oddi on Monday, February 08, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decided one Indiana case on Feb. 5

In Erik Solano v. USA (ND Ind., DeGuilio), an 8-page opinion, District Judge Pallmeyer (Northern District of Illinois, sitting by designation) writes:

Erik Solano appeals from an order of the district judge dismissing his 28 U.S.C. § 2255 motion to vacate his sentence. Solano, who waived the right to appeal from his sentence, nevertheless asserts that trial counsel’s failure to file an appeal at his request constitutes ineffective assistance in violation of the Sixth Amendment. The district court dismissed his petition as untimely, but we are free to affirm on any ground presented in the record. United States v. Flores‐Sandoval, 94 F.3d 346, 349 (7th Cir. 1996) (citing United States v. Mustread, 42 F.3d 1097, 1104 (7th Cir. 1994)). As the government argued below, the Sixth Amendment does not require an attorney to accede to a defendant’s request to file an appeal where the defendant has knowingly and voluntarily waived that right as part of a valid plea agreement. Accordingly, we affirm the dismissal of Solano’s § 2255 petition.

Posted by Marcia Oddi on Monday, February 08, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Transfer list for week ending February 5, 2016

Here is the Clerk's transfer list for the week ending Friday, February 5, 2016. It is one page (and 1 case) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, February 08, 2016
Posted to Indiana Transfer Lists

Law - "Unauthorized" publishing of state statutes or rules... Or even case law

The ILB had a long, worth-reading post Aug. 5, 2015. It involved the State of Georgia, which appears to only make the text of the Georgia Code available to the state's citizens via the Georgia Code Annotated, published by Lexis, or through a a clunky, online site with LexisNexis annotations and restrictions.

Public.Resource.org, an organization run by Carl Malamud, appears to have scanned or otherwise copied all the volumes of the printed Georgia Code Annotated, published by LexisNexis, and posted it online.

The State of Georgia sued. This long July 31, 2015 story by C. Mitchell Shaw of The New American gives the details.

Now it seems the Georgia Administrative Rules and Regulations are also involved in litigation. It appears the State of Georgia not only sold the rights to its statutes, but also the rights to its rules. From a lenthy and informative story Feb. 6th by Robert Ambrogi:

Two of the nation’s leading legal research services will be facing off in federal court, as Fastcase has sued Casemaker seeking a declaratory judgment that could have broad-reaching implications for legal publishing in the United States.

Fastcase went on the offensive and filed the lawsuit in U.S. District Court in Atlanta on Feb. 3 after Casemaker served it a written notice last month demanding that Fastcase take down from its research collection the Georgia Administrative Rules and Regulations.

Casemaker’s parent company, Lawriter, has an agreement with the Georgia Secretary of State designating it as the exclusive publisher of the Georgia Rules and Regulations and giving it the right to license that content to other publishers.

But Fastcase maintains that the Georgia regulations are public law published under statutory mandate and are therefore in the public domain, meaning that Casemaker cannot claim an exclusive right to their publication.

“The law is not copyrightable,” Fastcase CEO Ed Walters told me in a conversation yesterday. “This isn’t a close call.”

“Someone needs to stand up for the proposition that public law is in the public domain,” he said.

Posted by Marcia Oddi on Monday, February 08, 2016
Posted to General Law Related

Ind. Courts - "BOEHM: Problems loom in plan for picking Marion County judges"

SB 352, re the selection of Marion County Superior Courts, has been passed by the Indiana Senate. For background, see this ILB post from Jan. 29th.

Ted Boehm, a former Supreme Court justice, had a Feb. 6th IBJ Forefront column on the proposal. A sample:

The nominating commission would not only select judges, it would also determine their qualification to stand for retention. This, in effect, authorizes the commission to remove sitting judges. Indiana already has a process administered by the Supreme Court to handle cases of judicial incompetence or worse. It should not and arguably cannot constitutionally be supplanted by a new commission outside the judicial branch.

The proposal to give a commission power to refuse a judge’s request to be put on the ballot is inconsistent with the requirement of a retention election. If retention should be put to the voters, why should a group of political appointees screen who gets on the ballot, any more than we permit anyone to police who runs for any office?

No individual or group should have the power to remove a judge without a judicial proceeding. But this problem is exacerbated by the composition of the commission. Eight commissioners would be legislators appointed by Republican and Democratic legislative leaders. Marion County political party chairs would each appoint three, and the Indiana and Indianapolis bar associations would each appoint one.

Remarkably, any commission member could be removed by the appointing authority “at any time.” The result would be a bipartisan commission with 14 of 16 members serving at the pleasure of six politicians. Appointing judges is historically an executive function, not a legislative one. And giving political appointees the power to terminate a judge’s career is not consistent with the concept of the rule of law, or the separation of powers, both of which require an independent judiciary.

Posted by Marcia Oddi on Monday, February 08, 2016
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/8/16):

Thursday, February 11

Next week's oral arguments before the Supreme Court (week of 2/15/16): Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/8/16):

Wednesday, February 10

Thursday, February 11

Next week's oral arguments before the Court of Appeals (week of 2/15/16):

Tuesday, February 16

Friday, February 19

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, February 08, 2016
Posted to Upcoming Oral Arguments

Sunday, February 07, 2016

Ind. Law - "Did Park Tudor officials violate state law?" And what is an attorney's duty?

That was the headline to this long Feb. 6th Indianapolis Star story by Marisa Kwiatkowski and Vic Ryckaert. Some quotes:

Federal records indicate Park Tudor School officials may have violated state law when they failed to immediately report suspected child abuse in the case involving former basketball coach Kyle Cox.

And the prestigious private school’s attorney — who copied explicit pictures related to the Cox case — may have violated child pornography laws, a legal expert told IndyStar.

Cox, 31, was taken into federal custody Thursday on charges of coercion and enticement, court records show. He is accused of repeatedly coercing a 15-year-old Park Tudor student into sending him explicit images.

The federal complaint raised questions about school officials' handling of evidence in the case, and legal experts consulted Friday by IndyStar cited at least two other potential problems.

First, in a 2014 Indiana Supreme Court opinion, the justices concluded that Indiana law requires certain school officials to immediately report instances of suspected child abuse at their institutions to Indiana Department of Child Services or law enforcement. In that case, the Supreme Court ruled that the four hours it took Christopher Smith, then the principal at Muncie Central High School, to report a suspected rape was too long. [ILB: The opinion on the obligation to timely report child abuse was Smith v. State, see details here.]

Park Tudor officials appear to have waited even longer.

The 15-year-old girl's father met with former head of school Matthew D. Miller and attorney Michael Blickman on Dec. 14 to tell them what was going on between his daughter and Cox, according to the federal complaint. The girl's father showed Miller and Blickman screen shots of explicit messages between Cox and his daughter, which included a graphic picture of the girl. He allowed those school officials to keep the computer overnight to review the material.

The next day, on Dec. 15, a different Park Tudor official reported the suspected misconduct to DCS.

DCS spokesman James Wide said he could not comment on whether Park Tudor officials violated the mandatory reporting law.

"We received a report on Dec. 15," he said.

In a statement issued Thursday, Park Tudor spokeswoman Cathy Chapelle said the school reported the allegations within 24 hours. On Friday, she told IndyStar that school officials would not be making any additional statements. * * *

Blickman, a partner in the labor and employment group of the Ice Miller law firm, did not return repeated calls seeking comment on his conduct relating to the investigation.

Federal court records indicate Blickman made copies of the explicit messages and images, including at least one explicit photo of the girl, and kept them at his office.

“This gets really dicey,” Indianapolis attorney Jack Crawford said. “That’s child pornography. You cannot possess it even if it’s for a legal purpose.”

Crawford, a former elected prosecutor in Lake County and a longtime defense attorney, told IndyStar that he cannot get copies of photos when he is representing a client in a child pornography case. He said he has to go to the U.S. attorney's office to look at them. * * *

On Dec. 15, Cox resigned from Park Tudor after signing a confidentiality agreement with school officials that prohibited him from communicating with Park Tudor students and from discussing the reason for his resignation, according to federal court records. He told a male student that "the nice thing is I can get any job in the state. ... I've positioned myself to be marketable."

Cox's attorney, Jim Voyles, declined to comment on the case Friday.

Court records show Park Tudor officials also allowed Cox to take a school computer home on Dec. 15 to remove "personal" content.

When police started to investigate the allegations against Cox, Blickman told them he would not offer any information because his conversations with school officials were “privileged communications,” court documents state. Blickman said he believed Park Tudor officials had done everything that they needed to do.

The story continues:
The school's actions were not the only ones called into question Friday.

DCS officials did not initiate an investigation after receiving the first report of suspected child abuse on Dec. 15, according to two sources close to the investigation.

In that initial report, a Park Tudor official told DCS that Cox had sent messages to a 15-year-old student that were "suggestive and not appropriate for an adult teacher to send to a student." The official claimed not to know whether pictures had been exchanged.

Wide, the DCS spokesman, said he could not comment on why the agency screened out that first report of the alleged abuse. In general, he said, the more information DCS officials are given, the better able they are to determine whether to initiate an investigation.

The agency did begin an investigation after receiving a second report Dec. 22, federal court records show.

A second Indianapolis Star story, from the same date and time, reported by Vic Ryckaert, Justin L. Mack and Madeline Buckley, is headed "Ex-Park Tudor coach Kyle Cox accused of sending sexually explicit messages to student." Some quotes:
While detectives investigated accusations that a basketball coach repeatedly coerced a 15-year-old student to send him explicit images, administrators and an attorney for a prestigious Indianapolis private school hindered the investigation, federal court documents reveal.

A searing federal criminal complaint that charges former Park Tudor basketball coach Kyle Cox, 31, with a sex offense tells two stories: one that describes the former coach’s confidence that he “could work anywhere in the state” after the school learned about the inappropriate messages, and another that raises questions about whether school officials impeded the investigation. * * *

The complaint, which was unsealed at Cox’s hearing, alleges that Cox developed a relationship with a 15-year-old student during this school year's first semester. In addition to sending sexually explicit messages to the girl, Cox devised a plan to bring the girl to his home while his wife and children were out of town and tried to persuade the girl to meet him for sexual activity at the school, court documents said.

But his plans fell apart when the girl’s father discovered messages between his daughter and Cox, according to court documents.

The documents say the girl's father met with school officials on Dec. 14 and showed them an extensive array of screen shots of explicit messages between his daughter and Cox, which included a graphic picture of the girl. He allowed school officials and the school's attorney to review the material on his computer overnight. * * *

The attorney, who is unnamed in court documents, took the materials to his law office to create new copies and store them on a thumb drive, court documents said. He then returned the laptop and other items to Park Tudor.

The next day, Cox resigned, and the school filed an official report to the Department of Child Services, as required by law. The court documents, though, say the report was lacking in detail and did not say anything about the explicit messages the school and the attorney had in their possession.

The school also allowed Cox on Dec. 15 to take a school computer home to remove "personal" content, the criminal complaint said.

When police went to Park Tudor on Jan. 5 to speak with the person who filed the original report, she said she did not have any additional knowledge of the incident she reported because she was provided the information by the attorney representing the school, according to court documents.

The attorney told investigators that he would not offer any information because his conversations with school officials were “privileged communications,” court documents said. Police explained the importance of finding out who was in possession of the messages, but the attorney said that school officials held the computer only for a short time before returning it to the father.

The attorney said he believed that Park Tudor officials had done everything that they needed to do, according to court documents, and cited attorney-client privilege when refusing to provide additional information.

Two days later, on Jan. 7, police obtained warrants and searched Park Tudor, Cox and Cox’s home. When executing the searches, police confiscated employment records and a cellphone.

It wasn't until police began searching the school that the attorney told detectives that he received a laptop and documents from the girl’s father about three weeks earlier, court documents said.

The Star has made the federal criminal complaint available here.

The IBJ (Indianapolis Business Journal) also has several stories. "Feds aren't saying if Park Tudor, attorney could face charges," a Feb. 5th story by Hayleigh Colombo, begins:

Could Park Tudor School or its attorneys be in legal trouble for their handling of allegations of an inappropriate relationship between its former basketball coach and one of its students?

A spokesman for the U.S. Attorney’s Office said Friday he could not say whether the school or its legal counsel could face charges in the inquiry, which led on Thursday to the arrest of former coach Kyle Cox on a charge of coercion and enticement. The 30-page criminal complaint against Cox said the school and a school attorney impeded authorities after they launched their investigation late last year.

“Everything is still on the table,” said Tim Horty, spokesman for U.S. Attorney Josh Minkler. “The investigation is not complete.”

The complaint said the school and the attorney received copies of sexually explicit photos and text messages from the 15-year-old victim's father on Dec. 14 but did not turn them over to authorities until Jan. 7, when a search warrant was served at the school.

“These agencies—law enforcement and [Department of Child Services]—did not know before the search at the school that the attorney retained copies of the visual depictions of a minor engaged in sexually explicit conduct and the related communications,” according to the complaint.

The Ice Miller attorney representing Park Tudor was Michael Blickman, a partner in the firm's labor and employment group, WTHR-TV Channel 13 reported. Blickman and school headmaster Matthew Miller met with the victim's father on Dec. 14, after he discovered troubling messages and photos on his daughter's phone and contacted the school.

One day later, the school signed a confidentiality agreement with Cox, 31, that allowed him to resign and barred him from discussing reasons for his departure. Cox had been the basketball coach since 2009 and led the team to state 2A championships in 2014 and 2015. * * *

“We all need to be vigilant and mindful of teenagers and their particular vulnerabilities, and that includes Park Tudor,” said Jennifer Drobac, a professor at the IU McKinney School of Law who specializes in juvenile consent. “As soon as they knew about this, I think they had an ethical and moral duty, if not a legal one, to safeguard this child. That means cooperating with the police, if that’s not already obvious.” * * *

When a detective spoke with the school's attorney, the attorney “advised that he was unable to help because of what he said were privileged communications,” according to the complaint.

Drobac said attorney-client privilege doesn’t work like that.

“An attorney does have an obligation to protect the confidences of a client revealed in the course of counseling that client,” Drobac said. “An attorney cannot accept evidence of criminal conduct and keep that secret as a confidence. You can’t use attorney-client privilege to thwart police.”

A Feb. 7th IBJ story, from staff, is headed "Park Tudor taps B&T, Frost Brown Todd as legal counsel." Some quotes:
Park Tudor School—facing criticism of its handling of allegations that its basketball coach sent sexually explicit messages to a 15-year-old student—said in a letter to parents Friday that it has hired a “team of attorneys” from Barnes & Thornburg and Frost Brown Todd to represent the school “in this matter moving forward.”
ILB: Finally, ILB readers may recall this Oct. 12, 2015 ILB post, titled "More on: When must an Indiana attorney report the abuse of a child?" relating to the recent, and controversial, opinion [#2-2015] of the ISBA Legal Ethics Committee, on the "conflict between Indiana’s mandatory reporting statute and the [lawyer's] duty of confidentiality."

Posted by Marcia Oddi on Sunday, February 07, 2016
Posted to Indiana Law

Friday, February 05, 2016

Ind. Courts - "Goshen lawyer suspended from practicing law to run for Elkhart Circuit Court judge" [Updated]

So reports Tim Vandenack in this story today in The Elkhart Truth that begins:

GOSHEN — Joseph Lehman, a Goshen attorney suspended by the Indiana Supreme Court from practicing law due to professional misconduct, plans to run for Elkhart County Circuit Court judge.

Lehman couldn’t hold the judge post if elected, because of the suspension. But he said he plans to apply for his Indiana Bar license by Jan. 1, when the new judge takes office. That would meet the legal requirement to hold the spot.

Lehman — found guilty last year on three misdemeanor counts of practicing law by a non-attorney, after his license suspension — cited his 25 years as a private attorney and his familiarity with the local court system.

“I am fit. I am not unfit,” said Lehman, who has run, unsuccessfully, for several judge’s posts in Elkhart County over the years.

See also this Oct. 8, 2015 ILB post headed "Suspended Goshen lawyer fined and held in contempt for practicing while suspended."

[Updated 2/7/16]
From a later Feb. 5th story from reporter Vandenack:
Joe Lehman, would-be candidate for Elkhart Circuit Court judge, did not get the required paperwork in on time to run for the spot in the primary in May and won’t be on the ballot.

Still, the Goshen attorney — a Democrat suspended by the Indiana Supreme Court in 2014 from practicing law due to professional misconduct — plans to vie for the judge’s post.

The filing deadline to get on the May 3 primary ballot was noon Friday. Lehman filed his declaration of candidacy with the Indiana Election Division, part of the Indiana Secretary of State office. But he didn’t provide a receipt from the Indiana Division of State Court Administration indicating he had filed a “statement of economic interest,” which is also required, said Angela Nussmeyer, co-director of the Election Division.

Thus, Nussmeyer said Friday, election officials have rejected Lehman’s application to get on the ballot and will be sending him a letter saying as much.

Lehman, advised of the news later Friday, took the development in stride. “I’ll have the party slate me,” he said, which would secure a spot for him on the Nov. 8 general election ballot.

Posted by Marcia Oddi on Friday, February 05, 2016
Posted to Indiana Courts

Ind. Courts - Request by the Indiana Criminal Justice Institute For Release of Bulk Data or Compiled Information Excluded from Public Access

The Supreme Court has posted an order filed Feb. 4th titled "Order granting Indiana criminal justice institute’s request under administrative rule 9(f)(4) for release of bulk data or compiled information that includes information excluded from public access under Administrative Rule 9." A few quotes from the 4-page order:

The Indiana Criminal Justice Institute (ICJI) has filed a Verified Request for Bulk Data/Compiled Information under Administrative Rule 9(F)(4). This request seeks to obtain specific data from all Indiana trial courts exercising jurisdiction over criminal and juvenile delinquency cases that is excluded from public access under Administrative Rule 9. * * *

The records sought are generally excluded from public access under Admin. R. 9(G) and access to bulk or compiled case records excluded from public access may be granted by this Court only under specific circumstances under Admin. R. 9(F)(4)(c). Under Admin. R. 9(F)(4)(a)(v), moreover, a request for bulk distribution or compiled information that includes information excluded from public access must provide for individual notice to all persons affected by the release of the information unless, upon prior notice to the Indiana Attorney General and a reasonable opportunity to respond, such individual notice requirement is waived by this Court. ICJI requested the Court waive the requirement for provision of individual notice to all persons affected by the release of the information.

The Indiana Attorney General has filed a Response as provided for under Admin. R. 9(F)(5) and does not oppose the requested waiver.

Accordingly, the Court finds that ICJI has shown by clear and convincing evidence that it has satisfied the requirements of Admin. R. 9(F)(4)(a)(i), (ii), (iii), and (iv), and the public interest will be served by allowing access.

The Court further finds the information sought by ICJI is consistent with the purposes of this rule, resources are available to prepare the information, and fulfilling the request is an appropriate use of public resources.

After consideration of the request for waiver of individual notice to individuals affected by release of the information excluded from public access, the Court finds by clear and convincing evidence that the purposes for which the information is sought substantially outweighs the privacy interests protected by this rule. Accordingly, due to the highly secure manner for the protection of the data, the Court waives the requirement of individual notice to all parties affected by release of the sought information to which public access is prohibited or restricted.

The Court hereby grants the request for Bulk Data/Compiled Information under Administrative Rule 9(F)(4) to the extent discussed herein. Specifically, ICJI shall receive data from Indiana Court Records and INcite from courts utilizing the Odyssey Case Management System exercising criminal and juvenile delinquency jurisdiction related to arrest, court referrals, diversion, juvenile detention, petitions filed, delinquency records, probation records, supervision records, placements, secured confinement records, and waivers (of juvenile jurisdiction). However, with regard to social security numbers, dates of birth, and addresses, the data provided is limited to the last four digits, the month and year of birth, and the zip code of the address.

Upon completion of its study, but no later than January 31, 2017, unless an extension of time is granted, ICJI will securely wipe any sections of computer hard drives on which the requested data is stored. The Division of State Court Administration may, if requested, grant one year renewals of the User Agreement, not to exceed three, without further consideration by the Court if the data sought in the proposed renewals does not change, other than for data from new Odyssey courts, and the prescribed enhanced security standards remain.

Posted by Marcia Oddi on Friday, February 05, 2016
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (1):

In Liter's of Indiana, Inc. v. Earl E. Bennett and Daniel L. Bodine, a 28-page opinion, Judge Riley writes:

Appellant-Plaintiff, Liter’s of Indiana, Inc. (Liter’s), appeals the trial court’s judgment entered pursuant to a jury’s verdict in favor of the Appellees-Defendants, Earl Bennett (Bennett) and Daniel Bodine (Bodine) (collectively, the Appellees). * * *

Liter’s raises three issues on appeal which we restate as follows: (1) Whether the common enemy doctrine precludes the Appellees’ negligence claim against Liter’s; (2) Whether the trial court abused its discretion in admitting certain expert testimony; and (3) Whether the jury awarded inadequate damages on Liter’s trespass claim. * * *

In light of the foregoing, we conclude that: (1) the common enemy doctrine does not preclude the Appellees’ negligence claim; (2) there was no abuse of discretion in admitting Love’s testimony; and (3) Liter’s argument that the jury’s award of zero damages is inadequate is waived on appeal; however, because there is continuing trespass, we remand to the trial court with instructions for the issuance of a permanent injunction.

Affirmed, but remanded with instructions for the issuance of a permanent injunction with respect to the continuing trespass.

NFP civil decisions today (0):

NFP criminal decisions today (4):

Raymond D. Tyson v. State of Indiana (mem. dec.)

Matt D. Neace v. State of Indiana (mem. dec.)

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

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

Posted by Marcia Oddi on Friday, February 05, 2016
Posted to Ind. App.Ct. Decisions

Thursday, February 04, 2016

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

For publication opinions today (2):

In State of Indiana v. Chad T. Mooney, Brittany McCool, a 7-page opinion, Judge Robb writes:

In this consolidated appeal, the State of Indiana appeals the trial court’s denial of its motions for relief from judgment. Finding no error, we affirm. * * *

The State’s motions invoked subsections (B)(1) and (B)(8) of Trial Rule 60, which permit relief upon a showing of “mistake, surprise, or excusable neglect,” or any other reason warranting relief from the judgment. A party filing a motion under subsections (B)(1) or (B)(8) must also “allege a meritorious claim or defense.” Ind. Trial Rule 60(B). However, a motion for relief from judgment may not be used as a substitute for direct appeal. Gertz v. Estes, 922 N.E.2d 135, 138 (Ind. Ct. App. 2010). “Trial Rule 60(B) motions address only the procedural, equitable grounds justifying relief from the legal finality of a final judgment, not the legal merits of the judgment.” In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). * * *

The State’s motions—filed on November 25, 2014—did not identify any “mistake, surprise, or excusable neglect” suffered by the State, nor any other reason justifying relief from the judgment. At the hearing on its motions, the State briefly mentioned what it characterized as “delay” in the trial court sending the relevant orders to the BMV * * * But we cannot agree the act of re-sending the orders to the BMV constituted “delay.” There is nothing in the record suggesting the BMV did not receive the orders the first time they were sent, and the BMV offered no explanation for why it waited months to intervene in either case. * * *

The State has not established prima facie error in the trial court’s denial of its motions for relief from judgment. The State failed to identify any circumstances warranting relief under Trial Rule 60(B)(1) or (B)(8), and its motions addressed only the legal merits of the judgments. We will not entertain the State’s attempt to resurrect an untimely appeal.

In Landon T. Harbert and Malcolm M. Smith v. State of Indiana, a 24-page opinion, Judge Baker writes:
Landon Harbert appeals his conviction for Robbery, a class B felony, and the twenty-year sentence imposed by the trial court. Malcolm Smith, Harbert’s co-defendant, appeals his convictions for two counts of Robbery, a class B felony. * * * Finding no error, we affirm.
NFP civil decisions today (5):

In Re: the Marriage of: Renita A. Marek and Edward Marek (mem. dec.)

Jeffrey T. Boring v. Lisa K. Boring (mem. dec.)

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

Kulwinder Kaur v. Hardev S. Bal (mem. dec.)

Michael C. Feldhake v. Meryle Lowe (Feldhake) (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Thursday, February 04, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Online public access to e-filed public documents to be studied by Indiana Court [Updated twice]

From an order filed yesterday, creating an advisory task force on remote access to and privacy of electronic court records:

Currently, the public can access non-confidential records in a case file by going to the courthouse or contacting the clerk or court staff for assistance. The result is often referred to as "practical obscurity" because most public case documents remain obscure in the hard copy case file. In the near future, the electronically filed and digitized documents in a case file could be posted on the Internet and made available around the world. This capability raises new questions about balancing litigants' privacy against the public convenience (and expectation) of remote access over the Internet.
The order continues:
In 2003, a 28-member Privacy and Public Access Task Force, chaired by Justice Brent Dickson, worked for a year and recommended to the RMC a comprehensive rule about confidentiality and public access to court records. Ultimately, the result was this Court’s adoption of a new Administrative Rule 9, effective January 1, 2005.

We find that technological developments since the adoption of Administrative Rule 9 warrant a renewed study of best practices and policies on Internet access to electronic court records.

An Advisory Task Force on Remote Access to and Privacy of Electronic Court Records is hereby created to work under the auspices of the RMC and Court Technology. A list of the Advisory Task Force members is attached. In conducting its work, the task force should consider the purposes articulated in Indiana Administrative Rule 9(A)(2), which are:

a. Promote accessibility to court records;
b. Support the role of the judiciary;
c. Promote government accountability;
d. Contribute to public safety;
e. Minimize risk of injury to individuals;
f. Protect individual privacy rights and interests;
g. Protect proprietary business information;
h. Minimize reluctance to use the court system;
i. Make the most effective use of court and clerk staff;
j. Provide excellent customer service;
k. Avoid unduly burdening the ongoing business of the judiciary.

The task force is directed to provide an initial written report, with findings and recommendations, to the RMC and to Justice Steve David and Judge Paul Mathias as the leaders of the Court's technology initiatives, not later than September 1, 2016.

Here are the members:
1. The Honorable Loretta H. Rush, Chief Justice of Indiana, Chair
2. Melissa Jane Avery, Attorney, Broyles Kight & Ricafort, P.C.
3. Professor Fred H. Cate, Indiana University Maurer School of Law
4. Christa Coffey, Clerk, Tippecanoe Circuit and Superior Courts
5. Kenneth J. Falk, Legal Director, ACLU of Indiana
6. Christine Hayes Hickey, Attorney, Rubin and Levin, P.C.
7. Lilia G. Judson Interim Chief Administrative Officer, Indiana Supreme Court
8. Stephen Key, Executive Director and General Counsel, Hoosier States Press Association
9. Larry A. Landis, Executive Director, Indiana Public Defender Council
10. Jon Laramore, Executive Director, Indiana Legal Services, Inc.
11. The Honorable Peggy Lohorn, Judge, Montgomery Superior Court 2
12. Kelly McBride Executive Director, Domestic Violence Network
13. The Honorable David Ober, Indiana House of Representatives
14. David N. Powell, Executive Director, Indiana Prosecuting Attorneys Council
15. Professor Joel Schumm, Indiana University Robert McKinney School of Law
16. Gary D. Secrest, Assistant Attorney General, Office of the Attorney General
17. Debra Walker, Clerk, Henry Circuit Court
18. The Honorable Mary G. Willis, Judge, Henry Circuit Court 1
Some ILB readers may remember this Nov. 10, 2015 post from Prof. Joel Schumm (#15 above) headed, "Appellate E-filing is terrific! — except for one thing." The "one big disappointment":
Now that all these motions and briefs exist in electronic format, one would expect easy access by other lawyers, trial judges, the public, and the press. Unfortunately, that is not part of the pilot project.

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

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

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

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

The new "advisory task force on remote access to and privacy of electronic court records" is to make "findings and recommendations to the RMC and to Justice Steve David and Judge Paul Mathias as the leaders of the Court's technology initiatives." No word on what will happen thereafter.

The ILB has asked the Court's Chief Public Information Officer about whether the meetings of this advisory group will be public. One hopes they will be webcast, archived, and that agendas will be available in advance.

[Updated at 11:40 AM]
The ILB has heard back from the Court:

The meetings are open to the public. The first meeting is February 26, 12-2pm. I do not have a location established at this time.
ILB: That is good to hear. This topic is being debated across the country; it would be good if Indiana could establish a public record of its deliberations through a video-archive or at least agendas and extensive minutes.

[Updated Feb. 12th] On Feb. 11th the Supreme Court filed an order adding another member to the Advisory Task Force, Honorable Sharon Negele, Indiana House of Representatives. She joins Honorable David Ober (#13 above), also of the Indiana House of Representatives. Both are Republicans. Rep. Negele is a co-author of the introduced version of HB 1019, re body cameras and police recordings.

Posted by Marcia Oddi on Thursday, February 04, 2016
Posted to E-filing | Indiana Courts

Ind. Gov't. - "Home rule and plastic bags" - blowing in the wind ...

Indiana has home rule except when it doesn't. Megan Banta wrote Tuesday in a Bloomington Herald-Times blog:

There’s a bill moving through the General Assembly that could leave an initiative to ban single-use plastic bags in Bloomington dead in the water.

The proposal, authored by a Republican from southwestern Indiana, would eliminate the ability of local government entities to regulate single-use and retail containers, whether reusable or disposable.

Specifically, local governments wouldn’t be able to adopt of enforce ordinances or resolutions to prohibit, restrict, charge fees for or tax the usage of these containers, should the law pass.

That means that efforts by the group Bring Your Bag Bloomington, which hopes to get an ordinance through city council that would first charge for and then ban single-use plastic bags, wouldn’t ever see a result.

And it means if any cities, counties, towns, etc. have similar ordinances (though none in Indiana do, to our knowledge), they wouldn’t be able to enforce them.

The proposal does allow for exemptions in the cases of recycling, whether though a drop-off location or curbside service offered by a locality, and in the case of events organized, sponsored or permitted by a city or similar unit or that take place on government property.

If passed into law, the bill would be effective immediately.

The bill, HB 1053, has passed the House.

Posted by Marcia Oddi on Thursday, February 04, 2016
Posted to Indiana Government

Ind. Gov't. - More on: Bill to ban abortions sought due to the gender or disability of a fetus passes Indiana Senate

Supplementing this ILB post from yesterday, Dan Carden has this story in the NWI Times, headed "Indiana could bar abortions prompted by fetal abnormalities." Some quotes:

Pregnant Hoosier women who learn their child will be born with Down syndrome or another genetic disease, defect or disorder would be prohibited from obtaining an abortion, under legislation approved 35-14 by the Republican-controlled Senate.

Senate Bill 313
, sponsored by state Sen. Travis Holdman, R-Markle, bars doctors from performing an abortion if the doctor knows the patient is seeking an abortion due to a diagnosis, or potential diagnosis, of a genetic fetal disability.

The legislation also prohibits abortions motivated by gender selection, or due to the race, color, national origin or ancestry of the fetus. * * *

Opponents of the measure questioned why Indiana would force women to give birth to children with genetic disabilities if the women know they cannot or do not want to take on that burden, and the state is not allocating extra funds to help care for those children.

A woman still could obtain an abortion in Indiana prior to viability, or 20 weeks of pregnancy, if the fetus either is healthy or destined to suffer a nongenetic lethal fetal anomaly where the child dies within three months of birth.

In that circumstance, the measure requires doctors give women a state-published brochure discouraging abortion by detailing the availability of perinatal hospice programs that ensure "the woman and her family experience the life and death of the child in a comfortable and supportive environment."

Should the legislation advance through the House and be signed into law by Republican Gov. Mike Pence, it almost certainly will be challenged in federal court where most recently enacted Indiana abortion restrictions have been struck down as unconstitutional.

A separate proposal to win approval this week, House Bill 1337, encourages the burial of aborted fetuses and requires abortion doctors comply with numerous additional paperwork mandates.

Posted by Marcia Oddi on Thursday, February 04, 2016
Posted to Indiana Government

Ind. Gov't. - From a county clark: "Once a clerk, always a clerk"

Article 6, Sec. 2 of the Indiana Constitution:

Section 2. (a) There shall be elected, in each county by the voters thereof, at the time of holding general elections, a Clerk of the Circuit Court, Auditor, Recorder, Treasurer, Sheriff, Coroner, and Surveyor, who shall, severally, hold their offices for four years.

(b) * * *

(c) No person shall be eligible to the office of Clerk, Auditor, Recorder, Treasurer, Sheriff, or Coroner more than eight years in any period of twelve years.
(History: As Amended November 4, 1952; November 6, 1984; November 2, 2004).

Today Jessica Campbell of the Michigan City News-Dispatch has a good story about the job of county clerk that sheds light on those requirements. Some quotes:
Lynne Spevak said the inability to leave the clerk's office for good is a joke among county government office holders throughout the state. Even despite placing her name in the ballot for the treasurer position in the next term, Spevak said she will always have the knowledge of the La Porte County Circuit Court Clerks Office in the back of her brain.

In the upcoming La Porte County primaries, Spevak will run for the treasurer's office once her current term limit is out at the end of the year. Spevak has held this position four times, totaling 15 years of experience.

"I'll just put all that knowledge in the back of my brain," she said. "Let's learn something new."

Spevak, 54, was born in La Porte, attended La Porte High School and earned an Associates degree from Davenport College in South Bend. In 1994, she joined the clerk staff working part-time in the microphone office. In 1996, she applied for the clerk role and in 1998, after a hold-over year, she began her first term as La Porte County clerk.

She enjoyed the daily tasks of working with court files, elections, bond financials, child support, marriage licenses and archival work. "It is a challenge every day and no day is the same," she said. "It is fast-paced and I thought I was capable of doing that when I started."

At some points, she admitted, the position is stressful, especially when files and reports are not turned in on time and she has to collect fines from people.

The biggest mistake over the four terms that Spevak remembers is misspelling a name of a candidate in one of the elections. The name, she said, was misspelled on the ballot, and no one caught the mistake until 4 p.m. on election day.

"There are a lot of minimal mistakes but, to me, that was the biggest thing," she said. "We try to make corrections right away when anything happens."

When looking at her options after her term limit is out at the end of the year, Spevak said, she knew Nancy Hawkins was also finishing out her term. Hawkins is the current La Porte County treasurer.

"If you like county government then you just look around for the next open office," Spevak said. "I saw the opening and said, 'Hey, I'll give it a try.'"

If she wins the new position and serves out the four-year term, Spevak said, she has the ability to re-apply for the clerk office, however she said 15 years is a lot.

Among the four terms, she was able to have a year break where she could regenerate herself since the positions of clerk and auditor are known to be the hardest roles.

"You're just busy every day," she explained. "There are so many responsibilities; sometimes it is just too much."

With the treasurer role, Spevak would take over the tax sale and property taxes, and how the city invests funds. "I'm going to have to learn some stuff," she said. If she wins, her new job will take her to 555 Michigan Ave. and will work with the two Michigan City treasurers. * * *

"I am a hands-on worker, always working the counter or answering the phone," she explained. "Hopefully, I am not as busy in the other office. If I win and get bored, though, I can come over here (to the clerk's office) and see what's happening."

Posted by Marcia Oddi on Thursday, February 04, 2016
Posted to Indiana Government

Ind. Gov't. - Senator Delph appointed to chair Senate Select Commission on Immigration Issues

The Select Commission is announced in this Feb. 2nd news release from the Indiana Senate Republicans.

See also this Sept. 23, 2015 quote from a NWI Times story headed "Immigration battle could flare up at Indiana Statehouse."

Posted by Marcia Oddi on Thursday, February 04, 2016
Posted to Indiana Government

Ind. Courts - "Injured worker’s case tests state law: Undocumented immigrant is seeking lost wages"

Noe Escamilla v. Shiel Sexton Company Inc., a case that was argued before the Court of Appeals on January 6th, is the subject of a front-page story today in the Indianapolis Star, reported by Kristine Guerra.

You can watch the entire oral argument here. The Court's brief description of the controversy:

While working at a construction site at which Shiel Sexton was the general contractor, Noe Escamilla sustained injuries that prevent him from obtaining future employment as a masonry laborer. He sued Shiel Sexton for lost future income. Shiel Sexton wishes to admit evidence of Escamilla's status as an immigrant and asserts that future wages should be limited to what Escamilla could make in Mexico. Escamilla argues that evidence of his immigration status would be more prejudicial than probative and that his lost income should be based on U.S. wages like those he has been making.
The panel was: Judges Baker, May and Bradford. The lengthy Star story concludes:
[Tim] Devereux, Escamilla’s attorney, said his immigration status should not affect his ability to recover lost earnings. Companies that knowingly hire undocumented immigrants should be held responsible if their employees are injured on the job, he added. “You’re telling these people they’re expendable,” said Devereux, of Ladendorf Law. “They want their labor and their services, but when they get injured … the company suddenly says, ‘Well, they’re undocumented immigrants.’ “

Indiana courts have never faced legal questions similar to the ones posed in Escamilla’s case.

But at least 20 courts from other states, including Texas, New York and California, have held that undocumented people can collect U.S. lost wages that result from injuries, said Alexander Limontes of the Indiana Trial Lawyers Association.

“If you look at the courts that have made this ruling, Texas has said that not only can these people collect lost wages, the fact that they were undocumented should never even make it to court in front of the jury,” said Limontes, who filed a brief in support of Escamilla. “These people, they’re not going anywhere. The taxpayers, do they have to take care of them as opposed to the person that hurt them originally?”

Earlier in the story:
A Montgomery Superior Court judge decided last summer that because Escamilla could not legally work in the U.S., he could not claim lost wages.

Judge Heather Dennison further wrote that he violated federal law by misrepresenting his immigration status to get a job. Escamilla is now asking the Indiana Court of Appeals to reverse Dennison’s ruling.

The appeals court heard arguments on Escamilla’s case in early January and has yet to issue a ruling.

Posted by Marcia Oddi on Thursday, February 04, 2016
Posted to Ind. App.Ct. Decisions

Wednesday, February 03, 2016

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

For publication opinions today (1):

In Branda Hall v. Dallman Contractors, LLC, Shook LLC, and AT&T Services, Inc., a 12-page opinion, Judge Altice writes:

This case arises out of a negligence action filed by Brenda Hall (Hall) against AT&T Services, Inc. (AT&T Services), among others, for injuries she sustained when she tripped and fell on her way into work. AT&T Services filed a motion for summary judgment asserting that Hall’s negligence claim against it was barred by the exclusive remedies provision of the Worker’s Compensation Act (the Act). See Ind. Code § 22-3-2-6. The trial court agreed, finding that the designated evidence established that under the corporate structure of AT&T, Inc., AT&T Services and Ameritech, Hall’s employer, were both subsidiaries of AT&T, Inc., and as such, were joint employers of Hall. Consequently, Hall’s negligence action against AT&T Services could not stand because Hall had already received a worker’s compensation settlement from Ameritech. The trial court therefore granted summary judgment in favor of AT&T Services. We affirm. * * *

Because Ameritech and AT&T Services are both subsidiaries of AT&T, Inc., they should be considered joint employers pursuant to the Act’s definition of “employer.” As such, Hall’s negligence action against AT&T Services is barred by the exclusive remedies provision of the Act because Hall has already received a worker’s compensation settlement from Ameritech. The trial court did not err in granting summary judgment in favor of AT&T Services.

NFP civil decisions today (2):

In Re the Adoption of S.Z., R.W. v. C.G. (mem. dec.)

In the Matter of: Ja.N., M.N. & Jy.N (minor children), Children in Need of Services, and J.C. (mother) & J.N. (father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

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

Stanley Freeman v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Wednesday, February 03, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion County Superior Courts bill on 3rd today

SB 352 passed second Monday, without amendment. This is its final day for passage in the Senate.

For more, see this ILB post from Jan. 29th, "Bill would create new way to select Marion County judges."

Posted by Marcia Oddi on Wednesday, February 03, 2016
Posted to Indiana Courts

Ind. Gov't. - " Indiana this year will not enact legislation specifically protecting the civil rights of lesbian, gay, bisexual and transgender Hoosiers"

This is the lede to Dan Carden's story today in the NWI Times about yesterday's decision by the Senate Republican caucus. Some quotes:

Senate Bill 344 failed to advance Tuesday for a final vote by the Republican-controlled Senate after its sponsor, state Sen. Travis Holdman, R-Markle, declined to allow senators to consider changes to the measure.

His decision ends some 10 months of debate over whether Indiana would adopt an LGBT anti-discrimination law to wipe away lingering controversy tied to approval for the 2015 Religious Freedom Restoration Act, which was widely seen as licensing discrimination against gays and prompted nationwide boycotts of Indiana businesses.

As a result, RFRA remains law in Indiana with the caveat that Hoosiers cannot use "religious freedom" to discriminate against LGBT individuals.

LGBT Hoosiers still can be denied employment, housing and access to public accommodations for any other reason, except in communities with local ordinances prohibiting such discrimination.

Holdman said, despite his best efforts to craft legislation balancing civil liberties with strong protections for religious freedom, he simply could not find enough Senate support for the plan that was approved 7-5 last week by the Rules Committee. * * *

"I believe the balanced approach that was outlined in the bill would be a step forward for our state," Holdman said. * * *

Senators clearly disagreed, filing 27 proposed changes to the measure.

After an extended private discussion Tuesday among Senate Republicans about the amendments, Holdman decided to kill his proposal rather than watch it become unrecognizable.

Senate President David Long, R-Fort Wayne, said it wasn't clear the legislation would pass the Senate, even if any or all of the suggested changes were adopted.

"They didn't want to go through the pain of having all this discussion if, in fact, in the end the bill was not going to move," Long said.

"We also got messages from the House that they weren't really probably going to seriously consider it. I don't know what the message was from down on the second floor; we still aren't sure what the governor would or wouldn't have done."

"All of that weighed into a difficult environment for us," Long said.

"Why Indiana lawmakers killed the gay rights debate for this year" is the headline to this lengthy Indianapolis Star story by Stephanie Wang, Chelsea Schneider and Tony Cook, that begins:
The gay rights debate in the Indiana General Assembly this year is over.

After meeting privately, Senate Republican leaders decided Tuesday to kill legislation that would have protected gay Hoosiers from discrimination. They did so without a full debate or vote.

Senate leader David Long, R-Fort Wayne, said the legislation didn’t have enough support from Republicans to warrant further discussion.

The failure of legislation this session means lesbian, gay, bisexual and transgender Hoosiers can still be legally discriminated against in most of the state. A person's sexual orientation or gender identity can be used as a reason by a landlord who turns them away from housing, an employer who fires them from a job, or a business owner who refuses to serve them.

The end of the debate marks a huge win for religious conservatives, who have been battling a changing cultural tide on gay rights issues. It also relieves political pressure on Republican Gov. Mike Pence, a born-again Christian who last month questioned the need for such legislation, as he seeks re-election.

Pulling the plug on legislation deals a blow to influential Indiana businesses that pushed for LGBT rights, and to advocacy groups that have, until now, successfully fought to advance the status of LGBT Hoosiers.

Still, Long pledged to revive the issue next year, and said he thinks LGBT rights in Indiana are inevitable.

“It just depends on when,” he said.

He said apprehensions from Pence and House Speaker Brian Bosma over advancing gay rights factored into his decision to stop pursuing legislation.

It was a swift death for the gay rights proposal, Senate Bill 344, which was carried by Republican leadership in the Senate. Last week, a Senate committee crafted and gave initial approval to the proposal to extend civil rights to gay Hoosiers, but not transgender people, with some exemptions for religious organizations, faith-based groups and small businesses providing wedding services.

As recently as Thursday, Long said he would bring the debate before the full Senate, stressing the importance of public discussion.

But Tuesday, Senate leaders said both sides remained too entrenched to reach a workable compromise.

"No matter what I do, no matter what I propose," said bill author Travis Holdman, R-Markle, "I cannot move these walls that are on the right and the left hand, because nobody wants to give. Nobody wants to move."

"The movement to provide anti-discrimination protections to lesbian, gay and transgender Hoosiers died Tuesday with barely a fight." That is the lede to Niki Kelly's story today in the Fort Wayne Journal Gazette. More:
Instead of hashing out 27 amendments filed on Senate Bill 344, the Senate Republican supermajority killed the bill behind closed doors in caucus. This came despite Senate President Pro Tem David Long, R-Fort Wayne, saying last week the measure would be called for debate whether it had enough votes to pass or not.

The issue that led to the bill’s demise was whether or not to include gender identity in the bill to aid transgender Hoosiers.

“No matter what I do, no matter what I propose, I cannot move these walls that are on the right and the left because nobody wants to give,” said Sen. Travis Holdman, R-Markle, the author of the bill. “Nobody wants to move.”

Long went out on a limb to push a compromise bill on civil rights this session. But the caucus chose to halt it before the “blood-letting” of the amendment discussion, since the bill didn’t have enough support to pass, Long said.

“We tried to find a solution fair to all sides. We were hampered by well-organized extreme messaging by groups representing both sides of this discussion,” he said. “My way or the highway doesn’t work in the legislative process.”

He added that “we tried very hard to find consensus. We stumbled on the transgender issue.”

The topic of bathroom usage had complicated that part of the bill, which is why Holdman removed it entirely.

The business community had lined up behind the effort – noting the loss of talent, jobs and investment tied to the issue. And grass-roots equality group Freedom Indiana has lined the halls of the Statehouse with supporters.

But Gov. Mike Pence made clear he came down on the side of religious liberty. Conservative evangelicals have argued it is against their religious beliefs, for instance, to provide services for a same-sex wedding. * * *

Senate Democratic Leader Tim Lanane said Democrats were not intractable on the issue, and offered compromises providing protection for transgender Hoosiers for housing and employment but not public accommodations.

“It’s not that complicated. We’ve made it more complicated than it should be,” he said. “There is no reason we should not have acted boldly this year.”

Indiana Competes said Senate Bill 344 was flawed “but it generated the most substantive conversation Indiana has seen regarding anti-discrimination legislation for the LGBT community.”

“This issue will not disappear. A clear majority of Hoosiers support robust protections from discrimination on the basis of sexual orientation and gender identity.”

Long said almost half the state is covered by a local ordinance and he expects that to grow – something that will put pressure on a state law. He also said he fears religious liberty will lose if courts are involved.

Posted by Marcia Oddi on Wednesday, February 03, 2016
Posted to Indiana Government

Ind. Gov't. - Bill to ban abortions sought due to the gender or disability of a fetus passes Indiana Senate

Chelsea.Schneider of the Indianapolis Star has this story on SB 313, updating an earlier story from Jan. 28:

A controversial effort to ban abortions sought due to the gender or disability of a fetus passed the Indiana Senate on Tuesday.

A similar proposal died during last year’s legislative session. But its key supporters said bringing back the proposed abortion restrictions this year was important to preserve human life.

The measure cleared the Senate by a 35-14 vote, with four Republicans joining Senate Democrats in opposing the new restrictions. They argued supporters of the bill weren’t taking into account the costs associated with raising a child with a disability and that the possible unconstitutional restrictions stomped on women’s rights.

Sen. Jean Breaux, an Indianapolis Democrat, said the bill was driven by politics and an agenda to end access to abortions for women.

“Abortion remains a deeply personal and sometimes very complex decision that must be left to the woman, her family and her faith,” Breaux said.

However, one of Senate Bill 313’s authors, Sen. Travis Holdman, a Markle Republican, said the bill “sends one clear message to the nation and to our fellow Hoosiers and that is that we value human life.”

The proposal would ban abortions if the reason a woman seeks one is “solely” because of the sex of a fetus or because a fetus is diagnosed, or potentially diagnosed, with Down syndrome or another genetically-inherited disease.

It also would make the sale of fetal tissue a Level 5 felony and require parents whose fetus is diagnosed with a “lethal fetal anomaly,” meaning the baby would not live longer than three months after birth, to receive information about perinatal hospice. However, the bill wouldn't restrict a woman from receiving an abortion if her fetus has a "lethal fetal anomaly."

State law currently restricts most abortions after 20 weeks of pregnancy. Before then, abortions are legal and a woman is not required to give a reason for seeking the procedure.

The measure now goes to the House where the proposal died last year.

Posted by Marcia Oddi on Wednesday, February 03, 2016
Posted to Indiana Government

Tuesday, February 02, 2016

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

For publication opinions today (1):

In State of Indiana and Indiana Bureau of Motor Vehicles v. Nicholas Hargrave, a 13-page opinion, Chief Judge Vaidik writes:

After Nicholas Hargrave was charged with operating a motor vehicle while intoxicated and operating a motor vehicle while intoxicated in a manner that endangered a person, Hargrave surrendered his Commercial Drivers License (CDL) and pleaded guilty. The trial court withheld judgment of conviction, and Hargrave was ordered to participate in a diversion program. Hargrave’s case was deferred with a provision that it would be dismissed if he successfully completed the diversion program. In the meantime, the Bureau of Motor Vehicles (the BMV) refused to reinstate Hargrave’s driving privileges without proof he held SR22 insurance. After the trial court granted Hargrave’s petition asking it to order the BMV to reinstate his driving privileges without requiring him to provide proof of SR22 insurance, the BMV intervened in the case and filed a motion to correct error. In this motion, the BMV asked the trial court to determine that 1) Hargrave was not eligible for a diversion program because he held a CDL at the time of the offense, and 2) Hargrave was required to provide proof of insurance for three years following the termination of his suspension. The trial court denied the motion, and the State appealed.

Because the BMV properly interpreted federal regulations adopted by Indiana statutes to mean that a person who holds a CDL at the time he commits a traffic violation may not participate in a diversion program, the trial court erred in denying the State’s motion to correct error on this issue. In addition, because Hargrave’s driving privileges were suspended under Indiana Code section 9-30- 6-9, Hargrave is required to file proof of financial responsibility for three years following the termination of his suspension under Indiana Code section 9-30-6- 12, and the trial court erred in denying the State’s motion to correct error on this issue as well. We therefore reverse the trial court’s denial of the State’s motion to correct error. * * *

Pyle, J., concurs.
Robb, J., concurring with separate opinion. [that begins, on p. 12] I concur in the majority opinion. I write separately only to note the inconsistent treatment of those who currently hold CDLs and those who do not (but could in the future).

NFP civil decisions today (4):

In the Termination of the Parent-child Relationship of, E.R. (Minor Child), and, J.B. (Father) v. Indiana Department of Child Services (mem. dec.)

Thomas J. Fenton and Cheryl D. Fenton v. City of Seymour, Indiana (mem. dec.)

D.L. v. Indiana Department of Child Services (mem. dec.)

In Re Guardianship and Adoption of L.J.M. (a Minor) M.M. and L.M. v. J.R. (mem. dec.)

NFP criminal decisions today (5):

Cynthia Bell v. State of Indiana (mem. dec.)

Raymond A. Warren v. State of Indiana (mem. dec.)

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

Tyrone Tapp v. State of Indiana (mem. dec.)

Johnnie A. Winners v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, February 02, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues two disciplinary opinions Feb. 1st [Updated]

In the Matter of: Jeffrey P. Ayres:

The Court suspended Respondent from the practice of law in this state for continuing legal education (“CLE”) noncompliance, by order issued on June 1, 2015, and effective July 6, 2015. The Disciplinary Commission filed an “Amended Verified Motion for Rule to Show Cause” on November 18, 2015, asserting Respondent practiced law in this state by representing clients while suspended from the practice of law. Specifically, on July 19, 2015, Respondent was retained by a client in a bankruptcy matter, met with the client and discussed his bankruptcy, and was paid a $1,100 cash retainer. Further, on September 21, 2015, Respondent filed an appearance and a motion to recall warrant in Carmel City Court on behalf of a different client. * * *

The Court issued an order to show cause on November 19, 2015, and Respondent filed a response on December 18, 2015. In his response, Respondent admits the material facts recited above. However, Respondent asserts that he sent an unverified letter to the Executive Director of the Commission for Continuing Legal Education on July 2, 2015, requesting an extension of time to complete his CLE requirements and pay the necessary fees, and that he believed that an extension would be granted. Respondent’s professed belief was not reasonable under the circumstances. * * *

Accordingly, we find that Respondent has violated this Court’s order suspending him from the practice of law and that he is guilty of indirect contempt of this Court. * * *

Under the circumstances, the Court concludes that a fine of $500 is sufficient discipline for Respondent’s contempt of court by practicing law while suspended. The Court therefore ORDERS that Respondent be fined the sum of $500.

A second Feb. 1 disciplinary opinion, In the Matter of: John M. Hughes, relates to an individual shown by the Roll of Attorneys to be an attorney in Highland who has resigned. However, the text of the opinion is that of the Ayres opinion; apparently this is an error.

[[Updated] The error has now been corrected, and the Hughes link leads to the proper order. Hughes too was fined $500, although J.David dissented, "believing a larger fine should be imposed." Hughes had resigned from the bar in 2006. From the order:

This Court accepted Respondent’s resignation from the bar of this state on February 27, 2006. The Commission filed a “Verified Petition for Rule to Show Cause” on September 23, 2015, asserting Respondent held himself out as an attorney and practiced law in this state, in violation of his duties as an attorney who has resigned from the bar. More specifically, attached to the Commission’s verified petition is written correspondence signed and sent by Respondent in which he identified himself as “esquire” and “in house counsel” for a construction company and threatened legal action against the recipient if a mechanic’s lien filed against the company was not released.

Posted by Marcia Oddi on Tuesday, February 02, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Farm to fork" concept is target of HB 1267

HB 1267, which passed 2nd reading yesterday, is the focus of an editorial today in the Fort Wayne Journal Gazette, headed "Small-farm threat: Big Ag bill betrays state's agricultural heritage." Some quotes:

Hawkins Family Farm surely fits the image most Hoosiers have of an Indiana farm. Four generations have worked the 99-acre Wabash County farm, most recently nurturing a growing business raising and processing poultry for area restaurants.

But a bill before the General Assembly would prohibit Hawkins from selling to restaurants, ostensibly in the name of food safety.

House Bill 1267 is an effort to protect the market for Big Ag, though. It threatens both the growing farm-to-fork movement and the appeal of farming for a new generation of Hoosiers committed to smaller and safer farming methods.

Under state law, Indiana farmers who raise and process fewer than 20,000 birds a year are exempt from some requirements placed on large-scale producers. Small farms can sell poultry directly to consumers and restaurants, although a farmer who wants to sell to a customer other than an end consumer must obtain a “grant of exemption” from the State Board of Animal Health.

Jeff and Zach Hawkins, the father-and-son team behind Hawkins Family Farm, obtained the exemption last April. To date, theirs is the only one in effect, but Jeff Hawkins said they’ve heard from others interested in following their lead.

The editorial continues at length, and concludes:
The appeal of the farm-to-fork movement is found in the small-scale operation established by the Wabash County farmers. Consumers increasingly want food produced close to home, by farmers they know and trust.

Hawkins Family Farm invested in equipment and poultry stock in good faith, following state regulations. The effort to shut down its sales to Indiana restaurants – a tiny share of agricultural sales statewide – betrays not only our farming roots, but also the promise small-scale farming holds for young Hoosiers interested in embracing that part of Indiana’s history.

The Wabash Plain Dealer on Jan. 27th had a news story by Mackenzi Klemann; here is just a sample:

“One of the things this exemption provides us is the flexibility to butcher our birds based on the birds at the farm, not some third party,” Jeff Hawkins said, noting that farm to fork legislation passed by State Sen. Jim Banks (R-Columbia City), who represents Wabash County, in 2014 led him to begin selling his birds to area restaurants.

After working with the Indiana Board of Animal Health for nearly a year, Hawkins said, he and Zach were able to construct a small slaughter house at the farm to accommodate state regulations and business needs.

Hawkins explained that, for him and his son Zach, who rely on part-time weekend help to slaughter nearly 200 birds per week during the producing season, it’s difficult to transport the birds to state-inspected slaughter facilities.

“We really thought we had a success story,” he said, noting that he believes operations at his farm are safer than those at industrial-scale regulatory slaughterhouses.

But in September of 2015, the Hawkins Family Farm and Joseph Decuis, a Roanoke restaurant, were issued a cease and desist letter from the Indiana State Department of Health after legislators discovered that poultry slaughtered on the farm was being sold to the restaurant without an inspector on-site.

“It’s difficult for me to say hold on, you want to be farm to fork, you want your food to be of good quality, so why wouldn’t you let an inspector on your property,” Leising told the Plain Dealer about the issue. “There wouldn’t be this fight and it would still be farm to fork … it would make it safe under the scientific standards of today.”

The Indiana Attorney General’s Office in November issued a report stating that under current federal and state law, the Hawkins Family Farm could resume the sale of its inspection-exempt poultry, however.

Leising, who is chair of the Senate Agriculture Committee, said that she does not understand why the Hawkins family and area restaurants are fighting so hard against her proposed regulation, filed under Senate Bill 71 and House Bill 1267.

The Hawkins, however, believe operations at their farm are safer than those of industrial-scale operations and question why Indiana legislators are fighting against an innovative movement in agriculture.

“The point that we’re making is that we’re very transparent,” Zach Hawkins said. “The inspector becomes more valuable as the distance between the producer and the consumer grows. We’re not against inspection or regulation … But here, it’s part of a very small system and so some of those regulatory mechanisms that have been developed for a big system don’t apply. Again it doesn’t mean that there shouldn’t be any kind of an inspection system, but what we’re describing, this relationship between producer, consumer and government that amounts to an inspection system, it’s just a different kind.”

“We don’t want to give the impression that somehow we have a perfect system,” Jeff Hawkins said. “We take sanitation very seriously … but when you’re dealing with food, anything can happen anywhere.”

For background, see this Sept. 28, 2015 ILB post quoting a story by Maureen Hayden in the Kokomo Tribune.

Posted by Marcia Oddi on Tuesday, February 02, 2016
Posted to Indiana Government

Monday, February 01, 2016

Ind. Gov't. - "Nation’s prominent public universities are shifting to out-of-state students"

This is not a revelation; Purdue was one of the trail-breakers. The first ILB post on the shift is from May 25, 2015, quoting a story in the NYT "The Upshot" column, including:

Purdue University cut annual in-state slots for incoming freshmen by more than 500 students, the University of Illinois at Urbana-Champaign by more than 300, and Auburn and Michigan State by more than 200, with each enrolling hundreds of additional out-of-state and international students in their stead.

Replacing in-state with out-of-state students can be easier than raising prices because tuition increases are highly public and are frequently regulated by state legislatures and governing bodies. Universities often have more discretion over the in-state/out-of-state of mix.

Additional ILB posts appeared June 1, 2015 and August 2, 2015.

This weekend Nick Anderson and Danielle Douglas-Gabriel of the Washington Post wrote the story whose headline tops this post. But Purdue is nowhere mentioned. Rather, the lede focuses on the University of Alabama, where "more than 60 percent of entering freshmen now come from out of state." Some quotes:

TUSCALOOSA, Ala. — America’s most prominent public universities were founded to serve the people of their states, but they are enrolling record numbers of students from elsewhere to maximize tuition revenue as state support for higher education withers.

The shift has buttressed the finances and reshaped the profile of schools across the country, from the University of California’s famed campuses in Berkeley and Los Angeles to the universities of Arkansas, Oregon, Missouri, South Carolina and numerous other places. Forty-three of the 50 schools known as “state flagships” enrolled a smaller share of freshmen from within their states in 2014 than they had a decade earlier, federal data show. At 10 flagships, state residents formed less than half the freshman class.

Nowhere is the trend more pronounced than here at the University of Alabama, where students who cheered this month when the Crimson Tide won its fourth national football championship in seven years were mostly from other states.

An accompanying story does mention both Purdue and Indiana University.

Posted by Marcia Oddi on Monday, February 01, 2016
Posted to Indiana Government

Law - "How the government is catching people who use child porn sites"

A sample from Ellen Nakashima's long story in the Washington Post on Jan. 21st:

As criminals become more savvy about using technology such as Tor to hide their tracks, investigators are turning to hacking tools to thwart them. In some cases, members of law enforcement agencies are placing malware on sites that might have thousands of users. Some privacy advocates and analysts worry that in doing so, investigators may also wind up hacking and identifying the computers of law-abiding people who are seeking to remain anonymous, people who can also include political dissidents and journalists.

"As the hacking techniques become more ambitious, failure in execution can lead to large-scale privacy and civil liberties abuses at home and abroad,” said Ahmed Ghappour, a professor at the University of California’s Hastings College of the Law. “It’s imperative that Congress step in to regulate exactly who and how law enforcement may hack.”

But Justice Department officials said that the government investigates crimes based on evidence of illegal activities. “When we obtain a warrant, it’s because we have convinced a judge that there is probable cause that we’ll be able to find evidence in a particular location,” said a senior department official, who spoke on the condition of anonymity under ground rules set by the department.

In the Playpen case, the government activated malware on a site with 215,000 members, as of last February, and obtained Internet protocol addresses of 1,300 computers. Out of that group, the government said it has charged 137 people.

“It’s a lot of people,” said Colin Fieman, a public defender in Tacoma, Wash., who is representing Michaud. “There never has been any warrant I’ve seen that allows searches on that scale. It is unprecedented.”

Posted by Marcia Oddi on Monday, February 01, 2016
Posted to General Law Related

Ind. Courts - Indiana Judges Association makes available the pattern (model) jury instructions

The Indiana pattern jury instructions, available only through Lexis since 2010*, have now been made accessible online, via the new Indiana Judges Association (IJA) website. The annotations and commentary which form a part of the commercial editions is not included in the online versions:

___________
*See July 23, 2010 ILB post for background, along with this Aug. 4, 2015 followup.

Posted by Marcia Oddi on Monday, February 01, 2016
Posted to Indiana Courts

Ind. Decisions - Tax Court posts one today, filed Jan. 29

In DeKalb County Assessor v. Paul L. and Joan E. Chavez, a 7-page opinion, Judge Wentworth writes:

The DeKalb County Assessor challenges the Indiana Board of Tax Review’s final determination reclassifying 2.72 acres of Paul and Joan Chavezes’ land from excess residential to agricultural for the 2013 tax year. The Court affirms the Indiana Board’s decision.

Posted by Marcia Oddi on Monday, February 01, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - Briefing complete now in the House email/public records case

Updating this long list of earlier posts, today the appellants filed their 35-page [now 37-page] reply brief in CAC v. Koch. Access it here. [2/3/16 - It now includes missing pages 23-24]

You may access the 53-page brief of appellees Eric Koch and Indiana House Republican Caucus here.

And here again is appellants' brief, filed Nov. 9, 2015.

Posted by Marcia Oddi on Monday, February 01, 2016
Posted to GA and APRA

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

For publication opinions today (1):

InKevin T. Scripture, M.D., Richard Mangan, O.D., Judy D. Risch, O.D., and Whitewater Eye Centers, LLC v. Julia and Steven Roberts, a 15-page opinion, Chief Judge Vaidik writes:

A unanimous medical review panel found that the defendant Doctors failed to comply with the appropriate standard of care and their conduct was a factor of the resultant damages to Julia Roberts. The Robertses filed first a complaint and then a motion for summary judgment against the Doctors, designating as evidence the opinion of the medical review panel. In their response, the Doctors designated as expert evidence only their own conclusory affidavits. Months later and the day before the hearing on the Robertses’ summaryjudgment motion, the Doctors filed a motion for leave to supplement their response to the summary judgment motion, designating only their own “supplemental” affidavits, in which they supplemented their original affidavits with facts to support their conclusions. Following the hearing, the trial court granted the Robertses’ motion for summary judgment and denied the Doctors’ motion to supplement. We find that the Doctors’ own affidavits failed to raise a genuine issue of material fact sufficient to defeat summary judgment because the affidavits did not explain the standard of care and include facts showing how the Doctors met that standard. We also find that the trial court did not abuse its discretion in denying the Doctors’ motion to supplement. We therefore affirm.
NFP civil decisions today (0):

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Monday, February 01, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 29, 2016

Here is the Clerk's transfer list for the week ending Friday, January 29, 2016. It is two pages (and 25 cases) long.

Three transfers were granted last week:

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

Posted by Marcia Oddi on Monday, February 01, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - "Cosmetologists in fight over who can be allowed to trim facial hair"

From a story in the Sunday Fort Wayne Journal Gazette, by Niki Kelly:

A flap over facial hair has hit the Indiana Statehouse as cosmetologists fight a legal interpretation that has kept them from putting their clippers on beards and mustaches.

“The whole issue is nonsense,” said Flo Woodward, a longtime instructor at Ravenscroft Beauty College in Fort Wayne with both a barber and cosmetologist license. “Whoever decided this had nothing better to do.”

That someone is the State Board of Cosmetology and Barber Examiners, which in August turned the industry a bit on its head with a decision that reversed decades of practice.

The 3-1 vote said cosmetologists and cosmetology students may not trim or shave beards or mustaches, though barbers can.

The result is House Bill 1172, which reverses that vote by adding shaving or trimming beards and mustaches to the definition of cosmetology.

It passed the House 65-27, but some barbers believe it jeopardizes their businesses. The legislation now moves to the Senate.

Posted by Marcia Oddi on Monday, February 01, 2016
Posted to Indiana Government

Ind. Gov't. - "A handcuffed bill on college police records in Indiana"

Updating this Jan. 14th ILB post about HB 1022, which passed the House on Jan. 21st, Margaret Fosmoe had this lengthy story in Sunday's (Jan. 31) South Bend Tribune. Some quotes:

The sponsors of House Bill 1022 insist they want private universities in Indiana to be more open with police records. The bill, they say, will create a new and stronger level of transparency. And the universities themselves, who helped craft the bill, have said they want to be more open when it comes to public safety.

The bill comes in the wake of controversies about sexual assault investigations on university campuses, as well as a lawsuit by media giant ESPN on whether police records by the University of Notre Dame should be public.

So would the bill really meet the bar its proponents tout? How much more open will the records of police forces at Indiana’s private universities really be?

In the case of one key player, Notre Dame, the answer apparently is not much more at all.

The Notre Dame Security Police department handles hundreds of calls, complaints and cases each year. But of all those, House Bill 1022 would apply to a relatively small number.

That’s because the bill does not hold private universities to the same standard as municipal police departments. It limits what information would need to be publicly released only to incidents that result in arrests or incarcerations for criminal offenses.

At Notre Dame over the past two years, the total number of arrests was 126 — or about 60 per year, according to university spokesman Dennis Brown. That represents just a fraction of incidents handled by Notre Dame police. In 2015 alone, nearly 1,300 cases were listed on the university police crime log.

What kinds of incidents would be exempt from the proposed law? In recent years at the university, for example, a student died when the scissor lift on which he was filming a football practice fell to the ground; a man on a crew cutting down trees on campus was killed by a falling tree; and a man was critically injured when he fell down a stairwell in the university’s Main Building.

In all the cases, NDSP investigated, but those matters didn’t make the campus police log, there were no police reports released and only limited details were made available to the public. House Bill 1022 would not appear to make a difference in such cases.

And even in a case leading to an arrest, the bill does not specify what level of detail must be included in reports to be made public.

Another provision in House Bill 1022 mandates that records already required to be open under federal law need to also be open in Indiana. It cites two federal laws: the Family Educational Rights and Privacy Act of 1974, and the Clery Act — which already require all colleges that participate in federal financial aid programs to disclose some information about crimes on and near their campuses. It’s not clear what new measure or step House Bill 1022 is offering in these cases.

Critics such as Steve Key, executive director and general counsel of the Hoosier State Press Association, have argued that the bill falls well short of creating a new level of transparency for university police forces.

Questions also have surfaced about the fact that the Independent Colleges of Indiana, of which Notre Dame is a member, helped legislators write the bill — and that some of the legislators sit on the group’s board.

“It appears that what Independent Colleges of Indiana did when they helped draft this bill is codify what they are already required to report under the federal Clery Act,” Key said.

Richard Ludwick, president of Independent Colleges, maintains that the proposed legislation is a “sea change for our institutions and for Indiana.”

“The big picture here is that records that in the past were not public according to Indiana statute, now would be,” he said in an email.

The bill would apply only to private universities with professional police departments. That includes 10 institutions: Notre Dame, Valparaiso, Butler, Anderson, Taylor, Huntington, Indiana Wesleyan, Marian, DePauw and the University of Indianapolis. It wouldn’t apply to smaller colleges served by campus security officers.

There is much more in the story.

Posted by Marcia Oddi on Monday, February 01, 2016
Posted to Indiana Government

Ind. Gov't. - Last week for bills in the first house

Wednesday is the last day a bill may pass third reading in the first house.

Here is the Senate calendar for today; it includes 108 entries and the bills are live-linked. The Senate convenes at 1:30.

Among the bills on 2nd reading is bias crimes (SB 220), abortion matters (SB 313), civil rights (SB 344), Marion County superior court (SB 352). Among the bills on 3rd reading is Uniform Fiduciary Access to Digital Assets Act (SB 253), funding of lawsuits (SB 353).

Here is the House calendar for today; it includes 66 entries and the bills are live-linked. The House also convenes at 1:30.

Among the bills on 2nd reading is "no more stringent" (HB 1082), abortion matters (HB 1337), alcoholic beverage matters (Including Dunes pavilion) (HB 1247).

Tomorrow is the last day for a bill to pass 2nd reading in the first house. Both houses will convene at 10 AM on Tuesday and Wednesday.

Posted by Marcia Oddi on Monday, February 01, 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 2/1/16): Next week's oral arguments before the Supreme Court (week of 2/8/16):

Thursday, February 11

Webcasts of Supreme Court oral arguments are available here.


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

Next week's oral arguments before the Court of Appeals (week of 2/8/16):

Wednesday, February 10

Thursday, February 11

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, February 01, 2016
Posted to Upcoming Oral Arguments