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Thursday, March 31, 2016

Ind. Gov't. - "Hero lawmaker urges colleagues to stop saying ‘physical’ when they mean ‘fiscal'"

This Washington Post story concerns a house resolution from the Missouri general assembly, but it could just as well been introduced here in Indiana.

Posted by Marcia Oddi on Thursday, March 31, 2016
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (3):

In Noe Escamilla v. Shiel Sexton Company, Inc., a 24-page, 2-1 opinion, Judge May writes:

In this interlocutory appeal from the trial court’s pre-trial orders regarding the admissibility of evidence, the parties raise a number of broad policy questions regarding whether and how an injured plaintiff’s status as an undocumented immigrant should impact that plaintiff’s ability to recover future lost wages from an alleged tortfeasor. We decline their invitations to make sweeping pronouncements about the rights of immigrants, however, and rule narrowly on the evidentiary issues raised. Although we disagree with part of the trial court’s reasoning, we affirm its denial of Noe Escamilla’s motion in limine and its grant of Shiel Sexton’s motion to exclude Escamilla’s experts, and we remand for further proceedings in accordance with our opinion. * * *

Escamilla appeals the trial court’s in limine order that: (1) evidence of his immigration status would be admissible, and (2) expert testimony about “future lost wages” based on what he could have made working in the United States would not be admissible. * * *

Conclusion. Based on the circumstances at the time of the trial court’s order, we affirm the grant of Shiel Sexton’s motion to exclude the testimony and report from Escamilla’s expert witnesses, we affirm its denial of Escamilla’s motion in limine to exclude evidence of his status as an undocumented immigrant, and we remand for further proceedings consistent with this opinion. Affirmed and remanded.

Bradford, J., concurs.
Baker, J., dissents with separate opinion. [which begins, on p. 18] When the plaintiff in a civil action is also an undocumented immigrant, the majority concludes that juries and experts cannot determine an appropriate award of damages for loss of future income without first considering the plaintiff’s immigration status. I do not see how such evidence would be of any use in arriving at a more appropriate award of damages, and I believe that it will likely result in prejudice to the injured party and serve as a bad incentive for those who employ undocumented immigrants. * * *

Assuming for argument’s sake that one’s immigration status may be relevant under certain circumstances, in my opinion, this relevance would almost always be outweighed by its prejudicial effect. If immigration status is to be put before the jury at all, the party seeking to introduce evidence of an opponent’s immigration status—or seeking to exclude evidence that fails to take account of that status—should first be required to establish that his opponent faces an imminent likelihood of deportation. Only after such a likelihood has been established would the probative value of such evidence have any chance of outweighing its prejudicial impact. While this is not my preferred way of handling the issue, it is an outcome I would be willing to accept. For the foregoing reasons, I respectfully dissent.

In Robert Prescott Ford v. Dr. Shad Jawaid, M.D. and Floyd Memorial Hospital & Health Services, a 14-page opinion, Judge Barnes writes:
Robert Ford appeals the trial court’s grant of summary judgment to Floyd Memorial Hospital & Healthcare Services (“Hospital”). We affirm in part, reverse in part, and remand. * * *

[T]he Hospital’s notice merely provided that the physicians “may be independent contractors.” We conclude that there are genuine issues of material fact regarding whether the notice to Ford was meaningful and whether the Hospital is vicariously liable. Consequently, the trial court erred by granting the Hospital’s motion for summary judgment regarding Ford’s vicarious liability claim. Likewise, Ford was not entitled to summary judgment on this issue given the genuine issues of material fact.

Conclusion. The trial court properly granted the Hospital’s motions to strike and the Hospital’s motion for summary judgment regarding Ford’s negligence claim. However, genuine issues of material fact exist regarding Ford’s vicarious liability claim. Consequently, the trial court erred by granting summary judgment to the Hospital on that claim. We affirm in part, reverse in part, and remand.

In Jack L. Fisher v. State of Indiana, a 5-page opinion, Judge Baker writes:
Jack Fisher was found driving a vehicle that contained a methamphetamine lab. A State Police Clandestine Lab Team had to clean up the lab, and incurred costs in doing so. After Fisher pleaded guilty, the trial court ordered him to pay restitution to the lab team in the amount of those costs.

Fisher appeals the restitution order imposed by the trial court after Fisher pleaded guilty to Attempted Dealing in Methamphetamine,1 a class B felony. Fisher argues that the restitution order was improper because there was no victim to whom restitution should be paid. Finding that the trial court was statutorily required to order restitution in this case, we affirm. * * *

We acknowledge an apparent conflict between the case law, which provides that restitution may not be ordered unless it is included in the plea agreement, and the statute, which requires the trial court to order restitution in methamphetamine cleanup cases. * * * In this case, Fisher’s plea agreement was entered into in 2015, more than a decade after the 2003 enactment of Indiana Code section 35-48-4-17. Under these circumstances, we find that the plea agreement implicitly incorporated the statutory restitution requirement.

NFP civil decisions today (6):

Muncie Indiana Properties LLC v. Quality Construction Pro LLC (mem. dec.)

Roger Lee Kilburn v. Deirdre V. Kilburn (mem. dec.)

D.M. v. H.H. (mem. dec.)

In the Matter of: D.S. and N.H. (Minor Children) Children in Need of Services and A.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In the Matter of: Mi.H. and Ma.H. (Minor Children), Children in Need of Services and M.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

In the Term. of the Parent-Child Relationship of: G.B. (Minor Child), S.K. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (7):

In State of Indiana v. David Brown (mem. dec.), a 12-page opinion, Judge Pyle writes:

This appeal involves the State of Indiana’s attempt to appeal the trial court’s bench trial ruling that was made after the bench trial had begun and was then temporarily stayed in order to allow briefing on an evidentiary issue. The trial court’s ruling sustained David Brown’s (“Brown”) objection to the State’s evidence and excluded his statement made to a police officer during a sobriety checkpoint and apparently other evidence obtained following that statement.

Because the right of the State to bring an appeal in a criminal matter is specifically limited by statute to certain cases contained in INDIANA CODE § 35-38-4-2, we sua sponte review whether the State has statutory authority to bring this appeal. Due to the fact that this appeal stems from a ruling made as part of a bench trial that has been stayed and in which no verdict has been rendered, it does not fall under any of the statutory provisions. Thus, the State does not currently have statutory authority to appeal from this criminal matter, and we dismiss this appeal and remand to the trial court for further proceedings.

Robert M. Nolan v. State of Indiana (mem. dec.)

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

Gregory A. Taylor, Jr. v. State of Indiana (mem. dec.)

Jerimia Heffner v. State of Indiana (mem. dec.)

Jeffrey Winfrey v. State of Indiana (mem. dec.)

Terrance Smoots, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 31, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Supreme Court to allow police testimony against Taylor"

Here is a lengthy story today by Kelley Smith of the Michigan City News-Dispatch on the decision yesterday by the Indiana Supreme Court in State of Indiana v. Brian J. Taylor, the LaPorte County police/prosecutors eavesdropping case (ILB summary of the decision here). Today's story begins:

MICHIGAN CITY – The 2014 murder case pending against Brian Jordan “BJ” Taylor likely will return to La Porte Superior Court No. 1 after the Indiana Supreme Court ruled Wednesday to allow the testimony of police officers presumed to have eavesdropped on a privileged conversation between Taylor and his defense attorney approximately an hour after his arrest.

Taylor, now 22, is accused of having killed his girlfriend, 24-year-old Simone Nicole Bush, at her grandparents’ Michigan City home on March 14, 2014. He was arrested later the same day by local law enforcement officers, who then illegally listened to Taylor discuss with defense attorney David Payne both trial strategy and case evidence – including the location of the .40-caliber Glock Model 22 handgun allegedly used to kill Bush.

During their depositions and a suppression hearing in the case, several officers invoked their Fifth Amendment right not to incriminate themselves, refusing to answer whether they were present or what they may have heard in the conference room where police and a prosecutor reportedly listened secretly to a live audio feed as Taylor and Payne talked for 30 to 40 minutes.

Upon the defense’s assertion that their refusal to testify violated Taylor’s Sixth Amendment right to confront his accusers, Judge Kathleen Lang, who presided over La Porte Superior Court No. 1 at the time, ruled to exclude all testimony of any officers who had invoked or who had planned to invoke the Fifth Amendment.

Her decision crippled the state’s case, prompting prosecutors to file an interlocutory appeal with the Indiana Court of Appeals.

And because her order was issued on the 70th day after the incarcerated Taylor had requested a fast and speedy trial (what also was supposed to have been the first day of his jury trial), the state was forced to release him from the La Porte County Jail on his own recognizance until the case could be resolved.

Posted by Marcia Oddi on Thursday, March 31, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Better Advice For Civil Litigants Who Can’t Afford A Lawyer

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

Although indigent criminal defendants are entitled to representation by a public defender, many Hoosiers who need legal representation in civil cases cannot afford it. What should they be told?

Hopefully not this, from the website of a large Indiana county:

4. I am a civil defendant, but do not have enough money to hire a lawyer. Can I get a lawyer to represent me for free?

Answer: No. You can’t have a Public Defender in a civil case because your rights are not what are at stake. However, you can represent yourself – pro se.

My intention is not to shame but rather to encourage the many judges and lawyers from around the state who read this to take a minute to examine any written advice they give to litigants who need a lawyer and reconsider what they tell individuals who ask for help in a civil case. We can and should do better.

A civil litigant’s rights are at stake in some cases, including civil commitments, contempt, adoption consent, CHINS, and termination of parental rights. Counsel is regularly appointed in these civil cases in which liberty or parental rights are at stake.

In many other civil cases, counsel may be available through pro bono and legal services organizations, as the county website quoted above notes elsewhere.

The ILB has many posts over the years on pro bono representation. I continue to believe, as noted in this 2013 post, that Indiana should consider requiring pro bono work as a condition of admission to the bar. But indigent litigants should not be saddled with a law student who is simply fulfilling a graduation requirement. Rules could be adopted to ensure careful supervision of the legal interns by competent counsel and even pre-screening for character and fitness issues.
_________________

ILB: The success of the ILB in providing timely, essential information about Indiana law and the courts owes much to the contributions of Prof. Schumm over the years, through both his commentaries (many of which are listed here) and his coverage of four Supreme Court vacancies, in 2010, 2012 (two separate vacancies that year) and the current 2016 vacancy.

Posted by Marcia Oddi on Thursday, March 31, 2016
Posted to Schumm - Commentary

Wednesday, March 30, 2016

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

Yesterday, IU-McKinney School of Law held a special program, "A Tribute to Justice Brent Dickson's Contributions to Indiana Constitutional Law." Here is the program.

Today, NPR WBAA has this worth-reading-in-full story on the event. It begins:

As Brent Dickson's 30-year tenure on the Indiana Supreme Court draws to a close, IUPUI's McKinney School of Law is looking at the precedents he leaves behind.

The former chief justice was a spectator as six attorneys and law professors dissected key rulings in civil, criminal, and constitutional law, from among the more than 700 majority opinions Dickson has authored.

Indianapolis attorney Maggie Smith says Dickson's opinions wrote the rulebook on wrongful death cases, from spelling out what losses could be compensated to allowing a wrongful death suit in the case of a man whose relatives linked his suicide to the injuries he sustained in the Speedway bomber case.

And Smith says Dickson’s opinions show a consistent preference to let juries decide factual disputes – he even went out of his way to scold his predecessors for a 1976 ruling suggesting juries would put a “thumb on the scale” to help people by awarding them damages.

Posted by Marcia Oddi on Wednesday, March 30, 2016
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today, the LaPorte County police/prosecutors eavesdropping case

In State of Indiana v. Brian J. Taylor, a 13-page, 5-0 opinion, Chief Justice Rush writes:

A criminal suspect’s state and federal rights to counsel and confrontation of witnesses are essential to a fair trial. Here, police officers and a prosecutor eavesdropped on a criminal suspect’s pre-interrogation consultation with his lawyer, overhearing information regarding both evidence and trial strategy. Then, when called to testify about that eavesdropping in depositions and a suppression hearing, the officers’ invocation of their Fifth Amendment rights against self-incrimination left the suspect with no means of confirming what they heard. The parties agree—as well they should—that the State’s egregious misconduct violated the suspect’s constitutional rights. Their dispute is only how to remedy that violation.

We hold that the State’s intrusion is presumptively prejudicial. But that presumption does not necessarily require blanket suppression—as the trial court here ordered—of all testimony from witnesses who pleaded the Fifth Amendment about the eavesdropping. Rather, the State can rebut the presumption by disproving prejudice beyond a reasonable doubt for every item of tainted evidence and testimony.

Thus, even though the officers’ testimony is presumptively tainted by the eavesdropping, they may yet have an independent basis for certain limited testimony, such as routine evidentiary foundation for the unsuppressed exhibits. On those matters, their credibility may be sufficiently “collateral” that neither their Fifth Amendment privilege nor the suspect’s confrontation or cross-examination rights will be materially impaired. But because testimonial taint can be subtle and difficult to detect, the State must prove an independent basis beyond a reasonable doubt for the entire substance of each witness’s testimony. We therefore reverse and remand the prospective blanket suppression of those witnesses’ testimony. * * *

We conclude that a presumption of prejudice, rebuttable only by proof beyond a reasonable doubt, adequately protects Taylor from prejudice caused by the officers’ eavesdropping and their assertion of the Fifth Amendment privilege about their actions. Thus, prospectively imposing blanket suppression of all testimony from witnesses pleading the Fifth Amendment is inappropriate.

We reverse the blanket suppression of testimony from witnesses who invoke the Fifth Amendment and remand with instructions to determine as to each presumptively tainted witness whether the State has proven beyond a reasonable doubt an independent source for that witness’s testimony without implicating the witness’s Fifth Amendment privilege—and therefore without derogating Taylor’s right of confrontation. The trial court may, in its discretion, either hold a new suppression hearing or proceed directly to a new trial at which the State may attempt to meet its burden through offers to prove outside the presence of the jury. In all other respects, we affirm the trial court.

ILB: For background, see this Oct. 28, 2015 ILB post, posted after the Supreme Court oral argument, headed ""Supreme Court decries police eavesdropping"."

Posted by Marcia Oddi on Wednesday, March 30, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - How Soon is Too Soon to Act on Court of Appeals’ Opinions?

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

If you’re reading this, you probably read Court of Appeals’ opinions soon after they are issued. If designated for publication, those opinions are precedential and immediately binding on trial courts throughout the state. (Indiana does not have horizontal stare decisis, so another panel of the Court of Appeals is not bound to follow the decision.)

But what about the people most affected by a case—the litigants in that case? According to Appellate Rule 65(E), “the trial court . . . and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.” Certification does not occur for at least 40 days, giving time for either party to file for rehearing or the losing party to seek transfer. If a petition is filed, certification may not occur for months—until rehearing or transfer is denied or an opinion resolving the petition is issued.

“Immediate” Transfer of Custody

The motion practice in the Indiana Supreme Court’s opinion in a March 15 child custody appeal is remarkable. There, the trial court denied Mother’s motion to change custody. The Court of Appeals reversed in a 2-1 opinion. Three weeks after the opinion was issued, Mother filed a Verified Emergency Motion for Immediate Compliance with Appellate Decision, which the Court of Appeals granted just one day later by the same 2-1 vote. The majority ordered custody “immediately transferred” to the mother so the child “can begin school in Oregon.” Father’s motion to reconsider was denied; he also sought transfer.

The Supreme Court heard oral argument on December 3 and issued an order granting transfer the following day. Mother’s counsel was diplomatic at oral argument in noting the non-compliance with Appellate Rule 65, a point with which Justice Dickson agreed. (6:30-6:40, 7:45-7:55) The order includes the following sentence: “The Court orders Appellant to transfer physical custody to Appellee expeditiously after commencement of the December 2015 holiday recess at the child’s Oregon school, and not later than one week prior to commencement of school after the holiday break at the school child will attend upon returning to Indiana.”

Little Published Guidance

Although Rule 65(E) mentions only trial courts, its rationale would seem to impose the same limitation on the Court of Appeals. A just-issued opinion may not be the final word; transfer is granted in nearly 10% of cases and other cases are occasionally altered on rehearing. Especially in a child custody case, moving a child from one parent to another seems ill-advised until a decision is final.

Criminal cases arguably present somewhat different concerns. Consider, for example, the following appellate reversal of a trial court’s revocation of probation in Ripps v. State in 2012:

Ripps was sixty-nine years old and suffering from serious health issues, including terminal cancer; he was attempting to adhere to his probation conditions, as evidenced by his going to the sheriff’s office to register his new address; although he was initially in violation of the residency restriction, evidence reveals he was taking steps to correct the violation by finding a new residence; while he did live within 1,000 feet of the public library, this was only so by about twenty feet and some ambiguity exists in how this distance was measured . . . .
There, the court issued the following order the same day it heard oral argument:
This court held oral argument this morning and having read all the briefs and deliberated on the issues, we conclude that Ripps has adequately demonstrated that revoking his probation on the present basis was an abuse of discretion. 2. While ordinarily Indiana Appellate Rule 65(e) would require certification of the opinion prior to action by the trial court, in equity and law, courts have inherent authority to require immediate compliance with their orders and decrees in order to give effective relief. Noble County v. Rogers, 745 N.E.2d 194, 198 (Ind. 2001); State ex rel. Brubaker v. Pritchard, 236 Ind. 222,226-27, 138 N.E.2d 233, 235 (1956). A formal opinion will follow in due course. Accordingly, we direct the trial court to order Ripps' release forthwith.
Conclusion

Although Appellate Rule 65(E) almost always precludes immediate relief after an appellate opinion, perhaps the cases cited in the Ripps order could aid a party in extraordinary circumstances, such as a terminal illness, in “order to give effective relief.”

Posted by Marcia Oddi on Wednesday, March 30, 2016
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Schumm - Commentary

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (1):

In Troy Jonas v. State Farm Life Insurance Company, a 16-page opinion, Judge Kirsch writes:

Troy Jonas (“Jonas”) appeals the trial court’s order granting summary judgment in favor of State Farm Life Insurance Company (“State Farm”). Jonas raises the following restated issue for our review: whether the trial court erred when it determined that Jonas entered into a settlement agreement with State Farm and then refused to follow through with the agreement, which constituted a breach of the settlement agreement. We affirm.
NFP civil decisions today (0):

NFP criminal decisions today (4):

Jeffery Shidler v. State of Indiana (mem. dec.)

Larry G. Sloan v. State of Indiana (mem. dec.)

Denny L. Brown v. State of Indiana (mem. dec.)

John E. Bulington v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, March 30, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Beware the Scrollable Window: The Seventh Circuit Strikes Down an Internet Contract"

The 7th Circuit opinion in Sgouros v. TransUnion Corporation, which the ILB highlighted on March 25th, is the subject of a long post today in the Wisconsin Appellate Law blog. A sample:

The Seventh Circuit’s recent decision in Sgouros v. TransUnion Corp., No. 15-1371 (7th Cir. March 25, 2016), decided under Illinois law, is a cautionary tale for those that operate in this digital realm. The court declined to enforce an arbitration provision because that term was buried at the bottom of a scrollable window (and not immediately visible on the page), with no prompt directing the user to scroll to the bottom. Chief Judge Diane Wood wrote for the court, in an instructive opinion that included screenshots from TransUnion’s webpage. * * *

The Seventh Circuit explained that the result might have been different had TransUnion “plac[ed] the agreement, or a scroll box containing the agreement, or a clearly labeled hyperlink to the agreement, next to an ‘I Accept’ button that unambiguously pertains to that agreement.”

The scrollable window is not, the Seventh Circuit held, “in itself, sufficient for the creation of a binding contract.”

Posted by Marcia Oddi on Wednesday, March 30, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - How Final is a 3-2 Opinion Issued Weeks Before Justice Dickson’s Retirement?

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

The Indiana Supreme Court’s March 2 majority and two dissenting opinions in Myers v. Crouse-Hinds are remarkable and a must-read for many reasons, including what they say about precedent, the Equal Privileges and Immunities provision of the Indiana Constitution, and of course the statute of repose in asbestos cases.

Is the opinion the last word on the subject, though?

Either party could file a petition for rehearing within 30 days, which is this Friday, April 1. The other side would then have 20 days to file a response. The justices would ultimately issue an order denying rehearing or perhaps an opinion granting rehearing.

If rehearing is sought, which seems very likely, will Justice Dickson, who is retiring on April 29, be part of the rehearing decision—or will his soon-to-be-named replacement?

Flipped on Rehearing: A Recent Example

Two days before his retirement on September 30, 2010, Justice Boehm wrote a 3-2 opinion in Hopper v. State, where the court exercised its “supervisory power to require that in the future a defendant expressing a desire to proceed without counsel is to be advised of the dangers of going to trial as required by Faretta, and also be informed that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution’s case.”

Three weeks later, Justice David joined the Court, and soon after the State filed a petition for rehearing.

The justices took the unusual step of requesting a response to rehearing from the Appellant and invited amici participation. The case was also scheduled for oral argument. Several months later, Chief Justice Shepard, the author of the dissent to the earlier opinion, wrote an opinion on rehearing for the 3-2 majority, concluding “[w]hile we do not doubt the value of the Hopper advisement‘s language in particular stages of particular cases with particular defendants, the notion that such language should be mandatory in all stages of all cases with all defendants is misplaced.”

Justice Rucker, joined by Justice Sullivan—members of the earlier majority—wrote in dissent: “The State now seeks rehearing making essentially the same arguments it made before. Nothing has changed. Under these circumstances alone, this Court should deny the petition for rehearing.”

What had changed, of course, was the membership of the Court. Newly appointed Justice David joined the majority rehearing opinion, which led to a different result.

Lessons for Myers and Other Cases

If a rehearing petition is filed in Myers, the response would be filed—and the case fully briefed and likely transmitted for a ruling—a few days before Justice Dickson’s retirement. Thus, the Court could issue a ruling before he leaves, which would presumably be a 3-2 order denying rehearing.

Or the justices could wait for the new justice to arrive and allow him to consider the case, perhaps with the benefit of another oral argument and/or additional briefing, as in Hopper.

Although the same scenario could play out in other cases beyond Myers, I would not expect many, if any, more 3-2, Justice Dickson-in-the-majority opinions in Justice Dickson’s final weeks. Unlike Justice Sullivan’s final month in July 2012, when the Court issued seventeen opinions, the Court has relatively few argued cases awaiting the issuance of an opinion, having issued ten opinions (including the long-pending IBM case) so far this month. If a number of opinions are issued in the next month, I would expect most of them, like most of those in the past three and a half years, to be unanimous.

Posted by Marcia Oddi on Wednesday, March 30, 2016
Posted to Ind. Sup.Ct. Decisions | Schumm - Commentary

Tuesday, March 29, 2016

Ind. Decisions - Judge Pratt denies State's motion for stay in Syrian refugee case [Updated]

Updating this ILB post from March 8th, headed "Ind. Decisions - More on: Federal Judge Pratt rules against State of Indiana's efforts to withhold federal funds from groups from bringing Syrian refugees into the state," today Judge Pratt has denied the defendant State of Indiana's motion for a stay pending appeal - here is the 12-page order.

The underlying appeal to the 7th Circuit continues, according to AG Zoeller.

[Updated at 6:56 PM] Here is a good article from The Economist from March 19th, headed "Exodus, continued: The governor seems to be losing his fight to keep Syrian refugees away."

Posted by Marcia Oddi on Tuesday, March 29, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court decides one today by 3-2 vote, an appellate sentence revision

In Ronald L. Eckelbarger v. State of Indiana, a 3-page, 3-2 per curiam opinion, the majority writes:

* * * The trial court sentenced Eckelbarger to sixteen years with four years suspended on each of Counts I and II, to be served concurrently. The trial court sentenced Eckelbarger to sixteen years with four years suspended on Count III, and three years on Count IV, to run concurrently with each other but consecutive to the sentences on Counts I and II. Eckelbarger thus received an aggregate sentence of thirty-two years, with eight years suspended to probation.

Eckelbarger appealed, and the Court of Appeals affirmed. Eckelbarger v. State, --- N.E.3d ---, 2015 WL 8477835 (Ind. Ct. App. Dec. 10, 2015). Judge Riley dissented in part, and would have revised Eckelbarger’s sentence downward. Eckelbarger seeks transfer, contending, among other things, that his aggregate thirty-two year sentence is inappropriate.

Even where a trial court has not abused its discretion in sentencing, the Indiana Constitution authorizes independent appellate review and revision of a trial court’s sentencing decision. See Ind. Const. art 7, §§ 4, 6; Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). Appellate courts implement this authority through Indiana Appellate Rule 7(B), which provides that we may revise a sentence if “after due consideration of the trial court’s decision” we find “the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B).

We have previously observed that “[c]onsecutive sentences are not appropriate when the State sponsors a series of virtually identical offenses.” Gregory v. State, 644 N.E.2d 543, 544 (Ind. 1994). Consistent with this precedent, Consistent with this precedent, the trial court in this case ordered the sentences on Counts I and II to be served concurrently. This same reasoning informs our deliberation and collective sentiment that, under the particular circumstances of this case, the sentences for Counts III and IV (dealing in methamphetamine by manufacture and possession of precursors)—convictions supported by evidence seized pursuant to a search warrant procured based on the dealing methamphetamine by delivery counts—should be served concurrently to the sentences on Counts I and II.

Pursuant to our authority under Appellate Rule 7(B), we find that an aggregate sentence of thirty-two years is inappropriate. Accordingly, we grant transfer and revise Eckelbarger’s sentences on Counts III and IV to run concurrently with his sentences on Counts I and II, for an aggregate sentence of sixteen years. In all other respects we summarily affirm the Court of Appeals’ decision. See Ind. Appellate Rule 58(A)(2). We remand this case to the trial court with instructions to enter a revised sentencing order consistent with this opinion.

Rush, C.J., and Rucker and David, JJ., concur.

Dickson and Massa, JJ., dissent, believing the extraordinary relief of appellate sentence revision is not warranted in this case.

Posted by Marcia Oddi on Tuesday, March 29, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 8 NFP memorandum decision(s))

For publication opinions today (1):

In 3155 Development Way, LLC v. APM Rental Properties, LLC, a 13-page opinion, Judge Bradford writes:

Al Miller is the president and majority shareholder of Concrete Formwork Fabrication and Engineering Company (“CFFE”) and the sole member of Plaintiff-Appellee APM Rental Properties, LLC (“APM”). APM and Appellant-Defendant 3155 Development Way, LLC (“Development”) executed an agreement for the purchase of a parcel of land (“Tract 3”). Prior to the closing date, APM became aware that Tract 3 was landlocked, i.e. it lacked access from a public roadway. The only road providing access to Tract 3 was owned by the neighboring landowners. APM brought suit against Development and the neighboring landowners to establish an easement allowing permanent use of the access road. APM and Development were unable to reach an agreement with the neighboring landowners establishing an easement prior to the closing date for the Tract 3 purchase agreement.

After the closing date had passed with no easement having been obtained, APM amended its complaint to seek rescission of the purchase agreement and to allege fraud. APM filed a motion for partial summary judgment seeking judgment on the claim for rescission of contract, which the trial court granted. Development appeals the trial court’s award of partial summary judgment arguing that the trial court erred in rescinding the purchase agreement. Development also argues (1) APM breached the contract prior to the closing date, (2) APM was not a real party to the contract, (3) APM had a duty to exercise due diligence in conducting a land survey, and (4) the trial court erred in scheduling a hearing to determine the issues of fraud and damages. Because APM relied on Development’s misrepresentation regarding access to Tract 3, we affirm the trial court’s rescission of the contract.

NFP civil decisions today (3):

William R. Johnson v. Tonya S. Johnson (mem. dec.)

Jason T. Myers v. Thomas D. Maxson; Amy L. Hutchison; Bruce W. Graham; and Trueblood & Graham (In their Official and Individual Capacities) (mem. dec.)

In Sportsdrome Speedway, Inc. v. Jason Clark (mem. dec.), a 21-page opinion, Judge Kirsch writes:

In this interlocutory appeal, Sportsdrome Speedway, Inc. (“Sportsdrome”) appeals the trial court’s denial of its motion for summary judgment in a case brought by Jason Clark (“Clark”) for injuries he sustained when a racecar hit him as he volunteered1 on the track for one of Sportsdrome’s races, held on June 18, 2011. On appeal, we address the following consolidated and restated issue: whether the trial court erred in denying Sportsdrome’s motion for summary judgment on Clark’s claim that Sportsdrome and its employees were grossly negligent and acted in a willful and wanton manner with regard to Clark’s safety. We reverse and remand. * * *

The fact that a racecar entered the pit gate was unusual, and even more unusual was the fact that the car hit Clark. The record does not show that Sportsdrome had actual knowledge that an accident was probable, let alone that an injury to Clark was probable. Constructive knowledge is not sufficient, and where a plaintiff fails to provide adequate evidence for his allegations, Indiana courts do not hesitate to dispose of such claims as matter of law. Westray v. Wright, 834 N.E.2d 173, 181 (Ind. Ct. App. 2005). In the absence of any genuine issue of material fact, the trial court erred when it denied Sportsdrome’s motion for summary judgment.

NFP criminal decisions today (5):

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

Marvin Beville v. State of Indiana (mem. dec.) [ILB: This is an interesting 2-1 opinion that seems worthy of the ILB's "Why is this NFP?" designation. A snippet from the dissent:

The majority finds, as argued by the State, that “after watching the video [Beville] will learn the identity of the CI.” Slip op. at 7. However, other than the State’s mere assertion, the record does not support such a conclusion. The record does not reveal that the trial court examined the video and made such a finding, and the record on appeal does not contain a copy of the video.
Jermarcus L. Grandberry v. State of Indiana (mem. dec.)

Racheal Dawn Ruble v. State of Indiana (mem. dec.)

Paul Patterson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, March 29, 2016
Posted to Ind. App.Ct. Decisions

Monday, March 28, 2016

Ind. Decisions - "When You Can't Find the Fine Print (Or Read It)"

Sgouros v. TransUnion Corporation, the 7th Circuit opinion (involving an Illinois case) the ILB highlighted Friday, is the subject today in BloombergView of a column by Prof. Noah Feldman. [h/t How Appealing]

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

About the ILB - "Thank you for your tremendous contribution to elevating important legal and policy issues"

Re the ILB's closing the end of this month, the ILB received this note March 9th from Kim Ferraro, Senior Staff Attorney, Hoosier Environmental Council:

Hi Marcia,

On behalf of HEC, I want to thank you for your outstanding work, dedication and more than a decade-long contribution to elevating public awareness of vital legal and policy issues in Indiana. Your work was instrumental in calling attention to dangerous and misguided environmental policies such as the proposed constitutional right to farm amendment and no more stringent than bills, bringing a spotlight to legal cases involving serious environmental injustices, and elevating the quality of political discourse by presenting facts and sound legal/policy analysis instead of convenient sound bites.

All of us at HEC are sad to learn that your critical work with the Indiana Law Blog is coming to an end but certainly understand the challenge of trying to fill such an important public need without adequate funding. We wish you all the best in your future endeavors and will remain eternally grateful for all that you have done.

Warm regards,
Kim

Posted by Marcia Oddi on Monday, March 28, 2016
Posted to About the Indiana Law Blog

Ind. Decisions - More on: Appellants' brief filed in a state fair stage collapse lawsuit [Updated]

Since the ILB posted the joint appellants' brief in Jill Polet, et al. v. Esg Security, Inc., et al. just two hours ago, it has been downloaded 67 times...

[Updated on 3/30/16] As of this morning at 10 AM, about 48 hours after posting, the brief has been downloaded 161 times.

Posted by Marcia Oddi on Monday, March 28, 2016
Posted to Stage Collapse

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

For publication opinions today (1):

In Rogers Group, Inc. v. Tippecanoe County, et al., a 14-page opinion, Chief Judge Vaidik writes:

Rogers Group, Inc., which seeks to build and operate a quarry on certain land in Tippecanoe County, filed a lawsuit challenging two county ordinances: one that prohibits new quarries within two miles of residential areas, and one that requires parties seeking to mine in a flood plain to first obtain a special exception from the board of zoning appeals. We conclude that the quarry ban is a zoning ordinance under our Supreme Court’s decision in City of Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781 (Ind. 2008), and that it is void because it was not enacted in accordance with Indiana’s zoning statutes. However, the county’s requirement of a special exception to mine in a flood plain is valid and enforceable under state statute and this Court’s precedent. * * *

We conclude that the legislature did not abolish or otherwise alter the flood plain exception when it amended Section 1103(c) to add the “AREA” heading and to change “The advisory planning law” to “This chapter.” If Rogers Group believes that the legislature had a contrary intent, its remedy lies in the legislative process, not in this Court. For now, because Section 1103(c) continues to be subject to a flood plain exception, we affirm the trial court’s ruling that Rogers Group must obtain a special exception from the Area BZA if it wishes to mine in a Flood Plain zone. * * *

We reverse the trial court’s determination that the Prohibition Ordinance is not a zoning ordinance and therefore did not have to be passed in accordance with the 600 Series Procedures. We remand with instructions to enter summary judgment in favor of Rogers Group on this issue. However, we affirm the grant of summary judgment in favor of the County regarding the validity and enforceability of the special exception requirement.

The ILB has had a number of posts on the Amicus Quarry project in Tippecanoe County, here is the most recent, from April 20, 2015.

NFP civil decisions today (1):

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

NFP criminal decisions today (2):

Vorice Williams-Bey v. State of Indiana (mem. dec.)

Mauricio Martinez v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, March 28, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending March 25, 2016

Here is the Clerk's transfer list for the week ending Friday, March 25, 2016. It is one page (and 11 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, March 28, 2016
Posted to Indiana Transfer Lists

Ind. Decisions - Appellants' brief filed in a state fair stage collapse lawsuit

The ILB has covered the legal ramifications of the Indiana State Fair stage collapse since the tragedy occurred in the fall of 2011. Most posts may be found via this category link - Stage Collapse.

Although the Supreme Court has issued several rulings relating to the stage collapse, litigation continues. On Sept. 15, 2015, the ILB had a post headed ""Remaining Defendant in State Fair class-action lawsuit dismissed by trial judge," quoting an Indianapolis Star story by Jill Disis.

The trial court decision in that case, Jill Polet, et al. v. Esg Security, Inc., et al. (49D02-1111-CT-044823) has now been appealed to the Court of Appeals. On March 23, 2016, a Joint Brief of Appellants was filed.

Although the Indiana Supreme Court has announced that all appellate briefs will be available for download via the appellate court docket effective April 1 (see March 18th ILB post), its decision does not cover briefs filed prior to April 1, 2016.

However, as in the past in many notable cases, the ILB has been able to obtain a copy of this brief, filed March 23rd, and is posting it here for the benefit of ILB readers.

I recommend it to you. In contrast to a number of briefs the ILB has reviewed over the years, this brief is a written in clear, direct prose and is a pleasure to read. In addition, the brief makes powerful use of a video of the disaster.

Posted by Marcia Oddi on Monday, March 28, 2016
Posted to Ind. Trial Ct. Decisions | Stage Collapse

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/28/16):

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

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/28/16):

Thuesday, March 31

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

Monday, April 4

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

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


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, March 28, 2016
Posted to Upcoming Oral Arguments

Sunday, March 27, 2016

Ind. Decisions - 7th Circuit decided one Indiana civil case on March 25th, posted this weekend

In American Commercial Lines, LL v. The Lubrizol Corporation (SD Ind., Barker), a 7-page opinion, Judge Posner writes:

The plaintiff and appellant in this commercial suit, American Commercial Lines (ACL), manufactures and operates tow boats and barges that ply the nation’s inland waterways. The defendant, Lubrizol, manufactures industrial lubricants and additives, including a dieselfuel additive that it calls LZ8411A. A company named VCS Chemical Corp. distributed the additive, and Lubrizol and VCS jointly persuaded ACL to buy it from VCS. Before delivery began, however, Lubrizol terminated VCS as a distributor because of suspicion that it was engaging in unethical conduct—one of Lubrizol’s employees had failed to disclose to his employer that he was also a principal of VCS. But Lubrizol did not inform ACL that VCS was no longer its distributor.

No longer able to supply ACL with LZ8411A, VCS substituted an additive that ACL contends is inferior to LZ8411A. At least some of this other additive (which both Lubrizol and ACL call the “Counterfeit Additive”) was produced by Afton Chemical Corp. VCS didn’t inform ACL of the substitution. According to ACL’s complaint, Lubrizol learned of the substitution too but also didn’t inform ACL, which when it discovered the substitution brought the present suit—a diversity suit alleging a variety of violations of Indiana common law—against VCS, VCS’s principal owner (who is also its CEO), and Lubrizol. ACL settled with VCS and its owner, leaving Lubrizol as the only defendant. The district judge dismissed part of the remaining suit on Lubrizol’s motion to dismiss and the rest on its motion for summary judgment. * * *

A manufacturer has no duty at common law to protect the customers of its distributors from misconduct by a distributor. ACL could have asked Lubrizol, which it knew to be VCS’s supplier, for a contractual guaranty against VCS’s failing to perform its contract with ACL. It didn’t ask for a guaranty, apparently trusting VCS. ACL is not some helpless consumer, at the mercy of the companies it does business with; its estimated value in 2010 was $800 million. * * *

A competent party—a big boy like ACL—should be required to exhaust its contractual remedies before invoking tort law and tort‐like extensions of contract law. A welldrafted contract provides a cleaner basis for a legal remedy than does a nebulous body of jargony legal theories such as “special relationship,” “constructive fraud,” “duty of good faith and fair dealing,” “disinterested malevolence,” and “quasi‐contract.”

A word finally about that last term, quasi‐contract. ACL treats it as if it were synonymous with contract, whereas the term “quasi‐contract” actually denotes absence of a contract, coupled with a sense that there would have been a contract had it not been for some unexpected intervening event. * * * AFFIRMED.

Posted by Marcia Oddi on Sunday, March 27, 2016
Posted to Ind. (7th Cir.) Decisions

Friday, March 25, 2016

Ind. Law - Sales tax exemption for sales of bullion or currency

HEA 1046, signed yesterday by Gov. Pence, goes into effect July 1, 2016. WLFI 18 reports today:

Vierk’s Fine Jewelry owner Jeff Vierk said it costs his business an estimated $250,000 a year in potential sales.

“People that come in to talk to us about buying gold and silver, and then choose not to because they find out we have to charge sales tax, and therefore they’re going to go out of state, ” Vierk explained.

Indiana currently charges sales tax on precious metals like gold and silver bullion.

Republican State Sen. Brandt Hershman said it’s one of the very few physical items able to be invested into an Individual Retirement Account or IRA, but Hershman said the tax created an uneven playing field with other investments.

“If you buy a stock or bond, or put money into a savings account, you don’t pay sales tax on those items,” said Hershman. “But you were paying sales tax on these.”

Vierk said, right now, a one ounce U.S. Gold Eagle Coin sells for about $1,250 plus an additional $87.50 tax. But on July 1, that tax will be no more.

“Instead of people having to go to neighboring states or the internet, they can now make those purchases here in the state of Indiana without being accessed that 7 percent sales tax,” Vierk added.

Posted by Marcia Oddi on Friday, March 25, 2016
Posted to Indiana Law

Ind. Decisions - 7th Circuit decides interesting online contract case, using Illinois law

Gary Sgouros v. TransUnion Corporation (ND Ill.), a 13-page opinion today by Chief Judge Wood, has several interesting elements to it. Some quotes:

Hoping to learn about his creditworthiness, Gary Sgouros purchased a “credit score” package from the defendant, TransUnion. Armed with the number TransUnion gave him, he went to a car dealership and tried to use it to negotiate a favorable loan. It turned out, however, that the score he had bought was useless: it was 100 points higher than the score pulled by the dealership. Believing that he had been duped into paying money for a worthless number, Sgouros filed this lawsuit against TransUnion. In it, he asserts that the defendant violated various state and federal consumer protection laws.

Rather than responding on the merits, however, TransUnion countered with a motion to compel arbitration. It asserted that the website through which Sgouros purchased his product included (if one searched long enough) an agreement to arbitrate all disputes relating to the deal. The district court concluded that no such contract had been formed and denied TransUnion’s motion. TransUnion has appealed from that decision, but we agree with the district court and affirm its order. * * *

The present case, the parties agree, is governed by Illinois law. In Illinois, as in many states, the law governing the formation of contracts on the Internet is still in the early stages of development. But there is no reason to think that Illinois’s general contract principles do not apply. Formation of a con-tract requires mutual assent in virtually all jurisdictions; Illinois courts use an objective approach to that question. * * *

Generally, a party who signs a written contract is presumed to have notice of all of the contract’s terms. Janiga, 615 F.3d at 743. The trick here is to know how to apply these general principles to newer forms of contracting. In the context of cruise-ship tickets, which present problems similar to those of agreements formed on the Internet, Illinois courts have applied a “two-part ‘reasonable communicativeness’ test,” under which they ask “(1) whether the physical characteristics of the ticket reasonably communicate the existence of the terms and conditions at issue” and “(2) whether the circumstances surrounding the passenger’s purchase and subsequent retention of the tickets permitted the passenger to become meaningfully informed of its contractual terms.” Walker v. Carnival Cruise Lines, Inc. * * * Translated to the Internet, we might ask whether the web pages presented to the consumer adequately communicate all the terms and conditions of the agreement, and whether the circumstances support the assumption that the purchaser receives reasonable notice of those terms. This is a fact-intensive inquiry: we cannot presume that a person who clicks on a box that appears on a computer screen has notice of all contents not only of that page but of other content that requires further action (scrolling, fol-lowing a link, etc.) Indeed, a person using the Internet may not realize that she is agreeing to a contract at all, whereas a reasonable person signing a physical contract will rarely be unaware of that fact. We need, therefore, to look more closely at both the law and the facts to see if a reasonable person in Sgouros’s shoes would have realized that he was assenting to the Service Agreement when he clicked “I Accept & Continue to Step 3.” * * *

But what cinches the case for Sgouros is the fact that TransUnion’s site actively misleads the customer. The block of bold text below the scroll box told the user that clicking on the box constituted his authorization for TransUnion to obtain his personal information. It says nothing about contractual terms. No reasonable person would think that hidden within that disclosure was also the message that the same click constituted acceptance of the Service Agreement.

Where the terms are not displayed but must be brought up by using a hyperlink, courts outside of Illinois have looked for a clear prompt directing the user to read them. * * * No court has suggested that the presence of a scrollable window containing buried terms and conditions of purchase or use is, in it-self, sufficient for the creation of a binding contract, and we have no reason to think that Illinois would be the first.

TransUnion undid whatever notice it might have been furnishing in its bold text block by explicitly stating that a click on the button constituted assent for TransUnion to obtain access to the purchaser’s personal information. That text distracted the purchaser from the Service Agreement by in-forming him that clicking served a particular purpose unrelated to the Agreement. * * *

Illinois contract law requires that a website provide a us-er reasonable notice that his use of the site or click on a but-ton constitutes assent to an agreement. This is not hard to accomplish, as the enormous volume of commerce on the Internet attests. A website might be able to bind users to a service agreement by placing the agreement, or a scroll box containing the agreement, or a clearly labeled hyperlink to the agreement, next to an “I Accept” button that unambiguously pertains to that agreement. There are undoubtedly other ways as well to accomplish the goal. Somehow or other, however, TransUnion needed to get the message through to the site user that purchasing a consumer credit score means agreeing to the Service Agreement. It failed to do so in this case, and so we agree with the district court that no agreement that included an arbitration clause arose between TransUnion and Sgouros. We therefore AFFIRM the order of the district court denying TransUnion’s motion to send this case to arbitration and return the case to the district court for further proceedings.

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

Ind. Courts - Non-compete suit filed in Muncie to ban an on-air personality from another radio corporation’s broadcasts

Douglas Walker of the Muncie Star-Press has the story, here as republished by the Indianapolis Star. The story begins:

The owners of a East Central Indiana radio station have filed suit in a bid to ban an on-air personality from another radio corporation’s broadcasts.

Cumulus Radio Corp. — which owns New Castle radio station WMDH-FM, now known as NASH-FM (102.5) — filed a Delaware Circuit Court 4 lawsuit this week against Amanda Rollen and Hoosier AM/FM LLC, which operates five radio stations in Marion and four in Kokomo.

According to the suit — filed by Indianapolis attorneys John Drake and Todd Kaiser — Rollen was an on-air personality and programming assistant for NASH-FM until Oct. 2.

The lawsuit alleges Rollen, a Muncie resident, in December 2012 signed a “non-competition” agreement in which she promised “not to engage in the same or essentially the same job for any commercial radio station within a 50-mile radius” of NASH-FM’s transmitter for six months after leaving the New Castle station.

The suit says Rollen began working for the Hoosier AM/FM stations in Marion and Kokomo on Oct. 20, in “violation” of the noncompetition agreement.

Posted by Marcia Oddi on Friday, March 25, 2016
Posted to Indiana Courts

Ind. Decisions - State and local courts closed today

State and local courts closed today.

Posted by Marcia Oddi on Friday, March 25, 2016
Posted to Indiana Decisions

Ind. Gov't. - Legislation wrap-up, 2016 [Updated]

The session is over, and as of late yesterday afternoon, all the bills sent to Governor Pence have been processed. He has signed all but two of them, both of which he vetoed (as opposed to doing nothing, which would allow them to become law without his signature).

The two vetoed are HEA 1082, the so-called "no more stringent" bill, a watered-down version of the introduced bill, and HEA 1022, concerning public records and private university police forces. Much has been written about both bills. Some recent stories include:

Some of the bills signed by Governor Pence include:

Posted by Marcia Oddi on Friday, March 25, 2016
Posted to Indiana Government

Thursday, March 24, 2016

Ind. Gov't. - Gov. Pence vetos several controversial bills

Here are the Governor's press statements, which include his veto message, which sometimes can otherwise be hard to locate:

Posted by Marcia Oddi on Thursday, March 24, 2016
Posted to Indiana Government

Ind. Gov't. - " High-powered rifle bill triggers opposition: Pence signs measure feared to endanger people"

That is the headline to a long story today in the South Bend Tribune, reported by Jeff Parrott. It begins:

Indiana Gov. Mike Pence has signed into law a bill that critics say will endanger hunters and suburbanites, and possibly cut too deeply into the state's deer herd. [ILB: HEA 1231]

When deer firearms season opens for two weeks in November, hunters for the first time will be allowed to use high-powered rifles when hunting on privately owned property. Historically most Indiana deer hunters have used shotguns since the only other types of allowable long arms were muzzle loaders or rifles that fire handgun-caliber bullets.

The Indiana Department of Natural Resources last year considered making the change but decided against it after hearing heavy opposition from the public, including many hunters.

“We now have the legislature micromanaging the DNR and wildlife management and hunting methods,” said Doug Allman, spokesman for the Indiana Deer Hunters Association. “What’s next, fishing lures?”

Allman said today’s high-powered rifles can hit a deer from a half-mile away, “and if you miss, that bullet is still going.” That situation becomes increasingly dangerous as land development pushes hunters closer to highly populated suburbs.

“Rifles are allowed to be used for some animals in this state but you don’t have 250,000 hunters out there on opening weekend (of deer firearms season) shooting, sometimes at running animals,” Allman said.

From the end of the story:
Pence also angered hunting and conservation groups this week when he signed a bill that formally legalizes the existing practice of hunting deer in preserves that are enclosed by 8-foot fences, derided as “canned hunting” by critics. [SEA 109]

The DNR had tried for 10 years to ban the preserves but lost a court case in February, paving the way for the legislation.

The NRA has issued a news release headed "Indiana: Governor Pence Approves Two Pro-Hunting Measures!" It begins:
We are pleased to announce that the NRA-backed Right to Hunt and Fish Constitutional Amendment, sponsored by state Senator Brent Steele (R-44) and state Representative Sean Eberhart (R-57), will appear as Question 1 on the November 2016 ballot. This week, Governor Mike Pence (R) signed Senate Enrolled Act 57 approving the ballot language. Furthermore, Governor Pence also signed House Bill 1231 into law, which will expand deer hunting opportunities across Indiana. HB 1231 will take effect immediately.

Posted by Marcia Oddi on Thursday, March 24, 2016
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (4):

In In the Matter of: D.W. (Minor Child), and, T.W. (Mother) v. The Ind. Dept. of Child Services , a 6-page opinion, Judge Barnes writes:

T.W. (“Mother”) appeals the trial court’s order terminating her visitation with D.W. and denying her motion to modify the permanency plan in a CHINS action. We dismiss. * * *

Because the trial court’s order is not a final judgment, we lack subject matter jurisdiction over Mother’s appeal. See Ramsey v. Moore, 959 N.E.2d 246, 253-54 (Ind. 2012) (holding that our supreme court lacked subject matter jurisdiction where the appealed order was not a final judgment). We dismiss this appeal.

In Roukaya Ali v. Alliance Home Health Care, LLC, L.J.L. Enterprises, Inc., and Larry J. Logsdon, a 21-page opinion, Judge Crone writes:
Roukaya Ali appeals a summary judgment in favor of Alliance Home Health Care, LLC (“Alliance”), L.J.L. Enterprises, Inc. (“LJL”), and LJL’s sole owner Larry J. Logsdon (collectively “Appellees”) on her claims of defamation, malicious prosecution, false imprisonment, intentional infliction of emotional distress, and vicarious liability, all stemming from Appellees’ claims that she stole jewelry from two of her home healthcare patients. We affirm.
In Carlos Villaruel v. State of Indiana , an 11-page opinion, Judge Barnes concludes:
The trial court erred by not undertaking the required Batson analysis. Double jeopardy does not bar the State from retrying Villaruel. We reverse and remand for a new trial.
In Jennifer L. Frink v. State of Indiana, an 11-page opinion, Judge Crone writes:
In spring 2014, the Shelbyville Central School Corporation (the “School Corporation”) terminated the employment of Jennifer Frink after an eighteen-year-old male student alleged that he and Frink, a secretary at Shelbyville High School, were having an inappropriate sexual relationship. In addition to terminating Frink’s employment, the School Corporation instructed the Shelbyville Police Department to issue a criminal trespass warning to Frink advising her that she was prohibited from coming onto all School Corporation property. In fall 2014, Frink entered onto the property of Coulston Elementary School, part of the School Corporation, and the State subsequently charged her with level 6 felony criminal trespass.

Frink filed a motion to dismiss the charge pursuant to Indiana Code Section 35-34-1-4(a)(5). Specifically, Frink alleged that she cannot be guilty of criminal trespass because she had a contractual interest in School Corporation property by virtue of her status as a parent of children living within the school system. She also claimed that the School Corporation’s no-trespass warning violated her substantive and procedural due process rights. Following a hearing, the trial court denied the motion. The trial court certified its order at Frink’s request, and we accepted jurisdiction of this interlocutory appeal. The sole issue presented for our review is whether the trial court abused its discretion in denying the motion to dismiss. Finding that the State alleged sufficient facts to disprove that Frink had a contractual interest in School Corporation property and that her substantive and procedural due process claims are not proper issues for the motion to dismiss, we affirm.

NFP civil decisions today (3):

Kenworth of Indianapolis, Inc., et al. v. Seventy-Seven Limited, Convey All, LLC, Keller Trucking, Inc., et al. (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: A.J. and A.C., (Minor Children), and M.J., (Father) v. The Ind. Dept. of Child Services (mem. dec.)

T.T.-R. and D.S. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (4):

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

Brian Sawyer v. State of Indiana (mem. dec.)

Alexander Dupree v. State of Indiana (mem. dec.)

David A. Swift v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 24, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Different approaches to resolving issues with local clerks

The Fort Wayne Journal Gazette has an editorial today headed "Clerk change shows value of competitive elections":

If you doubt the ability of our democratic process to deliver sound government, look to the Fort Wayne city clerk’s office for reassurance. From a controversy roiling its operations just five months ago, new leadership tapped by voters in November appears to have the office back on track and likely in better standing than ever.

City Clerk Lana Keesling, a Republican, took office Jan. 1 after defeating Democrat Angie Davis, a long-time deputy in the office. City Clerk Sandy Kennedy wasn’t seeking re-election, but she resigned in October after a former employee’s secret recording showed Davis and Kennedy involved in alleged election activities in the clerk’s office.

Voters were fortunate to have a qualified candidate ready and willing to take on the task. The clerk’s position is apolitical one, but efficient administration of the office demands skills and qualities not everyone possesses. Keesling’s first-time bid for public office came at a perfect time, when the former business owner and finance manager was looking for a public service opportunity that matched her skills.

“I’ve got a new set of eyes,” Keesling told The Journal Gazette’s editorial board last fall. “I’ve got new ideas. You get complacent.”

Complacency turned out to be the least of the challenges in the clerk’s office, but an outsider’s view was invaluable. Keesling could cast a critical eye at operations overseen by Kennedy for 32 years. She could ask, for example, about software used by City Council and by parking enforcement. She could ask about seemingly excessive budgets for stamps or why there was no money budgeted for cellphones.

The GOP-controlled City Council, observing the turmoil last fall, withheld half of the clerk’s office budget when it approved 2016 funding, but voted this week to restore $453,116 to cover operations through the end of the year. Keesling’s work in the first months of this year, along with the contributions interim clerk Michelle Chambers made after Kennedy resigned, should give taxpayers confidence that the office is back on track.

Keesling told council this week that nearly $1 million in outstanding citations is on the office books.

“This has to be cleaned up, and we have to do a better job of keeping current and getting this amount of money collected,” she said.

Would council – and the public – know that if not for the change in administration? Maybe, but maybe not.

It’s easy to grow discouraged about government when officials forget their first obligation is to serve the public, but regular elections hold an important role in casting light on those public servants.

When the political process allows for fair and competitive elections, voters inevitably see a complement of well-qualified candidates. That scenario worked in textbook fashion last year, and it’s worth remembering in another election year.

In contrast, WRTV6 Indianapolis had a story last evening by Kara Kenney headed "State needs to address absent elected officials." Some quotes:
WHITESTOWN, Ind. -- An Indiana senator is pushing for change across the state in response to a Call 6 Investigates report that exposed former Whitestown Clerk-Treasurer Amanda Andrews collecting a $47,500 salary despite not showing up for work. * * *

Sen. Phil Boots (R-Crawfordsville) authored Senate Resolution 55 , which urges the legislature to study the issue of absent elected officials.

Boots, whose jurisdiction includes Whitestown, authored the measure at the urging of the Town of Whitestown town council that recently passed its own resolution asking the Indiana General Assembly to study the issue. * * *

Current law prohibits cutting a sitting official’s pay during their term, even if they stop showing up to work, Boots said.

“Back several years ago in Montgomery County we had an auditor that said the air was not clean enough for her at the courthouse, so she didn’t show up to work for several months, but continued to collect her pay,” said Boots. “So it’s not an unusual situation. I think if the elected official doesn’t want to fulfill their duties or obligations and work for the taxpayers, there ought to be the ability for the council to address the issue.”

Posted by Marcia Oddi on Thursday, March 24, 2016
Posted to Indiana Government

Ind. Gov't. - Today is the Governor's last day to act on pending bills

Today, March 24, is the last day for Governor Pence to sign, veto, or allow to become law without his signature, the remaining bills on his Bill Watch List.

I've counted several times and it looks like 22 still not acted on; let us say "less than two dozen."

Posted by Marcia Oddi on Thursday, March 24, 2016
Posted to Indiana Government

Wednesday, March 23, 2016

Ind. Decisions - 7th Circuit decides one Indiana case today, re accessibility of St. Joseph Co. state court facilities

In Hummel v. St. Joseph Co. Bd. (ND Ind., DeGuilio), a 23-page opinion, Judge Hamilton writes:

This appeal arises from a broad challenge to the accessibility of state court facilities in St. Joseph County, Indiana, for individuals with disabilities. Over the years of this lawsuit, some plaintiffs who were formerly litigating cases in the state court facilities have stopped doing so. Some plaintiffs have died. Others have dropped their claims. The lawsuit also seems to have prompted physical changes to the main courthouse and to the state court’s policies.

In 2014, the district court granted summary judgment for the defendants on all then-remaining claims. Plaintiffs have appealed. We affirm, not for any single, central reason, but for different reasons for the numerous claims. Plaintiffs lack standing to sue for some of their claims. They failed to present evidence sufficient to raise genuine disputes of material fact on other claims. Plaintiffs’ strongest claim was that court-house restrooms were inaccessible. The courthouse has since been remodeled to become more accessible, so that claim is moot.

We do not hold that the St. Joseph County courts are fully compliant with the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. Rather, we hold only that these plaintiffs have failed to present evidence sufficient to survive defendants’ motion for summary judgment on the specific claims before the district court. We express no opinion regarding any possible future claims involving courthouse accessi-bility. If, in the future, individuals with disabilities experience problems with access to the St. Joseph County courts, their claims will need to be decided on a fresh record.

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

Ind. Courts - New e-filing "submission agreements" causing massive headaches

The ILB is hearing from several attorneys today re massive headaches occasioned by new "submission agrrements" that Tyler Tech has added to the bottom of the e-filing form:

It requires that each 'document' be submitted as a separate lead document with a filing code. We have to check that we agree to do that or you can't efile. So...no more filing appendices as an attachment to the brief?
Reportedly, State Court Administration has responded, in answer to inquiries, that:
They would prefer we file one lead document (the brief) with numerous attachments. The "submission agreements" are supposed to be helpful reminders. Basically, we were told we could disregard them.

Except I don't feel comfortable with that. When we check the box we are agreeing that we submitted our filings in a certain way. If I know I didn't, how is that not a misrepresentation? On a State court program no less.

But if you don't check the box, you can't e-file.

Another reader who filed a brief today with more than dozen volumes to the Appendix also felt compelled, based on the language of the agreements, to file each one separately.

If these "submission agreements" are really intended only to be reminders, it looks like the problem could be avoided if they were officially re-designated simply as "reminders."

Posted by Marcia Oddi on Wednesday, March 23, 2016
Posted to E-filing

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

For publication opinions today (2):

In Cheryl L. Underwood v. Thomas Bunger, in his capacity as the Personal Representative of The Estate of Kenneth K. Kinney; Judith M. Fulford; and Sheree Demming, an 8-page opinion, Sr. Judge Barteau writes:

Cheryl L. Underwood appeals the trial court’s grant of the Estate of Kenneth K. Kinney’s motion to dismiss. We affirm.

Underwood raises two issues, which we consolidate and restate as: Whether the trial court erred in interpreting the parties’ warranty deed. * * *

The trial court correctly determined that Kinney and Fulford took their interest in the Eighth Street property under the deed as tenants by the entireties. The deed identified Kinney and Fulford’s relationship as spouses. See Citizens Nat’l Bank of Whitley Cnty. v. Stasell, 408 N.E.2d 587, 592-93 (Ind. Ct. App. 1980) (a deed that granted an interest to a couple as husband and wife created a tenancy by the entireties).

Underwood points to the phrase “all as Tenants-in-Common” as support for her claim that the deed granted the three grantees a tenancy in common. * * * If the grantor had intended to create a tenancy in common among Underwood, Kinney, and Fulford, then the deed could have omitted the reference to Kinney and Fulford as husband and wife.

Based on this analysis, Kinney’s interest in the Eighth Street Property passed directly to Fulford, and not his Estate, upon his death. See Ind. Code § 32-17-3-1. As a result, the Estate had no interest in the property and was not a proper defendant in Underwood’s claim for partition. The trial court did not err by granting the Estate’s motion to dismiss pursuant to Indiana Trial Rule 12(B)(6).

In Morgan Mannix v. State of Indiana , a 23-page, 2-1 opinion, Chief Judge Vaidik writes:
Morgan Mannix struck and killed Alex Trabbert, who was walking along the road, when she was driving home around 2:30 a.m. Mannix stopped her car and briefly looked around but then left when she did not see anything. Mannix later consented to a blood draw, which occurred approximately seven and a half hours after the accident. The results showed that Mannix’s blood-alcohol concentration was 0.10.

After a jury trial, Mannix was convicted of Class C felony failure to stop after an accident resulting in death and Class C felony operating while intoxicated causing death. Despite noting that he had never seen more compelling
mitigators than in this case, the trial judge sentenced Mannix to an above- advisory term of six years for each conviction, to be served concurrently. The
judge suspended two years and ordered one year of probation.

Reading together Indiana Code sections 9-30-6-15 and 9-30-7-3, we conclude that the fact that a chemical test was administered more than three hours after an accident does not render it inadmissible; rather, it deprives the State of the rebuttable presumption that the driver’s blood-alcohol concentration at the time of the test was the same at the time of the accident. In addition, we agree that the trial court erred in sentencing Mannix to an above-advisory term for each conviction. This is because the judge appeared to rely on the elements of one offense to support an above-advisory sentence for the other offense, and vice versa, but did not identify anything unique about the circumstances that would justify deviating from the advisory sentence, especially in light of the numerous mitigators in this case. We therefore use our review-and-revise authority to sentence Mannix to the advisory term of four years with one year suspended for each conviction, to be served concurrently, and one year of probation. * * *

Bailey, J., concurs.
Crone, J., concurs in part and dissents in part. [in an opinion that starts at p. 20 and concludes] ... I would also find that Mannix has waived her inappropriateness argument as to the nature of her offenses.

Waiver notwithstanding, I find such argument unpersuasive. Mannix drank at least six beers and got behind the wheel of her car in the middle of the night. She drove off the road for over 100 feet and struck Alex Trabert with enough force to knock him out of his shoes and into her windshield, which shattered. She made only a cursory effort to find whatever she hit, did not attempt to summon help, drove home, and went to bed. Later that morning, Trabert’s dead body was found on the side of the road, and Mannix’s blood tested positive for both alcohol and marijuana. The nature of Mannix’s offenses supports a sentence above the advisory term and reflects unfavorably on her character. Although she has no criminal history and has achieved some educational and vocational success, she exhibited extremely poor judgment that resulted in the death of an innocent young man. She has used alcohol and marijuana since she was a teenager, and she continued to consume alcohol until the week of trial.(presentence investigation report). Mannix has failed to persuade me that the trial court’s sentence is inappropriate, and therefore I would affirm it.

NFP civil decisions today (4):

Dwayne E. Gray and Jeffrey E. Minor v. Indiana Farm Bureau Insurance Company (mem. dec.)

In Re the Adoption of H.A.F., A.J.F. v. A.D.F. (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of R.S., Jr. (Child) and R.S., Sr. (Father); R.S., Sr. (Father) v. The Indiana Department of Child Services (mem. dec.)

Steven Robbins v. Indiana Department of Correction, et al. (mem. dec.)

NFP criminal decisions today (2):

Khalil Reeves v. State of Indiana (mem. dec.)

Richard D. Croslin v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, March 23, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Federal jury finds for fired Anderson employees"

"Federal jury finds for fired Anderson employees, awards $740,000," is the headline to a brief breaking story today in the Anderson Herald Bulletin, reported by Ken de la Bastide. A quote:

The workers were let go at the start of Republican Smith's administration in 2012. They claim their firings were politically motivated since each had supported then-incumbent Mayor Kris Ockomon, a Democrat.

The 11 filed their wrongful termination lawsuit in April 2012 in U.S. District Court for Southern Indiana in Indianapolis.

Anthony Overhold, attorney for the city, argued that the 11 were terminated from their employment because they were in policy making or confidential positions or had been fired for poor job performance.

Posted by Marcia Oddi on Wednesday, March 23, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - 7th Circuit decided 2 Indiana cases yesterday

In Eric D. Holmes v. Mark E. Levenhagen (SD Ind., Barker & Young), a combined appeal, Judge Posner concludes:

The challenge to the denial of a stay of the habeas corpus proceeding having failed and the petition for habeas corpus relief having been rejected, Holmes retains a right to a hearing to determine whether he is sufficiently mentally competent to be put to death for the murders he committed. * * *

We cannot jump the gun by ordering the district court to hold such a hearing, as that would violate the requirement in 28 U.S.C. § 2254(b)(1)(A) that a defendant exhaust all available state remedies before turning to the federal courts for relief should he strike out in the state court system. Those remedies will not be exhausted until the Indiana state courts decide whether Holmes is mentally competent to be executed.

Considering that he was convicted of the murders almost a quarter of a century ago and that if he fails to obtain relief in a hearing in the Indiana court system on his mental competency to be executed and having thus exhausted his state remedies files a further petition for habeas corpus in the federal district court and loses and appeals once again to us it will be the fourth time that we are called on to render a decision in this protracted litigation, we are dismayed at the prospect that looms before us of further and perhaps endless protraction of federal judicial review of Holmes’s conviction and sentence. But we are obliged by section 2254(b)(1)(A) to proceed as just indicated.

In conclusion, the rulings of the district court appealed from in appeals No. 14‐3359 and No. 04‐3549 are affirmed, and the appeal in No. 06‐2905 is dismissed.

In Continental Casualty Company v. Alan Symons (SD Ind., Young), a 34-page opinion, Judge Sykes writes:
IGF Insurance Company owed Con-tinental Casualty Company more than $25 million for a crop-insurance business it bought in 1998. In 2002 IGF resold the business to Acceptance Insurance Company for about $40 million. Continental alleges that IGF’s controlling fami-ly—Gordon, Alan, and Doug Symons—structured the sale so that most of the purchase price was siphoned into the cof-fers of other Symons-controlled companies, rendering IGF insolvent. More specifically, Continental claims that $24 mil-lion of the $40 million purchase price went to three Symons-controlled companies—Goran Capital, Inc.; Symons International Group, Inc.; and Granite Reinsurance Co.—for sham noncompetition agreements and a superfluous and over-priced reinsurance treaty. Continental, still unpaid, sued for breach of contract and fraudulent transfer.

After lengthy motions litigation and a bench trial, the district court found for Continental and pierced the corporate veil to impose liability on the controlling companies and individuals. Continental’s damages totaled $34.2 million, so the court entered judgment in that amount jointly and sever-ally against IGF, Symons International, IGF Holdings, Inc., Goran, Granite Re, and Gordon and Alan Symons. (Gordon has since died; his estate was substituted for him. Doug Sy-mons is in bankruptcy.)

Clearing away the factual complexity, this appeal presents three discrete questions for our review: (1) Is Symons International liable to Continental for breach of the 1998 sale agreement? (2) Are Symons International, Goran, Granite Re, Alan Symons, and the Estate of Gordon Symons liable as transferees under the Indiana Uniform False Transfer Act (“IUFTA”)? and (3) Are Alan Symons and the Estate of Gordon Symons liable under an alter-ego theory? For the most part, we answer these questions “yes” and affirm the judgment in its entirety. * * *

To summarize: The judge did not clearly err in finding Symons International liable as an obligor under the Strategic Alliance Agreement. Likewise, we find no error in the judge’s ruling that Symons International, Goran, and Granite Re are liable under the IUFTA. And while we are not prepared to say that Alan and the Estate of Gordon Symons are liable as transferees under the IUFTA, they are liable under alter-ego theory. AFFIRMED.

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

Ind. Decisions - IBM entitled to $50 million from State, in spite of contract breach

Yesterday's Indiana Supreme Court decision in State of Indiana v. IBM (ILB summary here) is the subject of an AP story today by Rick Callahan. Some quotes:

INDIANAPOLIS — IBM Corp. breached its state contract in the company’s failed attempt to privatize Indiana’s welfare services but is still entitled to nearly $50 million in state fees, the state Supreme Court said Tuesday in a ruling that also opens the door for Indiana to seek up to $175 million in damages.

The high court’s ruling in the long-running case upholds a February 2014 state Court of Appeals ruling and reverses a trial court judge’s finding that Indiana had failed to prove IBM breached the $1.3 billion state contract it won in 2006. Under that contract, an IBM-led team of vendors had worked to process applications for food stamps, Medicaid and other public safety-net benefits through the call centers, the Internet and fax machines that residents could use to apply for those benefits.

Then-Gov. Mitch Daniels canceled the 10-year contract in 2009 following complaints from welfare clients, lawmakers and others about long wait times, lost documents and improper rejections. IBM and Indiana then countersued each other, setting off the complicated court fight.

Justice Mark Massa recused himself from the case because he was Daniels’ general counsel when the contract was signed.

More from the story:
The high court’s four other justices unanimously found Tuesday that IBM had breached its contract by failing to meet “timeliness metrics” and to “assist the State in achieving its policy objectives” — thus reversing a 2012 Marion County trial court finding — and said the state can seek damages. However, the justices also affirmed the trial court’s award of nearly $50 million to IBM in assignment and equipment fees.

The ruling reversed the trial court’s award of $13 million to IBM in pre-judgment interest claims and early contract termination close-out payments, yet agreed with the trial court’s denial of about $43 million in deferred fees that IBM had sought, said Peter Rusthoven, a private attorney representing Indiana’s Family and Social Services Administration in the dispute.

Rusthoven said Tuesday that the FSSA was “very pleased,” because the justices directed the trial court to determine how much IBM owes Indiana in damages for its contract breach, a figure he says is about $175 million.

“This means that our Court of Appeals and now our Supreme Court have recognized, as we maintained from the beginning, that IBM materially breached its contract as a matter of law. And therefore it must compensate the state for the damages it’s cost,” Rusthoven said.

Posted by Marcia Oddi on Wednesday, March 23, 2016
Posted to Ind. Sup.Ct. Decisions

About the ILB - How Does the ILB Rank Nationally?

The ILB has received several inquiries about its readership...

JUSTIA has maintained a list of the 1,000 "Most Popular Blawgs" for years. The ILB has been on the first page each time I have checked. Currently the ILB is #25.

Here are the ILB Monthly Statistics for so far this quarter of 2016, via StatCounter:

Posted by Marcia Oddi on Wednesday, March 23, 2016
Posted to About the Indiana Law Blog

About the ILB - Reading the ILB on an iPhone

I rarely view the ILB on an my iPhone, but checked yesterday to see how accessible it was:

This information supplements the ILB's original, 2004 "How to Read a Blog" post.

Posted by Marcia Oddi on Wednesday, March 23, 2016
Posted to About the Indiana Law Blog

Tuesday, March 22, 2016

Courts - "Pa.'s judges reeling from the latest humiliation"

From a long story by Chris Mondics in the Philadelphia Inquirer, some interesting observation about 2/3 through the story:

Marks and Ledewitz say that the [Justice] Eakins scandal points to the need for more transparency in appointments made by the court to administrative boards such as the Judicial Conduct Board, which investigates allegations of misconduct by judges. That appointment process now occurs behind closed doors.

Exhibit A in their call for more scrutiny: After the Judicial Conduct Board cleared Eakin initially in 2014 of improper conduct in the email exchanges, the Daily News reported that the board's chief counsel, Robert Graci, was an old friend of Eakin's who had worked on his 2011 retention election. The board reopened its investigation late last year, after the release of new emails, and charged Eakin with various ethics violations. Graci has since recused himself from involvement in the Eakin case.

[h/t How Appealing]

Posted by Marcia Oddi on Tuesday, March 22, 2016
Posted to Courts in general

Courts - "SCOTUS Upholds Worker Class-Action Suit Against Tyson"

This morning's SCOTUS decision in Tyson Foods, Inc. v. Bouaphakeo (SCOTUSblog case page here) is featured today in this story by Adam Liptak of the NY Times that reports:

WASHINGTON — The Supreme Court on Tuesday sided with thousands of workers at an Iowa pork processing plant who had sought to band together in a single lawsuit to recover overtime pay from Tyson Foods.

Justice Anthony M. Kennedy, writing for the majority in the 6-to-2 decision, said the plaintiffs were entitled to rely on statistics to prove their case. The ruling limited the sweep of the court’s 2011 decision in Wal-Mart Stores v. Dukes, which threw out an enormous employment discrimination class-action suit and made it harder for workers, investors and consumers to join together to pursue their claims. * * *

Tyson did not keep records, and the workers tried to prove their damages based on an expert witness’s statistical inferences from hundreds of videotaped observations of how long it took the workers to get ready.

The company objected, saying there was wide variation in how long the extra work took and that some workers were not entitled to overtime at all.

But Justice Kennedy said statistical proof was sufficient.

“A representative or statistical sample, like all evidence, is a means to establish or defend against liability,” he wrote. “Its permissibility turns not on the form a proceeding takes — be it a class or individual action — but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action.”

Alison Frankel reports in her Reuters On the Case column - here is a snippet:
On one of those questions – the issue of whether class action plaintiffs may rely on statistical evidence to establish a defendant’s liability – Justice Kennedy and his colleagues seemed to go out of their way to bless so-called representative evidence, and not just in the context of Fair Labor Standards Act cases like this one. That’s a giant relief for class action plaintiffs, including the meat-processing workers in the Tyson case, and a big setback for class action opponents (although, as I’ll explain, not an outright disaster).

The opinion, however, left unresolved the second big question Tyson raised in its petition for certiorari: Can classes be certified if they contain uninjured class members? (As the majority noted in its opinion, Tyson stepped back in merits briefing from its initial assertion that such classes are unconstitutional, but its pro-business amici took up the constitutional cudgel.)

Posted by Marcia Oddi on Tuesday, March 22, 2016
Posted to Courts in general

Ind. Decisions - Supreme Court issues opinion today in State v. IBM

In State of Indiana, Acting on Behalf of the Indiana Family & Social Services Administration v. International Business Machines Corporation, a 26-page, 4-0 opinion, Justice David writes:

This case involves a $1.3 billion Master Services Agreement (“MSA”) entered into between the State of Indiana, acting on behalf of the Family and Social Services Administration, (“State”) and International Business Machines, Corp. (“IBM”) to modernize and improve Indiana’s welfare eligibility system. Although the MSA was supposed to last ten years, the State terminated it less than three years in, citing performance issues on the part of IBM. Both parties sued each other for breach of contract.

At issue is whether IBM’s breach of the MSA was “material.” The trial court found that the State failed to prove the breach was material, looking at the MSA as a whole, and in light of the benefits received by the State. The Court of Appeals majority reversed the trial court on this issue, finding that IBM’s breach went to the “heart of the contract” which the Court of Appeals majority determined was defined by the policy objectives of the MSA. Both the trial court and the Court of Appeals majority cite to the common law Restatement (Second) of Contracts § 241 factors for analyzing the materiality of a breach. However, here, the MSA itself sets forth the standard for assessing the materiality of a breach. The MSA also provides performance standards and indicators to measure IBM’s performance. The policy objectives of the MSA are incorporated into those performance standards. Consistent with Indiana’s long tradition of recognizing the freedom to contract, we hold that when a contract sets forth a standard for assessing the materiality of a breach, that standard governs. Only in the absence of such a contract provision does the common law, including the Restatement, apply.

In this case, the contract provides that in order to terminate the MSA for cause, the State had to prove a breach or a series of breaches by IBM that were “material considering this Agreement as a whole[.]” (MSA § 16.3.1(1)(A), (C).) We hold that under the facts and circumstances of this case, looking at the performance standards and indicators provided in the MSA, IBM’s collective breaches were material in light of the MSA as a whole. With the exception of its material breach analysis, we summarily affirm the Court of Appeals on all other issues. Appellate Rule 58(A)(2)1. We reverse the trial court’s finding that IBM did not materially breach the MSA and we remand to the trial court for calculation of the parties’ damages consistent with this opinion, including any appropriate offsets. * * *

Conclusion. We hold that when a contract provides the standard for assessing the materiality of a breach, that standard governs. Only in the absence of such a provision does the common law, including the Restatements, apply. In this case, the MSA provides the standard to assess whether IBM materially breached the MSA.

The trial court erred in determining IBM did not materially breach the MSA. In determining whether IBM materially breached the MSA, the trial court should have considered the State’s dissatisfaction with IBM’s performance and IBM’s failure to meet certain Schedule 10 metrics, despite IBM’s payment of liquidated damages. The trial court should not have considered the economic downturn, natural disasters and the surge in HIP applications to justify IBM’s performance failings in light of the MSA, which provided IBM with mechanisms to address these issues. The trial court also should not have considered the State’s motive in terminating the MSA. The trial court also erred in determining that the benefits received by the State precluded a finding

Because IBM failed to perform satisfactorily as determined by the State (and by its own admission), consistently failed to meet certain timeliness metrics, and failed to assist the State in achieving its Policy Objectives, we hold that IBM did materially breach the MSA through its collective breaches in light of the MSA as whole. We therefore reverse the trial court’s finding that IBM did not materially breach the MSA. We summarily affirm the Court of Appeals on all other issues including: affirming the trial court’s award of $40 million in assignment fees and $9,510,795 in equipment fees to IBM, affirming the trial court’s denial of deferred fees to IBM, and reversing the trial court’s award of $2,570,621 in early termination close out payments and $10,632,333 in prejudgment interest to IBM. We also remand the case to the trial court to determine the amount of fees IBM is entitled to for Change Orders 119 and 133, and for calculation of the parties’ damages consistent with this opinion, including any appropriate offsets to the State as a result of IBM’s material breach of the MSA.

Rush, C.J., Dickson and Rucker, J.J., concur.
Massa, J., not participating.

The ILB last posted about this case on March 14th of this year, in an entry headed "State v. IBM, argued before Supreme Court 10/30/14, still awaiting decision."

Posted by Marcia Oddi on Tuesday, March 22, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court reprimands Lake Co. attorney reprimanded by COA

In In the Matter of: P. Jeffrey Schlesinger, the Supreme Court order agrees to a public reprimand for the following misconduct:

At all relevant times, Respondent practiced law as an appellate public defender in Lake County. Effective beginning January 1, 2003, Indiana Appellate Rule 7(B) changed a frequently-invoked standard of appellate sentencing review from “manifestly unreasonable” to “inappropriate.” Despite this shift in sentencing review, in at least four appeals Respondent has continued to invoke the outdated “manifestly unreasonable” standard, including three appeals initiated more than a decade after that standard was replaced with the “inappropriate” standard. In each of the first three appeals, the Court of Appeals warned Respondent to cite the correct standard in future cases, but Respondent failed to heed these warnings. In the fourth appeal, after Respondent once again invoked the “manifestly unreasonable” standard, the Court of Appeals ordered the appellant’s brief stricken and remanded the case to the trial court “for the appointment of competent counsel.” See Marcus v. State, 27 N.E.3d 1134 (Ind. Ct. App. 2015). Respondent was suspended without pay from his employment following the Marcus decision.

Posted by Marcia Oddi on Tuesday, March 22, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Indianapolis attorney disciplined for for falsehood on law school application

In In the matter of: Michael C. Bratcher, a 4-1 order, CJ Rush writes:

Stipulated Facts: While an undergraduate student, Respondent was issued a citation in Wisconsin for retail theft. Respondent admitted culpability to law enforcement personnel responding to the incident, he did not contest the charge in court, and a default judgment was entered against him. Thereafter, Respondent falsely described this incident in his law school applications, and later in his Indiana and Illinois bar admission applications, as one involving a “skit” performed without criminal intent and with the prior approval of store personnel. Respondent eventually admitted these falsehoods and reported his misconduct to the Commission after being confronted by authorities in Illinois with the police report and other records of the incident. * * *

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:
8.1(a): Knowingly making a false statement of material fact to the Board of Law Examiners in connection with a bar admission application.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. * * *

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 18 months, without automatic reinstatement, effective immediately. * * *

All Justices concur, except Dickson, J., who dissents, believing the respondent should be precluded from seeking reinstatement.

ILB: The Roll of Attorneys, as of this reading, shows Bratcher as admitted 10-25-2013 and active in good standing, but does indicate the pending disciplinary action.

Posted by Marcia Oddi on Tuesday, March 22, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - License of conditionally admitted Mishawaka attorney revoked

There is history behnd the Supreme Court's order of March 21 in In the Matter of the Conditional Admission of Bar Applicant No. E03424, Adam J. Speraw, but the ILB cannot readily locate it. As of this writing, the Roll of Attorneys shows "Active in good standing" with no indication that there was a conditional admission. From the ruling:

Adam J. Speraw (“Respondent”) was conditionally admitted to the Indiana Bar on October 19, 2010, pursuant to an agreement with the State Board of Law Examiners (“Board”). The agreement required, among other things, that Respondent refrain from having any alcoholrelated incidents and report to the Board quarterly on his compliance with the agreement.

On July 4, 2012, Respondent crashed when driving while intoxicated, which constituted a violation of the conditions of his agreement and the basis for his subsequent plea of guilty to reckless driving. Respondent also violated the agreement by failing to report the incident as required. Eventually, a panel of the Board held an evidentiary hearing after which it made findings concerning these violations.

Pursuant to Indiana Admission and Discipline Rule 12, section 10, the Board then certified the findings and filed a petition recommending that Respondent’s conditional admission be revoked and that he not even be eligible for readmission for eighteen months. Respondent filed a response opposing that petition.

Having considered the parties’ submissions, the Court GRANTS the Board’s petition. The license of Adam J. Speraw to practice law in Indiana should be, and hereby is, REVOKED, effective immediately. Further, Mr. Speraw shall not even be eligible for readmission to the Bar of Indiana for eighteen months after the date of this order.

Posted by Marcia Oddi on Tuesday, March 22, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, upholding small precinct act

In State of Indiana v. John Buncich, in his capacity as Chairman of the Lake County Democratic Central Committee, Christine M. Russell, individually, Randolph Palmateer, individually, et al., a 21-page, 4-1 opinion in a case on direct appeal, Justice Massa writes:

Indiana Code section 3-11-1.5-3.4 created a Small Precinct Committee in Lake County and directed it to identify precincts with fewer than 500 active voters that may be amenable to consolidation, a measure intended to reduce election costs in a county that is home to over 15% of our state’s small precincts. Implementing such a consolidation plan, however, could jeopardize the offices of some precinct committeepersons, who brought suit challenging the Statute. We are asked to decide whether this piece of legislation is contrary to our Indiana Constitution. Finding it is neither an impermissible special law nor a violation of our separation of powers doctrine, we determine the Statute is constitutionally sound, and accordingly, we reverse the trial court. * * *

Because Lake County’s proportion and number of small precincts is sufficiently exceptional to justify the special application of the Statute, and because the precinct committeepersons are not state officers within the ambit of our separation of powers doctrine, we see no constitutional defect. We reverse the judgment of the trial court.

Rush, C.J., and Dickson and David, JJ., concur.
Rucker, J., dissents with separate opinion. [that begins, on p. 13] This Court has long adhered to the rule that “for a special law to be imposed, it must be reasonably related to inherent characteristics of the territory in which it is applied, and apply equally to those who share those characteristics.” Mun. City of S. Bend v. Kimsey, 781 N.E.2d 683, 689 (Ind. 2003); accord Collins v. Day, 644 N.E.2d 72, 78-79 (Ind. 1994). But the Court’s opinion today departs from this long-standing requirement instead for an analysis that permits special legislation upon a finding of “unique circumstances” as proffered by the State in defending the challenged legislation. Applying precedent, as we should, I do not believe speculations on what the legislature could have found should substitute for actual findings, reflecting inherent characteristics of the affected class. Therefore, I respectfully dissent from the majority’s conclusion that the statute at issue is constitutionally permissible. * * *

In sum, the high number of small precincts based on one compilation of voter counts does not constitute the kind of inherent or distinctive characteristics needed to justify the special legislation imposed upon Lake County. And this is especially so considering the impact this legislation will have on voting strength. It is certainly the case “the challenging party must negate every conceivable basis which might have supported the classification [and t]his may be done by presenting evidence establishing the lack of distinct characteristics . . . .” Kimsey, 781 N.E.2d at 694 (internal quotation omitted). Here Buncich has met this burden by establishing that small precincts are a pervasive problem in over two dozen counties throughout the state. Accordingly, I would affirm the trial court’s judgment.

Posted by Marcia Oddi on Tuesday, March 22, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (0):

NFP civil decisions today (2):

Silvia Regina Carranza v. Norman Woodruff (mem. dec.)

Segun Rasaki, Priscilla Rasaki, The Huntington National Bank, American Express Bank FSB, American Express Centurion Bank, et al. v. Union Savings Bank (mem. dec.)

NFP criminal decisions today (4):

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

Bryan Gadson v. State of Indiana (mem. dec.)

Justin C. Cherry v. State of Indiana (mem. dec.)

Fred Baumgardner v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, March 22, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Should Hoosiers be allowed to claim lottery winnings anonymously?"

That was the heading of a Kokomo Tribune article by Rob Burgess, published Jan. 24th. It began:

In only five states are lottery winners allowed to claim their winnings anonymously, no questions asked: Kansas, Delaware, Maryland, North Dakota and Ohio.

Indiana, though, is a different story.

“The Hoosier Lottery Public Relations Division will be by your side to guide you through publicity and media interactions. You should anticipate a press release containing your name, home city and details about your prize. The Hoosier Lottery may hold a press conference,” reads the Hoosier Lottery’s “Winners' Resource Book for $50,000 or more.” “Our staff will review the questions that you might be asked during your news conference. This will allow you time to contemplate responses that you might be comfortable giving. If you don’t understand a question, ask for clarification. If you don’t want to answer a question, politely decline.”

The handbook cites several Indiana Administrative Code sections to justify this, including, 65 IAC 8-1-3.

“The commission shall have the right to use and publicize the identity and image of any prize claimant in a lottery game,” states the code. “The commission shall not pay any additional consideration to any prize claimant for use of this information or images. No member of the commission, the director, or any employee of the commission shall be personally liable for the use or release of information or images of a prize claimant in compliance with this section.”

So, we wanted to know: “Should Indiana join these five states? Why or why not?”

Answers from Kokomo Tribune readers included:

Posted by Marcia Oddi on Tuesday, March 22, 2016
Posted to Indiana Government

Ind. Gov't. - "Indiana governor concerned about Notre Dame police bill"

Gov. Pence has now signed HB 1019, re police recordings, into law, but he has not yet acted on HB 1022, re records of private university police departments.

Yesterday, Brian Slodysko of the Associated Press had this story, headed "Indiana governor concerned about Notre Dame police bill." The long story begins:

INDIANAPOLIS (AP) — Indiana Gov. Mike Pence said Monday that his "strong bias for the public's right to know" will weigh heavily as he decides whether to veto a measure that would shelter police departments at Notre Dame and 10 other Indiana private colleges from following the same crime reporting requirements as all other law enforcement agencies.

The bill by Democratic Rep. Pat Bauer, whose district includes Notre Dame, was approved recently by the Legislature amid a high-profile court fight between the Catholic university and ESPN over police records. Last week, the Indiana Court of Appeals ruled in favor of ESPN, which sought records from Notre Dame for crimes involving student athletes who may have received favorable treatment. The university is appealing.

"We are examining that bill very carefully," Pence said. "I have long believed in the public's right to know and have championed public access throughout my career and I bring my bias to that discussion."

Last year, Pence vetoed a bill that would have tacked additional fees onto many public records requests. As a congressman, Pence sponsored so-called reporter shield legislation to protect journalists who face jail time for not revealing confidential sources under court order.

The Republican governor has until Thursday to make up his mind on the measure, which was pushed by the state's private colleges and would allow them to escape more stringent crime reporting requirements faced by Indiana's public universities.

Posted by Marcia Oddi on Tuesday, March 22, 2016
Posted to Indiana Government

Monday, March 21, 2016

Ind. Decisions - "Gun dealers who sell to criminals can be liable to shooting victims"

The March 17th Court of Appeals opinion in KS&E Sports and Edward J. Ellis v. Dwayne H. Runnels, a 32-page ruling with Judge Riley writing for the 2-judge majority, Judge Brown writing a separate concurring opinion beginning on p. 17 of the ruling, and Judge Altice dissenting, beginning on p. 25, is featured today in Alison Frankel's "On the Case" column, published by Reuters. The column begins:

(Reuters) – An Indiana state law immunizing gun manufacturers and dealers from lawsuits by victims of illegal shootings does not offer blanket protection for defendants that put weapons in the hands of criminals, according to a March 17 opinion by an intermediate state appeals court.

The decision is the first appellate interpretation of a state gun shield law, according to Jonathan Lowy of the Brady Campaign to Prevent Gun Violence, which, along with Arnold & Porter, represents the plaintiff in the case, Indianapolis police officer Dwayne Runnels. Lowy said the Indiana decision, though it is not binding on courts in other jurisdictions, “offers lessons and roadmaps which will help guide other courts to construe these laws narrowly.”

Like many other states and the federal government, Indiana enacted legislation more than a decade ago to restrict litigation by shooting victims. The federal law, known as the Protection of Lawful Commerce in Arms Act, has withstood several constitutional challenges, though, according to Lowy, some courts have construed the law to allow certain claims. Last October, for example, a Wisconsin state court jury awarded more than $5 million to two Wisconsin police officers who blamed a gun shop for supplying a weapon to the man who shot them. The gun shop, which had asserted immunity under the federal law, settled the case for $1 million in December. In another Brady Center case, a Mississippi pawn shop agreed in 2014 to settle with the estate of a Chicago police officer shot with a gun sold at the shop.

Despite such occasional victories for shooting victims, Lowy said, gun industry shield laws are a powerful deterrent against litigation, in part because many of the immunity statutes, including the federal law, have fee-shifting provisions that put victims on the hook for defendants’ costs if their suits fail. As I reported last year, after the dismissal of their case against online ammunitions suppliers was dismissed under Colorado and federal gun shield laws, the parents of a young woman killed in the Aurora, Colorado, movie theater massacre ended up owing the ammo dealers more than $200,000.

The long column concludes:
Runnels sued KE&S for negligence, claiming the gun shop was negligent for enabling Martin’s illegal straw man purchase. * * *

A split three-judge panel agreed, allowing Runnels to proceed with all seven of his negligence, nuisance and corporate veil-piercing claims. Judges Patricia Riley and Elaine Brown held that the unambiguous language of the Indiana law bars claims based on the illegal conduct of the shooter. But Runnels’ case, wrote Riley, “expressly alleges liability based on the harm that KS&E proximately caused Runnels through their own wrongful and unreasonable misuse of a firearm,” so the case survives. (In dissent, Judge Robert Altice said the statute legislature deliberately drafted the statute to shield gun sellers from victims’ claims; whether that is good policy, he said, is a matter for lawmakers, not judges.)

The key message of the majority’s ruling, said Lowy, is when legislatures pass gun shield laws purporting to restrict basic common law rights, “courts are required to narrowly interpret the laws to allow victims their day in court.”

The appellate ruling was an interlocutory appeal so Runnels’ case is far from over. Indiana’s Supreme Court hears cases on a discretionary basis.

The story links to the briefs of both parties.

Posted by Marcia Oddi on Monday, March 21, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Ball State keeps ex-president's email secret"

Seth Slabaugh of the Muncie Star-Press has a long weekend story that focuses on certain records:

BSU has released very few records so far to media organizations seeking clues to why Ferguson resigned on Jan. 25, less than 1½ years after becoming the university's 15th president.

The Star Press, The Associated Press, the student newspaper, Indianapolis Business Journal and a faculty member have filed numerous requests under the Access to Public Records Act (APRA) for emails, memos, cell phone/office phone records, text messages, appointment calendars, expense reports, invoices and other information related to Ferguson's resignation.

Most interesting to the ILB is the exploration in the S-P story of the concept of "reasonable particularity." Here is an Oct. 4, 2013 ILB post headed "What is 'reasonable particularity' under the Access to Public Records Act?" Here is a list of other ILB posts that turned up via a search for the term.

From the long S-P story:

The university said many of the records do not exist and initially denied the email requests on grounds that they were not "reasonably particular," citing a prior interpretation by the Indiana Public Access Counselor that "frankly prevents a fishing expedition and prevents a requester from casting a wide net to capture a voluminous amount of emails."

The reason for placing parameters — such as sender, recipient, time frame and keywords — on public records requests is to manage and balance large volumes of those requests with the discharge of all of the university's duties, BSU General Counsel Sali Falling told journalists. "If you would like to provide a key word, the request will be reviewed," her office said.

That led to a guessing game.

Joined by Dan Kane, an instructor of biology at the university, journalists flooded Falling's office with requests for various emails and memos containing keywords, including "severance," "resignation," "Bracken House," "terminate," "salary," "personnel," "leave," "president," "separation," "appropriate," "circumstances," "health," "voluntary," "cooperation," "non-disparagement," chairman of the board "Rick Hall," chief of staff "Julie Hopwood," "alumni," "gearbox," "athletic," "14.2.4," "enrollment," and trustee "Thomas Bracken."

Out of all that, there was only one "hit" — an email sent at 10:50 a.m. on Jan. 22 from Ferguson to Hopwood, his longtime assistant, that Ball State declined to release, citing the "deliberative document" exemption to public records. It says that intra-agency or inter-agency advisory or deliberative materials "that are expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making," may be disclosed "at the discretion of the public agency."

The purpose of protecting such communication is to "prevent injury to the quality of agency decisions," the Indiana Court of Appeals has ruled. "The frank discussion of legal or policy matters in writing might be inhibited if the discussion were made public, and the decisions and policies formulated might be poorer as a result."

The keywords that identified the Jan. 22 email were "resigned," "sabbatical," "release," "effective," "board," "trustees," "Rick Hall," "January 25," and "president."

The Star Press filed a complaint with Indiana Public Access Counselor Luke Britt alleging Ball State violated APRA by withholding the email. The university hired education attorney Seamus P. Boyce, Noblesville, to defend the complaint. "Despite (the newspaper's) request containing 26 keywords, Ball State conducted the email search requested," Boyce wrote. Falling had told The Daily News student newspaper that the university believed a maximum of five keywords was reasonable.

Britt issued an advisory opinion that concluded: "The deliberative materials exemption is indeed broad but can be subject to abuse. Some have called it the exception which swallows the rule. While the majority of communications between public employees may be deliberative, the nature of APRA does not give a public agency license to make an inherent inference or a presumption that this is the case. [ILB: Here is 16-FC-23]

"BSU has not invited this Office to review the email in camera in order to determine the propriety of this exception but they are not required to do so. Therefore, I cannot say definitively if the exemption was invoked properly. Only a trial may make that determination. However, if the email contained deliberative material, BSU has not violated the Access to Public Records Act."

In denying other records requests, Ball State said the university did not issue a cell phone to Ferguson and does not maintain his personal cell phone records, nor does it maintain personal email accounts for trustees except the student trustee, whose email contained no documents with key words.

The university denied a request from The Star Press for Ferguson's daily appointment calendar, citing an APRA exemption applying to "diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal." Ball State cited a prior Public Access Counselor opinion finding that then-Purdue University President Martin C. Jischke's appointment calendar "is the functional equivalent of a diary or journal."

Posted by Marcia Oddi on Monday, March 21, 2016
Posted to Indiana Government

Ind. Courts - Marion County Superior Court "Judge selection needs hard thought"

That is the heading to an IBJ editorial from this weekend that concludes:

Most counties in Indiana use partisan elections to choose local judges. Vanderburgh and Allen counties use non-partisan elections. St. Joseph and Lake counties use a merit system.

We are not advocating for one system over another. Each has advantages. A merit system lets people who know the law pick a person they think is most qualified. An election lets the people governed by the decisions judges make have a significant say in who holds the offices.

And there are political implications for each system. An election favors Democratic candidates because Marion County now leans left of center. A merit system could favor Republican applicants because the state leans to the right, meaning a governor is more likely to be a Republican.

The good news is that policymakers have a year to think about what to do. Discussions with a broad array of stakeholders—including the public—are a must. Selection systems in other communities should be studied. The final plan shouldn’t be one backed only by Republicans, even though they control the General Assembly.

The court’s 36 judges typically resolve nearly 40,000 criminal cases, 200,000 traffic cases and 50,000 civil cases each year. And many of the most important cases in the state are filed in Marion County—including challenges to decisions or rules made by state agencies or the governor.

That makes this decision too important to be politicized.

Posted by Marcia Oddi on Monday, March 21, 2016
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending March 18, 2016

Here is the Clerk's transfer list for the week ending Friday, March 18, 2016. It is one page (and 8 case) long.

One transfer was granted last week:

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

Posted by Marcia Oddi on Monday, March 21, 2016
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 1 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (1):

Kulon N. Lewis, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, March 21, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Could Indiana Supreme Court take second look at health care pricing"?

Here are snippets from some ILB posts from 2012:

Ind. Decisions - "Supreme Court allows hospital to charge uninsured patients more" - Jeff Swiatek of the Indianapolis Star has a story on yesterday's Supreme Court ruling in Abby Allen and Walter Moore v. Clarian Health Partners, Inc. (ILB summary here, see also here). Some quotes:The state Supreme Court has reversed an appeals...
Posted in The Indiana Law Blog on December 20, 2012 02:31 PM

Ind. Decisions - More on today's Supreme Court decision on health care costs - With respect to the Supreme Court's decision today in Abby Allen and Walter Moore v. Clarian Health Partners, Inc. (ILB summary here), see this post today from Masson's Blog, which points to the language in the COA opinion stating that...
Posted in The Indiana Law Blog on December 19, 2012 02:53 PM

Ind. Decisions - Supreme Court decides three today including Abby Allen and Walter Moore v. Clarian Health Partners, Inc.
Posted in The Indiana Law Blog on December 19, 2012 10:46 AM

Ind. Courts - "Uninsured patients' lawsuit carries high stakes for area hospitals" [Updated] - Jeff Swiatek of the Indianapolis Star had a long Sunday story about a case set for oral argument on May 10th before the Supreme Court, Abby Allen, et al. v. Clarian Health Partners, Inc. The first ILB entry on this...
Posted in The Indiana Law Blog on April 30, 2012 08:54 AM

These posts came to mind when I read Dan Carden's story this morning in the NWI Times on last Monday's Court of Appeals 2-1 opinion in Parkview Hospital v. Thomas E. Frost by Shirley A. Riggs, his Guardian. Carden's well-worth-reading story begins:
INDIANAPOLIS — Despite a federal mandate that all Americans purchase health insurance, about 1 in 8 Hoosiers still are personally responsible for all the costs of their medical care — including 75,000 Lake County residents, 20,000 in Porter and 15,000 in LaPorte.

But unlike just about every other product or service that individuals regularly buy, where the price is known up-front, health care costs almost always are opaque until the bill, which can be considerable even for the most routine procedures, comes in the mail.

Four years ago, the Indiana Supreme Court affirmed the practice of health pricing secrecy by ruling that a hospital's "chargemaster," its list of undiscounted item and procedure rates billed to uninsured patients, need not be reasonable or even made available for review prior to a patient signing an agreement to pay his or her incurred charges.

That decision terminated a potential class-action lawsuit brought by uninsured Hoosiers who felt they had been overcharged by the state hospital network now known as IU Health, because Indiana law generally requires reasonable charges for services if the cost is not known in advance.

Justice Robert Rucker, a Gary native writing for the unanimous high court, said hospitals are different than, for example, auto body shops, because "in the context of contracts providing for health care services precision concerning price is close to impossible."

More from the story:
Last week, a three-judge panel of the Indiana Court of Appeals strongly suggested the Supreme Court take another look at the reasonableness of hospital charges.

In a 2-1 decision involving a man billed $629,386.50 for care following a motorcycle accident, the appeals court ruled Thomas Frost can challenge the reasonableness of Parkview Hospital's pricing by presenting evidence of far lower rates paid by insured patients for the same services.

Senior Appeals Judge Ezra Friedlander and Chief Appeals Judge Nancy Vaidik, a Porter County native, concluded that under the law Frost has a right to learn whether his bill exceeds the payment the Fort Wayne hospital will accept from an insurance company or the government.

"Frost is not challenging that a debt is due Parkview. Likewise, Frost is not asking a court to impute a reasonable price ... or asking a court to completely disregard Parkview's rates," they write. "Instead, he argues that ... he may challenge the reasonableness of the charges claimed, and is entitled to discovery from Parkview in order to do so."

Even the dissenter, Appeals Judge Edward Najam Jr., said while he sees himself bound by Supreme Court precedent to rule against Frost, he nevertheless believes the high court should reconsider its 2012 ruling.

"There is no discernible or reliable correlation between chargemaster rates and the reasonable value of the health care services provided," Najam said. "In its operation and effect, (the precedent) places health care consumers, including emergency-room patients, at a permanent, take-it-or-leave-it disadvantage."

"Chargemaster rates are not per se reasonable when they are, first, confidential and, second, incomprehensible."

Posted by Marcia Oddi on Monday, March 21, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/21/16):

Next week's oral arguments before the Supreme Court (week of 3/28/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/21/16):

Tuesday, March 22

Next week's oral arguments before the Court of Appeals (week of 3/28/16):

Thuesday, March 31

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

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


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, March 21, 2016
Posted to Upcoming Oral Arguments

Friday, March 18, 2016

Ind. Courts - More on: Should lawmakers be required to comply with the state's public records act?

Supplementing yesterday's ILB post on coverage of the oral argument in CAC v. Ind. House Caucus, Megan Banta had this $$ story today in the Bloomington Herald-Times. Some quotes:

Groups that advocate for open government think emails between state lawmakers and lobbyists should be subject to Indiana’s public records law — and they want the state’s Supreme Court to rule that the correspondence doesn’t fall under an exemption in the law.

But oral arguments before that five-member judicial panel on Thursday raised questions as to whether the body can even rule on the matter and what the impact of a ruling either way might be.

At the center of the question is a records request for emails between state Rep. Eric Koch, a Republican from Bedford who represents part of Monroe County, and utility company officials. * * *

Judge James Osborn, a judge in Marion County Superior Court, ruled in August that he couldn’t rule in the case because it would mean interfering in legislative branch operations, something he said he couldn’t do under the separation of powers clause in the Indiana Constitution. The citizen advocacy groups appealed to the state Supreme Court to take up the case against Koch and the Indiana House Republican caucus.

Indiana’s Access to Public Records Act includes an exemption for what’s called “legislative work product.”

But that term isn’t defined, and the law also doesn’t fully exempt members of the Indiana General Assembly.

William Groth, who represents the advocacy groups, said if lawmakers want their emails to be exempt from the law — something the state’s public access counselor has said isn’t a reasonable expectation — they can change the law rather than ask the court to interpret the law as written.

“If the Legislature thinks those conversations should be private, the Legislature can pass an amendment to APRA,” Groth said. “They’re actually trying to get this court to do what they should be doing.”

As it stands, though, Groth argued that not everything state lawmakers do is a legislative act and that the public is entitled to know “who is influencing their lawmakers.”

“If we slam the door of transparency to the public, how is the public going to have confidence in what the Legislature does and know that they’re going to act in their best interest and not the interest of their donors?” Groth asked.

More from the story:

Before they address the question of balancing the public’s right to know with legislative duties and what exactly is subject to the public records law, though, the justices must first determine if they even are able to make a ruling in the case, period.

The Indiana Supreme Court long has ruled that the judicial branch can’t interfere with legislative procedures under the Constitution’s separation of powers clause.

Geoffrey Slaughter, who represents the House Republican caucus, argued that precedent applies in this case. And he argued that it stretches further, as well, to cover every other constitutional office in the state, from governor to statewide elected officials to prosecuting attorneys, when they are performing their core function.

Justice Mark Massa said that essentially would limit the law to administrative offices and the bureaucracy and seemed to favor a ruling not on constitutional grounds, something he said “would do less damage to the APRA.”

And Groth expressed concerns with taking the separation of powers clause that far, as well.

He said he feared it could be applied to other constitutional offices.“I don’t know where it stops,” Groth said.

Groth asked the court to find that the judicial branch can rule in this circumstance without it being an interference and to send the case back down to the lower court.

Posted by Marcia Oddi on Friday, March 18, 2016
Posted to Indiana Courts

Ind. Gov't. - More on: "Governor's veto pen is best solution for bill on college police records"

Supplementing this post from earlier today, Kristine Guerra has this lengthy Indianapolis Star story, headed "Indiana court's ruling for ESPN could be short-lived." It focuses on the COA's March 15th ESPN v. Notre Dame ruling and HEA 1022, now awaiting action by the Governor. Some quotes:

A three-judge appeals court panel unanimously decided that such [private university] police departments should face the same level of openness expected of their city and state counterparts.

But any celebration by advocates could be temporary.

The Indiana General Assembly passed a bill this session that would require police departments at private campuses to disclose information on arrests and incarcerations. But transparency advocates say House Enrolled Act 1022, if it becomes law, would consequently undermine the effects of the appeals court ruling and retain barriers to accessing records at private universities' police departments.

Supporters of the bill, however, say it's an unprecedented legislative action to provide more transparency.

Both the legal dispute and HEA 1022 come at a time when universities' handling of crimes, particularly sexual assault, has faced criticism for failing to hold people accountable, and when public trust in law enforcement is at an all-time low.

"What has happened over the last year or two involving unprecedented public scrutiny is really bringing new momentum behind the issue of transparency on private campuses," said Frank LoMonte, executive director of the Washington, D.C.-based Student Press Law Center. "It's never made sense that we have a special class of police officers that have all of the authority of state government officials but none of the accountability. They can use state police powers to take away your freedom and even shoot you, but they don't have to explain why."

The legal dispute was prompted by ESPN investigative reporter Paula Lavigne's series of unsuccessful attempts to obtain reports on alleged crimes by Notre Dame's student athletes.

Her quest for information began in 2014, when she started investigating how often prominent male student athletes are prosecuted after being accused of crimes. She requested records from 10 universities around the country with football and basketball programs, including Notre Dame, the only private university she contacted. The Northern Indiana university did not release its records, saying it's not subject to the state's public records law.

ESPN sued in January 2015. A St. Joseph County judge ruled in favor of the police department a few months later, eventually leading to a successful appeal by ESPN. * * *

The timing of HEA 1022, which was proposed in this year's legislative session — when the ESPN case was on appeal — also leads some to believe that it was filed in response to the lawsuit.

Indianapolis attorney Maggie Smith, who is representing ESPN, said the bill was drafted to insulate police departments at private colleges and universities from the effects of the appeals court's ruling and to "avoid any future application" of that decision.

"Anytime you see the legislature giving any group preferential treatment," Smith said, "it's reason to be concerned."

Richard Ludwick [president and CEO of the Independent Colleges of Indiana] denied those claims and said HEA 1022 had nothing to do with the ESPN case. Rather, he said, it's an effort to make police departments at private universities more accountable to the public.

There is much more in the long story.

Hayleigh Colombo of the IBJ also has a long story today, with a great lede, headed "Pence faces tough decision over campus police records bill." It begins:

Gov. Mike Pence has a government transparency dilemma on his hands.

The Indiana Court of Appeals’ unanimous ruling on Tuesday that private university police departments should not be “able to circumvent public records requirements” established a new level of openness for private campus police that freedom of information advocates say have been inappropriately operating in secret.

But awaiting Pence’s signature is a newly-passed piece of legislation that purportedly increases the transparency of such departments by requiring them to make public certain arrest records, while carving out a few exceptions that private universities say protect college students.

Now, if Pence signs House Bill 1022 into law, public access experts say it could actually be a step backwards on the transparency of those departments. That's because the bill would likely trump the Court of Appeals opinion in ESPN Inc. and Paula Lavigne vs. Notre Dame Security Police Department. Advocates are asking for his veto.

“That’s the best argument for why it deserves to be vetoed,” said Frank LoMonte, a First Amendment lawyer and director of the Student Press Law Center, which advocates for the rights of student journalists and open government. “The Legislature clearly expressed its intent to make more records accessible and it would be ironic for the bill to result in the opposite effect."

That is just the beginning of the long, worth-reading story.

Worth re-reading is this Jan. 14th ILB post, headed "No conflict of interest on bill about police records at Indiana colleges?"

Posted by Marcia Oddi on Friday, March 18, 2016
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 1 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (1):

In Re the Term. of the Parent-Child Relationship of: M.R.W., M.A.W., Ja.W., Se.W., Sa.W., and C.W. (Minor Children), and J.R. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Friday, March 18, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - SB Tribune editorial: "Governor's veto pen is best solution for bill on college police records" and more

Some quotes from the South Bend Tribune editorial yesterday:

Gov. Mike Pence has long claimed to be a champion for the public’s right to know. He has a chance today to prove he still believes in transparency, though he will need to use his veto pen.

Sitting on his desk is a bill that purports to boost transparency by police departments at private universities. In reality, it would do the opposite. The governor has the power to step in and do what legislators failed so badly to do — protect the public’s right to know when it comes to public safety.

Last year, media network ESPN sued Notre Dame after the university denied access to police records involving student athletes. The network has been producing stories on the handling of crimes involving college athletes.

The trial court ruled in ND’s favor, agreeing that campus police records can stay private because the university is a private institution. [ILB: The trial judge currently is one of the 3 Supreme Court finalists.] But ESPN appealed.

On Tuesday, the opinion from the Indiana Court of Appeals was resounding and clear: police departments are public agencies, even on private college campuses.

That means their logs and records are subject to the state’s open records laws. Just like they are for municipal police departments. And that means their work needs to be in the public light.

Why is this case important? The appeals court again was resounding and clear: “There is a danger that the public will be denied access to important public documents.” * * *

Notre Dame is no stranger to controversies over public safety. Sex assaults on campus remain an annual topic of debate. In recent years, a student died when a scissor lift fell, a man on a tree crew was killed by a falling tree and a man was critically injured falling down a stairwell.

Hundreds of thousands of people visit the university each year. The Notre Dame Security Police department is entrusted with ensuring public safety. We’re not knocking those police officers or their dedication.

But the public should have a view of how the department works and the cases it handles. An appeals court just agreed. Clear, right?

If only it were that simple.

As the court case was being heard, Notre Dame and other private universities were working the levers of government.

State Rep. B. Patrick Bauer, D-South Bend, sponsored a bill that would supposedly boost transparency by college police departments. Another local legislator, John Broden, D-South Bend, signed on.

In reality, House Bill 1022 hacks away at transparency. It severely restricts the types of cases on college campuses that would be subject to open-records laws.

The move was a clever end-around to the court case. By the time the appeals court announced its ruling, the bill had passed, promising to severely limit the impact of that ruling.

Who helped Bauer write the bill? An organization called Independent Colleges of Indiana — of which Notre Dame is a member. Oh, and Bauer serves on the board on Independent Colleges.

The bill passed nearly unanimously in both chambers. It’s not clear how many legislators understood what they were voting on.

Bauer now says the law would need to be “re-examined” if ESPN prevails before the Supreme Court, where ND says it will appeal the case. Broden says he actually wanted a more expansive bill but determined there wasn’t enough time to push for one.

Those weak comments only reinforce that the bill never should have been drafted in the first place.

The matter now rests in the hands of Pence. In his previous role, as a congressman, he helped lead the effort to pass a federal law protecting journalists from being forced to reveal sources.

Last year, as governor, he vetoed an Indiana Senate act that would have allowed state and local government agencies to charge a fee for lengthy public records searches.

In the ND case, Indiana’s attorney general, Greg Zoeller came out in support of ESPN. He wrote a brief backing ESPN ‘s stance and, on Tuesday, hailed the appeals court ruling. “The public has the right to transparency and accountability when police power is being exercised,” he declared.

March 24 is the deadline for the Governor to act on the bill.

"And more"
in the heading refers to this long, just-posted story by Kristine Guerra of the Indianapolis Star, about which the ILB will be posting more shortly. It is headed: "Indiana court's ruling for ESPN could be short-lived."

Posted by Marcia Oddi on Friday, March 18, 2016
Posted to Indiana Government

Vacancy on Supreme Court 2016 - "Pence to make first Supreme Court appointment"

Kristine Guerra of the Indianapolis Star as a good story today on the three candidates to fill the upcoming vacancy. A few quotes from the long story:

Gov. Mike Pence is expected to make his first appointment to the Indiana Supreme Court within the next two months.

His choices:

  • A judge who has spent his first three years on the bench in St. Joseph Superior Court presiding over several types of civil cases, including a recent one brought by sports media giant ESPN.
  • Another judge who was in his 30s when he was elected to the Boone Superior Court bench and whose resume includes tort cases, mental health cases and felonies.
  • An Indianapolis attorney who has built a reputation for an extensive knowledge of constitutional and antitrust law.
* * *

Seth Lahn, a professor at the Indiana University Maurer School of Law in Bloomington, said the top three choices reflect the Supreme Court's commitment to public service and mentoring young lawyers. All three candidates have extensive volunteer and community service experience.

"I think that reflects the fact that the court seems to be paying more and more attention to its public role of explaining to the public at large what the judiciary does," said Lahn, who teaches appellate advocacy at the law school. "Any of these three is going to the bench with a lot of awareness of that public role."

"It's not just about hearing cases and writing opinions," Lahn added. "It's about being one of five individuals who are kind of uniquely positioned to be the face of the judicial system and, to some degree, the legal profession."

Whomever Pence chooses will replace Justice Brent Dickson, who will retire next month after three decades on the bench.

Dickson, who became an Indiana Supreme Court justice at 44, is the second-longest serving justice in the state's history.

Posted by Marcia Oddi on Friday, March 18, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Gov't. - Still more on: Session ended on Thursday; how to find the bills that passed and failed

Updating this ILB post from Wednesday, that wondered why no bills had yet been sent to the Governor over a week since the General Assembly's adjournment, attorney Libby Cierzniak tweeted this morning that the GA yesterday sent 214 bills to Governor Pence. (You can see them listed here.)

In answer to an ILB question, Cierzniak agreed that sending the bills to the Governor all at once was indeed different from past practice. She added "Gov. Pence and his staff will have a busy week." March 24 is the deadline for his action on these bills.

Posted by Marcia Oddi on Friday, March 18, 2016
Posted to Indiana Government

Ind. Courts - More on "'Phase out' of Marion County mental health court concern to many"

Updating this ILB post from April 12, 2103, which reported (via Kara Kenney of WRTV 6) that:

The Marion County mental health court is being "phased out" of existence, said Chief Public Defender Bob Hill, concerning some who say the changes will end up costing taxpayers more in the long run.

"We really don't have a mental health court anymore," Hill said. "I'm concerned a lot of our clients probably aren't getting the attention and insight they should get."

Judge Barbara Collins previously presided over Court 8, or Mental Health Court, but retired at the end of 2012.

A mental health court helps mentally ill inmates with resources, counseling, medications and navigating their personal life.

"When Judge Collins retired, Court 8 started phasing out of existence," explained Hill. "Now I'm concerned we're not moving people with mental health issues through the system quickly enough." * * *

Judge Barbara Cook Crawford is leading a group of judges, attorneys and mental health providers who are working to come up with a solution.

A story from Indiana Public Media, dated March 16, 2016, reports:
Marion County created a mental-health court 14 months ago. It’s gotten the green light from the state to join Allen County as Indiana’s second permanent mental-health court.

Judge Barbara Crawford says it’s easier for the special court to monitor whether defendants who need help are getting it. * * *

The court’s certification from the Indiana Justice Center is provisional. If the court continues to show promise, the certification becomes permanent in September.

And an ILB post from Oct. 14, 2014, was headed "Monroe County's New mental health court starts next week."

Posted by Marcia Oddi on Friday, March 18, 2016
Posted to Indiana Courts

Ind. Courts - The appellate courts will make briefs filed in non-confidential appeals available online next month

Updating earlier ILB posts, the Supreme Court has today announced:

Free access to appellate briefs available online April 1

Indiana appellate courts will make briefs filed in non-confidential appeals available online next month. Briefs are legal arguments written by each side of a disputed matter. Appellate judges review briefs as part of their decision-making process. The Indiana Supreme Court authorized certain briefs filed on or after April 1 to be available to the public online at MyCase.in.gov and Appellate Case Search.

Briefs in non-confidential cases are currently available to the public through the Appellate Clerk for in person inspection or electronically for a fee. Briefs are not available in confidential case types (for example, mental health or juvenile termination of parental rights).

The online free access is being announced after recommendations from a Task Force on Remote Access To and Privacy of Electronic Court Records. The Task Force recommended standards for online publication. The Court considered the recommendations and unanimously approved the following:

  • Only briefs written by attorneys will be posted online, due to attorneys’ ethical requirements to follow court record confidentiality rules

  • Briefs written by non-lawyers will not be posted online at this time

  • Appendices will not be posted online

  • Briefs filed after April 1 will be available; archived briefs will not be online
The 21-member Task Force was created February 3 to study best practices and policies on Internet access to electronic court records. It is chaired by Chief Justice Loretta Rush and includes prominent members of the Indiana judicial and legislative branches as well as media and legal educators. The next Task Force meeting is April 8.
ILB: Although the Task Force voted Feb. 26 to recommend to the Supreme Court that briefs be made accessible, the recommendation was not final until the Court itself, presumably at its weekly conference yesterday afternoon, voted to accept and announce it.

[More] The Task Force has a website. It includes handouts from the last meeting, but does not include minutes or a video archive. It also does not include an announcement or agenda and location of the next meeting; however, this morning's press release states the next Task Force meeting is April 8.

Posted by Marcia Oddi on Friday, March 18, 2016
Posted to Ind. Sup.Ct. Decisions | Indiana Courts

Thursday, March 17, 2016

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

In Thomas Simstad v. Gerald Scheub (ND Ind., Van Bokkelen), a 17-page opinion, Chief Judge Wood writes:

Tom and Marla Simstad are longtime developers in Lake County, Indiana. In late 2004, the Simstads began the process of seeking approval from the Lake County Plan Commission for a proposed subdivision project called Deer Ridge South. In late 2006, the Commission approved the plans for the project. But this did not happen quickly enough to satisfy the Simstads. They believed that approval was delayed, at great cost to themselves, because of their support in 1996 for commission member Gerald Scheub’s opponent in the County Commissioner primary race. They accordingly sued several members of the Commission and Lake County, alleging violations of the First and Fourteenth Amendments, the Racketeer Influenced and Corrupt Organizations Act (RICO), and various Indiana laws.

The case went to trial before a jury, but the district court eliminated some of the Simstads’ claims during the trial. The remainder of their theories went to the jury, which found for the defendants. The Simstads have raised a number of points on appeal, but we conclude that the district court properly disposed of each aspect of the case and thus affirm its judgment. * * *

Eight years may sound like a long time to hold a grudge, but the Simstads believe that this is exactly what Scheub did. Their lawsuit also followed a slow track. They initially filed it in the district court on November 15, 2007; the defendants filed a timely answer. On April 9, 2008, the Simstads filed an amended complaint, along with a number of discovery requests. The defendants filed a motion to dismiss the amend ed complaint and requested that the court stay discovery. It did so pending resolution of the motion to dismiss.

There the case sat until September 30, 2010, when the district court addressed the defendants’ motion to dismiss. It issued an order dismissing the RICO claims, but denying defendants’ motion with respect to the First Amendment, Fourteenth Amendment, and state-law claims. At that point, defendants’ answer to the amended complaint was due on October 14, 2010, according to Federal Rule of Civil Procedure 12(a)(4)(A). That date came and went with no new answer. * * *

At long last, in December 2014 the case went to trial. * * *

We are distressed that it took this case so long to be resolved. Some of the problems might have been avoided with better control over the schedule, and some might have been resolved in a way that did not prompt an appeal. But in the final analysis, we find no error in the district court’s procedural rulings or its Rule 50 decisions. We therefore AFFIRM its judgment.

Posted by Marcia Oddi on Thursday, March 17, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Should lawmakers be required to comply with the state's public records act?

Brian Slodysko of the AP has good coverage of this morning's oral argument in CAC v. Ind. House Caucus. From the long story:

INDIANAPOLIS — Indiana lawmakers should be required to comply with their own public records law and release documents, including email correspondence with campaign donors and lobbying groups, a coalition of consumer advocacy groups told the Indiana Supreme Court on Thursday.

The consumer groups, including Citizens Action Coalition, are suing the House Republican Caucus in a quest to obtain emails that House energy committee Chairman Eric Koch, R-Bedford, may have exchanged with Duke Energy and Indianapolis Power and Light.

Koch, who has reported an economic interest in dozens of oil, gas and energy companies, sponsored an unsuccessful bill last year that would have cut how much utilities must pay for excess electricity generated by home solar power systems, which opponents of the bill said would eliminate the incentive to buy them. A message left with a spokesman for Koch was not returned Thursday.

But GOP Speaker Brian Bosma's House Republicans denied their request and a Marion County Judge ruled last year that he could not interfere in the operation of the legislative branch.

"They spend a lot of time fundraising and the public is entitled to know ... who is trying to influence public policy," attorney William Groth told the court. "If we slam the door of transparency to the public, how is the public going to have confidence in what the Legislature does?" * * *

Lawmakers have a longstanding and bi-partisan practice of denying requests for records like emails and text messages, despite language included in the preamble of Indiana's public records law, which declares: "it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees." * * *

Groth acknowledged there may be good cause for some types of emails to be withheld. But he argued that there are still "compelling" public interest justifying the release of documents.

"If certain interest groups were having certain communications with legislators who end up sponsoring a law, I think the public is entitled to know," he said.

Lawmakers don't necessarily see it that way, though, and point to an existing exemption in the law for lawmakers "work product." An attorney for the House Republicans told the court Thursday that the "work product" exemption should be liberally interpreted because many other aspects of state government are open to the public.

"What we're talking about here is a very narrow slice, a very narrow exception to what is otherwise open transparent government at the General Assembly," said House GOP attorney Geoffrey Slaughter, who is currently a candidate to fill on upcoming vacancy on the state Supreme Court.

Justices on the court appeared skeptical of Slaughter's argument, noting lawmakers could pass a law exempting themselves. The Legislature tried in 2001, but the bill was vetoed by then-Democratic Gov. Frank O'Bannon.

"The legislature wrote the statute and included itself," Justice Robert Rucker said Thursday. "Now you come before this court and say, 'Do for us what we refuse to do for ourselves' and I'm having trouble with that."

Dan Carden of the NWI Times also has a story; however it focuses on the fact that:
A Crown Point native had the unique experience Thursday of arguing a case to the Indiana Supreme Court mere weeks before he may become a justice on the five-member panel.

Geoffrey Slaughter, an Indianapolis attorney who lived in Lake County until 2002, is one of three candidates recommended March 4 by the Indiana Judicial Nominating Commission to succeed retiring Justice Brent Dickson, a Hobart native.

Posted by Marcia Oddi on Thursday, March 17, 2016
Posted to Indiana Courts

Ind. Decisions - Are Divorced Parents Required to Pay For a Child’s Dental School or Other Graduate School Educational Expenses?

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

One of this morning’s oral arguments at the Indiana Supreme Court involved “an order requiring the father to pay his daughter’s expenses for dental school. The Court of Appeals affirmed in part and reversed in part, holding that the trial court may order parents to pay graduate school expenses but that it erred in not properly apportioning expenses between the father, the mother, and the daughter. Allen v. Allen, No. 13A01-1411-DR-476 (Ind. Ct. App. July 24, 2015) (mem. dec.), vacated.”

Memorandum Decision?

As an initial matter, it is difficult to understand why the Court of Appeals decided this issue of apparent first impression and significant state-wide significance in a non-precedential, memorandum decision. One of the many things people will surely miss about the ILB are the “Why is this NFP?” posts.

“Post-Secondary Education”

The case involves the meaning of Indiana Code 31-16-2-2(a)(1), which authorizes trial courts to issue educational support orders for “the amounts for the child's education in elementary and secondary schools and at postsecondary educational institutions . . . .” (emphasis added).

The term “postsecondary” is not defined, and there appears not to be a clear answer in English language dictionaries or by looking to other, related statutes.

No one mentioned the use of the term “post-secondary” in the Judicial Nominating Commission applications for vacancies on the Indiana Supreme Court. The form was changed in 2015 to include the following:

2. Secondary Education/Military Experience
A. List all undergraduate colleges and universities you attended * * *

3. Post-Secondary Education
A. List all law schools, graduate schools, and post-J.D. programs attended. * * *
(Earlier versions of the application made no reference to “post-secondary education” but instead simply asked in Question IV A and B to list “colleges and universities” and “all law schools and post-J.D. programs.”)

Lingering Questions and Concerns

Justice David pointed out early in the argument that parents who are married have no obligation to pay graduate school expenses. He appeared to be the mostly likely to find the statute does not apply to education sought after a Bachelor’s degree. As highlighted by his questions, a broad reading of the term would appear not to limit parents from paying for one graduate degree or program, instead allowing trial courts to order parents to contribute to the cost of two or three programs.

Mother’s counsel noted that those attending graduate school are usually at least 22 years old and may be in their late 20s or early 30s when then finish a graduate or professional program.

Other justices focused to some degree on the discretionary nature of the determination. Assuming graduate or professional schools are part of “post-secondary” education, trial courts are not obligated to order parents to pay such expenses. Indeed, the statute allows trial courts to consider such things as “the child's aptitude and ability.” The daughter in this case “had extraordinary aptitude, having scored in the 97th percentile on the Dental School Admission Test.” Trial courts likely take a different approach to cases involving children who barely get into a poorly regarded or non-accredited program.

Chief Justice Rush expressed concern that Mother’s construction of the statute would not only exclude graduate expenses but also vocational or other educational paths, for which trial courts routinely issue educational orders.

In response to a question from Chief Justice Rush, Mother’s counsel agreed that an opinion finding “post-secondary” was limited to Bachelor degree programs would mean that all current orders for parents to pay for graduate or professional programs would be void and no longer enforceable.

Posted by Marcia Oddi on Thursday, March 17, 2016
Posted to Indiana Decisions | Schumm - Commentary

Ind. Courts - Notable change in Indiana Clerk of the Supreme & Appellate Court's time stamp... [Updated]

Here is the stamp on at least some of the cases filed yesterday.

Here is the stamp today.

The Clerk of the Supreme & Appellate Court website now lists an Interim Clerk, Greg Pachmayr.


[Update 3/18/16 at 11:00 AM]

The Indiana Courts has just tweeted:


Posted by Marcia Oddi on Thursday, March 17, 2016
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 17 NFP memorandum decision(s))

For publication opinions today (4):

KS&E Sports and Edward J. Ellis v. Dwayne H. Runnels [See 3/21/16 ILB post here]

In Norma Jackson v. Indiana Adult Protective Services , an 18-page opinion, Judge Mathias writes:

Norma Jackson (“Jackson”) appeals a protective services order issued by the Delaware Circuit Court requiring her to receive twenty-four-hour care and supervision at a nursing facility. Jackson argues that Adult Protective Services (“APS”) failed to present sufficient evidence that she was an “endangered adult” and that a life threatening emergency existed under Indiana Code section 12-10-3-28. We reverse and remand for proceedings consistent with this opinion. * * *

The trial court erred when it failed to stipulate a duration of thirty days or less for Jackson’s emergency services order under the authorizing statute. Notwithstanding this error, APS established by clear and convincing evidence that Jackson was an “endangered adult.” However, APS did not present sufficient evidence that Jackson was involved in a life-threatening emergency under Indiana Code section 12-10-3-28. We therefore reverse the trial court’s order and remand with instructions that the trial court release Jackson from The Woodlands and allow her to return to her home.

In Jeffery Allen Ring v. Kimberly S. Ring , a 12-page opinion, Judge Riley concludes:
Based on the foregoing, we hold that the parties’ subsequent agreement to sell Parcel B was a permissible modification of their original marital property disposition settlement, and, as to Parcel A, the trial court’s appointment of Commissioner without Jeffery’s consent and without assertion of fraud was an impermissible modification of the parties’ original agreement.
In Toni Ball v. Clifton Jones , a 13-page opinion, Judge Riley writes:
Appellant-Plaintiff, Toni Ball (Ball), appeals the trial court’s summary judgment holding, as a matter of law, that Detective Clifton Jones (Detective Jones) was immune from personal liability under the Indiana Tort Claims Act.

[Issue] Whether the trial court erred in concluding that, as a matter of law, Detective Jones acted within the course and scope of his employment as a police officer. * * *

Specifically, as a police officer, Detective Jones was authorized to investigate potential drug activity, draft a probable cause affidavit, and execute an arrest. Ball has not designated any evidence establishing that Detective Jones acted on his own initiative or with no intention to perform the service for which he was employed. Rather, Detective Jones’ actions in this case are closely associated with actions authorized by IMPD and in furtherance of a multi-agency narcotics investigation. Accordingly, we conclude that Detective Jones’ action of the alleged falsification of the probable cause affidavit was “incidental to the conduct authorized” as phrased by the Restatement or, as Kemezy noted, “to an appreciable extent to further his employer’s business.” See Restatement (Second) Agency § 229; Kemezy, 622 N.E.2d at 1298. Detective Jones’ actions are clearly within the scope of his employment as an IMPD officer and therefore are cloaked with immunity under ITCA. * * *

Based on the foregoing, we conclude that the trial court properly granted summary judgment to Detective Jones, holding that, as a matter of law, his actions were within the course and scope of his employment.

NFP civil decisions today (6):

In the Term. Parent-Child Relationship of: M.O. and B.E. and B.O. (Mother) and B.E. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

Vicky Lochtefeld v. James Lochtefeld (mem. dec.)

In Re the Paternity of R.J.D., D.D. (Father) v. A.J. (Mother) (mem. dec.)

In the Matter of J.F. (Minor Child), and L.F. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In the Term. of the Parent-Child Relationship of: C.B. & K.B. (Minor Children) and A.M. (Mother) & D.B. (Father) v. Ind. Dept. of Child Services (mem. dec.)

Steven D. Brazell v. Marie Dezi Jackson (mem. dec.)

NFP criminal decisions today (11):

Steven Richards v. State of Indiana (mem. dec.)

Catina M. Caudill v. State of Indiana (mem. dec.)

Leonard Paul Carder v. State of Indiana (mem. dec.)

Rachel Pittsford v. State of Indiana (mem. dec.)

Myles K. Martin, Jr. v. State of Indiana (mem. dec.)

Robert Lee Scott v. State of Indiana (mem. dec.)

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

Emily J. Karnes v. State of Indiana (mem. dec.)

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

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

Clyde L. Smith v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 17, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - 9 AM - Watch CAC v. Indiana House - email/public records case, live

9 AM - Watch CAC v. Indiana House - email/public records case, oral argument live.

See this Feb. 1, 2016 entry for a links to the documents in the case, plus a long list of earlier posts.

Posted by Marcia Oddi on Thursday, March 17, 2016
Posted to Indiana Courts

Wednesday, March 16, 2016

Ind. Gov't. - More on: Session ended on Thursday; how to find the bills that passed and failed

Okay, this is odd! In this post from Monday, the ILB linked to the Governor's list of bills received, and the General Assembly's 2016 Enrolled Act Summary, so far. It should correlate with the Governor's list of bills he has acted on.

And indeed it does correlate. Both lists show only three bills, the most recent was one the Governor received Feb. 26th!

It has been a week now since the General Assembly adjourned sine die.

As Niki Kelly of the Fort Wayne Journal Gazette tweeted yesterday: "Gov. Mike Pence still has no bills on his desk even though legislation had been passing the chambers for weeks."

Where are all the more recent bills, which in past years have been sent to the Governor without a few days of final passage?

Has some unannounced arrangement been made for a massive Enrolled Act delivery to the Governor, all at once?

Posted by Marcia Oddi on Wednesday, March 16, 2016
Posted to Indiana Government

Ind. Decisions - Supreme Court decides one today, a direct appeal

In Samuel E. Sallee v. State of Indiana, a 9-page, 5-0 opinion in an opinion captioned "On Direct Appeal from a Sentence of Life Imprisonment Without Parole," Justice David writes:

Samuel E. Sallee directly appeals his convictions for murdering four (4) people and his four (4) consecutive sentences of life without parole. Sallee argues that the evidence is insufficient to support the jury’s determination that he is guilty of the four (4) murders. Finding that the evidence is sufficient, we affirm the trial court. * * *

The State presented ample evidence that Sallee committed the four (4) murders. The record demonstrates that Sallee was at the Burton home the day of the murders with a gun. Sallee had previously used this gun on his sister’s property in Brown County. The State firearm expert testified that four (4) of the casings police recovered at the murder scene and three (3) casings recovered in Brown County, where Sallee had previously used the gun, were once in the same gun. Property stolen from the victims was recovered from where Sallee was staying. There is also evidence that Sallee attempted to alter his appearance and his vehicle’s appearance after the murders and to sell or destroy evidence of the crime. Sallee bragged to fellow inmate, Price, about his crimes and Price’s detailed testimony about what Sallee told him about the crimes is consistent with the circumstantial evidence connecting Sallee to the murders.

The evidence is sufficient to support Sallee’s four (4) murder convictions. We affirm the trial court.

Posted by Marcia Oddi on Wednesday, March 16, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Edward P. Kramer v. Focus Realty Group, LLC, successor in interest to AES Restaurants, LLC, an 11-page opinion, Judge Baker writes:

Over two decades ago, our Supreme Court held that attorneys are entitled to rely upon the representations of other attorneys. Fire Ins. Exch. v. Bell by Bell, 643 N.E.2d 310 (Ind. 1994). Today, we reiterate that principle and affirm the decision of the trial court.

Edward Kramer appeals the trial court’s award of summary judgment, which found him liable to Focus Realty Group, LLC (“Focus”), for breach of contract. Focus was contractually entitled to purchase a parcel of real estate for a certain price, which was to be calculated by adding a percentage of the then current annual net lease of one of the buildings to a base amount. When Focus’s attorney asked for the current monthly lease so that he could calculate the price, Kramer’s attorney responded with a figure $400 higher than the lease actually was. This resulted in a $40,000 increase over the correct purchase price. We find that Focus was entitled to rely upon the representations of Kramer’s attorney, and that Focus was entitled to mitigate its damages by going forward with the contract and suing for damages later. * * *

Pursuant to the Option, Kramer was contractually obligated to sell the property to Focus for a certain price; instead, he sold the property to Focus for $40,000 more than that price. It is entirely appropriate that he return that windfall, with interest.

Finally, we would like to say a few words about the attorneys’ conduct in this case. A strong argument can be made that Davis should have demanded a copy of the current lease from the outset of negotiations, rather than accept the $1,600 figure provided by Kammeyer. Davis then would have known that he was entitled to the $520,000 purchase price, and if Kammeyer had tried to negotiate a higher price, Davis could, as a last resort, sue for specific performance on the Option.

But we do not believe that Davis was required to take this course of action. As our Supreme Court has explained, “[t]he reliability and trustworthiness of attorney representations constitute an important component of the efficient administration of justice. A lawyer’s representations have long been accorded a particular expectation of honesty and trustworthiness.” * * *

Given that Davis was entitled to rely upon the inaccurate information about the current net lease, we believe that he was entitled to choose between two courses of action upon finding out the true figure. He could have stopped the deal, cancelled the Bluffton Purchase Agreement, and sued for specific performance on the Option. But, as he recognized, this would have entailed significant costs. He instead chose the other course of action: he mitigated his damages by going through with the deal, and sued to collect the overage afterwards. We cannot fault him for choosing the course of action that he did. The judgment of the trial court is affirmed.

NFP civil decisions today (2):

Jeffery L. Nelson v. Lorri M. Nelson, n/k/a Lorri M. Miller (mem. dec.)

Delmas Sexton II v. State of Indiana: Allen County Public Defender's Office, et al. (mem. dec.)

NFP criminal decisions today (3):

Kyle Hutton v. State of Indiana (mem. dec.)

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

Jason A. Jones v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, March 16, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Fight over proposed wind farm contract decommissioning language

Updating this ILB post from March 14th, that quoted from a story by James Sprague, Connersville News-Examiner editor (via The Indiana Economic Digest), here are some quotes from a long follow-up (with the same provenance) headed "Fight over proposed wind farm for Fayette, Henry and Rush counties hits courts":

The fight against the proposed wind farm project has been picked back up again, by a large group of Fayette County citizens, with the filing late this week at the Fayette County Clerk’s Office of a civil plenary complaint against both the Fayette County Commissioners and NextEra Energy Resources, the energy company behind the Whitewater Wind Farm project.

The project, slated to span Fayette, Henry and Rush counties and begin construction this year, would see approximately 43 wind turbines place in Fayette County, specifically in Posey and Fairview townships.
;
The complaint, filed by attorney Stephen R. Snyder of Snyder Morgan LLP in Syracuse, Ind., is on behalf of 34 Fayette County residents – spearheaded by residents Craig Mosburg, Joe Schultz and Cecil Bell – who believe the county’s contract with NextEra Energy Resources, regarding the decommissioning of wind turbines in the proposed project, is not valid or in accordance with the county’s zoning ordinance.

The complaint focuses specifically on an addendum to the decommissioning agreement the county and NextEra Energy signed off on for the project in September 2015, which was supposed to clarify language in the contract for how long and how much the security bond required by the energy company would be for regarding decommissioning wind turbines at the end of the project.

The decommissioning agreement between the two parties has been called into question several times since August 2015, when local attorney Gary Smith first broached the subject at the county’s Board of Zoning Appeals hearing concerning NextEra’s special exception applications for construction of the Whitewater Wind Farm project.

Posted by Marcia Oddi on Wednesday, March 16, 2016
Posted to Indiana Government

Ind. Decisions - More on: "COA rules for ESPN and against Notre Dame in police records lawsuit"

Updating this ILB post from yesterday on the ESPN v. Notre Dame opinion, here are several additional stories on yesterday's COA decision. From Molly Jirasek, reporting for Fox28:

The appeals court sided with ESPN in an ongoing lawsuit. The network wanted the school to turn over police records of crimes possibly committed by student athletes.

The court's saying Notre Dame Security Police qualifies as a public agency. Campus police can make arrests, interview suspects, issue fines, and more. As a private university, Notre Dame argued it could keep police records private. The court ruled otherwise.

During her argument before the court, the Frost Brown Todd attorney, Maggie Smith, tried to convince judges that Notre Dame's police should play by the same rules as other police departments, when it comes to police records.

"We are very pleased with the Appeallate Court's decision to support the public's right to public records," says Smith, arguing for ESPN.

Tuesday, by phone, she says a trial court will decide which records Notre Dame Security police would have to turn over under the Access to Public Records Act (APRA).

"That is what is the next step unless Notre Dame decides to ask the Supreme Court of Indiana to look at the issue," says Smith. * * *

Open records advocates like Gerry Lanosga are praising ESPN's win.

"It's a significant step forward I think," says Lanosga.

He says a bill awaiting Governor Mike Pence's signature could be a roadblock. House Bill 1022 would classify private university police forces as public agencies. Critics say Notre Dame had too much influence writing the law, and it wouldn't hold them to the same open records standards as other law enforcement.

It's a point Smith made in court, "It will provide a more limited scope than what is currently permitted by the APRA," she says.

Lanosga says the governor's better off scrapping House Bill 1022, and let the court's ruling stand.

"To me that's a preferable position just to have them declared a public agency by the courts than to have this bill take effect," he says.

Lanosga says the ruling opened up what he sees as a short window for transparency advocates. He says if the governor signs the bill, it would become law July 1st. That means anyone wanting campus police records, needs to file a request before then.

From the Notre Dame Observer:
The St. Joseph County Superior Court issued a ruling in Notre Dame’s favor in April 2015. ESPN appealed the decision, and both parties presented their oral arguments to a three-judge panel on Feb. 25.

The case hinges on NDSP’s status as either a private or public agency — under Indiana’s Access to Public Records Act (APRA), if NDSP is considered a public agency, it would be required to release certain records. ESPN reporter Maggie Smith argued the duties of NDSP are equal to those of any public police department.

“What we know from Notre Dame’s own crime logs is they arrest, search, interrogate for crimes such as rape, burglary, larceny, aggravated battery, counterfeit, drug possession, DUIs — these are not the actions of your library security guard who is there to make sure that kids don’t take books,” she said, according to an audio recording of the oral arguments available on the Indiana Judicial Branch’s website.

Notre Dame attorney Damon Leichty argued the law was never intended to apply to private colleges and universities. However, since October 2014, two state officials — Public Access Counselor Luke Britt and Attorney General Greg Zoeller — have said they consider NDSP to be subject to APRA.

Zoeller said in a statement that he considers the appeals court ruling to be “a qualified victory for public access and transparency, concepts my office long has supported. The public has the right to transparency and accountability when police power is being exercised,” according to the South Bend Tribune. * * *

The case will return to the trial courts to determine which records NDSP will be required to produce.

“We do not, as ESPN requests, find that the trial court must order the Police Department to produce the public documents ESPN sought,” the ruling stated. “We instruct the trial court to determine which of the records the Police Department was required to produce under APRA and then order the Police Department to produce only those records.”

Paul Browne, vice president for public affairs and communications at Notre Dame, said in an email that the University believes the Court of Appeals went “beyond the law.”

“Since the opinion is not certified or final, it does not yet have effect, and the parties cannot act on it,” he said. “We will appeal to the Indiana Supreme Court.”

The appeals court ruling may have a reduced impact if Indiana House Bill 1022, a bill to change the public record requirements for private universities, is passed into law. The bill would require police departments at private colleges and universities to only release information about incidents that result in arrests or incarcerations, exempting a large portion of cases occurring on college campuses.

The bill passed Indiana’s General Assembly last week and is now being considered by Gov. Mike Pence.

From a long AP story by Aric Chokey:
If the state Supreme Court decides not to hear the case, Tuesday's ruling would stand and the lawsuit would go back to trial in South Bend to determine which records the university must release.

The court's decision also comes just two weeks after the state Legislature passed a measure exempting private university police from the same information disclosure requirements as faced by public university police - and state, county and city law enforcement agencies.

The bill, which hasn't yet been signed by Gov. Mike Pence, requires all of the state's 11 private colleges to release information from on-campus incidents that result in arrests or incarcerations for criminal offenses, but allows them to withhold reports on incidents if no arrests are made - a step required of other police agencies.

It received support from the Independent Colleges of Indiana, which represents both Notre Dame and the state's other private colleges.

Steve Key, executive director for the Hoosier State Press Association, has long argued that private university police should be held to the same standard as public entities. He said this year's bill was a sort of pre-emptive measure by Notre Dame in light of the case.

"This was an effort to inoculate themselves from an adverse ruling in the ESPN case," Key said. "If the governor signs it and allows it becomes law, basically the Clery Act becomes the standard for release, not what everyone else has to release."

The Clery Act, which all public and private colleges both have to adhere to, requires less reporting from police departments than state law.

If Pence signs the bill, it would not affect the court ruling since it would not go into effect until July. Still, it could prove to dilute the effectiveness of Tuesday's ruling in future open-records fights.

Posted by Marcia Oddi on Wednesday, March 16, 2016
Posted to Ind. App.Ct. Decisions

Tuesday, March 15, 2016

Courts - USDOJ "Condemns Profit-Minded Court Policies Targeting the Poor"

Matt Apuzzo of the NY Times has the story today - some quotes from the long story:

WASHINGTON — The Justice Department on Monday called on state judges across the country to root out unconstitutional policies that have locked poor people in a cycle of fines, debt and jail. It was the Obama administration’s latest effort to take its civil rights agenda to the states, which have become a frontier in the fight over the rights of the poor and the disabled, the transgender and the homeless.

In a letter to chief judges and court administrators, Vanita Gupta, the Justice Department’s top civil rights prosecutor, and Lisa Foster, who leads a program on court access, warned against operating courthouses as for-profit ventures. It chastised judges and court staff members for using arrest warrants as a way to collect fees. Such policies, the letter said, made it more likely that poor people would be arrested, jailed and fined anew — all for being unable to pay in the first place.

It is unusual for the Justice Department to write such a letter. It last did so in 2010, when the department told judges that they were obligated to provide translators for people who could not speak English. The letters do not have the force of law, but they declare the federal government’s position and put local officials on notice about its priorities.

Ms. Gupta said that in some cities, hefty fines served as a sort of bureaucratic cover charge for the right to seek justice. People cannot even start the process of defending themselves until they have settled their debts.

“This unconstitutional practice is often framed as a routine administrative matter,” Ms. Gupta wrote. “For example, a motorist who is arrested for driving with a suspended license may be told that the penalty for the citation is $300 and that a court date will be scheduled only upon the completion of a $300 payment.”

The letter echoes the conclusions of the Justice Department’s investigation of the Police Department and court in Ferguson, Mo. Investigators there concluded that the court was a moneymaking venture, not an independent branch of government.

ILB: Are there examples in Indiana?

Posted by Marcia Oddi on Tuesday, March 15, 2016
Posted to Courts in general

Ind. Decisions - Supreme Court issued 2nd ruling today, a consolidated opinion

In Saundra S. Wahl v. State of Indiana and Daniel P. Wahl v. State of Indiana, an 8-page, 4-1 consolidated opinion, Justice Dickson writes:

In light of the conduct of an alternate juror during jury deliberations, we reverse the defendants' convictions for Involuntary Manslaughter. * * *

The juror's affidavit in this case established by a preponderance of the evidence that the alternate juror's participation in jury deliberations was an external influence that pertained to the case. Under Ramirez, these showings result in a presumption of prejudice to the defendants. Because the State has not rebutted the presumption by showing that the jury was nevertheless impartial, a new trial is required. We reverse the convictions and remand for retrial or further proceedings consistent with this opinion.

Rush, C.J., and Rucker and David, JJ., concur.
Massa, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 6] As far as we can tell from the incomplete record, the Wahls are getting a new trial because the jury viewed properly admitted evidence sent with them to the jury room, improperly emphasized by an alternate’s words, gestures and facial expressions. And we grant this relief without knowing if deliberations were actually affected. We should know more before ordering this result. * * *

I concur in the Court’s decision to reverse the trial court’s denial of the Wahls’ motion for a mistrial, but dissent as to the grant of a new trial.

Posted by Marcia Oddi on Tuesday, March 15, 2016
Posted to Ind. Sup.Ct. Decisions

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

In Kellie Pierce v. Zoetis, Inc. (ND Ind., Springmann), an 11-page opinion, Judge Rovner writes:

Kellie Pierce sued her former employer Zoetis, Incorporated and her former supervisor Lois Heuchert, alleging causes of action under Indiana state law. The district court dismissed Pierce’s amended complaint for failure to state a claim upon which relief could be granted. See Fed. R. Civ. P. 12(b)(6). Pierce appeals, arguing that she has stated a claim for tortious interference with a business relationship against her former supervisor Heuchert. Because the allegations in Pierce’s complaint fail to state a claim for tortious interference under Indiana law, we affirm. * * *

In short, none of the allegations in Pierce’s complaint could plausibly support a claim for tortious interference with a business relationship. The majority of the allegations in Pierce’s complaint pertain to acts taken within the scope of Heuchert’s supervisory duties, and thus cannot form the basis of her claim. Pierce is left only with the comments at the sales conference. As bizarre or inappropriate as Heuchert’s statements may have been, they are insufficient to supply the illegal act required for a tortious interference claim, and Pierce’s complaint was therefore properly dismissed.

Posted by Marcia Oddi on Tuesday, March 15, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "COA rules for ESPN and against Notre Dame in police records lawsuit"

The Court of Appeals opinion this morning in ESPN, Inc. and Paula Lavigne v. University of Notre Dame Security Police Dept., a Dept. of the University of Notre Dame du Lac (ILB summary here) is now the subject of this story by Margaret Foosmoe in the South Bend Tribune. Some quotes:

An Indiana appeals court has ruled that the University of Notre Dame's police department is a public agency and subject to open records laws, rejecting the university's arguments that its police records should remain closed and handing media network ESPN a win.

"There is a danger that the public will be denied access to important public documents when a private agency is exercising a public function," the Indiana Court of Appeals wrote in its ruling today.

But the impact of the legal victory could be limited. As the case was being argued earlier this year, the Indiana General Assembly -- at the prodding of private universities, including ND -- passed a bill that that would exempt police forces at private colleges from following the same crime reporting requirements as other law enforcement agencies.

That bill, which is expected to be signed by Gov. Mike Pence, would go into effect July 1. * * *

The ruling is consistent with those in several states that also have held a private entity exercising a public function is considered public.

The South Bend Tribune and Hoosier State Press Association filed a brief in the case supporting ESPN and arguing that Notre Dame police reports and logs are public records. Attorney General Greg Zoeller also backed ESPN, arguing that Notre Dame's police department reports are public records.

But the appeals court ruling "may have limited impact," because of House Bill 1022, said attorney John Twohy, who represents the Tribune in the case.

Indiana's private universities got the sense they might lose the court case, and managed to get the bill passed to exempt themselves from following the crime reporting requirements as other police agencies, he said.

Independent Colleges of Indiana, a private organization, and Notre Dame helped write the bill that was adopted by the General Assembly. State Rep. B. Patrick Bauer, D-South Bend, was the lead sponsor of the bill.

"In the end, they got what they wanted," Twohy said of the private colleges. "It was disguised as a pro-press measure, but it was anything but."

Steve Key, executive director of the Hoosier State Press Association, called the appeals court ruling "a short-lived victory.

House Bill 1022
was written to "innoculate" private colleges against an adverse ruling in the ESPN vs. Notre Dame case, he said.

"I'm not sure if legislators truly intended to treat private university police departments differently (under the law), or if there was confusion over what the bill would do," Key said.

The bill would require the colleges to release some information about incidents that result in arrests or incarcerations for criminal offenses, but that is only a small number of cases on private campuses. The measure also says colleges would have to release crime information that they already are required to release under federal law.

Posted by Marcia Oddi on Tuesday, March 15, 2016
Posted to Ind. App.Ct. Decisions

About the ILB - A note from happily retired 7th Circuit Judge John Tinder

The ILB has received a number of wonderful notes from readers; rest assured I do not intend to try your patience by posting them. But just one or two...

Marcia: Jan and I were disappointed to read that the end of your blog is fast approaching. We will truly miss it. Your work has been a great source for both of us over the years, as it has been for so many in the legal community and beyond. We certainly appreciate the sacrifices you have made to communicate prompt, accurate and helpful information about the events and activities of the Indiana legal community. It is disappointing that resources aren't available to keep your blog alive. This will be the end of an era. But the bright side is that you are going to have more, probably a lot more, time for doing even more fun things. We thank you for what you have done for Indiana lawyers and wish you all the best in your next adventures.

Best regards,
John Tinder and Jan Carroll

Posted by Marcia Oddi on Tuesday, March 15, 2016
Posted to About the Indiana Law Blog

Ind. Gov't. - "Prayer in Indiana House goes viral, criticized"

Niki Kelly has a great story today in the Fort Wayne Journal Gazette on a video apparently surreptitiously taken in the Indiana House that has gone viral on the Internet. Some quotes from the J-G story (which includes a link to the video) [ILB emphasis]:

Video of a prayer on the Indiana House floor last week is making the Internet rounds -- drawing more than 780,000 views and a lot of critical comments.

Clayton Jennings of Noblesville -- billed as an evangelist, author and poet -- was invited by the Republican Caucus Chairwoman, Rep. Kathy Kreag Richardson.

He gave a prayer Wednesday that lasted nearly three minutes and included phrases calling out politicians not to lie or bend to lobbyists.

Several people of different faiths in the room were uncomfortable with its sole focus on Christianity.

In the video, Republican House Speaker Brian Bosma mostly kept his eyes on the back of Jennings' head in front of him, bowing and closing his eyes only briefly during the prayer.

Bosma's demeanor was roundly criticized on Facebook where Jennings posted a video of his prayer, clearly taken by someone off the side of the chamber. There were thousands of comments on the video from all over the country. * * *

Bosma was sued in 2005 about allowing sectarian or proselytizing prayers to open daily House sessions. The American Civil Liberties Union of Indiana at the time said that on dozens of occasions during the 2005 session of the Indiana General Assembly, visiting ministers or legislators offered prayers with a heavy Christian emphasis, invoking "Jesus our savior," "In Jesus' name we pray" and "the lord of lords, your son Jesus Christ."

The group contended the practice far exceeded a 1983 U.S. Supreme Court decision, which allowed non-sectarian prayers to begin legislative sessions.

There was a ban limiting content of the prayers until the 7th Circuit U.S. Court of Appeals in 2007 threw out the suit because of lack of standing. The court did not rule on the merits of the case -- whether prayers offered at the podium to open legislation session can be sectarian or favor one religion.

Since then, the prayers have been offered technically before session is gaveled in. This means they are not recorded as part of the live webstream or archived video.

ILB: Video of the House prayers was available for the 2005 lawsuit. As reported in an Indianapolis Star on Feb. 8, 2006:
The House video camera, suspended above the chamber like a never-blinking black eyeball, already has resulted in one lawsuit -- the successful challenge to the traditional opening prayer in the House. The fact that the House had video through all of the 2005 session, while the Senate did not, led to the lawsuit being filed only against the House.

Posted by Marcia Oddi on Tuesday, March 15, 2016
Posted to Indiana Government

Ind. Decisions - Supreme Court decides one today, re custody dispute

In In Re the Marriage of: Amy Steele-Giri v. Brian K. Steele, a 15-page, 5-0 opinion, Justice David writes:

Mother filed a motion for immediate compliance with the Court of Appeals opinion, and the Court of Appeals issued an order transferring physical custody of J.S. to Mother in Oregon. J.S. has been living with Mother in Oregon since that time. Father sought transfer, which we granted after hearing oral argument. Steele-Giri v. Steele, 41 N.E.3d 690 (Ind. 2015) (Table). We vacated the Court of Appeals’ opinion and the order transferring custody to Mother. Indiana Appellate Rule 58(A); (Order Granting Transfer, December 14, 2015). We further ordered Mother to transfer physical custody back to Father during J.S.’s winter break from school. (Order Granting Transfer, December 14, 2015.)

We hold that the trial court did not err in denying Mother's motions for custody modification and for contempt. In light of the highly deferential standard of review afforded to trial courts in family law matters and in contempt matters, the Court of Appeals should have affirmed the trial court. Accordingly, we affirm the trial court’s denial of Mother’s motions for custody modification and for contempt. * * *

As we noted above, we give substantial deference to trial court judges in family law matters. “On appeal it is not enough that the evidence might support some other conclusion, but it must positively require the conclusion contended for by appellant before there is a basis for reversal.” Kirk, 770 N.E.2d at 307 (emphasis added) (footnote omitted). Here, while the evidence might have supported Mother’s motion for custody modification, such modification was not required. There was ample evidence to support the trial court’s determination that a custody modification was not in J.S.’s best interests. Similarly, in light of the highly deferential standard of review for contempt matters and the fact that there was evidence from which the trial court could determine that Father’s failure to abide by the court’s legal custody order was not willful, the Court of Appeals should have deferred to the trial court on this issue as well. Accordingly, we affirm the trial court’s denial of Mother’s motion for custody modification and motion for contempt.

Posted by Marcia Oddi on Tuesday, March 15, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In ESPN, Inc. and Paula Lavigne v. University of Notre Dame Security Police Dept., a Dept. of the University of Notre Dame du Lac, a 29-page opinion, Judge Pyle writes:

This appeal concerns the issue of whether the campus police department of a private university is subject to the Indiana Access to Public Records Act (“APRA”). Appellants/Plaintiffs, ESPN, Inc. (“ESPN, Inc.”) and Paula Lavigne (“Lavigne”) (collectively, “ESPN”) filed a complaint against Appellee/Defendant, University of Notre Dame Security Police Department (“the Police Department”), claiming that the Police Department qualified as a public agency under APRA and had violated APRA by refusing to provide ESPN with access to certain public records that ESPN had requested. After both parties filed cross-motions for judgment on the pleadings under Trial Rule 12(C), the trial court granted judgment in favor of the Police Department and denied ESPN’s cross-motion, determining that the Police Department was not subject to APRA. * * *

[1] [W]e conclude that it is possible for a subdivision of a private entity to be considered a public agency under APRA for purposes of public disclosure relating to its exercise of a public function without subjecting the entire private entity to APRA.

[2] Legislative Acquiescence. * * * As we stated above, we will only apply the doctrine of legislative acquiescence when an administrative interpretation is long-standing in nature. See Citizens Action Coal. of Ind., Inc., 485 N.E.2d at 616. Compared to these decision, the PACs’ administrative interpretations here were not long-standing in nature—they were issued over a period of a little more than a decade. We are not convinced that this amount of time raised “a strong presumption that the [legislature] ha[d] acquiesced to the administrative interpretation.” Beer Distrib. of Ind., Inc., 431 N.E.2d at 840. Accordingly, we will not apply the doctrine of legislative acquiescence to bar ESPN’s claim.

Because we conclude that the Police Department does qualify as a “public agency” under APRA and that ESPN’s claim is not barred by the doctrine of legislative acquiescence, we also conclude that the trial court erred in entering judgment in favor of the Police Department. However, we cannot, as ESPN requests, order the Police Department to produce the records that ESPN sought because we are not able to determine whether those records are accessible under APRA. ESPN’s three requests are not a part of the record, and APRA exempts certain categories of public documents, such as investigatory records, from its public access requirements. See I.C. § 5-14-3-4 (listing records excepted from disclosure requirements). We remand to the trial court with instructions to enter judgment in favor of ESPN and to evaluate ESPN’s records requests to determine which records the Police Department is required to produce under APRA. Reversed and remanded with instructions.

In HealthPort Technologies, LLC v. Garrison Law Firm, LLC, a 7-page opinion, Judge Pyle writes:
In this interlocutory appeal, Garrison Law Firm, LLC, (“Garrison”), filed a complaint for damages against HealthPort Technologies, LLC, (“HealthPort”) alleging that HealthPort had imposed an illegal charge on Garrison’s requests for the medical records of potential clients. HealthPort filed a motion for judgment on the pleadings, which the trial court denied. On appeal, HealthPort argues that the trial court erred in denying its motion because Garrison does not have a private cause of action. Because INDIANA CODE § 16-39-9-4, in conjunction with 760 Indiana Administrative Code 1-71-3, does not give rise to a private cause of action, we reverse the trial court’s denial of HealthPort’s motion.
NFP civil decisions today (3):

Ace Chester v. Kye Kellems, Tye Doenges, and Sky Chester (mem. dec.)

In the Matter of the Commitment of T.M., T.M. v. Adult & Child Mental Health Center, Inc. (mem. dec.)

In the Term. of the Parent-Child Relationship of: B.A. (Minor Child), and, D.L. (Father) v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (10):

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

Theodore T. Schwartz v. State of Indiana (mem. dec.)

Timothy Reno v. State of Indiana (mem. dec.)

Johnny Rice v. State of Indiana (mem. dec.)

Demajio Ellis v. State of Indiana (mem. dec.)

Miguel Garcia v. State of Indiana (mem. dec.)

Antwane L. Broomfield v. State of Indiana (mem. dec.)

Darryl Dewitte Williams v. State of Indiana (mem. dec.)

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

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

Posted by Marcia Oddi on Tuesday, March 15, 2016
Posted to Ind. App.Ct. Decisions

Indiana Law - An annotated version of the 12/31/03 Indiana Law Blog wish list

Originally posted on 12/31/03, my 2003 Indiana Law Blog "wish list" began:

This is New Year's Eve. Here is what the Indiana Law Blog would like to see for Indiana in the New Year. Maybe not all at once, but at least a start.
I took at look at the list again this morning. I've reproduced the ILB 2003 Wish List below, along with my comments from the vantage point of 2016]
  1. Women (note the plural) on the Indiana Supreme Court. Current status: Five men, no women.

    [Well, it took 9 more years, but in 2012 Loretta Rush was appointed to the Indiana Supreme Court. That makes one ...]

  2. Copies of briefs for cases before the Indiana Supreme Court made available online. When? At the same time they are filed with the Clerk of the Court.

    [It took over a dozen more years, but last month a Task Force appointed and headed by now-Chief Justice Loretta Rush decided (although it appears not to have been officially announced) that as of April 1, 2016, (non-pro se) briefs in both Supreme Court and Court of Appeals appeals will be available online for download, when filed.]

  3. The Debates of the Indiana Constitutional Convention of 1850, the Convention Journal, and related documents made readily available on CD-ROM or DVD, and priced right for the student. Incredibly, these books are out-of-print -- I had to slowly assemble my collection from dealers all over the country.

    [Happily, technology by-passed this ILB wish. These historic treasures are now archived online, and searchable.]

  4. I've got more CD/DVD wishes - the House and Senate Journals since Indiana became a State; the Acts of Indiana for the same time-span. Scanned, so that we can see the printed pages. Electronic finding aids would also be nice, but the important thing right now is to capture all this history and make it available before it totally disintegrates.

    [No luck yet on the historic journals and Acts of Indiana. However, the most recent journals, going back to 2004, are available via the General Assembly website. (Some journals from the 1800s can be accessed via Google books.) As for the Acts of Indiana, the General Assembly is now making them available online, going forward, beginning with the year 2000.]

  5. A booklet containing the Constitution of the State of Indiana, and including all the changes that have been made over time. Also the 1816 Constitution.

    [No movement here. I'm talking about retaining the text of both the original language, and the amendments, so they may be seen in context]

  6. The Indiana Historical Bureau puts out an invaluable series titled "Constitution Making in Indiana." Volume I, 1780-1850; Vol. II, 1851-1916; Vol. III, 1916-1930; and Vol. IV, 1930-1960. These volumes are compilations of source materials. As stated in the Preface to Volume III:
    As in the preceding volumes, the field has been limited to documents bearing some sanction of authority, including in this instance, activities of the General Assembly, governors' messages, party platforms, official ballots, court decisions, and opinions of attorney-generals. They have been taken from the printed House and Senate Journals, the Laws, and the Court Reports, supplemented when necessary by original documents, printed bills, or manuscript records from the office of secretary of state.
    What we'd like to see in 2004, of course, is: Volume V, 1961-2000! Plus a plan for the future of this publication , which is such an invaluable historical resource for the Courts, the Indiana General Assembly, and all of us citizens of Indiana.

    [Volumes I-IV, covering in total 1780 to 1960, are now available online as part of the archive mentioned above. However, as far as I've been able to determine, the project stopped with the 1960 volume (which was published in 1978), there is no Volume V (covering 1961-2000) in the works, much less a Vol. VI. There have been numerous times over the years when I have needed information that would have been available in these volumes, if only they existed.]

Posted by Marcia Oddi on Tuesday, March 15, 2016
Posted to About the Indiana Law Blog | Indiana Law

Monday, March 14, 2016

Ind. Decisions - State v. IBM, argued before Supreme Court 10/30/14, still awaiting decision

Rick Callahan of the AP has a brief story today that includes:

INDIANAPOLIS (AP) - The upcoming retirement of one of Indiana's Supreme Court justices has legal observers speculating on when the court might rule in a long-running dispute over IBM Corp.'s failed attempt to privatize Indiana's welfare services.

The court heard oral arguments in October 2014 in the case filed over IBM's $1.3 billion state contract to automate much of the state's welfare system. * * *

Indiana University law professor Joel Schumm says the IBM contract dispute is now the longest pending case still before the state's high court. He says legal observers wonder if the court will rule before retiring Justice Brent Dickson steps down April 29.

In this June 16, 2015 ILB post on the status of pending cases, Schumm wrote:
State v. IBM was argued October 30 [2014] but still appears to be on hold as the parties engage in mediation.
See also this ILB post from Dec. 10, 2014.

You may watch the video of the oral argument, which took place Oct. 30, 2014. Notice that Peter Rusthoven appeared for the the Appellant. Mr. Rusthoven was one of the 15 finalists in the recent interviews to fill the vacancy which will result from Justice Dickson's retirement.

Posted by Marcia Oddi on Monday, March 14, 2016
Posted to Indiana Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, re SSA disability denial, with a reversal

In Paul Dimmett v. Carolyn Colvin (SD Ind., Young), a 9-page opinion, Judge Posner writes:

The plaintiff, who is now 62 years old, applied in 2011 to the Social Security Administration for disability benefits. He claimed to be disabled from any gainful employment by a combination of ailments including asthma, chronic obstructive pulmonary disease (COPD), asbestosis, and a heel spur in his right foot. Turned down by the administrative law judge who heard his case, and then by the Social Security Appeals Council (which declined to review the administrative law judge’s decision), he appealed to the district court, also without success; for on the recommendation of the magistrate judge to whom the district judge had referred the case, the district judge affirmed the denial of benefits without discussion, precipitating this appeal, which highlights several important recurring issues in the disability program. * * *

So: the administrative law judge ignored key medical evidence and the vocational expert ignored the limitations that the administrative law judge placed on the type of job that the plaintiff is able to perform. But there is more to criticize in the handling of this case—there is the rubber stamping of the vocational expert’s testimony by the magistrate judge and by the district judge, who upheld the denial of disability benefits—the district judge without an explanation.

Here is the critical portion of the magistrate judge’s opinion * * *

This is not a reasoned analysis of the plaintiff’s claim (notice for example the blind reliance on the vocational expert’s hamstrung testimony)—and the district judge, in accepting the magistrate judge’s recommendation, offered no analysis at all. Neither judge’s opinion did justice to the plaintiff’s claim.

The judgment of the district court is reversed with instructions to remand the case to the Social Security Administration. REVERSED AND REMANDED

Posted by Marcia Oddi on Monday, March 14, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Parkview Hospital v. Thomas E. Frost by Shirley A. Riggs, his Guardian, a 19-page, 2-1 opinion, Sr. Judge Friedlander writes:

In this interlocutory appeal, we are presented with the issue of whether evidence of discounts provided to patients who either have private health insurance or are covered by government healthcare reimbursement programs is relevant, admissible evidence regarding the determination of reasonable charges under the Indiana Hospital Lien Act, Indiana Code Annotated section 32-33-4-1, et seq. (West, Westlaw current with P.L. 1-2016 and P.L. 2-2016 of the 2016 Second Regular Session of the 119th General Assembly). We hold that it is and affirm. * * *

Here, Parkview sought to have the trial court determine as a matter of law that the chargemaster rates were reasonable. That issue was disputed by Frost, who sought to discover discounted amounts Parkview had accepted from other patients in an effort to challenge the lien amount. By frustrating Frost’s discovery efforts, Parkview prevented Frost from meeting Parkview’s prima facie evidence of reasonableness with contradictory evidence. The trial court correctly found that Frost should be allowed to discover that evidence and that such evidence was admissible under the Act. In light of the foregoing, we affirm the trial court’s decision.

Vaidik, C.J. concurs.
Najam, J., dissents with separate opinion. [that begins on p. 13] I respectfully dissent from the majority’s conclusion that the Hospital Lien Act allows an uninsured hospital patient to renegotiate the terms of his contract with the hospital.

This case is controlled by our supreme court’s holding in Allen v. Clarian Health Partners, Inc. In Allen, uninsured patients executed contracts with the hospital under which they “guarantee[d] payment of the account[s].” 980 N.E.2d 306, 308 (Ind. 2012). After providing the patients care, the hospital attempted to collect its chargemaster rates against the hospital for breach of contract on the ground that their contracts did not specify a price for services and, as such, the patients could introduce evidence in court to determine a reasonable price as a matter of law.

Our supreme court rejected the plaintiffs’ complaint outright and held that they had failed to state a claim upon which relief can be granted. * * *

I believe the majority’s statutory analysis would be correct, and I would concur, were it not for Allen, which is controlling authority. We are bound by Indiana Supreme Court precedent, but I encourage the Indiana Supreme Court to reconsider Allen given the opportunity. As such, I would reverse the trial court’s judgment for Frost and remand with instructions for the court to enter judgment for Parkview.

NFP civil decisions today (0):

NFP criminal decisions today (5):

James J. Wyatt v. State of Indiana (mem. dec.)

Charles Darryl Jenkins, Jr. v. State of Indiana (mem. dec.)

Basden Breakfield v. State of Indiana (mem. dec.)

Ronald Eric McMahan v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Monday, March 14, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "4 States Have Competitive Attorney General Races in 2016"

Governing has this story today, reported by Louis Jacobson. A few quotes:

The three contests we’re currently rating as tossups are all held by Democrats: Missouri, North Carolina and Pennsylvania.

The fourth competitive contest is the GOP-held seat in Indiana. With this handicapping, we’ve changed the rating from tossup to lean Republican, although the race is fluid enough to easily return to the tossup category later in the campaign season. * * *

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

Indiana is a Republican-leaning state, but the GOP must sort out its large field of candidates, a process that will include a state party convention. The GOP field includes former Republican AG Steve Carter, a longtime confidant of Zoeller; Randy Head, a two-term state senator and former county prosecutor; Elkhart County prosecutor Curtis Hill, Jr.; and Abigail Kuzma, an official in the AG’s office. Carter is the only one to have sought statewide office before, though his long career could be a negative in an anti-establishment year. Head, who has a reputation for unpretentiousness, has won plaudits for his legislative record. Hill is known as a tough prosecutor, and he’s had a good start in fundraising. Kuzma, for her part, has dealt with consumer protection and sex trafficking at the AG’s office, but has the least electoral experience in the GOP field.

Once the Republican nomination is settled, the party should start out with an edge in the general election, even though the Democrats are expected to field an intriguing candidate in retired Lake County Circuit Court Judge Lorenzo Arredondo. He was the longest serving elected Latino state trial judge in the country when he retired from the bench in 2010. Whether the Democrats have a good shot of flipping the AG seat depends more than anything on external factors, especially on how voters feel in November about GOP Gov. Mike Pence, who has been having a rough year or two. For now, the Democrats are focusing more attention on ousting Pence and protecting the superintendent of public instruction post. But if Pence remains unpopular, the AG contest could shift back to tossup.

Posted by Marcia Oddi on Monday, March 14, 2016
Posted to Indiana Government

Ind. Gov't. - "Sunshine Week celebrates the right to know: A constant vigil"

That is the heading to this good editorial today in the Fort Wayne Journal Gazette. It details three examples of current right to know issues: release of police dash-cam and body-cam videos; whether police agencies at private universities should have to make their actions public as other law enforcement agencies do; and whether legislators should be above the law:

The open-records law doesn’t apply to the legislature. Making them public might embarrass someone.

They might. But why should legislators be above the law?

The Indiana House maintains its emails, unlike communications by other government officials, are not subject to the open-records law. Last year, after Rep. Eric Koch, R-Bedford, introduced an anti-solar power bill that tilted heavily toward the electric-power industry, a coalition of consumer groups sued for copies of any emails between Koch, who chairs the House Utilities, Energy and Telecommunications Committee, and utility lobbyists. Rather than let any such exchanges see the light of day, the House hired private attorneys to fight the matter to the Indiana Supreme Court.

Thursday, paid by your tax money, those attorneys will argue before the Supreme Court that you don’t have the right to know what may have gone on between Koch and the lobbyists, or what goes on between any legislator and any representative of any group seeking special favors.

Posted by Marcia Oddi on Monday, March 14, 2016
Posted to Indiana Government

Ind. Gov't. - "Proposed Jay County CFO rules advance to next stage"

Ray Cooney, editor of the $$ Commercial Review, out of Portland, Indiana, has this story republished today in The Indiana Economic Digest, re proposed revisions to the Jay County confined feeding rules. A quote from the long story:

The only adjustment that the plan commission members in attendance did not pass unanimously was the reduction in the proposed setback for the largest confined feeding operations.

Plan commission member Matt Minnich advocated for the setback to be reduced to 1,100 feet, saying the proposed 1,320 was too restrictive and would severely limit the opportunity for livestock expansion.

A Purdue University study shows odors generally travel about 800 feet, Minnich said, arguing that given that data 1,320 feet seemed like overkill. He suggested the 1,100-foot mark as a compromise that he said would address concerns about odor while not being too limiting for livestock producers.

Fellow commission member Paula Confer responded by saying the 1,320 feet was already a compromise between the current 750 feet and a proposal of 2,000 feet.

The vote on Minnich’s suggested change split 3-3, with Eric Pursifull, Larry Temple and Minnich in favor while Shane Houck, Mike Rockwell and Confer voted against. As president of the commission, Zimmerman broke the tie by voting in favor of the
shorter setback.

“I don’t think the 220 (feet) is going to make that much difference,” said Zimmerman.

Posted by Marcia Oddi on Monday, March 14, 2016
Posted to Environment | Indiana Government

Ind. Decisions - Transfer list for week ending March 11, 2016

Here is the Clerk's transfer list for the week ending Friday, March 11, 2016. It is one page (and 11 case) long.

No transfers were granted last week.

Petitions were reviewed in 11 cases, 2 of them were FP opinions and the remainder were NFP decision.

Posted by Marcia Oddi on Monday, March 14, 2016
Posted to Indiana Transfer Lists

Ind. Law - More on "Indiana Tech's law school seeking bar's OK"

Updating this ILB post from Sunday, the Fort Wayne Journal Gazette writes this morning:

Indiana Tech Law School said today it has received provisional accreditation from the American Bar Association.

The provisional accreditation entitles the law school to all the rights of a fully accredited law school, and enables its graduates to take the bar exam in any U.S. jurisdiction, the school said in a statement. That means this year's third-year students, who graduate in May, may take the bar exam after graduating.

Indiana Tech may apply for full accreditation two years from now, and must obtain full accreditation within five years, the statement said. To do so, it must show it is in substantial compliance with all the association's Standards for the Approval of Law Schools.

Posted by Marcia Oddi on Monday, March 14, 2016
Posted to Indiana Law

Ind. Gov't. - Fight over proposed wind farm contract decommissioning language

James Sprague, Connersville News-Examiner editor, has a lengthy March 13th story (here via The Indiana Economic Digest) regarding the proposed Whitewater Wind Farm project, involving Fayette, Henry and Rush counties. Some quotes:

The complaint, filed by attorney Stephen R. Snyder of Snyder Morgan LLP in Syracuse, Ind., is on behalf of 34 Fayette County residents – spearheaded by residents Craig Mosburg, Joe Schultz and Cecil Bell – who believe the county’s contract with NextEra Energy Resources, regarding the decommissioning of wind turbines in the proposed project, is not valid or in accordance with the county’s zoning ordinance.

The complaint focuses specifically on an addendum to the decommissioning agreement the county and NextEra Energy signed off on for the project in September 2015, which was supposed to clarify language in the contract for how long and how much the security bond required by the energy company would be for regarding decommissioning wind turbines at the end of the project.

The decommissioning agreement between the two parties has been called into question several times since August 2015, when local attorney Gary Smith first broached the subject at the county’s Board of Zoning Appeals hearing concerning NextEra’s special exception applications for construction of the Whitewater Wind Farm project.

Smith pointed out ambiguous language in the county’s agreement with NextEra when it came to decommissioning wind turbines, and the security bond required of NextEra for that decommissioning. Smith told the BZA that the county’s contract with NextEra did not address the cost of decommissioning the wind turbines once the life of the project was over, something that the county’s zoning ordinance required, and that the county’s ordinance required NextEra to have a security bond which lasted the life of the project, but appeared in the contract to be only for a total of 13 years.

“I think the county has an obligation to protect itself,” Smith said at that time. “Either we see to it that our ordinance is followed and we have assurance that absolutely guarantees and insures that when (decommissioning) happens it’s going to be paid for, or we don’t. And if we don’t ... what’s going to happen when they come down is this county’s going to go broke. And we don’t have the money now to take them down. That’s my concern. The general welfare of our community.” * * *

The life of the project, per previous statements from Jeremy Ferrell, project manager for NextEra, is roughly 30 years.

Howard’s concern was that due to the language of the addendum, it could leave open a loophole resulting in the county holding the bag for the cost of decommissioning the turbines, which as of now averages roughly $100,000 a turbine.

Howard questioned further what would occur if Whitewater Wind LLC dissolved and the county had no company to go after for the security bond, or the bond company did not rewrite a security bond for Whitewater Wind LLC after the initial eight-year period. Having language specifically stating the life of the project, in the addendum, would help cover the county, Howard continued at that time.

Posted by Marcia Oddi on Monday, March 14, 2016
Posted to Indiana Government

Ind. Gov't. - Session ended on Thursday; how to find the bills that passed and failed

Here is Governor Pence's list of the bills he has received, the date he must act, and the date signed. If he does not act on a bill by the deadline given, it will become law without his signature "on the eighth day after presentment to the Governor." Ind. Const. Art. 5, Sec. 14(a)(3). This happens very infrequently.

Notice the list of bills the Governor has received is very brief so far. That is because it takes some time for the General Assembly to preapare the bill packet for submission to the Governor.

Here is the General Assembly's 2016 Enrolled Act Summary, so far. It should correlate with the Governor's list of bills he has acted on.

You can also check this dynamic list of 2016 legislation - that in blue has passed.

If you need to find out whether a section of law has been affected during this session, use the cite list. It may not give you the final word until the Governor acts, but at least it will tell you if your provision is in the mix. (Be sure to check the date the list was produced, it is continuously updated.)

Posted by Marcia Oddi on Monday, March 14, 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 3/14/16):

Thursday, March 17

Next week's oral arguments before the Supreme Court (week of 3/21/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/14/16):

Tuesday, March 15

Next week's oral arguments before the Court of Appeals (week of 3/21/16):

Friday, March 22

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, March 14, 2016
Posted to Upcoming Oral Arguments

Sunday, March 13, 2016

Ind. Gov't. - More on "Abortion restrictions based on fetal gender, disability advance to Gov"

Updating this ILB post from March 10th, Aric Chokey of the AP reported this weekend on the Journal Gazette in a story that begins:

INDIANAPOLIS – Indiana Gov. Mike Pence stressed his anti-abortion convictions Friday, leaving fellow conservatives with the distinct impression he will sign a measure making the state the second to ban abortion in cases when a fetus has a genetic abnormality, such as Down syndrome.
Mary Beth Schneider had a powerful March 10th column in Indiana Forefront, worth reading in full. It begins:
When I first began covering politics for The Indianapolis Star in 1991, there was an emotional battle underway to keep abortion out of a party platform: The Republican Party platform.

It was led mostly by strong-willed Republican women, many of whom called themselves pro-life but who saw a government dictate as conflicting with their belief in a small government that respects individual liberty.

Times have certainly changed. An anti-abortion stance has become synonymous with the GOP and the legislature — usually led by Republicans but also anti-abortion Democrats — has passed numerous restrictions on a woman’s ability to make the health care decisions she deems best for herself.

This week, the legislature added to those laws by passing House Bill 1337. It began as legislation regulating the disposal of a fetus. Thursday, the House voted 60-40 to adopt changes added in the Senate — changes which the House never held hearings on nor debated until that vote — which bar women from having an abortion for reasons of race, gender or disability. That includes severe disabilities which would be fatal to the infant after delivery.

Posted by Marcia Oddi on Sunday, March 13, 2016
Posted to Indiana Government

Ind. Law - "Indiana Tech's law school seeking bar's OK"

Rebecca S. Green reported yesterday in the Fort Wayne Journal Gazette:

Officials with Indiana Tech’s fledgling law school will meet this weekend with the American Bar Association in hopes of winning provisional approval.

Founded in 2013, the school first sought provisional approval last year and was denied. In order to take the bar exam upon graduation, students must have attended a law school accredited by the American Bar Association’s Council of the Section of Legal Education and Admission to the Bar.

But in January, the Accreditation Committee of that group recommended the school be granted provisional approval.

With provisional approval, graduate students will be able to sit for their state’s bar exam. Final accreditation by the ABA will come after, among other criteria, bar passing rates surpass 75 percent, law school officials said.

The American Bar Association’s Council of the Section of Legal Education and Admission to the Bar met yesterday in Phoenix, Arizona.

For background, start with this June 10, 2015 ILB entry: "More on 'Indiana Tech Law School fails in first bid for accreditation.'"

Posted by Marcia Oddi on Sunday, March 13, 2016
Posted to Indiana Law

Saturday, March 12, 2016

Ind. Law - Latest US News Law School Rankings

From a March 10, 2015 ILB post:

In the 2016 (out in 2015) rankings out today, IU Mauer is in a 6-way tie for #34 and IU McKinney is in a three-way tie for #102.

For 2015 (out in 2014), Mauer was 29 and McKinney was 87.

Above the Law has this leaked report on the 2017 (out in 2016) rankings of the top 100 schools.

IU-McKinney is tied for #100, along with Michigan State and SUNY Buffalo.

IU-Mauer is #25; Notre Dame is #22.

Posted by Marcia Oddi on Saturday, March 12, 2016
Posted to Indiana Law

Friday, March 11, 2016

Vacancy on Supreme Court 2016 - Evaluations sent to Governor

Here is the 8-page letter containing the written evaluations of the 3 finalists, dated March 11th, that Chief Justice Rush, in her role as chair of the Judicial Nominating Commission, has sent to Governor Pence.

The Governor's 60 days for making a decision begins as of today, March 11. Earlier today, Prof. Joel Schumm wrote:

The Governor can’t go wrong in choosing one of [the three nominees] as the 109th justice.
A quote of the introductory paragraph from each of the evaluations of the candidates' qualifications prepared by Chief Justice Rush makes a similar statement:

Posted by Marcia Oddi on Friday, March 11, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Some Thoughts on the Second Round and the List of Three

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

As the Judicial Nominating Commission was meeting in executive session to narrow the list of fifteen applicants to three, I answered a text message asking for my prediction. It turns out that I had two out of the three, and I thought the finalist who I omitted was a close fourth. Indeed, I commented to someone after the interview that he sounded a lot like an Indiana Supreme Court justice. All three finalists did, and as I told two different reporters this week, “The Governor can’t go wrong” in choosing one of them as the 109th justice.

This post reaffirms what I have written in earlier ones: the interviews are very important. Although different people will have somewhat different takes on the applicants with strong or weak interviews, I think most would agree on some general principles, which I will describe briefly below.

Much Tougher Questions

As predicted in a post after the first round of interviews, the second-round questions were considerably more difficult. Questions were always asked politely but often included follow ups and at times some push-back to vague replies or non-answers. I affectionately referred to the second round as the “the law geek round” because questions skewed much more to broad and deep questions of legal doctrine and philosophy instead of some of the more fluffy personality- or background-driven questions in the first round. Some applicants handled the move well; others struggled.

Great, Good, and Bad Answers?

Critics may fault the process for a variety of reasons, but a lot can be gleaned from the public interviews. If an applicant can’t field 30 minutes of tough questions without saying something embarrassing, that person is probably not the best selection to join the state’s highest court, give speeches on behalf of the judicial branch, and craft judicial opinions in which every word matters.

But applicants should—and most did—do much better than not embarrassing themselves. An interview is not a moot court competition, although some of the same considerations may apply. A good answer demonstrates a good grasp of the underlying and relevant considerations that is ideally packaged into an articulate, thoughtful, and polished answer. Not directly or completely answering a question is better than an answer that uses a word or phrase that raises a red flag—or worse yet espouses a view that is so broadly troubling as to be disqualifying. As discussed in earlier years, the various members of the Commission may have quite different ideas for the “right” substantive answer, but many applicants have skillfully navigated that potential minefield.

What an applicant says, or intends to convey, may not always be what one or more Commission members hear. A word or phrase can trigger a reaction that turns an otherwise wonderful response to a question into a cause for concern—or, worse yet, a reason to disqualify. Practice interviews, with knowledgeable people who will be tough and candid with an applicants, are generally quite helpful in minimizing the possibility of this.

Demeanor Matters

How something is sometimes as important as what is said. Here, I’ll reiterate what I have said before: being in the room is quite different from reading about it on the blog or in a newspaper. Although I tried to present an accurate view of each interview, a blog post has considerable limitations. I try to capture the substance of answers as best as I could, instead of characterizing an answer as long, rambling, and confusing—which some were, at least for me. At most I can capture a bit of demeanor, humility, or arrogance, and I have tried to avoid interjecting my assessment of these sorts of things in summaries. The three finalists did very well in both categories.

A Seat at the Conference Table

An applicant might project as an excellent trial judge or lawyer, but applicants are interviewing to be an Indiana Supreme Court justice. The best interviews are those in which applicants package their existing skills and knowledge into an answer that demonstrates how effective they will be as a justice. Except for a small misstep about the Akard case, Judge Gull’s answer regarding the appellate review of sentences under Rule 7(B) was a very good example of this; she came across as a thoughtful trial judge who understood and would transition seamlessly to the appellate role.

Consistently Strong

As a final point, although the average may be the same, twelve A- answers are much better than 11 A answers and one C- or D answer. The bad answer will more difficult to forget than the really good answers are to remember.

Conclusion

This may be the last Supreme Court selection post I will be writing for the ILB. I appreciate the many comments readers have shared throughout the past four selections. And most of all I appreciate the many applicants who have stepped forward to be part of a very public and sometimes challenging process, along with the members of the JNC who have put in countless hours and a great deal of thoughtful consideration in fulfilling their crucial role.

Posted by Marcia Oddi on Friday, March 11, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (2):

In Indiana High School Athletic Association, Inc., and Hammond Gavit High School v. Nasir Cade, et al. , a 21-page opinion, Judge Robb writes:

The Indiana High School Athletic Association (“IHSAA”) appeals the trial court’s order granting a preliminary injunction in favor of Hammond High School (“Hammond”), Griffith High School (“Griffith”), and individual players from each school’s basketball team. The preliminary injunction prohibited the IHSAA from enforcing its suspension of Hammond and Griffith from the 2015 boys’ basketball state tournament.

The IHSAA contends the trial court erred in granting the preliminary injunction because neither the schools nor their students demonstrated a likelihood of success on the merits. In the alternative, the IHSAA argues the trial court erred in granting the preliminary injunction in favor of the students because the students lack standing and are not the real parties in interest.

Concluding the students no longer have a legally cognizable interest in the outcome of this case, we remand with instructions to dismiss the students’ claims as moot. As for the schools, we agree the trial court erred by concluding the schools demonstrated a likelihood of success on the merits; on the schools’ claims, we reverse and remand for proceedings consistent with this opinion.

In Beth A. Ahls v. Carleton E. Ahls , an 11-page opinion, Judge Crone writes:
Beth A. Ahls (“Wife”) appeals a property distribution order issued in conjunction with the dissolution of her marriage to Carleton E. Ahls (“Husband”). She asserts that the trial court clearly erred in dividing Husband’s three retirement accounts; refusing her request for survivor benefits associated with those accounts; and in refusing to order Husband to pay a portion of her attorney’s fees. Finding that the trial court clearly erred in applying the coverture fraction formula to the division of Husband’s retirement accounts, we reverse and remand. In all other respects, we affirm.
NFP civil decisions today (3):

American Federation of State, County & Municipal Employees, Council 62, Local 4009 AFL-CIO, and the Executive Branch of Gary, Indiana v. Gary Police Civil Service Commission, et al. (mem. dec.)

First Midwest Bank, as successor in interest to Bank Calumet, N.A. v. Dean Vander Woude and Timothy Koster (mem. dec.)

In re Adoption of A.M.S. (Minor Child) A.E.S. (Father) v. D.S. (Stepfather) (mem. dec.)

NFP criminal decisions today (6):

Amanda Gonzales v. State of Indiana (mem. dec.)

Sanchez K. Williams v. State of Indiana (mem. dec.)

Timothy Schoonover v. State of Indiana (mem. dec.)

Darian S. Bowman v. State of Indiana (mem. dec.)

Latasha Jenkins v. State of Indiana (mem. dec.)

Douglas Blankenship v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, March 11, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Bill to revise selection of Marion County judges dies

As promised earlier this morning, the ILB now has more information on the death of SB 352, the bill to address the selection of Marion County Superior Court judges. The ILB looked into how putting off the decision for at least a year will impact judicial selection, and what might have been the reason a proposed solution this year failed even to come to a final vote.

The failure of legislation this year will push back a decision on how to handle Marion County judicial selection until the 2017 General Assembly, where there will be new players (due to retirements and elections) and possibly a new Governor. The next cycle of new judges are scheduled for the 2018 elections. Presumably, the legislature could wait until then; however, the ILB notes that the judicial canons and past practice allow for judges up for an election to begin campaign committees up to one year in advance of the election (which is considered the primary). Therefore, candidates for 2018 elections can start raising money in May of 2017. From a practical standpoint, therefore, it would seem the legislature would want to resolve this in the 2017 session.

The elections this fall (2016) will have a significant impact on the outcome of this future bill. If either Republican caucus loses their supermajorities or a loss by Republicans of the Governor’s office, then the ability and leverage of the Republicans to craft and pass legislation that would preserve any Republican judges, given the shifting demographics of Marion County, diminishes. Elections and unlimited fundraising on behalf of Democrat judges become at least slightly more likely. The idea of any merit based commission long supported by the groups who testified in committee become less likely.

The ILB can find little public explanation as to why this bill (in any form) failed. Although confereees were appointed March 3, no conference committee report was ever filed.

Language approved by the Indiana House Republican caucus was either favored, supported, or not opposed by the Indiana Trial Lawyers, Defense Trial Counsel of Indiana, the Indiana Chamber of Commerce, the Indianapolis Chamber of Commerce, the Indiana Insurance Institute, the Indianapolis Bar Association, the Indiana State Bar Association, (all who testified in the House committee) and unofficially many of the Marion Co judges.

Common Cause, which brought the challenge that led to the 7th Circuit decision, had little criticism with the language presented in the House Committee. That language had largely been presented and voted upon in House Committee by Rep Steurwald and Rep Washburne.

Sources tell the ILB that: "At the 11th hour, the Senate Republican caucus refused to sign off on the House language. Marion County Senator Mike Young, GOP Chair Jennifer Ping, and 7th Dist GOP Chair, according to those standing in the halls late last night, worked to kill the House language within the Senate Caucus. It is unknown their goals or purpose in doing so."

(The ILB did see one report that the Marion County Bar Association opposed any merit selection language, preferring direct electiom by the voters.)

Posted by Marcia Oddi on Friday, March 11, 2016
Posted to Indiana Courts

Ind. Law - "Body camera bill sent to Pence"

Niki Kelly has this story in the Fort Wayne Journal Gazette this morning - some quotes:

The final compromise removed one portion of the bill – the automatic release of any video that might depict information on excessive force or civil rights violations.

Sen. Mike Delph, R-Carmel, said law enforcement had expressed concern about the mandated release, noting it might discourage agencies considering adding cameras.

The legislation does not require agencies to use cameras but sets up regulations for how long videos must be kept and requires police agencies to obscure some details in the videos, such as dead bodies, graphic injuries or sensitive personal information.

The bill provides for two levels of requests seeking the video. A person in the video – or the family of someone injured or killed – is automatically allowed to view the video twice. But they are not given a copy.

To get a copy, anyone seeking it would have to go to court. But the police have the burden to prove that releasing video might hinder a trial or investigation or harm the privacy rights of an individual.

Under current law, many agencies simply deem a recording an “investigatory record” and it can be withheld forever. No judge or outside mediator reviews the request.

“The public is very concerned about this and rightly so,” said Rep. Ed Delaney, D-Indianapolis. “Police and public want cameras because it’s mutually protective.”

Here is HEA 1019.

Posted by Marcia Oddi on Friday, March 11, 2016
Posted to Indiana Law

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

A Jan. 29, 2016 ILB post reported on Special Judge Marianne Vorhees' Jan. 28th, 2016 order granting defendants' motions for summary judgment in a 5th Maxwell Farms case.

A follow-up ILB post on Feb. 11th was headed: "OFW Law Trial Team Wins Five Hog Nuisance Cases in Indiana."

Yesterday evening Seth Slabaugh posted a long, comprehensive story on the five decisions to the Muncie StarPress, headed "'Swine factories' win nuisance lawsuits." Some quotes:

MUNCIE — Seven years of litigation over an influx of industrial swine farms in East Central Indiana has concluded with a victory for Maxwell Foods/Maxwell Farms, the nation's 11th largest pork producer.

Special Judge Marianne Vorhees ruled in Maxwell's favor without a trial in the last of five Randolph County lawsuits claiming the farms became a nuisance to neighbors and operated inhumanely and negligently. As she did in the four other lawsuits, Vorhees, judge of Delaware Circuit Court 1, entered a summary judgment in Maxwell's favor, citing Indiana's Right to Farm Act. * * *

According to defense lawyers, Indiana has one of the most protective Right to Farm Act (RTFA) statutes in the country.

"We are relieved the courts agreed that the allegations against Maxwell and our production partners are unsubstantiated," Joe Baldwin, Maxwell operations manager in East Central Indiana, told The Star Press. "We maintained and continue to maintain an excellent environmental record. We pride ourselves in implementing science-based production practices. It's important to note that a very small percentage of our neighbors filed a lawsuit against us, so we do have good relations with the majority of our neighbors." * * *

The RTFA's statute of repose, which imposes a stricter deadline than a statute of limitations, hurt the Maxwell plaintiffs. "The statute of repose says if you don't bring a suit within one year after a CAFO is fully operational, even if it is negligent later, too bad," [Maxwell Farms'] defense lawyer Gary Baise said. [ILB emphasis]

Judge Vorhees found RTFA to be constitutional, as did the Indiana attorney general, who weighed in on the lawsuits. While the constitutionality of the act has not been established by the Indiana Supreme Court, "it certainly was by Judge Vorhees and the attorney general, and they (the Maxwell plaintiffs) did not choose to get an appellate court opinion because I think they felt they would lose."

Posted by Marcia Oddi on Friday, March 11, 2016
Posted to Environment | Ind. Trial Ct. Decisions

Ind. Gov't. - Big box/dark box property tax law revisions pass in last hours of session

According to this story this morning by Hayleigh Colombo in the IBJ:

There could be some relief in sight for local governments that were losing tax revenue due to the so-called “dark box” valuation method of commercial property in their counties.

Lawmakers on Thursday, shortly before adjourning the 2016 session of the Indiana General Assembly, easily passed and sent to the governor a bill establishing a property valuation method known as “market segmentation,” in which property types would be evaluated based on where they fall into specific market classes.

See a long list of earlier ILB posts on this topic here.

Here is the CCR on SB 308, including big box/dark box taxation language.

Posted by Marcia Oddi on Friday, March 11, 2016
Posted to Indiana Government

Ind. Courts - Bill to revise selection of Marion County judges dies

The General Assembly adjourned sine die last night and SB 352, the bill to address the section of Marion County Superior Court judges, died without any agreement being reached. See also this post from last night.

Last September the 7th Circuit ruled that the current method of selecting superior court judges in Marion County is unconstitutional.

The 2017 General Assembly will meet before the next election of judges for Marion County's Superior Court. (The ILB is looking into the potential timeline and may have more to add here later.)

Posted by Marcia Oddi on Friday, March 11, 2016
Posted to Indiana Courts

Thursday, March 10, 2016

Ind. Courts - What is the status of the Marion County Courts bill? [Updated]

According to the Conference Committee Report Grid, with respect to SB 352, the Marion County Courts bill, a dissent from the House amendments was adopted March 3rd, and conferees have been appointed, but nothing further has happened. Here is the latest printing, containing the House amendments.

This is the last day of the session, predictions have been that the legislature would adjourn sine die at about 6 PM.

[Updated] Scratch the 6 PM!

Posted by Marcia Oddi on Thursday, March 10, 2016
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (5):

In Stephanie A. Schrage v. In the Matter of the Seberger Living Trust u/t/d April 27, 2009, a 20-page opinion, Judge Brown writes:

Stephanie A. Schrage (“Schrage”) appeals the trial court’s order denying her petition to compel the delivery of a complete and unredacted copy of the Audrey R. Seberger Living Trust u/t/d April 27, 2009 (the “Trust”). Schrage raises one issue which we revise and restate as whether Schrage is entitled to a complete copy of the Trust upon request to the trustee. We affirm. * * *

Schrage received a certification of trust from the Trustee as a recipient of a specific distribution. Based on that interest alone, she is entitled to nothing further from the Trustee. Accordingly, we conclude that the court did not err in denying Schrage’s petition.

In Stephanie A. Schrage v. The Audrey R. Seberger Living Trust u/t/d April 27, 2009; John R. O'Drobinak as Successor Trustee; et al. , a 22-page opinion, Judge Brown writes:
Stephanie A. Schrage (“Schrage”) appeals from orders dismissing her complaint pursuant to Ind. Trial Rule 12(B)(6) for failure to properly commence the action under Indiana Trial Rules 3 and 4 and for failure to properly docket the Audrey R. Seberger Living Trust u/t/d April 27, 2009 (the “Trust”). * * *

Section 14(a) required Schrage to commence her action to contest the validity of the Trust within ninety days of receiving the trust certification. The Appellees do not dispute that her Complaint was filed within this ninety-day timeframe. The court has the discretion to order that the Trust be docketed in this proceeding pursuant to Section 7(a). Any failure on the part of Schrage to docket the trust did not deprive the trial court of subject matter jurisdiction and is not a jurisdictional defect. To the extent that the Appellees argue that this action is similar to a will contest, we note that Indiana “caselaw has emphasized that a will contest action is separate and distinct from the probate of a will, and that it is governed by the Indiana Trial Rules regarding commencement of a civil action; it is not treated merely as a pleading within the probate action.” Blackman, slip. op. at 9 (citing Avery v. Avery, 953 N.E.2d 470, 472 (Ind. 2011)). We conclude that the court erred in dismissing Schrage’s Complaint for failure to docket the Trust.

Conclusion. For the foregoing reasons, we reverse the trial court’s orders dismissing Schrage’s Complaint for failure to state a claim, and we remand for proceedings consistent with this opinion.

In Michael E. Ritchie, M.D. v. Community Howard Regional Health, Inc., et al. , a 16-page opinion, Judge Bailey writes:
The Medical Executive Committee (“the MEC”) of Community Howard Regional Health, Inc. (“Community”) issued a precautionary suspension of medical staff privileges1 extended to Michael E. Ritchie, M.D., the President and CEO of Ritchie Cardiology, P.C. Dr. Ritchie filed suit for breach of contract, defamation, tortious interference with a business or contractual relationship, intentional infliction of emotional distress, and breach of fiduciary duty. He sought temporary, preliminary, and permanent injunctive relief. A temporary restraining order was granted but later dissolved and Dr. Richie was denied a preliminary injunction. He appeals, presenting the sole consolidated and restated issue of whether the trial court clearly abused its discretion. We affirm. * * *

Absent malice, the peer review committee is the legislature’s choice for dealing with these issues. Courts are ill-equipped to conduct an independent review of patient care absent evidence from expert witnesses on the standard of care and any countervailing evidence in opposition thereto. Because of this limitation, state trial and appellate courts cannot serve as substitutes for peer review committees and the aggrieved party cannot circumvent the administrative process.

Conclusion. Dr. Ritchie did not demonstrate his entitlement to extraordinary equitable relief. Accordingly, the trial court did not clearly abuse its discretion by denying the request for a preliminary injunction.

In Cory Lowden v. State of Indiana, a 12-page opinion, Chief Judge Vaidik writes:
The State charged Cory Lowden with aggravated battery after he punched another man, breaking the man’s jaw so severely that surgery was required to repair it. At trial, Lowden tendered a jury instruction that applied the mens rea to every element of aggravated battery, including the severity of the resulting injury. According to Lowden’s instruction, the State would have to prove that, when he punched his victim in the face, Lowden acted with knowledge that one punch would result in protracted loss or impairment of the function of a bodily member or organ. The trial court rejected Lowden’s instruction.

According to Indiana Code section 35-41-2-2(d), the level of culpability required for the commission of an offense is required with respect to “every material element of the prohibited conduct.” The prohibited conduct in the aggravated battery statute is to inflict injury on another. The severity of the injury is not an element of the prohibited conduct, but a result of it. Accordingly, the trial court properly rejected Lowden’s tendered instruction as an incorrect statement of the law. We affirm.

In Tricia A. Davis Williams v. State of Indiana , a 12-page opinion, Sr. Judge Darden writes:
Tricia A. Davis Williams appeals from the trial court’s sentencing order after pleading guilty to one count of Class D felony theft, and the State cross-appeals contending that Williams’ appeal should be dismissed. We affirm.
NFP civil decisions today (0):

NFP criminal decisions today (9):

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

Gilberto Jimenez v. State of Indiana (mem. dec.)

Jeffrey W. Smith v. State of Indiana (mem. dec.)

Adrian Forrest v. State of Indiana (mem. dec.)

Quashawn Gentry v. State of Indiana (mem. dec.)

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

Jacob Aaron Phillips v. State of Indiana (mem. dec.)

Dennis P. Gallivan v. State of Indiana (mem. dec.)

Thad Dale Stewart, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 10, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - What appeal will the Supreme Court select for its bicentennial "teachable moment"? [Updated]

The Supreme Court affirmed in an announcement yesterday that it:

... will travel to Corydon on April 20, 2016 to hear a modern case in a historic setting in celebration of the bicentennial. The Court is working with the Department of Education to videotape the argument for classrooms across the state and the general public for online viewing expected to be available by April 22.

Seating is by invitation only for the oral argument in the historic Supreme Court Courtroom, part of the Corydon Capitol State Historic Site, located at 202 E. Walnut Street, Corydon, IN 47112. However in an effort to reach a larger audience, a program will be held in the Harrison Circuit Court, located at 300 N. Capitol Avenue, Corydon, IN 47112, to take place at the same time as the oral argument.

The Court site states only that "Case materials for the specific case will be added once the case is assigned." More:
The Court is working with the Department of Education to videotape the argument for classrooms across the state and the general public for online viewing expected to be available by April 22. Enhance a classroom viewing of the 40 minute oral argument by inviting a lawyer or judge into your classroom before, during, or after the argument to talk about the Indiana judicial branch.
So the case selected probably won't be a sentencing dispute, more likely something with constitutional or historical implications.

[Updated at 11:24 AM]
Apparently the Court has announced the case elsewhere, I'm told by several readers that it is Rogers v. Martin, a COA case decided Dec. 14, 2015 that concluded:
Because there is a question of fact regarding whether Martin furnished alcohol
to Brothers, the trial court erroneously granted summary judgment to Martin on
the Appellants’ Dram Shop Act claim. Further, we conclude that Martin, as a
social host, owed Michalik a duty to render aid, and questions of fact remain
regarding whether she breached that duty. We reverse and remand.

Posted by Marcia Oddi on Thursday, March 10, 2016
Posted to Indiana Courts

Ind. Gov't. - "Abortion restrictions based on fetal gender, disability advance to Gov"

Chelsea Schneider and Stephanie Wang report in today's Indianapolis Star on what is now House Enrolled Act 1337:

The Indiana House voted Wednesday to send Gov. Mike Pence legislation that would make Indiana the second state to ban abortions sought because a fetus is diagnosed with Down syndrome or another disability.

The controversial and potentially unconstitutional restrictions also would prohibit abortions when they are sought based on the gender or race of a fetus.

The House passed the restrictions, contained in an expansive abortion-related bill, in a 60-40 vote. [Here is the Roll Call vote]

House Bill 1337 advanced even after several female Republican lawmakers, who generally oppose abortion, asked the House to vote against the measure. They argued the bill didn’t follow the normal legislative process, was poorly written and wouldn’t reduce abortions in the state. * * *

The restrictions were added in the Senate to another bill dealing with the burial of fetal tissue, but the language didn’t go through the full legislative process in the House after a Republican committee chairman declined to give it a hearing. However, the bill’s author, Rep. Casey Cox, R-Fort Wayne, agreed with the Senate’s changes, setting the bill up for a final vote. * * *

State law currently prohibits most abortions after 20 weeks of pregnancy – making the state among the most restrictive in the nation. But restrictions contained in the bill could bar the procedure earlier in a woman’s pregnancy and could prompt a court challenge, critics say. States face restrictions in barring abortions before a fetus could survive outside of the womb.

Opponents have noted the U.S. Supreme Court has declined to consider overruling lower court decisions that found abortion restrictions earlier in a pregnancy were unconstitutional.

Niki Kelly of the Fort Wayne Journal Gazette has this story today:
Female legislators dominated an emotional discussion on new Indiana abortion restrictions Wednesday but couldn’t stop the male-dominated body from voting 60-40 in favor of the controversial bill.

Women in Indiana would not be allowed to get an abortion if her motivation is solely because of the fetus’ race, sex or disability, under the measure.

It is aimed directly at people terminating pregnancies after a diagnosis of Down syndrome or other significant disabilities.

“I implore you to have the courage to say no,” said Rep. Wendy McNamara, R-Mount Vernon. “(Political) mailers will probably be sent out against you – not from your foes but from your friends.”

She and 16 other women voted no along with 23 men.

Five women joined 55 men in supporting House Bill 1337, which now goes to pro-life Gov. Mike Pence.

It has been pushed by three local lawmakers – Fort Wayne Republican Rep. Casey Cox; Sen. Liz Brown, R-Fort Wayne, and Sen. Travis Holdman, R-Markle.

One criticism of the bill is that a woman can continue to abort a perfectly healthy fetus before 20 weeks without giving any reason at all. But she cannot do so if her motivation is related to disabilities, race or sex.

“I’m not sure that the way this is written right now, it would reduce any abortions,” said Rep. Holli Sullivan, R-Evansville. “I fear this bill would compel women not to be completely open and honest with their doctors.”

Rep. Sean Eberhart, R-Shelbyville, was one of only three men to speak on the bill. Twelve women came to the microphone.

“We need to quit pretending that we know what’s best for women and their health care needs,” he said. * * *

In the Senate, the bill led to uncomfortable conversations in committee and on the floor about the economic effects of forcing parents to keep a severely disabled child.

A doctor could face disciplinary action or civil suit for performing an abortion knowing the procedure was solely due to disability or sex selection. There are no consequences for the woman. * * *

GOP House Speaker Brian Bosma voted in support even though he often doesn’t vote on bills. He said he is strongly pro-life and “we’re not making a determination about women’s health. We’re trying to protect the rights of the unborn.”

He also said he is unsure if the bill is constitutional.

“It’s not been ruled upon by a judge, and I would not be surprised if this did not lead to a judge’s decision in that regard,” Bosma said.

Restrictions prior to a fetus’ viability have been struck down by courts before but none were specific to disabilities. Only one other state, North Dakota, has that language in law.

The bill also requires all miscarried or aborted fetuses to be buried or cremated. It is in reaction to a national controversy over how Planned Parenthood handled remains.

Dan Carden of the NWI Times reports today:
The Republican-controlled General Assembly approved legislation prohibiting abortion in the one circumstance where even Hoosiers generally opposed to abortion might consider the early termination of a pregnancy.

House Enrolled Act 1337 requires a pregnant woman who learns her child will be born with Down syndrome, another genetic disease or physical deformities that are not immediately lethal to carry the pregnancy to term and give birth.

Under the plan, which is likely to be signed into law by Republican Gov. Mike Pence, doctors would be prohibited from performing an abortion for a woman who the doctor knows is seeking an abortion due to the diagnosis, or potential diagnosis, of a genetic fetal abnormality.

The measure also prohibits abortions prompted by the gender, race, color, national origin or ancestry of the fetus.

"We can say that ours is a policy that values your life no matter who you are, where you come from or what your disability may be," said state Rep. Casey Cox, R-Fort Wayne, the sponsor.

Eleven Republicans joined all 29 Democrats Wednesday in opposing the measure, which passed the House 60-40. It previously was approved by the Senate, 37-13.

Much of the debate in the overwhelmingly male chamber featured female representatives — many who said they consider themselves "pro-life" — explaining why they could not support the proposal.

"It does not value life. It values birth," said state Rep. Sue Errington, D-Muncie. "But it does nothing to give the mother of the child the promise of support and services to appropriately care for her child's life."

State Rep. Cindy Ziemke, R-Batesville, said the legislation complicates an already heartbreaking decision for grieving parents.

"Instead of showing compassion with this bill, we are choosing to say that the state of Indiana knows what is best for your family in this tragic situation," Ziemke said.

Posted by Marcia Oddi on Thursday, March 10, 2016
Posted to Indiana Government

Wednesday, March 09, 2016

Ind. Decisions - 7th Circuit decides two Indiana cases today

In William Bridge v. New Holland Logansport, Incorp (ND Ind., Moody), a 16-page opinion, Judge Shah (Northern District of Illinois, sitting by designation) writes:

William Bridge was fired from his job at New Holland Logansport in March 2011, when he was 61 years old. Bridge sued Logansport under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., which prohibits employers from discharging individuals because of their age, id. § 623(a)(1). The statute defines “employer” as someone who has twenty or more employees for each working day, in each of twenty or more calendar weeks, in the calendar year of (or in the year preceding) the discriminatory act. Id. § 630(b). After concluding that New Holland Logansport did not have twenty or more employees, the district court granted Logansport’s motion for summary judgment. * * *

Bridge did not marshal evidence from which a jury could find that New Holland Logansport was an “employer” under the ADEA. Summary judgment in favor of the defendant was appropriate, and we AFFIRM the judgment of the district court.

In USA v. Vernado Malone (ND Ind., DeGuilio), a 9-page opinion, Judge Kanne writes:
Appellant Vernado Malone pled guilty to mail fraud and aggravated identity theft pursuant to a written plea agreement. In the factual basis of his plea agreement, he admitted that he “committed numerous instances of access device fraud” and “misused the means of identification of employees of several companies,” specifically identifying three companies and one individual he defrauded. At sentencing, the government presented evidence that there were twenty‐eight victims of Malone’s scheme.

Despite having waived his right to appeal, Malone argues that the government materially breached the plea agreement by presenting evidence of twenty‐eight victims when only four were referred to by name in the agreement. Because the plea agreement made clear that the named victims were either an “example” or just “[o]ne of” the companies he defrauded, the government did not commit a material breach by introducing evidence that there were more victims than those specifically named. Accordingly, we enforce the appellate waiver and dismiss this appeal. * * *

Because the factual basis of the plea agreement only listed a victim by name to serve as an “example” of Malone’s “numerous instances of access device fraud” and there was no language of stipulation purporting to limit the number of victims, the government did not breach the plea agreement by presenting evidence at sentencing that there were twentyeight victims of Malone’s scheme.

Posted by Marcia Oddi on Wednesday, March 09, 2016
Posted to Ind. (7th Cir.) Decisions

About the ILB - IndyStar reports on closing of ILB

Kristine Guerra of the Indianapolis Star reports today in a long story about the ILB - some quotes:

On March 16, 2003, Marcia Oddi started a blog, a "self-assigned responsibility" that she took seriously.

Today, readers say Oddi's Indiana Law Blog is an abundant repository of legal and political news in Indianapolis and beyond. It's a one-stop resource that provides lawyers, judges, politicians, journalists and laypeople fingertip access to the most recent court orders, opinions, case summaries, hearing schedules, analysis and commentary posted in a timely manner. Ed Feigenbaum, editor of the Indiana Legislative Insight, called it an Indiana policy version of the Drudge Report.

But by the end of this month, after 13 years online, Oddi will shut down the blog.

The retired Indianapolis lawyer made the announcement in a short post last week. Although the blog has become popular, averaging about 4,000 hits a day during the workweek, "financial support simply isn't there," Oddi wrote.

Its readers and supporters said the blog's fate is disappointing.

"It's a loss for the legal community. It's a loss for the inside-the-Statehouse political community. It's a loss for judges and lawyers," Marion Superior Court Judge Timothy Oakes said. "To have that resource that's so succinct and efficient that's a central place of information, it's rare."

Feigenbaum said the blog's absence will create a void that cannot be easily filled.

"It's important to have somebody who understands the legal environment, who understands policymaking environment as she does to do something like that," Feigenbaum said. * * *

Joel Schumm, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis and a regular contributor for the blog, said Oddi has been able to provide information with a high level of sophistication.

"She elevated the debate and understanding of a lot of different issues," Schumm said. "She's able to do that with a level of sophistication that you don't find anywhere else. She understands what issues are important and why they're important." * * *

Oddi said she has spent the past year exploring funding options for the blog. She said she has been looking for an entity that would provide financial support to keep the blog online for four more years. At the end of that term, she would transfer the domain names and copyrighted digital assets to that group. But with no funding prospect, Oddi wrote, "I must move on." * * *

After this month, Oddi said, she will look for ways to supplement her retirement income, likely through writing and editing. That, and enjoying her free time. She said the decision to shut down the blog was a difficult one. "I love doing the blog," she said, "and believe it fills an otherwise unmet need."

Posted by Marcia Oddi on Wednesday, March 09, 2016
Posted to About the Indiana Law Blog

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

For publication opinions today (2):

In Freddie L. Webb v. Thomas A. Yeager, a 21-page opinion, Judge Brown writes:

Freddie L. Webb appeals the trial court’s order granting summary judgment in favor of Thomas Yeager. Webb raises three issues which we consolidate and restate as whether the court erred in entering summary judgment in favor of Yeager and against him. We affirm. * * *

We find the fact that Webb did not appeal the January 7, 2015 order dispositive. “Res judicata, whether in the form of claim preclusion or issue preclusion (also called collateral estoppel), aims to prevent repetitious litigation of disputes that are essentially the same, by holding a prior final judgment binding against both the original parties and their privies.” Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013). * * *

The designated evidence reveals that the court in Cause No. 82 entered an order on January 7, 2015 providing that the correct balance due on the restitution was $20,593. Webb was a party to the order and did not appeal it. Thus, res judicata bars relitigation of the amount of restitution.

In David Lee Marshall v. State of Indiana, an 8-page opinion, Judge Bailey writes:
David Lee Marshall (“Marshall”) appeals the trial court’s order denying his petition for expungement of Class D felony and misdemeanor records. He presents the sole issue of whether he was entitled to expungement because he had no subsequent criminal convictions, despite his admission, as a requirement of a pretrial diversion program, to committing another crime. We affirm. * * *

The issue of whether Marshall’s admission to committing a crime precludes expungement presents a question of statutory interpretation. We are thus presented with a question of law, which is reviewed de novo. * * *

Expunging records where one has admitted to engaging in criminal activity does not further the policy objective of assistance to one who has paid his societal dues without incident. The trial court could properly find, based upon Marshall’s own admission, that he had committed a crime in the relevant time period and was not entitled to the requested relief.

Conclusion. The trial court did not err in denying Marshall’s petition to have the records relating to his felony and misdemeanor convictions expunged.

NFP civil decisions today (4):

Selah Academy, Inc. Aquanatte Ruffin, and Lawrence Ruffin v. Jackqueline Jones (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: B.B., N.B., J.B., and D.B., (the Children) and N.B. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

In Re: The Marriage of: Christine Toney v. Edward Thomas (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: M.S., A.S., El.S., & Ev.S. and S.S. (Mother) and R.S. (Father) v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (7):

Jason A. Wilson v. State of Indiana (mem. dec.)

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

Jerimia J. Heffner v. State of Indiana (mem. dec.)

Morris Odis Davis, Jr. v. State of Indiana (mem. dec.)

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

Marcus Cotton v. State of Indiana (mem. dec.)

Duriel Jareau Williams v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, March 09, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: General Assembly sends bill increasing medical malpractice caps to Governor

Updating yesterday's brief post, here is Niki Kelly's story today in the Fort Wayne Journal Gazette, headed "Lawmakers raise malpractice damages cap." Some quotes:

INDIANAPOLIS – Lawmakers on Tuesday agreed to raise the cap on damages Hoosiers can collect in medical malpractice suits for the first time in almost 20 years.

The fix to Indiana’s medical malpractice system came after only nine days of public discussion. The final vote in the Senate was unanimous.

Senate Bill 28 now heads to Gov. Mike Pence for his approval.

“I would point out Indiana was the best medical malpractice environment and remains such after this bill,” said Sen. Brent Steele, R-Bedford.

Steele killed an earlier version of the bill months ago before there was even a hearing – saying there just wasn’t agreement among the stakeholders.

But he and those involved in the system – hospitals, doctors, trial lawyers – kept working behind the scenes and unveiled a compromise last week.

The bill would raise the current cap of $1.25 million to $1.65 million in 2017 and $1.8 million in 2019.

Indiana’s cap hasn’t been raised since 1998, and many lawmakers were concerned a court might overturn the cap as has happened in other states. * * *

Indiana was the first state to pass medical malpractice reform legislation in 1975. It is one of only three states that caps total damages, according to the Indiana Hospital Association. Indiana’s cap was also among the lowest.

Steele said there is also language in the bill to instruct the medical review panels – which are used to help judge whether malpractice occurred – to move at an expedient pace.

Posted by Marcia Oddi on Wednesday, March 09, 2016
Posted to Indiana Government

Ind. Law - "Our Opinion: Score this Notre Dame 1, Public 0"

Many quotes from a strong editorial today in the South Bend Tribune [ILB emphasis]:

Chalk up the police records bill that looks set to become Indiana law as a victory for the University of Notre Dame.

You can count the public as the losers in the passing of this legislation, which supporters claim improves transparency but actually does nothing but maintain the status quo.

House Bill 1022
would exempt police departments at private colleges such as Notre Dame from following the same crime reporting requirements as public colleges. The bill, sponsored by state Rep. B. Patrick Bauer, D-South Bend, was approved 49-1 by the Indiana Senate last week. The bill passed the House unanimously in January.

Bauer filed a concurrence last week, indicating agreement with a Senate amendment. The amendment states that a private university police officer will be granted the same protections and immunity for actions taken within the scope of their job as state police officers, and that private educational institutions and their governing bodies also would have the same statutory immunity granted to the state.

On Thursday, the House voted unanimously, 93-0, to affirm the bill. It’s now headed to the governor’s desk and is expected to become law.

More from the editorial:
The impetus behind H.B. 1022 is hardly a mystery: The handling of sexual assault cases on college campuses, including Notre Dame, has drawn nationwide attention. And ESPN has taken Notre Dame to court over the issue of police records, raising questions about why police on college campuses are not subject to the same open records laws as municipal forces. A court ruling is expected within a month or two.

The disappointing process that led to this toothless bill starts with the legislators who support it, including two from South Bend: Both Bauer and Sen. John Broden, a bill co-sponsor, have talked about the need for private universities in Indiana to be more open with police records. They’ve claimed that the bill will create a stronger level of trans­parency.

But in reality, the bill would apply to only a fraction of cases that Notre Dame police handle in a given year, and would have no effect on the bulk of incidents that happen on campus. And H.B. 1022 doesn’t require private college police departments to do much more than they are already required to do under federal law.

That’s a far cry from what you might have expected last spring, when Bauer vowed to work on legislation to change the status quo regarding campus police department records at private colleges. “We need to either abolish these private forces or do what’s right,” Bauer told The Tribune back then. “I think Notre Dame shouldn’t be hiding behind this. It’s worse than silly ... it’s just wrong.”

Speaking of wrong: Among those cheering H.B. 1022 is the Independent Colleges of Indiana, an advocacy group for private schools in the state — and on whose board Notre Dame graduates Bauer and Broden and other bill sponsors have recently served or continue to serve. Turns out the Independent Colleges, of which Notre Dame is a member, helped write the bill.

Was no one troubled by the obvious conflict issues raised by this collaboration?

Sadly, it appears that legislators are more concerned with serving the interests of Indiana’s private universities than doing right by their constituents.

ILB: Notably, the SBT was on this issue from the beginning. A Jan. 14 story by Margaret Fosmoe is headed "No conflict of interest on bill about police records at Indiana colleges, legislator says: Sits on panel of group tied to measure." See the ILB post here.

Posted by Marcia Oddi on Wednesday, March 09, 2016
Posted to Indiana Law

Ind. Gov't. - "Lake prosecutor gets a cash infusion"

That is the headline to this story today in the NWI Times reported by Bill Dolan. Some quotes:

CROWN POINT — The county's fiscal officials voted to bail out Lake Prosecutor Bernard Carter's office.

The County Council unanimously voted Tuesday to permanently inject more than $225,000 in property tax revenues into the prosecutor's budget to ensure enough salary to pay five staff members whose positions were financially imperiled by a decline in user fees that supplement the office's payroll. * * *

County government pays almost all its 1,650 full-time employees from property taxes, the most reliable source of local government revenue until state laws began limiting the highest property tax bills, forcing the county to lay off hundreds of employees five years ago.

The prosecutor's office avoided losing 10 employees then by paying them from fees defendants pay in court to avoid driver's license restrictions from traffic violations or convictions for first-time minor criminal offenses.

However, fees from the Infraction Deferral and Pre-Trial Diversion programs have recently declined as well. The County Council agreed to find enough tax revenues to pay five of the 10 staff members. The rest will remain on fee-based revenues.

Posted by Marcia Oddi on Wednesday, March 09, 2016
Posted to Indiana Government

Ind. Gov't. - More on: "Dunes pavilion alcohol passes House, headed to Pence"

Updating this ILB post from yesterday, here is another story, this one from Amy Lavalley of the Gary Post-Tribune (as reprinted in the Indiana Economic Digest). Some interesting quotes:

Democrats from Lake and Porter counties in the Indiana House of Representatives made impassioned though futile pleas Monday while waving a petition with almost 10,000 signatures against privatizing the pavilion at Indiana Dunes State Park and serving liquor there.

What the bill's sponsors wanted was a provision for state parks to receive liquor permits without local input, which presumably would pave the way for a liquor license for the pavilion, to once again be a bill that would be weighed on its own merits and not rolled into one touching on a wide array of topics, from e-cigarettes to carry-outs at the Indianapolis Motor Speedway.

The House voted 63-30 to approve it as it is, and its next stop is expected to be the desk of Gov. Mike Pence for his consideration.

For Dunes Action, the grass-roots group that collected the signatures and opposes Pavilion Partners' plans for the liquor license and a banquet center adjacent to pavilion, the House's vote was not unexpected.

Still, Desi Robertson, one of the group's co-founders, said Dunes Action was heartened that it had some impact.

"It was really great to see some of those legislators really listened to the people. We changed some minds," she said.

Rep. Charlie Brown, D-Gary, who earlier supported the measure, said Monday an assortment of things changed his mind, including Porter County residents who contacted him because they didn't realize he was no longer their state representative and Lake County residents who said they loved the pristine nature of the park.

Brown said he has learned that, while Indiana Department of Natural Resources representatives have said the park is used only three months of the year, that's not the case, and he also was misinformed when he was told the banquet center wouldn't be a big building.

"Now I'm hearing that is not necessarily the truth," he said of the proposed 17,000-square-foot structure.

Representatives from as far away as Evansville said they could not support the measure in its offered form, and several representatives argued there was enough time left in the session to pull out the portion involving the state parks for a separate vote.

The bill would directly benefit someone they could identify, said Rep. Matt Pierce, D-Bloomington, without naming Pavilion Partners, which has a public/private partnership with the DNR for the project.

"It's not often we approve a bill and know who's pocket it's going to put money in," he said.

One of the reasons House Minority Leader Scott Pelath, D-Michigan City, said he opposed the bill was not just the provision allowing state parks to apply for the licenses, but that Pavilion Partners was getting an override after the Porter County and state liquor boards denied their permit application.

Posted by Marcia Oddi on Wednesday, March 09, 2016
Posted to Indiana Government

Ind. Law - "Andrea Neal: Indiana's sad history with eugenics"

Andrea Neal, a teacher at St. Richard’s Episcopal School in Indianapolis and adjunct scholar with the Indiana Policy Review Foundation, as part of a series of essays leading up to the celebration of the Indiana Bicentennial in December 2016, lays out Indiana's "leadership" in the eugenics movement early in the 20th century in an article today in the South Bend Tribune. The very informative story, even if you've learned parts of it before, begins:

Long before Adolf Hitler espoused his ideas about a master race, Hoosier scientists advocated selective reproduction to improve the gene pool.

Indiana Gov. J. Frank Hanly signed the nation’s first eugenics law in 1907, mandating sterilization of certain “criminals, idiots, rapists and imbeciles” in state custody. Thirty states followed suit.

More from the story:
In 1901, the Indiana General Assembly passed a bill that made unsupervised, feeble-minded women aged 16-45 wards of the state to prevent them from bearing children. In 1905, the legislature prohibited marriage licenses for imbeciles, epileptics and those of unsound mind. The 1907 law authorized state institutions, in consultation with “a committee of experts,” to perform vasectomies on inmates for whom procreation was deemed inadvisable.

Why was Indiana first? A Hoosier doctor, Harry Clay Sharp, pioneered the vasectomy as a safer, less painful alternative to castration. Sharp performed the operation on about 225 prisoners at the Indiana Reformatory in Jeffersonville before the state had a law allowing it. “The 1907 law is in some ways a reaction to Harry Sharp,” Lantzer explains.

Gov. Thomas R. Marshall halted the sterilizations in 1909 because of concerns about their constitutionality. In 1921, Gov. James P. Goodrich observed that the law was not being followed so he pushed for a test case in the courts.

In a decision ahead of its time, the Indiana Supreme Court struck down the law as a violation of the 14th Amendment’s due process clause. The court said the law violated inmates’ rights by not allowing them to cross-examine the state’s experts or to argue that the operation was inappropriate for their condition.

Eugenics sputtered along for the next several years. In 1927, the U.S. Supreme Court reviewed a Virginia law, which authorized sterilization of inmates suffering from insanity, idiocy and epilepsy, among other traits. The law had been written with procedural protections so it might pass constitutional muster. In upholding the law, Justice Oliver Wendell Holmes famously wrote, “Three generations of imbeciles are enough.”

The ruling in Buck v. Bell led to an immediate rise in forced sterilizations across the country, and prompted Indiana to write a new law with a guaranteed appeals process.

Eugenics lost favor in the 1940s and 1950s, due to Nazi Germany’s barbaric practices and the United States’ reawakened awareness of individual rights. By then, an estimated 65,000 people had undergone sterilization nationwide with California most aggressive at 20,000. Indiana’s 2,400 paled by comparison.

In the 1970s, Gov. Otis R. Bowen pushed for the repeal of all sterilization and restrictive marriage laws in Indiana, and the legislature obliged. The Buck v. Bell ruling has never been overturned.

ILB: In 2007 the Indiana Supreme Court and the State Library held a symposium on this topic. Start with this link from April 12, 2007.

Posted by Marcia Oddi on Wednesday, March 09, 2016
Posted to Indiana Law

Tuesday, March 08, 2016

Ind. Decisions - 7th Circuit decides two Indiana cases today; commends ND Ind. judge

In USA v. Anthony Lomax (SD Ind., Barker), a 19-age opinion, Judge Williams writes:

A jury found Anthony Lomax, Brandon Lomax, and Demond Glover guilty of conspiring to possess with the intent to distribute and to distribute 1,000 grams or more of heroin. 21 U.S.C. § 841(a)(1). On appeal, the defendants argue that the evidence did not prove beyond a reasonable doubt that they joined the conspiracy with the intent to further the goals of the conspiracy. They maintain they were running three separate heroin business-es. We reject this argument. Anthony Lomax separately argues that he was not a part of the conspiracy, but instead had a buyer-seller relationship with Brandon Lomax. As such, he claims that the district court erred by refusing to instruct the jury about the buyer-seller relationship. We agree and remand Anthony Lomax’s case for a new trial to include the buyer-seller jury instruction.

Brandon Lomax argues that he was entitled to a jury determination on whether he had two prior drug convictions, and the district court’s finding that he had two prior drug convictions, which enhanced his mandatory minimum sentence to life imprisonment, violated the Constitution. We disagree and affirm his sentence.

Demond Glover also challenges his sentence stating that his case should be remanded for resentencing because he was erroneously classified as a career offender in light of Johnson v. United States, 135 S. Ct. 569 (2015). Because we find that the error was harmless, we affirm his sentence.

In USA v. James Thomas (ND Ind., Springmann), a 7-page opinion, Judge Easterbrook writes:
James Thomas pleaded guilty to possessing cocaine with intent to distribute and was sentenced to 235 months’ imprisonment—a term below the Guideline range of 292 to 365 months for someone with his criminal history who distributed as much cocaine as he did. His appeal does not contest the length of his sentence but does maintain that the procedure the judge used to arrive at the sentence violated the Due Process Clause of the Fifth Amendment. The district judge arrived at the sentence after a multi-­step procedure that the parties agree is the norm in her court: [see pp.3-4 of opinion] * * *

The Due Process Clause requires notice and an opportunity for a hearing. See, e.g., Jones v. Flowers, 547 U.S. 220 (2006). The procedure the district judge used gave Thomas more notice than Rule 32 requires, and more opportunities to be heard than Rules 32 and 43 require. It eliminated any dis-­‐‑ pute about the terms of supervised release, which have be-­‐‑ deviled district courts (and this court) in recent years. See, e.g., United States v. Orozco-­Sanchez, No. 15-­1252 (7th Cir. Feb. 26, 2016); United States v. Kappes, 782 F.3d 828 (7th Cir. 2015). The early announcement of an inclination to deduct two offense levels allowed everyone to prepare for a focused argument on just where in the 235-­ to 293-month range the sentence should fall, without extinguishing the prosecutor’s opportunity to argue for a sentence higher than 293 months or the defense’s opportunity to ask for fewer than 235 months. Both sides used that opportunity. The procedure made everyone better off. Philosophers and economists might call it a Pareto-­superior, if not a Pareto-­optimal, approach to sentencing. Other district judges may deem it worthy of emulation; it is enough for us to call it constitutional. AFFIRMED [ILB emphasis]

Posted by Marcia Oddi on Tuesday, March 08, 2016
Posted to Ind. (7th Cir.) Decisions

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

Updating this ILB post from Feb. 29th, the State has now filed a notice of appeal to the 7th Circuit of Judge Pratt's Feb. 29th order. Under that order, the State of Indiana was prohibited "withholding from Exodus funds and services due Exodus and the refugees it serves."

A news release today from AG Zoeller is headed "State files notice of appeal, motion for stay in refugee grant case." It states in part:

Today the State of Indiana officially filed notice that it is appealing a federal court ruling that required the State to resume grant payments to a nonprofit contractor for resettlement of refugees fleeing Syria. The State asked the U.S. District Court for the Southern District of Indiana to stay, or postpone, implementation of its order while the appeal is under way.

In seeking a stay, the State filed notice that it respectfully intends to appeal to the U.S. Seventh Circuit Court of Appeals in Chicago and will ask that court to review the preliminary injunction that the U.S. District Court in Indianapolis issued Feb. 29 in the case, Exodus Refugee Immigration Inc. v. Pence and Wernert. * * *

There is no ruling yet from the U.S. District Court on the State’s stay motion pending appeal [ILB: the motion was filed today..."]; the plaintiff has until March 18 to respond. The State’s notice of appeal is procedural, and a more substantive brief detailing the State’s legal grounds for the appeal to the 7th Circuit will be filed at a later date.

ILB: So, in sum, it looks like the State has today filed a 14-page motion to stay with the District Court, and "the plaintiff has until March 18 to respond." Here is that motion. marked filed March 8th.

The State has also filed a 2-page motion with the 7th Circuit, simply stating that it intends to appeal.

Posted by Marcia Oddi on Tuesday, March 08, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - General Assembly sends bill increasing medical malpractice caps to Governor

Senate has now concurred in terms of SB 28, which with House amendments would increase med mal cap from $1.25 million to $1.65 million in 2017 and 1.8 million in 2019. (h/t Niki Kelly)

Posted by Marcia Oddi on Tuesday, March 08, 2016
Posted to Indiana Government

Ind. Gov't. - "Out of office, Jindal looms over Louisiana budget crisis"

Not Indiana, but a fairly astonishing story out of Louisiana, reported yesterday in the Washington Post by Melinda Deslatte. A few quotes from the long story:

BATON ROUGE, La. — Bobby Jindal left the governor’s office nearly two months ago, but his legacy permeates a special legislative session aimed at digging Louisiana out of deep financial troubles.

Louisiana’s worst budget crisis in nearly 30 years is threatening public colleges with cuts that could shutter campuses mid-semester and putting health care services for the poor and disabled at risk of elimination.

State leaders blame the Republican former governor for creating — and hiding — many of those woes. * * *

Criticism of Jindal is bipartisan and widespread, with irritated lawmakers left sifting through the highly-unpopular choices of raising taxes or taking a hatchet to higher education and government services. They’re considering enacting tax bills Jindal vetoed and stripping a fake tax credit created to protect Jindal’s anti-tax record.

Legislators are hearing that cuts described by the Jindal administration as “efficiencies” actually went much deeper, striking at services. They’ve learned about borrowing practices that increased state debts and about threats to Louisiana’s cash flow because it spent down reserves. * * *

Guarding his anti-tax record, Jindal balanced the budget with short-term fixes: selling state property and raiding savings accounts. As the assets disappeared or promised savings didn’t pan out, budget gaps appeared. The oil price slump worsened the problems.

Posted by Marcia Oddi on Tuesday, March 08, 2016
Posted to Indiana Government

Indiana Law - ACLU of Indiana looking for intake volunteers

The ILB has received this note:

The American Civil Liberties Union of Indiana is seeking volunteers to assist with the legal intake process. Intake involves reading requests for assistance and summarizing these requests for review by legal staff.
More information here.

Posted by Marcia Oddi on Tuesday, March 08, 2016
Posted to Indiana Law

Ind. Gov't. - "Bill limits women's reasons for abortion"

Updating an ILB post from Feb. 4th about a similar Senate bill, Chelsea Schneider and Stephanie Wang of the Indianapolis Star report today in a lengthy story that begins:

An expansive and controversial bill pending in the Indiana House seeks to set more restrictions on abortion in the state — already one of the most restrictive in the nation.

The bill would restrict abortions based solely on a woman's motivation for terminating her pregnancy. And it also takes a stance against the controversial Planned Parenthood videos on the use of fetal tissue.

It would make Indiana the second state in the nation to make it illegal to abort a pregnancy because the fetus was diagnosed with Down syndrome or another disability. It also would prohibit abortions based on the sex or race of the fetus. And it could trigger a court challenge.

Supporters say the new restrictions would amount to protections against discrimination for fetuses.

"We recognize that it is unfair to discriminate against anyone based on a variety factors, including disability, race and gender, yet these same protections have not been extended to children in the womb," said Mike Fichter, CEO of Indiana Right to Life. "This legislation corrects the inconsistency."

But local reproductive rights advocates question how the state could enforce a law based solely on a woman's motives.

“How would you document, or force a physician to document, what’s inside the head of a woman?” said Patti Stauffer, vice president of public policy for Planned Parenthood of Indiana and Kentucky.

Banning abortions in these instances, she said, would amount to “government intrusion” in private medical conversations that women have with their doctors. * * *

Last year, the House killed similar restrictions. But this year's political dynamics are different. The bill is being debated as Republicans head into a primary election, and they could be tempted to pass it in order to prove their conservative chops.

Republican leaders will have to decide whether they want to send the bill to a final vote on the House floor or to a House-Senate conference committee for final negotiations.

The bill is HB 1337. The last action as of now appears to be that the bill returned to the House with amendments. You can follow it on the searchable Conference Committee grid by typing in "1337".

Posted by Marcia Oddi on Tuesday, March 08, 2016
Posted to Indiana Government

Ind. Gov't. - "Dunes pavilion alcohol passes House, headed to Pence"

Dan Carden of the NWI Times reports today in a story that begins:

It's now up to Republican Gov. Mike Pence to decide whether alcohol someday will be available for purchase at a renovated Indiana Dunes State Park pavilion.

The Republican-controlled House voted 63-30 Monday to advance House Enrolled Act 1386 to the governor for his signature or veto. It previously passed the Republican-controlled Senate, 33-17.

The measure allows the Department of Natural Resources to obtain "state park" alcohol permits, for any or all of its parks, without having to follow most of the procedures typically required to get state permission to sell beer, wine or liquor — including local review.

Developer Pavilion Partners last year twice was denied an alcohol sales permit by the Porter County Alcoholic Beverage Commission.

During debate on the proposal, House Democratic Leader Scott Pelath, D-Michigan City, held up nearly 10,000 petition signatures from Lake, Porter and LaPorte county residents opposing the plan.

He said regular Dunes visitors don't want alcohol on the beach, don't think the state should override local decisions and believe Chuck Williams, the former Porter County Republican chairman and lead investor in Pavilion Partners, is getting a special deal.

"They don't understand why such a precious natural resource is being turned into something that they don't want," Pelath said. "Just so somebody can make some money."

State Rep. Pat Bauer, D-South Bend, said allowing alcohol at the pavilion is likely to destroy the park, just as an earlier generation drained and ruined the Kankakee Marshes.

The final paragraph:
The governor has not stated his position on the legislation. However, he's unlikely to veto the proposal, because it addresses numerous alcohol and tobacco issues across Indiana, including allowing for the Sunday sale of a commemorative beer bottle on May 29 at the 100th running of the Indianapolis 500 auto race.
The Indianapolis Star today has an AP story by Brian Slodysko that reports:
The Indiana House gave final approval Monday to a measure designed to revive a stalled privatization deal that would bring restaurants, a rooftop bar and a banquet center to Indiana Dunes State Park.

The House agreed to changes made in the Senate, voting 63-30 to send the bill to Republican Gov. Mike Pence’s desk.

The measure would allow Pavilion Partners, a group formed by politically connected Valparaiso developer Chuck Williams, to sell alcohol at the planned beachfront development — something the group says is necessary for the project to be viable. It circumvents a Porter County alcohol board and the state’s Alcohol and Tobacco Commission, which both ruled to deny an alcohol permit amid opposition from environmentalists who said the decades-long lease for the development amounts to a sell-off of public land that should be free of commercials interests.

Democrats railed against the measure, noting it was folded into a massive alcohol and tobacco bill that contained other provisions many people support. * * *

Williams is a state Republican Party official who has donated handsomely to GOP causes. But he has disputed allegations that his connections played a role in the project’s advancement. The Indiana Department of Natural Resources has said it followed state and federal laws and did not give Williams preferential treatment in approving the project, which gives him control of the facilities for decades to come in exchange for $18,000 in yearly rent and 2 percent of sales.

“There is no correlation between contributions I made to the local GOP 10 years ago and any legislation pending before the Legislature,” Williams said last week.

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

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

Emails show Williams pitched the idea and worked with the DNR on a proposal long before it went out to public bid and years before a formal public hearing was held on the project. The only competing offer came from a nonprofit group of local conservationists, lawyers and finance professionals.

Williams has maintained he had “a vision and a passion” to rehabilitate a building that the state has neglected since he was a child. He says he poured money into a project that the state had refused to fund.

For ILB entries on the Dunes pavilion issue dating back to 2006, see this list.

Posted by Marcia Oddi on Tuesday, March 08, 2016
Posted to Indiana Government

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

For publication opinions today (1):

In Tyrone Grayson v. State of Indiana, a 12-page opinion, Judge Mathias writes:

Tyrone Grayson (“Grayson”) was convicted in Marion Superior Court of Class B felony unlawful possession of a firearm by a serious violent felon. He appeals his conviction and argues that the trial court abused its discretion when it admitted into evidence the handgun discovered during a warrantless search of his vehicle. Specifically, he argues that the officer lacked reasonable suspicion to conduct a Terry stop because the report of alleged illegal activity was provided by an anonymous tipster.

Conclusion. For all of these reasons, we conclude that Officer Schultz had reasonable suspicion to justify the investigatory stop at issue in this case. The anonymous tip alleged personal observation of gun-related recklessness and the serious risk of gun-related violence. Before he approached Grayson’s vehicle, the movement of Grayson’s vehicle when Officer Schultz entered the parking lot confirmed the likelihood that an occupant of the vehicle was involved in the criminal activity alleged. Officer Schultz’s response was also appropriate as an act of community policing and in light of the State’s compelling interest in protecting the general public from incipient gun violence. Because the investigatory stop was proper, the trial court did not abuse its discretion when it admitted into evidence the firearm discovered during that stop.

NFP civil decisions today (2):

Jan Van Daele v. Concord Community School Corporation (mem. dec.)

Donald C. Searing v. Karen Vivas (mem. dec.)

NFP criminal decisions today (3):

Jesse B. Craig v. State of Indiana (mem. dec.)

Lionel R. Mackey, Jr. v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Tuesday, March 08, 2016
Posted to Ind. App.Ct. Decisions

Monday, March 07, 2016

Ind. Tax Courts - Two orders issued today in Popovich disputes

In Nick Popovich v. Ind. Dept. of State Revenue, a 6-page opinion, Judge Wentworth writes:

The Indiana Department of State Revenue argues that it is entitled to expenses in the amount of $5,175.25 for successfully defending against Nick Popovich’s second motion to compel. See generally Popovich v. Indiana Dep’t of State Revenue (Popovich II), 7 N.E.3d 419 (Ind. Tax Ct. 2014), reh’g denied. The Court agrees. * * *

Popovich was not substantially justified in filing his second motion to compel, and therefore, the Department is entitled to a reimbursement for expenses in the amount of $5,175.25 for successfully defending against that motion.


In Nick Popovich v. Ind. Dept. of State Revenue, a 2-page opinion, Judge Wentworth writes:

Nick Popovich has requested expenses in the amount of $51,210.29 for successfully prosecuting his first motion to compel. See generally Popovich v. Indiana Dep’t of State Revenue (Popovich I), 7 N.E.3d 406 (Ind. Tax Ct. 2014). The Court finds that Popovich is entitled to be reimbursed for reasonable expenses and awards him $24,963.00. * * *

In determining what constitutes a reasonable amount of expenses, the Court has considered the credibility of Popovich’s evidence, the relative success of Popovich in filing his first motion to compel, and the relative success of the Department’s substantial justification arguments. Moreover, the Court has considered the conduct that unnecessarily prolonged the entire discovery process and consumed far too much of this Court’s valuable time. For instance, the Department raised hundreds of blanket objections over several months and was not forthright in presenting its deliberative process privilege arguments. As to Popovich, his failure to promptly address the Department’s objections regarding the production of certain tax returns unnecessarily put that matter at issue in Popovich I. See, e.g., Popovich I, 7 N.E.3d at 412 n.5. In fact, this will be the fifth written decision regarding some aspect of the parties’ battle for information and not the merits of the case.

Having considered and weighed all relevant factors, the Court finds that the Department must pay Popovich for his reasonably incurred expenses. See Noble Cnty v. Rogers, 745 N.E.2d 194, 197-98 (Ind. 2001); State v. Kuespert, 411 N.E.2d 435, 438-39 (Ind. Ct. App. 1980) (both recognizing that a court may issue monetary sanctions against the State for discovery violations). See also, e.g., Hatfield v. Edward J. DeBartolo Corp., 676 N.E.2d 395, 399 (Ind. Ct. App. 1997) (providing that this Court, like any other court that initially resolves discovery disputes, has broad discretion in
ruling on those matters, including the appropriate sanctions for misuse of the discovery process), trans. denied. Accordingly, the Court orders the Department to pay Popovich $24,963.00 for expenses.

Posted by Marcia Oddi on Monday, March 07, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court reinstates attorney by vote of 3-2

In a Nov. 30, 2011 post, the ILB reported on the Supreme Court disciplinary opinion in In re Loiseau, which resulted in a suspension of 90 days, without automatic reinstatement.

Today, March 3, 2016, over 4 years later, the Court has issued a 2-page order in In the Matter of: Richard Loiseau. From the order:

On November 22, 2011, this Court entered an order suspending Petitioner for not less than 90 days without automatic reinstatement, effective December 29, 2011. Petitioner filed a petition for reinstatement on May 6, 2015. Following proceedings before a hearing officer, on January 8, 2016, the Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(18)(b), filed its recommendation that Petitioner be reinstated to the practice of law in Indiana.
Nine criteria are listed as having to be met before an attorney may be reinstated. The Court order concludes:
This Court, being duly advised, finds that the recommendations of the Commission and its hearing officer should be accepted. The Court therefore GRANTS the petition for reinstatement and REINSTATES Petitioner as a member of the Indiana bar as of the date of this order. Petitioner shall pay any costs owing under Admis. Disc. R. 23(18)(d).

Rush, C.J., and Rucker and Massa, JJ., concur.
Dickson, J., votes to deny reinstatement, believing that Petitioner has failed to prove by clear and convincing evidence requirements (4), (6), and (7) of Admis. Disc. R. 23(4)(b).
David, J., votes to deny reinstatement.

See the opinion for the details of 4, 6 and 7. The Roll of Attorneys indicates that Mr. Loiseau currently resides in Florida.

Posted by Marcia Oddi on Monday, March 07, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "So what is the scorecard for business as lawmakers wrap up"

Another good Sunday Star read, touching on several bills the ILB has followed, was John Ketzenberger's business column, headed "Big issues go down to the wire at the Statehouse." Some quotes:

The outcome of the one issue nearly every business interest backed was decided early in the session. Senate Bill 344 attempted to extend civil rights protection to gay and lesbian Hoosiers while balancing concerns from some who thought it would conflict with religious liberties.

The bill’s author pulled the measure after a five-hour committee meeting, so the status quo is maintained after last year’s bruising compromise on the Religious Freedom Restoration Act.

Three relatively minor bills, however, illustrate how business interests at the Statehouse are far from monolithic.

Let’s begin in Bloomington, where the City Council was considering a ban on single-use plastic bags, the kind you find at groceries and big-box retailers. The Center for Sustainable Living wanted to encourage shoppers to bring their own bags to cut down on the estimated 16 million used each year in Bloomington.

The General Assembly gives local communities latitude to determine some things — a concept known as home rule — but not others. It became clear early in the session that a ban on plastic bags fell into the “not others” category.

House Bill 1053 amended the state’s home-rule statute to forbid a ban or tax on plastic bags, which set off a tussle in the business community. It turns out those “urban tumbleweeds” provide for quite a few Hoosier jobs at several companies in Indiana, including the Polyethylene Packaging Division in Terre Haute of Oshkosh, Wis.-based Bemis Inc., and the Hilex Poly plant in North Vernon of Hartsville, S.C.-based Novolex.

The story also covers the Tesla Motors issue and the small farm-produced meat and poultry. Re the latter:
Speaking of interim study committees, let’s consider House Bill 1267. The bill was introduced after successful father-son farmers described how their midsize operation grew after an exemption in state law allowed them to expand their market.

The Hawkins Family Farm in North Manchester was granted the exemption from extensive federal regulation by the State Board of Animal Health under a 20-year-old state law. It allowed the farm to slaughter chickens and sell them to consumers and restaurants with less regulation than much larger commercial operations face.

Theirs was the only farm in Indiana to operate under the exemption.

Interestingly, Jeff and Zach Hawkins were served a cease and desist order shortly after their August appearance before the study committee. The attorney general overturned the order, but by then legislation eliminating the exemption was in the legislative hopper.

The argument centered on the tension between “scale-appropriate” regulation vs. food safety, although there was no indication the food produced in the Hawkinses’ slaughterhouse, or any other like it, was unsafe.

Despite the Hawkinses’ attempts to convince lawmakers that the exemption did not compromise safety, the House of Representatives approved the bill.

Enter fellow farmers, chefs and others who made a full court press to preserve the exemption in the Senate, which prompted high-level meetings with then-Lt. Gov. Sue Ellspermann. A compromise was reached to give the state more oversight of exempted operations, a move that made nearly everyone happy.

The bill sailed through the Senate 48-2 and is expected to land on Pence’s desk soon.

Posted by Marcia Oddi on Monday, March 07, 2016
Posted to Indiana Government

Ind. Gov't. - "State to locals: You can't do that. Or that." The illusion of home rule

Brian Eason of the Indianapolis Star had a good, long, front-page story in the Sunday edition on the illusion of home rule in Indiana. It begins:

First it was a ban on setting a local minimum wage or regulating guns. Then came prohibitions on paid sick leave and housing regulations.

Now, it's worker schedules and plastic bags.

Lately, it seems, whenever an Indiana city even thinks about passing an ordinance that the General Assembly disagrees with, state lawmakers strip local officials of the authority to do so.

To some, the erosion of local authority is nothing short of an attack on local democracy. To others, the practice known as pre-emption is a necessary protection against a patchwork regulatory environment that they fear will hurt businesses.

But the crippling financial toll of state-mandated property tax caps and the fallout from the Religious Freedom Restoration Act have political and business leaders on both sides of the aisle increasingly asking the questions:

Should overwhelmingly rural lawmakers dictate public policy in the country's 14th-largest city? Should smaller, but more progressive cities such as Bloomington be micromanaged by a legislature whose ideological bent is increasingly at odds with the concerns of urban residents?

"I think you ought to be able to have a greater opportunity to decide what type of local government you want, and what type of services you want provided," said Matt Greller, executive director of the Indiana Association of Cities and Towns. "Take a look at Indiana — it is remarkably different in one part of the state vs. another."

The article is really worth reading in detail.

Posted by Marcia Oddi on Monday, March 07, 2016
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending March 4, 2016

Here is the Clerk's transfer list for the week ending Friday, March 4, 2016. It is three pages (and 27 cases) long.

Three transfers were granted last week:

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

Posted by Marcia Oddi on Monday, March 07, 2016
Posted to Indiana Transfer Lists

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

For publication opinions today (0):

NFP civil decisions today (0):

In the Matter of: N.A. (Minor Child) A Child in Need of Services and B.L. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (0):

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

Diverlo Georges v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, March 07, 2016
Posted to Ind. App.Ct. Decisions

Courts - Friends of the SCOTUS bearing amicus briefs

Adam Liptak's "Sidebar" column today in the NY Times looks at amicus briefs. He cites a study prepared by Alli Orr Larsen and Neal Devins to be published in the Virginia Law Review, titled "The Amicus Machine." Some quotes from the column:

There was a time when amicus briefs were isolated and disinterested efforts to help judges navigate difficult legal and factual issues. No more. People who claim to be friends of the court are now, almost without exception, actually friends of one party in the case. * * *

More than 80 supporting briefs were filed in the abortion case on Wednesday, Whole Woman’s Health v. Hellerstedt, No. 15-274, a modest number by some standards. The record is held by the same-sex marriage case last year, at 147, according to statistics kept by Anthony J. Franze and R. Reeves Anderson, lawyers at Arnold & Porter. The first Affordable Care Act case, in 2012, featured 136.

By contrast, the new study says, 23 amicus briefs were filed in Roe v. Wade, the 1973 decision that established a constitutional right to abortion. In 1954, when the Supreme Court banned racial segregation in public schools in Brown v. Board of Education, the justices made do with six amicus briefs.

On balance, the study concludes, the amicus machine is a force for good, giving the justices access to valuable information and serving as a counterweight to the expert lawyers who represent the federal government.

All of this assumes that the justices pay attention to supporting briefs. Mostly, though, they do not.

Posted by Marcia Oddi on Monday, March 07, 2016
Posted to Courts in general

Vacancy on Supreme Court 2016 - Nominee will be arguing high-profile case before the Supreme Court next week

One of the three finalists whose names will be officially sent to the Governor later this week by Justice Rush, in her role as chair of the Judicial Nominating Commission, will be arguing a case in front of the Supreme Court on March 17th.

Geoffrey G. Slaughter was one of the three names selected by the JNC late Friday for nomination to Governor Pence. The case is Citizens Action Coalition of Indiana, et al. v. Indiana House Republican Caucus and Eric Koch, and involves issues of public access to e-mails between legislators and lobbyists, as well as assertions of separation of powers. Mr. Slaughter represents the Indiana House caucus.

See the ILB posts headed "House brings in lawyer for fight over records" dated June 24th and June 25th.

Posted by Marcia Oddi on Monday, March 07, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 3/14/16):

Thursday, March 17

Webcasts of Supreme Court oral arguments are available here.


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

Friday, March 11

Next week's oral arguments before the Court of Appeals (week of 3/14/16):

Tuesday, March 15

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

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


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

Posted by Marcia Oddi on Monday, March 07, 2016
Posted to Upcoming Oral Arguments

Friday, March 04, 2016

Vacancy on Supreme Court 2016 - Here are the three names to be sent to the Governor

Sec. 10 of ARTICLE 7 of the Constitution of the State of Indiana provides in part:

Section 10. Selection of Justices of the Supreme Court and Judges of the Court of Appeals.

A vacancy in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission. If the Governor shall fail to make an appointment from the list within sixty days from the day it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice from the same list.

This evening the Judicial Nominating Commission has announced it will be submitting the following list of three nominees to Governor Pence:

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - JNC announcement to take place on or about 7PM

Indiana Courts just tweeted:


Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - JNC sends out for dinner

Niki Kelly of the Fort Wayne Journal Gazette tweeted at 5:20 PM:

Two Allen County judges are among the final 15, Gull and Felts.

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Vacancy on Supreme Court - 2016

About the ILB - Indiana Legislative Insight: ILB to go dark

From the back page of the new, March 7th issue of Indiana Legislative Insight:

Just after we urged you last week to follow the Indiana Law Blog for details and analysis of the second round of interviews for the Indiana Supreme Court vacancy, we were stunned to learn that ILB will go dark at the end of March.

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to About the Indiana Law Blog

Ind. Decisions - "Indiana Asbestos Exposure Repose Law Unconstitutional"

The Indiana Supreme Court's 3-2 decision Wednesday in Larry Myers, et al. v. Crouse-Hinds, et al.: GE v. Mary R. Geyman, et al.: Owens-Illinois, Inc v. Mary R. Geyman, et al. is the subject of an article by Steven M. Sellers in the BNA Toxics Law Reporter.

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Ind. Sup.Ct. Decisions

Vacancy on Supreme Court 2016 - Now for the waiting

The Judicial Nominating Commission will now lunch and conduct deliberations in executive session. If past history is any indication, it will be late this afternoon before we receive an announcement that they will be reconvening in usually 15 minutes for a public vote and announcement of the three names that will be sent to Governor Pence. The ILB will be waiting ...

Meanwhile, here is a photo of Indianapolis attorney Cara Wieneke busy taking notes today for the ILB:



Many other photos of today's interviews are available here, at the Court's flickr site.

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - 7th Circuit reissues as opinion today one Indiana decision

In Abduwali Muse v. Charles A. Daniels (SD Ind., Magnus-Stinson), a 3-page opinion, Judge Easterbrook writes:

Abduwali Muse pleaded guilty to piracy, 18 U.S.C. §2280, among other crimes, for his role in boarding the MV Maersk Alabama in 2009 in interna-­‐‑ tional waters off the coast of Somalia and taking its captain hostage. * * *

Muse’s brief in this court ignores his waiver and §2255(e) alike. Instead he presents an argument about the extent to which 28 U.S.C. §636(b)(1)(A) permits magistrate judges to resolve contests about criminal defendants’ ages. The brief thus gives us no reason to question the district court’s decision. AFFIRMED
__________________
The appeal was decided by non-­‐‑precedential order on February 24, 2016. The court reissued the decision as an opinion on March 4, 2016.

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Ind. (7th Cir.) Decisions

Vacancy on Supreme Court 2016 - Round 2: Report on the final interview, #15, Mr. Geoffrey G. Slaughter

Mr. Geoffrey G. Slaughter - Taft Stettinius & Hollister LLP, Indianapolis
(photo) (application) (first interview - 2nd in entry)

When asked whether he has ideas regarding the role of a justice in regulating the practice of law, Mr. Slaughter said one idea is to educate people so they understand there are affordable resources out there for people who need good representation. This issue is huge for the bar associations.

When asked specifically for a solution to help small counties who are struggling to keep practitioners, Mr. Slaughter suggested helping new graduates find funding incentives, possibly at the State level, who can go into these counties and provide services.

When asked about statutory caps, Mr. Slaughter framed the issue as one of constitutionality if caps are too low. But he refrained from giving his position on the issue, for obvious reasons.

When asked about Jefferson's philosophy regarding the evolution of society and whether our Constitution "evolves" with it, Mr. Slaughter said our Constitution provides for its own amendment. He is a contextualist and an originalist. So as times change, amendments can be made.

When asked about his feelings on Brown v. Board of Education and how to reconcile that case with his response above, Slaughter said that the dispute is between your fidelity to the Constitution and your fidelity toward precedent. He recognizes the tension but would not take a position in the abstract.

When asked if he agreed with a public defender brochure's statement regarding the overwhelming power of police, prosecutors, and judges, Mr. Slaughter explained that these involve two different branches of government and any implication that they are all acting together as a consolidated power is incorrect. But he is not clear whether the citizenry believes that the power is consolidated in such a manner.

When asked how a new justice can ensure everyone that his political influences have been left behind, Mr. Slaughter said it is not uncommon for people to come to the Court from political administrations. But they wear a different hat as a justice.

When asked whether he has begun appellate e-filing, Mr. Slaughter said he is signed up but has not yet had the opportunity to take training to begin. But he is excited to start. He acknowledged that technology was not his strength, but he conducts research online and is comfortable with it.

When asked what his biggest challenge would be as a new justice, he said the learning curve of going from advocate to neutral arbiter.

When asked what role human empathy should play in the life of a justice, Mr. Slaughter stated that all bring a life's worth of experiences to play. But a justice's job is to apply the law to the case. One hopes that the law and one's personal feeling coincide. But when they don't, the law wins.

In a case where the above is a close call, Mr. Slaughter said if he could follow his personal feeling in a way that is consistent with the law, he would do so. But it would be difficult to answer this in the abstract.

When asked if he believes that the Supreme Court should take transfer in more cases, he said the current workload is about right.

When asked about his parting thoughts, Slaughter thanked them for the opportunity and for their hard work.

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Vacancy on Supreme Court - 2016

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

For publication opinions today (0):

NFP civil decisions today (1):

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

NFP criminal decisions today (1):

Brian P. Kedrowitz v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Round 2: Report on interview #14, Mr. Thomas E. Wheeler, II

This is Cara Wieneke's report on interview #14 of Round 2

Mr. Thomas E. Wheeler, II - Frost Brown Todd LLC, Indianapolis
(photo) (application) (first interview - 3rd in entry)

When asked about the transition from practitioner to judge, Mr. Wheeler stated that impartiality would likely be his greatest strength.

When asked whether he would recognize a right that is not explicitly stated in the Constitution or in a statute, he said he would not. There is a process to amend the Constitution or pass a law. It is not the role of judges to create law

When asked if he believed that there are unenumerated rights, he said there are not. We do not have a top-down government.

When asked about his Federalist Society participation and how it would affect him as a justice, Wheeler said that he finds it fascinating to sit and talk to like-minded people about the law. It has been very educational for him.

When asked how he is different than Rusthoven, Fisher, and Slaughter, Wheeler began by praising his colleagues. But Wheeler noted his jury trial experience, his experience as an ALJ, his work with the Legislature, and his experience in local government as one difference he brings to the table.

When asked to frame the issues involved in statutory cap cases, he is a big believer in stare decisis. He cited to the Johnson case, and concluded that caps are constitutional. He feels very strongly that this issue is for the Legislature to decide. He cited to a dispute over the Tort Claims Act where the issue arose that caps can become too low so as to be unconstitutional. He believes they can be, but ultimately the Legislature is where the issue belongs.

Wheeler talked about our system being a two-party system, but that we all must work together for the greater good. Everyone has their own position on things, but people must work together. He talked fondly of several people he has worked with in the past who are on the other side but who he respects greatly and worked well with.

When asked about overruling precedent and when it should happen, Mr. Wheeler discussed a case he lost dealing with administrative records. He said that when overruling precedent, he believes that the case should apply prospectively because precedent is very important to practitioners, and they have relied on it.

When asked what further technological advances the Court should make, Mr. Wheeler noted that the court has already begun a big push by getting counties to switch to e-filing. He said it is always important to consider the impact changes will have on solo practitioners (which I appreciated!).

When asked about the litigation involving public defenders in different counties and how he might address those kinds of issues (mandates without funding), Wheeler suggested a unified court system funded through the general fund would solve the problem.

When asked for his parting thoughts, Wheeler said it is important to consider the type of person they are sending through to the Governor. Wheeler shared a story of his first oral argument where his dad was present. He then shared that he has spent hours recently every day with his dad who is currently in the ICU. And he realized that each person has a story, and he will always remember that if given the opportunity as a justice.

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Round 2: Report on interview #13, Hon. Thomas J. Felts

This is Cara Wieneke's report on interview #13 of Round 2

Hon. Thomas J. Felts - Allen Circuit Court, Fort Wayne
(photo) (application) (first interview)

When asked what his guiding principles would be in the development of common law, Judge Felts stated that when looking at the common law it is usually developed gradually, as it should be. He would strongly look at precedent. He would also look at the facts and circumstances, but overall the common law should develop at its own pace.

When asked about the power of government to require individuals or citizens to assist them in investigations, Judge Felts said you should never say never, but this situation should be very rare. He cited to the Apple/FBI controversy and how it requires a balancing of national security and a citizen's privacy.

When asked to what extent, if any, the economic circumstances of a decision should be considered, Judge Felts acknowledged it has to be a consideration, but again it goes back to balancing the factors that come into play. As a Supreme Court Justice, one must always consider balance.

When asked how explicit a new statute needs to be written to supersede common law, Judge Felts said that justices would prefer that statutes be written explicitly. This gives them more to "hang their hat on" when interpreting them.

When asked if he agreed with the thought of "doing what's right and then letting the law catch up," Judge Felts returned to his statement about the common law evolving gradually. Judge Felts also said there have been times in history when it was necessary to jump ahead a bit and let the law catch up. Big changes in the law, though, are best made in the Legislature.

When asked what he would do to move discussions forward on how to change or improve the structure of our courts to incentivize funding, for example, Judge Felts noted the movement in some counties to consolidate all courts and remove the distinction between circuit and superior courts. Judge Felts believes the Supreme Court has signaled a move towards a district court concept. He cited to problem-solving courts being absent in smaller counties because the smaller counties don't have a large enough need to devote funding to it but if we had district courts, problem-solving courts could be used for multiple counties in the same district, for example.

When asked what might be the most challenging thing for him personally if selected as a justice, Judge Felts cited the move to Indianapolis would be a challenge, but a good one. He believes being in Indianapolis is important in order to be present to establish good relationships. Judge Felts also said a change in perspective would be a good challenge as well, because it is different from the county-level. Judge Felts said his background would be an asset because he already is involved in administrative duties. But thinking about things on a broader level would be an exciting challenge.

When asked if he would be able to immediately start helping with the administrative tasks required of a Supreme Court Justice, Judge Felts answered, "From day one." He has been on the bench for 26 years, and has worked closely with the staff at the Indiana Judicial Center. He indicated that those relationships have been so important over the years, and the fact that he has worked with them for so long would give him instant credibility.

A personal note: when asked by the Chief Justice if he reads cases online or in books, he stated that he reads the Indiana Law Blog every day for the new cases.

When asked what his greatest weakness would be as a justice, Judge Felts said his lack of patience at times personally, but not professionally. After pausing for a minute, he said he talks too fast. And sometimes he feels that things don't move as quickly in court as he would like them to. He is a "stickler" about those things at times.

When asked for his parting thoughts, Judge Felts started by thanking the Commission for the opportunity. He said that he hopes they consider his energy, his skills, his relationships, and his preparedness, among other things.

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Round 2: Report on interview #12, Mr. Mark A. Lienhoop

This is Cara Wieneke's report on interview #12 of Round 2

Mr. Mark A. Lienhoop - Newby Lewis Kaminski & Jones LLP, LaPorte
(photo) (application) (first interview)

After being read the last line of the Oath of Attorneys, Lienhoop was asked about a time when he served to represent the poor or defenseless. He cited a case where he helped a child get spinal surgery at a reasonable cost. He also noted that he has never been a fan of doing completely free work. He believes that clients feel less embarassed if they pay some fee, no matter how nominal.

When asked about judicial interpretation of a statute, he said that some statutes are intentionally written vaguely so that the court will interpret it because legislatures cannot anticipate every kind of case that could arise.

Much of his interview was related to a question on whether he had ever changed his position on an issue after first advocating strongly for the other side. Lienhoop discussed at length several examples of cases where he advocated for a position that he did not himself agree with.

When asked about statutory caps on damages, Lienhoop cited to the Indiana Code of Judicial Conduct in saying he needed to be careful in answering that question because he cannot take a position. When asked not to take a positon but to explain the factors he would look to, Lienhoop cited the Due Course of Law provision of the Indiana Constitution as well as precedent, among other factors. Lienhoop mentioned, though, that in some cases the Court has correctly overturned a hundred years of precedent. He cited a case regarding the standard of care to be shown an invitee as just one example. Lienhoop also discussed the Court's decisions in Collins v. Day and Martin v. Richey.

In reference to a comment he made earlier, when asked if he has ever seen the floodgates of litigation, open Lienhoop says he has not, even given the litigation he handles.

When asked if he has any parting thoughts, Lienhoop said he saw this opportunity as a "humbling possibility" and that he has a set of experiences and skills that he believes would be an asset to the Court. He also said he fully enjoys talking about the law and going into schools to discuss the process, which he understands is part of the job as a justice.

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Round 2: Report on interview #11, Rep. Thomas W. Washburne

This is Cara Wieneke's report on interview #11 of Round 2

Rep. Thomas W. Washburne - Old National Bancorp, Evansville
(photo) (application) (first interview)

When asked about his unique perspective and how would he interpret a statute as a justice, he answered that as a legislator you are looking at what the law is and what the law ought to be. But as a justice, your goal is to look at what the law is. Consistency is also important, so reviewing precedent is important. If no precedent, then you should look to the common meanings of words.

When asked about looking at legislative history, Rep. Washburne said in Indiana you cannot. Once the law has been enacted, you look to the language.

When asked about claims with statutory caps, Rep. Washburne recited Article 1, Section 12 of the Indiana Constitution and said that the question becomes whether the cap still allows people the due process of law. It requires balancing behind the law's purpose and the victim's constitutional right to a remedy.

As a followup question regarding whether remedies should be capped against doctors but not against hospitals under premises liability, Rep. Washburne discussed the purpose behind med mal caps, demonstrating the balancing that is required.

When asked in a situation where a statute does not explicitly provide a specific legal right would he recognize one, Rep. Washburne said you have to consider the role of the Federal Constitution in this situation, as well as the fact that we do have certain rights that are not enumerated.

As a followup question, Rep. Washburne was asked whether recognition of a right that is not enumerated is best left for the Legislature. He stated that it is difficult to answer that question generally, although he said he was hard-pressed to recognize new rights himself.

When asked if he agreed with the statement that you do what is right and let the law catch up, Rep. Washburne said it is not an appropriate role for a justice to go outside the law, which is clearly what the question suggested; but he did clarify that when discussing a constitutional right, the answer could be different.

In one lighthearted moment, Rep. Washburne was praised for carrying a copy of the Indiana Constitution in his pocket. Rep. Washburne jokingly pointed out that it also had the House Rules in it as well.

When asked about how he would handle working with the other justices and reaching consensus, he indicated it is one of the wonders of life that people can disagree on things and yet still get along. He used the friendship between Justices Scalia and Ginsburg as an example.

When asked if there is technology that the Court should be using but isn't, he respectfully noted that some things used by the Court are "clunky" and could be improved upon, such as better searching capabilities.

When asked if he had any parting thoughts, Rep. Washburne said he believes diversity of life experiences is important. He said he has been blessed with a very eclectic career. He started off thinking he would be a patent lawyer and things changed. As a whole, he indicated he has been blessed with unique opportunities that give him a broad perspective on things, which would be of value to the citizens of Indiana.

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Gov't. - "Private university police bill likely to become law"

That is the headline to Margaret Fosmoe's story posted March 3rd on the South Bend Tribune site. The bill is HB 1022, the ILB last wrote about it March 2nd. From the SBT story:

A bill that would exempt police departments at the University of Notre Dame and other private colleges from following the same crime reporting requirements as public colleges appears likely to head to Gov. Mike Pence for his signature.

HB 1022, sponsored by state Rep. B. Patrick Bauer, D-South Bend, was approved 49-1 Tuesday by the Indiana Senate. It passed the House unanimously in January.

Bauer this week filed a concurrence, which signals agreement with a Senate amendment. The amendment states that a private university police officer will be granted the same protections and immunity for actions taken within the scope of their job as state police officers, and that private educational institutions and their governing bodies also would have the same statutory immunity granted to the state.

Only one legislator, state Sen. Liz Brown — a Republican from Fort Wayne and a 1980 Notre Dame graduate — voted against HB 1022. * * *

If no one in the Indiana House raises an objection, the bill is expected to be affirmed and sent to the governor.

The Hoosier State Press Association has been contacting legislators to point out that the measure — which was written in part by Notre Dame and Independent Colleges of Indiana — would not require private university police departments to face the same level of public scrutiny as other police departments, although private university police officers carry guns, arrest people and enforce state laws.

The measure would require the colleges to release some information about incidents that result in arrests or incarcerations for criminal offenses, which is a relative small number of cases on private campuses. The measure states that the colleges also would have to release crime information that already is required to be reported under federal law.

HB 1022 comes amid a court battle between ESPN and Notre Dame over the university's refusal to release records about possible crimes involving student athletes. A court ruling is expected in the next month or two.

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Indiana Government

Courts - Another story on the Hoosier native mentioned for SCOTUS

Updating this ILB post from Feb. 22nd, here is another story, this one an AP story appearing in the Michigan City News-Dispatch, on CA 8 Judge Jane L. Kelly. It is headed "Kelly is rare federal judge with public defender background," and begins:

KANSAS CITY, Mo. (AP) — As a federal appeals court judge, Jane L. Kelly has an unusual background: She's a criminal defense lawyer and a Harvard Law School classmate of President Barack Obama.

A Fulbright scholar, Kelly became only the second woman named to the St. Louis-based 8th U.S. Circuit Court of Appeals, in 2013, after nearly two decades as a federal public defender in Iowa.

Now, her name is on many short lists as a possibility to replace Supreme Court Justice Antonin Scalia, who died last month.

Her appointment to the appeals court was swiftly confirmed on a Senate vote of 96-0, supported by Iowa Republican Sen. Chuck Grassley, the chairman of the Senate Judiciary Committee who now is vowing to block any attempt by Obama to appoint a Scalia replacement.

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Courts in general

Vacancy on Supreme Court 2016 - Round 2, Day 2 Schedule

March 4 (Friday)

9:30 a.m. – 10:00 a.m. – Rep. Thomas W. Washburne
(photo) (application) (first interview)

10:00 a.m. – 10:30 a.m. – Mr. Mark A. Lienhoop - Newby Lewis Kaminski & Jones LLP, LaPorte
(photo) (application) (first interview)

10:30 a.m. – 11:00 a.m. – Hon. Thomas J. Felts - Allen Circuit Court, Fort Wayne
(photo) (application) (first interview)

(Break)

11:15 a.m. – 11:45 a.m. – Mr. Thomas E. Wheeler, II - Frost Brown Todd LLC, Indianapolis
(photo) (application) (first interview - 3rd in entry)

11:45 a.m. – 12:15 p.m. – Mr. Geoffrey G. Slaughter - Taft Stettinius & Hollister LLP, Indianapolis
(photo) (application) (first interview - 2nd in entry)

12:30 p.m. – JNC Lunch and Deliberations in Executive Session

Posted by Marcia Oddi on Friday, March 04, 2016
Posted to Vacancy on Supreme Court - 2016

Thursday, March 03, 2016

Vacancy on Supreme Court 2016 - Round 2: Report on interview #10, Hon. James R. Ahler

This is Prof. Joel Schumm's report on interview #10 of Round 2

Hon. James R. Ahler - Jasper Superior Court, Rensselaer

(photo) (application) (first interview)

In addressing challenges to the trial courts, Judge Ahler first discussed the importance of funding public defenders and ensuring quality public defenders. Chief Justice Rush followed up for specifics, and Judge Ahler said equal justice under the law requires asking for more funding. Trial courts also require more funding and more access to interpreters. Indiana should also do a better job of matching senior judges with the needs in the state. Finally, Judge Ahler discussed the importance of trial judges using more modern technologies as the Supreme Court does. He does not support cameras in the courtroom, citing domestic relations and protective order cases where people are terrified to be in Court and may not go to Court if cameras were there.

When asked about a public defender brochure that referred to the overwhelming power of the police and prosecutor, Judge Ahler said self-represented litigants may see it that way. Some people do not have trust in our justice system because of their past experiences.

In addressing the role of government to require a private citizen to assist the government in an investigation, Judge Ahler said the government is “for” the people—not the other way around.

Asked about medical malpractice caps, Judge Ahler said he would respect that the General Assembly has created a cap. A judge’s role would be to apply the law to the facts. Judges should not legislate from the bench.

Statutes should be “very explicit” to overrule common law. Common law is developed over a long period of time, in increments, and is entitled to respect.

If he was addressing a class of sixth graders, Judge Ahler would describe the three tiers of the court system and explain that most cases are resolved in the trial courts, which resolves most cases and do the heavy lifting.

In response to a quote about limits on stare decisis in light of common law addressing the changing needs of society, Judge Ahler said he firmly believes in judicial minimalism. Courts should limit their responses to the issues before them. Judges can develop the common law, incrementally.

In response to the question about doing what is right and letting the law catch up, Judge Ahler said judges should always do what is right, but following the law—not a judge’s own beliefs—is what is right.

In response to a question about explaining the reasons for losses to litigants, Judge Ahler said “using a little sugar” from the bench goes a long way, especially in family law cases.

When asked about the first thing he would want to change if selected, Judge Ahler said the Court is an institution and its strength relies on its collective wisdom. A new justice should arrive with patience and humility. The new justice should arrive with their ears open. He has ideas for change, but only in time. One thing he would eventually want to address is ensuring that indigent defendants have quality counsel. Better lawyers lead to better results, and the cases are less likely to come back.

In his final two minutes, Judge Ahler mentioned the importance of leadership, teamwork, and collegiality. He emphasized the “right experience” for the Court at this time should consider the collective wisdom and experience currently on the Court. Although he has not been on the bench as long as some others, he would offer a balanced portfolio, having practiced for a decade and spent a decade in the judiciary (hearing both criminal and civil cases—and drafting opinions as a clerk).

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Round 2: Report on interview #9, Hon. Matthew C. Kincaid

This is Prof. Joel Schumm's report on interview #9 of Round 2

Hon. Matthew C. Kincaid - Boone Superior Court 1, Lebanon

(photo) (application) (first interview)

When asked about the final sentence of the Oath (not rejecting the cause of the defenseless), Judge Kincaid said he makes those determinations on a daily basis, offering counsel in indigent criminal cases in close cases. As a lawyer, he participated in the “Ask a Lawyer” line.

If a statute or constitutional provision does not mention a specific right, Judge Kincaid said the common law may provide a right or remedy. If the Legislature has made a decision different from the common law, the legislative determination should prevail.

Asked about his mentors, Judge Kincaid mentioned Jim Riley and the way in which he conducted himself as well as Justice David, with whom he spent eight years on the trial bench in Boone County. He has been able to model traits from his mentors. If he joins the Court and has an opinion different from Justice David, Judge Kincaid said he will have his ideas and, to laughter, “will not get pushed around by his mentor.”

In discussing doing what is right and letting the law follow, Judge Kincaid said he follows the law and lets the process play out. Mr. Berger followed up and asked about Brown v. Board of Education. In applying his judicial philosophy, Judge Kincaid said there may have been some reluctant votes in the 9-0 ruling and that it is important for the Court to come together on important issues.

If selected for the Court, the first three people who would call would be his wife, his father, and Pete Obremskey (a lawyer in Lebanon).

Asked about factors he would consider regarding statutory caps on damages, Judge Kincaid said the medical malpractice caps were adopted in light of the many good things medicine does. Judge Kincaid said he does not know the point at which a cap denies a person a remedy as promised by the Indiana Constitution. Judge Kincaid also mentioned the protections of the Privileges and Immunities Clause.

In discussing how explicit a new statute must be to supercede common law, Judge Kincaid said he would rely on how counsel frames the issue and examine the way in which the statute was written.

If he was addressing a sixth grade class, he would explain the three different levels of courts (trial, appellate, supreme) and that the supreme court’s role is to decide which cases it should hear and provide oversight of all the trial courts.

Mr. Feighner noted that Justice Dickson has served long enough to see dissenting opinions become majority opinions and majority opinions become dissenting opinions. Asked about the audience for a dissent, Judge Kincaid said he would always be respectful of the majority and would be speaking to the future if a case is slightly different case arose. Dissents should not “gas up” attempts to relitigate the issue.

In his final two minutes, Judge Kincaid thanked the Commission members and finished early.

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Round 2: Report on interview #8, Hon. Steven L. Hostetler

This is Prof. Joel Schumm's report on interview #8 of Round 2

Hon. Steven L. Hostetler - St. Joseph Superior Court, South Bend
(photo) (application) (first interview)

Asked about the final sentence of the Oath for attorneys, Judge Hostetler said before joining the bench he and his firm won the county’s pro bono award. Asked to discuss a specific cases, he mentioned a case where a woman was thrown out of her home and lost all of her possessions.

Asked about a quote from a public defender brochure about the overwhelming power of the police and prosecutors, Judge Hostetler said it probably feels that way to the accused. Judges have an obligation to make sure everyone understands the judicial system works for them. He cited the recent Willford case as an example of the court reining in police power.

Taken back to Brown in 1954, Judge Hostetler said judicial restraint, cited in the previous interview, must be balanced with judicial responsibilities. He would have joined the Court’s unanimous opinion. He mentioned appellate sentence review as an example in this same category.

In discussing technology, Judge Hostetler said he practiced in federal court before taking the bench and looked forward to St. Joe County joining state e-filing. He embraces technology and just FaceTimed with his grandchildren last night.

Asked about what blogs he follows, Judge Hostetler regularly follows the IndianaLawBlog and the Indiana Lawyer app on his phone. “I hope we can save the IndianaLawBlog.” [Outside of official interviews, I have heard several similar comments today.]

If a term is not defined in a statute, Judge Hostetler would look to his own experience, dictionaries, legislative history, and precedent.

Asked about doing what is right and letting the law catch up, Judge Hostetler said he does not “entirely agree” with the statement. When judges try to decide what is right, especially in conflict of precedent, problems arise.

Asked about Socrates’ four attributes, Judge Hostetler said considering soberly was something he had to learn when he took the bench and transitioned from an advocate but this was pretty easily done. He said being a good listener was the easiest of the four.

In discussing statutory caps, Judge Hostetler said he would consider whether damages awarded were similar to the damages in other cases.

Asked how explicit a statute must be to overrule common law, Judge Hostetler said “not terribly.” He later said the common law should be not be replaced more than it needs to be.

In the final two minutes, Judge Hostetler said he would like to join the Court to address big picture issues that affect our profession and society.

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - 7th Circuit decides one Indiana case today, re I-69 extension

In Citizens for Appropriate Rural Roads v Anthony Foxx (SD Ind., Barker), a 20-page opinion, Judge Bruce (CD Ill., sitting by designation) writes:

This case involves the extension of Interstate 69 (I-69) in Southern Indiana. The extension, which will connect Evansville and Indianapolis, has evolved over several decades and is scheduled to be completed in the coming years. Plaintiffs filed a complaint on August 1, 2011, raising several challenges to the extension. The district court dismissed part of Plaintiffs’ complaint when ruling on Defendants’ motion to dismiss, and granted summary judgment in favor of Defendants on all other counts. We affirm.

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court decides one today

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

While Newland McElfresh was in jail awaiting his guilty plea hearing, he wrote an intimidating and coercive letter to the mother of the child victim who was the subject of the child molestation charges McElfresh was intending to plead guilty to. The letter and the surrounding circumstances provided sufficient evidence to support a conviction for attempted obstruction of justice. A reasonable trier of fact could have concluded that McElfresh’s intent in sending the letter was an attempt to influence the child into changing her prior allegations against him before the court accepted his guilty plea. Regardless of whether some of the statements within the letter were true, true statements may still be coercive and sufficient to support an obstruction of justice conviction. We also hold that the trial court should have considered McElfresh’s participation in various programs while incarcerated as a mitigating factor, but any error was harmless. As such, McElfresh’s conviction for attempted obstruction of justice and sentence are affirmed. * * *

McElfresh appealed his convictions and sentence. The Court of Appeals held that there was insufficient evidence to support McElfresh’s conviction for attempted obstruction of justice, explaining that “McElfresh essentially told T.W.’s mother that if T.W. intended to lie under oath, she would face legal consequences for the dishonesty. That is simply the truth. We cannot believe that in the State of Indiana it can constitute a crime to make a true statement, even if the subject matter of the true statement involves the future testimony of a witness in a criminal proceeding.” McElfresh v. State, 40 N.E.3d 1259, 1262 (Ind. Ct. App. 2015), vacated. The court also held that because there was no evidence that A.W. talked to T.W. upon McElfresh’s direction, the communication was incomplete. Id. at 1263-64. The invasion of privacy conviction was vacated, and the case remanded with instructions to enter a judgment for attempted invasion of privacy. Id. The court did not address McElfresh’s sentencing argument, but rather instructed the trial court to enter a new sentence based only on the conviction for attempted invasion of privacy. Id. at 1264.

This Court granted transfer, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A). We summarily affirm the Court of Appeals only on the issue of vacating the invasion of privacy conviction and ordering a judgment of Class A Misdemeanor Attempted Invasion of Privacy be entered. See Ind. Appellate Rule 58(A)(2). * * *

Conclusion. We hold that there was sufficient evidence to support McElfresh’s conviction for attempted obstruction of justice. We also hold that the trial court failed to properly acknowledge a mitigating factor, but that any error was harmless. We affirm McElfresh’s sentence of 600 days. This case is otherwise remanded in accordance with the Court of Appeals opinion, directing that McElfresh’s conviction for invasion of privacy be vacated, and a judgment of conviction on attempted invasion of privacy be entered. We instruct the trial court to resentence McElfresh on attempted invasion of privacy, but advise that both sentences should continue to run consecutively to McElfresh’s sentence in cause 32D03-1211-FC-000144.

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Ind. Sup.Ct. Decisions

Vacancy on Supreme Court 2016 - Round 2: Report on interview #7, Hon. Frances C. Gull

This is Prof. Joel Schumm's report on interview #7 of Round 2

Hon. Frances C. Gull - Allen Superior Court, Fort Wayne
(photo) (application) (first interview)

Asked about the power to review sentences under Appellate Rule 7(B) as a trial judge and potential supreme court justice, Judge Gull said she did not believe any of her sentences had been reduced but welcomed the review. She believes the duty of the higher court is “to look at the bigger picture.” As a trial judge she is focused on the individual before her, as an appellate judge she would be tasked with “leavening out the outliers.” She knows the Supreme Court gives great deference in those decisions.

Asked about statutory caps, Judge Gull said she would look to the statute and case law. If a matter of first impression, she would look to surrounding jurisdictions or federal cases.

She believes a statute needs to be “extremely explicit” in overruling common law. She reiterated from the last interview that she is a “rules follower.”

If the Constitution or statute does not recognize a specific right, Judge Gull said it is important to look at the intent behind the provisions to see if can be extrapolated.

Asked about pretrial publicity, Judge Gull said venue might need to be changed (and was able to get a jury in a week in the recent Richmond Hill case in her court). Jurors take the oath very seriously and do not follow media accounts.

Asked if judges should do what is right and let the law catch up, Judge Gull agreed “to some extent.” She cited drones, adoption law, and medical malpractice caps as areas where the law may need to catch up. She said courts should point out to the Legislature where it may need to change something.

Mr. Berger later followed up and asked about the meaningfulness of sentence review since sentences could not be increased. Judge Gull politely corrected him, noted that sentences can be increased on appeal but then incorrectly stated that the Court of Appeals had done so in one case and was upheld. [Akard was increased by the Court of Appeals but returned to the original sentence when reviewed by the Indiana Supreme Court.]

She said it is critical to be in Indianapolis. She and her husband discussed the issue last night, and she said ultimately they would move if selected.

In discussing technology, Judge Gull said she only recently switched to an iPhone from a “flip phone.” She surrounds herself with brilliant, technologically astute people and takes their advice when offered.

Asked why she wanted to be on the Indiana Supreme Court, Judge Gull said she has been a public servant her entire professional life and serving on the Indiana Supreme Court is the pinnacle or ultimate job. She would bring the same hard work.

Asked how she would describe the function of the court to sixth graders, she said she speaks with fourth graders regularly in Allen County. Folks in the community have disagreements, which they bring to court to be decided. No one is usually happy.

If she joins the court and becomes a generalist, Judge Gull would find answers “in the books” and previous cases. She would speak with colleagues, like the Chief Justice on issues of juvenile law. She enjoys learning new things and welcome the opportunity to expand her wings.

In the final two minutes, Judge Gull thanked the Commission for all the time and the privilege to be considered. Being here and part of the process has been “so cool.”

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Round 2: Report on interview #6, Hon. Darrin M. Dolehanty

This is Prof. Joel Schumm's report on interview #6 of Round 2

Hon. Darrin M. Dolehanty - Wayne Superior Court 3, Richmond
(photo) (application) (first interview)

Chief Justice Rush began by asking about the circumstances under which a sentence should be reviewed (citing Appellate Rule 7(B)), Judge Dolehanty responded, “as a trial court judge, I hate it.” (He said he thinks his trial judge colleagues generally agree.) It’s the province of the trial court to get it right it. These decisions are not taken lightly. The opinions “seem to come in waves,” and it bothers him because they “try so hard to get it right.” He understands and respects the authority and realizes the rule should be kept in place.

Asked whether private citizens have an obligation to assist in governmental investigations, Judge Dolehanty responded to considerable laughter, “Welcome to the second round!” He mentioned the pending iPhone case in southern California then concluded more broadly in the absence of the right being relinquished as part of the Constitution that he does not think the government has legitimate authority to require assistance.

Asked about statutory caps on damages, Judge Dolehanty noted that malpractice caps are currently being considered by the Legislature and mentioned recently reading a law review written shortly after the malpractice cap was enacted, which discussed whether the reasons for it were legitimate. He noted that the caps have been upheld in the past but wondered if they might be constitutional now, as one of the lowest in the nation, in light of inflation.

Asked how explicit a statute must be to overrule common law, Judge Dolehanty said sometimes “it’s safe to go with your gut.” After criminal code reform in 2014, judges had good training, which included the preamble of the statute, which addressed things like the doctrine of amelioration.

In discussing his mentors, he mentioned a judge who taught at IU and Dean Frank Motley. Early in practice, he landed a job with the best firm around with top-notch “old school” attorneys, who taught him a lot about professionalism and collegiality. He also mentioned Judge Williams (now counsel for Ball State) and Judge Snow. He asked if he had gone too long, and Mr. Feighner responded, “it’s your interview.” Judge Dolehanty continued with the names of some of the judges who helped him shortly after taking the bench, including Judge Penrod and Justice David.

If not a judge, Judge Dolehanty would like to be a “professional ball player but doesn’t have the skills.” He later responded more seriously that he would like to teach and currently does teach at the undergraduate level. Asked what he would teach, Judge Dolehanty mentioned the law and English.

Judge Dolehanty starts court each day with the Pledge of Allegiance and introduces his court staff. He began those traditions from Judge Nancy Gettinger. He said it is a nice way to start the day, and no one has ever objected.

In response to a question from Mr. Berger about the role of the Supreme Court in establishing a mandatory state public defender system, Judge Dolehanty said he hopes the Supreme Court would not have to get involved. He said the public defender problems should be fixed in the local counties. If they don’t, they allow someone from outside to come in and fix. He said Wayne County has funded its system (although not part of the Public Defender Commission) but some neighboring counties face challenges.

In the final two minutes, Judge Dolehanty said he was reading a book about Jackie Robinson and noted the value of a life can only be measured by the influence it has on other lives.

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Round 2: Report on interview #5, Hon. Paul R. Cherry

This is Prof. Joel Schumm's report on interview #5 of Round 2

Hon. Paul R. Cherry - Magistrate Juddge, USDC, ND Ind., Hammond
(photo) (application) (first interview)

Asked for an example of advancing the cause of the oppressed (from the Oath), Judge Cherry noted that he practiced law in Dekalb County before becoming judge. He represented a man with some mental health issues in a few cases. Although he billed him, the man could not pay. The man did drop off tomatoes he had grown at his home.

Asked about statutory caps, Judge Cherry said they are up to the legislature. He is hesitant to offer a personal opinion because the issue could come up later.

If speaking to a group of sixth graders, he would discuss the trial court process and how a case makes its way to the Indiana Supreme Court and what happens there (arguments, discussing cases, issuing opinions).

Asked if there are victimless crimes, Judge Cherry said some crimes have individual victims but the body politic is the victim of other crimes. If there is a specific victim, the judge should hear from them. If there is not, the judge should consider the impact on the community as a whole.

Asked how explicit a new statute must be to supercede common law, Judge Cherry said it must be specific enough to put everyone on notice. “It needs to be specific.”

Asked what factors should be relied upon in interpreting provisions of due process, equal protection, and unreasonable searches and seizures under the federal and state constitution, Judge Cherry said those are “sacrosanct rights” and he would consider the same factors for each. [This seems like a missed opportunity to discuss the differences between the U.S. and Indiana Constitutions.]

Asked why he moved from the federal bench in 2003, he mentioned among other things that serving as a federal magistrate can be a bridge to a federal judgeship, although that did not work out with Presidential politics.

Asked about changes that could be made at the Indiana Supreme Court, Judge Cherry said he thought the court was doing an “excellent job” and would want it to keep going as it is.

Asked about economic considerations in making a decision, Judge Cherry said judges should apply the facts to the law and not overreach and consider other things or make the law.

Asked about doing what is right and letting the law catch up, Judge Cherry said a judge should say what the law is and not what it should be. He said the Indiana Supreme Court has done an excellent job in this regard.

Judge Cherry would be happy to assist in any administrative duties. He had prepared a list of twelve items, which Mr. Feighner asked him to share. Judge Cherry noted concerns with court funding, dealing with pro se litigants, whether there should be a statewide public defender system, and vanishing civil jury trials (which he described as “regrettable”).

If a case presents a close question about recognizing a constitutional right, Judge Cherry said the legislative process should address it. Mr. Berger followed up asking about Brown in 1954, Judge Cherry said that is a “difficult question.” Judge Cherry said he would like to think he would be in the majority, but that was not the law at the time. He would like to think that treating everyone equally would trump.

Asked about looking at other states constitutions, Judge Cherry said if not addressed in the Indiana Constitution, those constitutions “might provide a good idea” to follow.

Asked about his mentors, Judge Cherry said he joined a two-member firm that became a three-member firm early in his practice, and those lawyers mentored him in many ways. Judge Probst, in a neighboring county, became a mentor when he joined the bench. He also learned from a couple other judges what not to do.

Judge Cherry said joining the Indiana Supreme Court would be an “immeasurable honor” and wonderful opportunity for continued public service.

In the final two minutes, Judge Cherry said he had speed-read all the applications and sees six ways he is different: (1) depth of judicial experience and “none of the other applicants have that much judicial experience, (2) breadth of judicial experience (15 years as a state judge and 12 as a federal judge), (3) mediation experience (150 settlement conferences), (4) experience writing appellate opinions (in social security disability appeals), (5) depth of teaching experience (acknowledging that other applicants had experience but not as much as his 31 years), and (6) geographic breadth (noting that the largest Northwest Indiana and largest Northeast newspapers each ran articles about his application as a local, believing he was from their area).

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Round 2: Report on interview #4, Mr. Thomas M. Fisher

This is Prof. Joel Schumm's report on interview #4 of Round 2

Mr. Thomas M. Fisher - Indiana Solicitor General, Indianapolis
(photo) (application) (first interview)

In response to Chief Justice Rush’s question about challenges faced by trial courts, Mr. Fisher mentioned pro se litigants—the need to give them their due without clogging up courts with frivolous claims. His experience in the Attorney General’s office could help with this because his office deals with many pro se litigants. He likes to think of himself as an open-minded person and has been involved on a Seventh Circuit committee on the pro se issue. Other challenges include balancing criminal and civil litigation. He is optimistic that commercial courts will be a success. When pressed if they will entice businesses to be in Indiana, he responded he “hasn’t the slightest idea” what leads a company to decide where to locate.

In response to a question about statutory caps on damages, he said he could not offer a “constitutional view in this setting” but he has defended them. As to malpractice limits, he said it “speaks well about Indiana” that we are currently having a legislative discussion about it.

If a statute or constitution does not mention a specific right, Mr. Fisher said he could not give an abstract answer. Cases look to the text, structure, and history of the provision and determine if it necessary in ordered liberty.
Asked if there are victimless crimes by Mr. Tinkey, Mr. Fisher said “crimes are crimes.” He said he “does not know” but every crime is a crime because of serious public fall-out.

Mr. Feighner noted that Mr. Fisher is one of four Marion County applicants (Rusthoven, Slaughter, and Wheeler) with strong appellate advocacy experience. Mr. Fisher did not compare himself to the others but noted his extensive briefing and argument experience in the Indiana courts, Seventh Circuit, and U.S. Supreme Court. Asked about the importance of briefs versus oral arguments, Mr. Fisher said Judge Kanne has said argument makes a difference in about 15% of cases. Mr. Fisher sees argument as an important opportunity for a formal discussion of the case that leads to better decision making.

If a case involves a close call about recognizing a right, Mr. Fisher said the question could not be answered in the abstract. He said we have a lot of liberty in a free and open society and must ask if something allows for government regulation.

Mr. Berger asked if Mr. Fisher’s adherence to originalism would put him in majority in Brown v. Board of Education in 1954. Mr. Fisher began by saying that “commenting on specific cases is not a great way” to get at this. He said a case could be made for originalism in the majority’s approach. At the time of ratification of the Fourteenth Amendment, the manner in which races would be treated was a broad idea. Mr. Feighner later followed up on the issue, asking if it was proper for the Supreme Court to reconsider original intent in 1954 after it was decided by an earlier Court, with which Mr. Fisher agreed. Nevertheless, he explained without stare decisis, we don’t know what the law to follow is. The more important or more fundamental the question, the more important it is to get it right.

In deciding issues involving common law, Mr. Fisher said courts should proceed by increments. Asked about the salient parts of his background, Mr. Fisher said he could not say he would rule a certain way because he grew up in a small town, for example. “This is really an impossible question, unfortunately.” He said the overriding consideration is the rule of law and principled decisionmaking.

In making a presentation about the purpose of the Indiana Supreme Court to a sixth grade class, Mr. Fisher would start with that the purpose of the courts in general is to resolve disputes. Those decisions can be appealed and end at the Indiana Supreme Court.

Asked what he did last night before the interview (Mr. Berger mentioned watching Steven Colbert), Mr. Fisher said he read part of a biography of Justice Scalia. Mr. Berger noted criticism of too much testosterone in appellate opinions, including sports analogies, and asked for a term from baking that could be used instead. Mr. Fisher said the term “half-baked” comes to mind.

If faced with a disagreement in resolving a case, Mr. Fisher said he would walk down the hall and talk it out. He “loves constructive criticism” and being told why he is wrong. Asked for an example, he said he had a particular strategy in mind in a case, which could have been expensive and difficult, but he was convinced to take a less complicated and less expensive path. He loves that interchange of ideas.

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Vacancy on Supreme Court - 2016

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

For publication opinions today (1):

In Caterpillar Inc. v. William Sudlow, a 9-page opinion, Judge Baker writes:

Caterpillar, Inc., appeals the trial court’s order granting summary judgment in favor of William Sudlow. Sudlow was a Caterpillar employee who was fired after another employee observed a partially visible gun in Sudlow’s vehicle in the Caterpillar parking lot. The trial court entered summary judgment in Sudlow’s favor because it found that Caterpillar’s policy did not prohibit the conduct for which Sudlow was fired. Finding that Sudlow is not entitled to relief under statute or common law, we reverse the summary judgment order and the damages award and remand with instructions to enter summary judgment in favor of Caterpillar. * * *

According to the plain and unambiguous language of the statute, the reasonable and responsible possession of firearms—the protected activity—is defined as a firearm that is locked in the trunk, kept in the glove compartment, or stored out of plain sight in the employee’s locked vehicle. Here, Sudlow’s conduct did not fall into that category; as a result, it was not protected by the Firearms Statute.

Caterpillar’s Firearms Policy did not prohibit statutorily protected conduct. Furthermore, its interpretation of its Firearms Policy also did not prohibit protected conduct. Consequently, Sudlow is not entitled to relief under the Firearms Statute. * * *

The Firearms Statute is the best expression of Indiana’s public policy regarding the right to transport and store firearms at work. And while this statute does confer a right to store a weapon in a trunk, glove compartment, or out of sight in a locked vehicle, it simply does not confer a right to store a weapon in a vehicle in plain sight. It is apparent, therefore, that in this case, there was no contravention of a clear statutory expression of a right. As a result, the public policy exception to the employment-at-will doctrine does not apply, and Sudlow is not entitled to relief under the common law.

The judgment of the trial court is reversed and remanded with instructions to enter summary judgment in favor of Caterpillar.

NFP civil decisions today (4):

In the Term. of the Parent-Child Relationship of: Z.S. (Minor Child) and M.S. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

Mark Kramer v. Thomas Kramer (mem. dec.)

Elaine Adams v. Heather Stavropoulos (mem. dec.)

Kenneth W. Gibbs v. Wendy Knight, Lieutenant B. St. John, Mr. Helming, and Robert Fox (mem. dec.)

NFP criminal decisions today (1):

Gordon Childress v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Ind. App.Ct. Decisions

About the ILB - A letter from a reader

The ILB has received many kind tweets and emails since the announcement March 1st ("ILB will go dark the end of March").

But this one particularly touched me because it indicates the ILB really has been achieving its objectives:

Ms. Oddi,

I wanted to email you to let you know how useful your blog was to me as a new attorney. I bookmarked your blog and would check on it regularly, amazed that one person could keep track of the many different topics you bring up here daily. The breadth of the topics you address every day defies what I was taught – that attorneys can know a lot about one very specific topic but only a little about everything else. Your blog will be missed by one unimportant attorney. Just know that you’ve inspired me to keep learning and keep researching and keep paying attention to things outside my bubble.

All I can offer is my gratitude. Thank-you for all the hard work you’ve done.

Becky Hollenberg | Attorney – Victim Services, St Joseph and Elkhart Counties

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to About the Indiana Law Blog

Ind. Gov't. - Johnson County "prosecutor seeks re-election by bragging about 'proudly over-crowding our prison's"

That is the headline to this post by Ohio law prof Douglas A. Berman, of the respected Sentencing Law blog. It begins:

As reported in this Reason blog posting, a local prosecutor in Indiana is pursuing reelection by bragging about being proud to overcrowd the state's prisons. The full headline of the posting, along with the picture, provides the essentials of this notable story: "Indiana Prosecutor Bradley Cooper Is 'Proudly Over-Crowding our Prisons': Cooper's new campaign flyer brags about the people he's put in prison for decades over drug sales and minor theft." Here is more from the blog post about this local prosecutor and his record:
As American conservatives and liberals alike embrace criminal justice reform, those opposed are blatantly bragging about their overcriminalization agendas. One particularly gross example: a new campaign mailer from Johnson County, Indiana, Prosecutor Bradley D. Cooper, which announces that he has been busy "proudly over-crowding our prisons."

The flyer also features mugshots from convicted criminals, along with what they were found guilty of and what prison sentence they were given. It includes a man who was sentenced to 40 years in prison for selling meth, a man convicted of manslaughter who died while in prison, and a man who received a 40-year sentence for burglary.

In the latter case, William A. Russell was arrested after breaking into someone's home and stealing $52. For that offense, he was sentenced to 20 years in prison. A trial court also determined that he was a "habitual offender," which qualified him for a sentencing enhancement of 20 years.

ILB: That is only the beginning, see the post for more.

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Indiana Government

Vacancy on Supreme Court 2016 - Round 2: Report on interview #3, Hon. Steven R. Nation

This is Prof. Joel Schumm's report on interview #3 of Round 2

Hon. Steven R. Nation - Hamilton Superior Court 1, Noblesville
(photo) (application) (first interview)

Chief Justice Rush began by quoting the final line of the Oath of Attorneys and asked for an example where Judge Nation advanced the cause of the oppressed or helped those who could afford a lawyer, Judge Nation said earlier in his practice he saw a young man was crying because his license was suspended. The court was closed because of a snow day; Judge Nation took his case and got his license back.

When a term is not defined in a statute or constitution, Judge Nation said he would look to the word itself to see if it has a common meaning or a meaning derived from other parts of the statute or Constitution. If a constitutional term, historical documents, like the Northwest Ordinance, should be consulted. Judges need to fulfil the intent of people (Constitution) or legislature (statutes).

Asked about building and maintaining relationships with trial judges as a justice, Judge Nation said justices currently travel the state and noted that people may ask something over a cup of coffee that they would not at a formal meeting.

Asked about how explicit a statute must be to supercede common law, he said it must be specific enough that it would eliminate common law. He cited Stanley v. Walker, mentioning Justice Dickson’s dissent in particular.

Asked by Mr. Berger about the role of stare decisis in a case of first impression, Judge Nation said there was a joke that he was getting all the cases in Hamilton County where there was no precedent. He cited an example of a case involving an agent of an insurance company that required him to look at a case from 1870.

Asked by the Chief Justice about cameras in the courtroom, Judge Nation paused a bit, then the Chief Justice said he could give pros and cons. He joked, “I look heavier on TV.” He said he likes it the way it is now but would be open to discussing it further. He expressed concern about costs and that the privacy of individuals in the courtroom is protected.

Asked by Mr. Christie about statutory caps on damages, Judge Nation said the issue has never come before him and that juries do a good job in assessing damages. He said in all of his trials, he did not understand the jury’s verdict in only two cases (both civil) but then understood after talking with the jurors.

Asked how he would describe the Supreme Court of Indiana to sixth graders, Judge Nation said he would emphasize that we are all bound by the rule of law and want people to come to courts for justice; this is their government. Chaos would abound if people took the law into their own hands.

Asked about making tough decisions (and decision-making) as a trial judge, Judge Nation said child custody and terminating parental rights are especially tough. He said long or LWOP sentences are difficult. Judges need to do their duty and preserve the rule of law. He noted that few cases are appealed and few of those are reversed, which means trial judges are the Supreme Court in most cases.

Asked by Mr. Yakym if there is a close question about whether the constitution provides a right, should judges recognize the right? Judge Nation said the Constitution should be followed and judges not create a right. Mr. Berger followed up and asked if there would be integration in 1954 under that approach, and Judge Nation said no. “They should have followed the Constitution.”

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Round 2: Report on interview #2, Hon. Vicki L. Carmichael

This is Prof. Joel Schumm's report on interview #2 of Round 2

Hon. Vicki L. Carmichael - Clark Circuit Court 4, New Albany
(photo) (application) (first interview)

Building strong relationships between the bench and nearly 19,000 lawyers in the state. She noted she is an active member of the local bar association and Sherman-Minton Inn of Court.

Ms. Long asked about considering the economic ramifications of a decision, Judge Carmichael noted in a pending death penalty case where she moved an inmate to the Department of Correction where he could get services not available in the county jail, even though the sheriff objected to the added cost.

Asked about Justice Marshall’s quote about the law catching up, Judge Carmichael said she did not know of an area where the law needed to catch up, although early in her practice the law needed to catch up with the Internet, citing an example of internet child solicitation involving a police officer pretending to be a child.

In response to a question about her experience as a law clerk before the Kentucky Supreme Court, Judge Carmichael said she learned how to look at and focus on the issues. In response to a follow up question about the importance of oral argument, Judge Carmichael said it can make a difference in cases with a constitutional issue or close cases, noting that Kentucky scheduled oral argument more frequently in criminal cases than in civil cases.

Asked by Mr. Yakym if judges should recognize a right in a case involves a close call about a constitutional right, Judge Carmichael said judges should err on the side of recognizing rights.

Asked by Mr. Berger about deference to administrative decisions, which is greater than that to trial courts or juries, Judge Carmichael said she believed great deference is given to both trial courts and administrative agencies.

If selected, Judge Carmichael would move to Indianapolis. She thinks it is important to be present in the building and working with colleagues on decisions and the administration of the judiciary.

Asked about social media, Judge Carmichael said she is not on Facebook. To laughter, she said “if anyone wants to stalk me, they could just follow my sister’s Facebook page.” She had read the ILB. She gets news and information from NPR; she flips between CNN and Fox News.

Asked about talking to grade school students, Judge Carmichael discussed the importance of rules, like going to school, and noted the Supreme Court gets the last word like Mom and Dad getting the last word in issues at home.

If not a lawyer or judge, Judge Carmichael would teach—at a community college or college level. She teaches some now, including now for the Judicial Center. She gets more out of teaching than listening because she must learn the material first.

Asked about building a consensus, Judge Carmichael discussed the unification of the Clark County judiciary and how it would help the courts and citizens. She said the judges compromised and collaborated, which worked well. She was elected presiding judge in 2012. She noted that law clerks were able to observe conference discussions at the Kentucky Supreme Court, from which she learned a lot.

Asked about the jury trial system and trust in juries, Judge Carmichael said juries are a “vital part of the system” and sometimes “it takes a jury showing up to get a defendant to plead guilty.” She talks to jurors after a trial. They often say they didn’t want to be there when it started, but they end finding it a positive experience. They take their oath seriously. They do not consider issues when they are told they cannot.

In the final two minutes, Judge Carmichael said she would bring the passion and commitment from the trial court to the Supreme Court. She thanked the Commission for all the time they put into the process.

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Round 2: Report on interview #1, Mr. Peter J. Rusthoven

This is Prof. Joel Schumm's report on interview #1 of Round 2

Mr. Peter J. Rusthoven - Barnes & Thornburg LLP, Indianapolis
(photo) (application) (first interview)

Chief Justice Rush quoted final line of oath of attorneys about taking cases of the defenseless, and Mr. Rusthoven discussed a case in which the Salvation Army won in the trial court but could not afford to defend the judgment on appeal. He and his firm took the case pro bono.

Asked to finish the sentence: “The role of an Indiana Supreme Court justice . . . “ Mr. Rusthoven emphasized administering justice fairly without wealth or party of position in life. Meeting with trial court judges and innovating with things like problem solving and commercial courts.

Mr. Christie asked about his “civil conversation” about RFRA at McKinney Law School. Mr. Rusthoven discussed the history of federal RFRA protections in the Supreme Court and Congress. He expressed surprise at the reaction to Indiana’s RFRA and shortly after wrote a column, which led to the invitation to speak. He emphasized the importance of discussing issues civilly and respectfully. When asked if people with an opposite opinion are based in law or emotion, he said it can sometimes be both.

Ms. Long asked if the Constitution or statute doesn’t mention a specific right, are there circumstances where the right should be recognized. Mr. Rusthoven noted that the Constitution might provide a broad or general right (like being secure from search and seizure under the Fourth Amendment), but new issues arise (like drones) may warrant protection. In other instances, the democratic process—not judges—should provide protections.

Mr. Tinkey quoted Thurgood Marshall about “doing what is right” and letting the law catch up. Mr. Rusthoven responded the democratic process—and not judges, on the right or left—should make law. The institutional integrity of the courts is threatened when judges make the law.

Mr. Feighner asked about Mr. Rusthoven’s involvement in the Barnes case (noted on his application—this is not the 2011 Indiana Supreme Court case), Mr. Rusthoven said there is more flexibility in common law (unlike statutory law) for judges to adjust how law is applied. He said the courts were right to change the common law regarding parental immunity in that case. He said the Evidence Rules should evolve to respond to how they have impacted people in practice.

In response to Mr. Yakym’s question about how explicit a new statute be to supersede common law, Mr. Rusthoven responded that statutes in derogation of common law are strictly construed and explained the concept in lay, practical terms as well.

In response to Mr. Berger’s question whether a private citizen can be required to assist the government in governmental functions, Mr. Rusthoven said people need to do things like pay taxes, which assists the government. Mr. Berger clarified and asked if citizens must assist in governmental investigations, and Mr. Rusthoven said citizens need to cooperate and answer truthfully but do not need to become “junior FBI agents” and investigate neighbors.

Chief Justice Rush recited Socrates’ four things that belong to a judge: “to hear courteously, to answer wisely, to consider soberly, and to decide impartially.” In shifting from advocate to a judge, Mr. Rusthoven said he wouldn’t have a real struggle with any of them but emphasized it would be important to be disciplined and separate himself from issues on which he has been involved in the past, although he and lawyers think about and advise clients of the other side of arguments.

In response to a question about technology, Mr. Rusthoven said technology was an IBM electric typewriter when he began practice. He has tried to keep up. He’s comfortable with such things as computer research and texting but does not feel any desire to be on social media. He noted the importance of relying on staff and experts for some technological issues.

With two minutes remaining, Chief Justice Rush asked if there was anything Mr. Rusthoven would like to add. He thanked the Commission members and staff for all their time. He then noted he “really cares” about the Court and the opportunity for public service. He noted his prior work in public service with committed people, collegially as part of a team. He loves practice in Indiana because judges treat lawyers well and decide cases without regard to politics or ideology.

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Vacancy on Supreme Court - 2016

Courts - The "new" SCOTUS; "The Women Take Over"

Two important articles today by two well-respected SCOTUS observers, both incidentally are women.

Linda Greenhouse writes in the NY Times on "The Supreme Court’s New Era." Just a little from the start:

So now we know what the post-Scalia Supreme Court sounds like. Thank you, Justice Thomas, for shaking up what had come to seem the natural order of things, as well as for your pithy observation from the bench that possession of a gun “at least as of now, is still a constitutional right.”

And we can watch the spreading panic in a corporate world no longer certain that business has five reliable friends at the court. Last Friday, Dow Chemical agreed to settle a class-action price-fixing case for $835 million rather than take its chances in a Scalia-less court. The company’s appeal of a $1.06 billion jury verdict in a long-running antitrust case, brought by purchasers of urethane, had been pending at the court since last March. Justice Antonin Scalia’s death means an “increased likelihood for unfavorable outcomes for businesses involved in class action suits,” Dow said in a statement announcing the decision to settle.

There will be more such turnabouts — appeals withdrawn, appeals not filed — as players for whom the Supreme Court status quo almost always brought good news recalculate their risks and cut their losses. I picture the Beltway now as a giant poker game, a fitting memorial to the poker-loving justice.

Because no one knows what happens next. Hearing what the new court sounds like is a far cry from knowing what it will look like six months, nine months, a year or more from now. We don’t know, and neither do the eight justices. It’s a rare moment that finds the court and the public stumbling around behind the same veil of ignorance. Just as advocates and their clients have to make strategic calculations, so do the justices. The stakes couldn’t be higher on either side of the bench.

Dahlia Lithwick of Slate has a new article headed "The Women Take Over: In oral arguments for the Texas abortion case, the three female justices upend the Supreme Court’s balance of power." It begins:
When the Supreme Court last heard oral arguments in a landmark abortion case, it was April 1992, the case was Planned Parenthood v Casey, and Sandra Day O’Connor was the lone female justice.

Twenty-four years later, there are three women on the court. And if you count Justice Stephen Breyer as one of history’s great feminists—and I do—then you can view the arguments in this term’s landmark abortion case, Whole Woman’s Health v Hellerstedt, as creating a neat 4–4 split. On one side, you have a group of testy male justices needling a female lawyer for Texas clinics about whether it was even appropriate for them to hear this appeal. On the other, you’ve got four absolutely smoking hot feminists pounding on Texas’ solicitor general for passing abortion regulations that have no plausible health purpose and also seem pretty stupid.

It felt as if, for the first time in history, the gender playing field at the high court was finally leveled, and as a consequence the court’s female justices were emboldened to just ignore the rules. Time limits were flouted to such a degree that Chief Justice John Roberts pretty much gave up enforcing them. I counted two instances in which Roberts tried to get advocates to wrap up as Justices Ruth Bader Ginsburg and Sonia Sotomayor simply blew past him with more questions. There was something wonderful and symbolic about Roberts losing almost complete control over the court’s indignant women, who are just not inclined to play nice anymore.

Wow!

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Courts in general

Vacancy on Supreme Court 2016 - The final two days of interviews have begun

See the complete schedule here. Expect the first report from Prof. Schumm within an hour.

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Letters of Recommendation

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

Late last week, I went to the Indiana Supreme Court library to review the letters of recommendation submitted on behalf of the 15 finalists for the vacancy on the Indiana Supreme Court.

As discussed in this 2012 post, according to the application instructions, “The Commission will consider on behalf of each applicant a reasonable number of letters of recommendation.” Reasonable is not defined, and I had the impression that ten to fifteen was a reasonable number. Moreover, former Commission members who spoke at the ISBA “Demystifying” seminar in June 2012 emphasized the importance of quality over quantity. Although applications are posted online, letters of recommendation are not.

Although it’s impossible to provide a detailed review of 200 letters, I offer below the number of letters for each finalist(at the time of my review; more letters may have been sent since) and the names of some of the prominent political or judicial recommenders. All but one applicant is a Republican, and not surprisingly the letters skew Republican, although several applicants had noteworthy bipartisan support. All the letters were various shades of positive and glowing, except for a packet of information from a disgruntled litigant about one of the judicial applicants.

Judge Ahler (17)

Judge Carmichael (7)

Judge Cherry (9)

Judge Dolehanty (22)

Judge Felts (10)

Thomas Fisher (17)

Judge Gull (25)

Judge Hostetler (9)

Judge Kincaid (10)

Mark Lienhoop (14)

Judge Nation (12)

Peter Rusthoven (21)

Geoff Slaughter (8)

State Representative Washburne (10)

Thomas Wheeler (9)

Posted by Marcia Oddi on Thursday, March 03, 2016
Posted to Vacancy on Supreme Court - 2016

Wednesday, March 02, 2016

Ind. Decisions - Supreme Court issues 2nd opinion today - re constitutionality of the Indiana Product Liability Act statute of repose

In Larry Myers, et al. v. Crouse-Hinds, et al.: GE v. Mary R. Geyman, et al.: Owens-Illinois, Inc v. Mary R. Geyman, et al., a 21-page, 3-2 opinion, Justice Dickson writes:

We have consolidated three appeals involving the constitutionality of the Indiana Product Liability Act statute of repose. In each case, the plaintiffs request reconsideration of our prior holding in AlliedSignal v. Ott, 785 N.E.2d 1068 (Ind. 2003). While we decline to reconsider Ott's holdings due to the principles of stare decisis and legislative acquiescence, we do address the plaintiffs' new constitutional claims not addressed in Ott and conclude that the Product Liability Act's statute of repose does not bar these plaintiffs' claims. * * *

While we decline to reconsider our decision in AlliedSignal v. Ott, we find that Section 2 of the Product Liability Act violates the Indiana Constitution. Applying this Court's precedent in Covalt v. Carey Canada, Inc., we uphold our prior decision that the Indiana Product Liability Act's statute of repose does not apply to cases such as these where the plaintiffs have had protracted exposure to inherently dangerous foreign substances. We affirm the trial courts' denial of summary judgment in General Electric Co. and Owens-Illinois, Inc., and we reverse the trial court's grant of summary judgment in Crouse Hinds. We remand for further proceedings in accordance with this opinion.

Rucker and David, JJ., concur.
Rush, C.J., dissents with separate opinion.
Massa, J., dissents with separate opinion.

[CJ Rush's dissent begins on p. 12] My disagreement with the majority opinion rests entirely on stare decisis. Had I been on this Court in 2003, I may well have joined the Ott dissent, at least in its statutory analysis. * * *

Judicial authority is a fragile thing. The executive branch has the power of police; the General Assembly has the power of the purse strings; but our Court has only the power of persuasion. Our efficacy therefore depends wholly on the rule of law—which is just another name for the respect we earn by showing stability and consistency in our judgments and integrity in our processes. Today’s reversal is not a catastrophe. But instead of building a little bit on the rule of law, this decision chips a little bit away.

[J. Massa's dissent begins on p. 14] I agree with much of Chief Justice Rush’s dissent, including, perhaps even, her observation that today’s decision is not a catastrophe. Time will tell. But I do believe it has the potential to more than chip away at the rule of law and inflict more serious damage on our Court and state, so I write separately about these concerns.

The ruling of the Court will be seen in some quarters as righting a historic injustice. Maybe so, but I must respectfully disagree. Twenty-seven years after the unconstitutionality of our statute of repose was first suggested in a dissenting opinion,1 it is now finally the law of Indiana in asbestos cases. This unfortunate and disappointing reversal of precedent is neither warranted nor wise, in my view. My strong objections are procedural, substantive, and prudential in nature, and I will address each in order. * * *

Out of deference to the reasoned policy determinations of our General Assembly, and more profoundly, to our Court’s longstanding precedent interpreting those laws, I would affirm the trial court in Myers and reverse it in Geyman. I therefore dissent.

ILB: See especially J. Massa's footnote 2 on the first page of his dissent, p. 14 of the opinion.

Posted by Marcia Oddi on Wednesday, March 02, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - David Remondini leaving on a jet plane

The ILB has just obtained a copy of this note:

Judges, Friends and Colleagues:

It has been my honor and privilege to serve the Supreme Court and the rest of the bench and bar of Indiana for the last 20 plus years. However, I have decided to make a change. April 1, 2016 will be my final day at the Court. I have accepted a position as a pilot for Indy Jet Management, which provides pilot services for several Citation jets based at Indianapolis Regional Airport. I will begin work as a First Officer later this spring. I will miss the many first-rate and friendly people who I have come to know during this great journey together. . I look forward to hearing about the many successes and triumphs that I know are part of the Court’s future. All my best. - Dave

David J. Remondini is currently Interim Executive Director, Division of State Court Administration, Indiana Supreme Court. Prior to that, he worked for Chief Justice Shepard.

Posted by Marcia Oddi on Wednesday, March 02, 2016
Posted to Indiana Courts

About this blog - Nice review of the ILB from last year

Jeff Terrill has sent along a review he wrote last September for the Fort Wayne Reader ("Ft. Wayne's leading independent newspaper!"). Here is part of it:

When you visit her blog, you’ll quickly see why The Indiana Law Blog is such an aberration within the digital media space. You won’t find pop-up ads. In fact, you’ll need to look real hard to see any type of advertising presence. There’s no subscription fee and no sign-in required. What you will find is great writing and an eclectic collection of summaries of law related articles from around the country and sometimes beyond. In addition, you can read summaries of recent appellate decisions and legislative updates. If you want to read the full text, just click on the links.

No doubt, some parts will interest you more than others. That’s the point, I think. The Indiana Law Blog appeals to all types of lawyers and readers. Ms. Oddi somehow manages to put out a fresh product each day. She does this day after day, free of charge.

Like most days, I visited her blog today. I read her summary of an appellate decision involving a search issue. I then watched a few minutes of a live feed of an Indiana Committee on Corrections and Criminal Code meeting. I saw a link to a podcast involving the author of a new book about U.S. Supreme Court Justices O’Connor and Ginsburg. It looked interesting, but I continued to scroll down until clicking on an article about a multi-millionaire Indian attorney who died without a will. I finished my daily visit by clicking on a link to comedian John Oliver’s piece on the legal absurdities associated with civil forfeitures.

Thank you Ms. Oddi for providing such an exceptional source of information and entertainment.

Posted by Marcia Oddi on Wednesday, March 02, 2016
Posted to About the Indiana Law Blog

Ind. Decisions - Supreme Court decides one today - re Indiana's RICO Act

In Ashonta Kenya Jackson v. State of Indiana, a 13-page, 5-0 opinion, Chief Justice Rush writes:

Obtaining a conviction under the Indiana Racketeer Influenced and Corrupt Organizations (RICO) Act requires the State to prove a defendant was involved in a “pattern of racketeering activity.” Here, Jackson was convicted of C-felony “corrupt business influence” (the formal name of the Indiana RICO offense) for his involvement in three armed robberies during the course of a month. He argues the State failed to prove the robberies constituted a “pattern of racketeering activity” because there was insufficient evidence that they amounted to or posed a threat of continued criminal activity.

We recognize that the United States Supreme Court has written a continuity requirement into “pattern of racketeering activity” as it appears in the Federal RICO Act. But we also recognize that the Indiana RICO Act differs significantly from its federal counterpart, including in its definition of that particular phrase. The plain language of Indiana’s definition does not contain a continuity element, and well-established rules of construction preclude courts from engrafting an additional element onto the statute. Accordingly, continuity is not required for a corrupt business influence conviction.

That being said, continuity remains a relevant consideration, as the plain language of Indiana’s definition of “pattern of racketeering activity” does require the State to prove that the incidents of criminal conduct were “not isolated.” Here, a reasonable fact-finder could draw that inference from the State’s evidence that Jackson orchestrated the criminal operation and that the robberies’ planning and coordination became increasingly sophisticated. We therefore affirm his conviction for corrupt business influence.

Posted by Marcia Oddi on Wednesday, March 02, 2016
Posted to Ind. Sup.Ct. Decisions

Vacancy on Supreme Court 2016 - Schedule for tomorrow and Friday

Here is the interview schedule for schedule for tomorrow and Friday. The Judicial Nominating Commission will use the next two days to arrive at 3 names to send to Governor Pence.

The ILB will be there. Prof. Joel Schumm will cover Thursday, and Cara Wieneke, who you may remember for her work in covering Court of Appeals nominations, will be there on Friday.

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 - Barnes & Thornburg LLP, Indianapolis
(photo) (application) (interview #1)

10:00 a.m. – 10:30 a.m. – Hon. Vicki L. Carmichael - Clark Circuit Court 4, New Albany
(photo) (application) (first interview)

10:30 a.m. – 11:00 a.m. – Hon. Steven R. Nation - Hamilton Superior Court 1, Noblesville
(photo) (application) (first interview)

(Break)

11:15 a.m. – 11:45 a.m. – Mr. Thomas M. Fisher - Indiana Solicitor General, Indianapolis
(photo) (application) (first interview)

11:45 a.m. – 12:15 p.m. – Hon. Paul R. Cherry - Magistrate Juddge, USDC, ND Ind., Hammond
(photo) (application) (first interview)


(Lunch – Executive Session)

1:45 p.m. – 2:15 p.m. – Hon. Darrin M. Dolehanty - Wayne Superior Court 3, Richmond
(photo) (application) (first interview)

2:15 p.m. – 2:45 p.m. – Hon. Frances C. Gull - Allen Superior Court, Fort Wayne
(photo) (application) (first interview)

2:45 p.m. – 3:15 p.m. – Hon. Steven L. Hostetler - St. Joseph Superior Court, South Bend
(photo) (application) (first interview)

(Break)

3:30 p.m. – 4:00 p.m. –Hon. Matthew C. Kincaid - Boone Superior Court 1, Lebanon
(photo) (application) (first interview)

4:00 p.m. – 4:30 p.m. – Hon. James R. Ahler - Jasper Superior Court, Rensselaer
(photo) (application) (first interview)

March 4 (Friday)

9:30 a.m. – 10:00 a.m. – Rep. Thomas W. Washburne
(photo) (application) (first interview)

10:00 a.m. – 10:30 a.m. – Mr. Mark A. Lienhoop - Newby Lewis Kaminski & Jones LLP, LaPorte
(photo) (application) (first interview)

10:30 a.m. – 11:00 a.m. – Hon. Thomas J. Felts - Allen Circuit Court, Fort Wayne
(photo) (application) (first interview)

(Break)

11:15 a.m. – 11:45 a.m. – Mr. Thomas E. Wheeler, II - Frost Brown Todd LLC, Indianapolis
(photo) (application) (first interview - 3rd in entry)

11:45 a.m. – 12:15 p.m. – Mr. Geoffrey G. Slaughter - Taft Stettinius & Hollister LLP, Indianapolis
(photo) (application) (first interview - 2nd in entry)

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 Wednesday, March 02, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - 7th Circuit decided a second Indiana case yesterday, a reversal

In Mitchell Alicea v. Aubrey Thomas (ND Ind., Springmann), a 15-page opinion, Judge Williams writes:

This appeal arises out of serious injuries suffered by Mitchell Alicea during the course of an arrest by the Hammond Police. Alicea sued Sergeant Aubrey Thomas and Officer Alejandro Alvarez under 42 U.S.C. § 1983 for violating the Fourth Amendment by using excessive and unreasonable force to arrest him. The district court granted the defendants’ motions for summary judgment, finding that Thomas and Alvarez did not use excessive force against Al-icea, and that they were entitled to qualified immunity. Be-cause we find that the facts taken in the light most favorable to Alicea create a material dispute as to whether each officer’s actions violated clearly established law, we reverse the district court’s grant of summary judgment.

Posted by Marcia Oddi on Wednesday, March 02, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - " 'King Coal' losing crown: Coal industry in Daviess County dwindling"

A great story today by Mike Grant of the Washington Indiana Times Herald - some quotes:

For a long time in most of southwestern Indiana coal was the king of the economy. Companies pulled the coal out of the ground providing landowners with additional income, trucks rumbled all over the county roads hauling their loads to power plants in Petersburg, Edwardsport and Princeton. Business sprang up to provide services to the mines, the trucking companies and even the power plants.

During the hey-day of coal Daviess County was a busy place.

“Coal was important to us and everyone else,” said former executive director for the Daviess County Chamber of Commerce Dave Cox. “There were times when we had 10 to 12 coal mines operating at once. There were the mines, the miners, the trucking, the service people. One thing led to another and then another.”

Those days led the county commissioners to hold a meeting once a year with the coal companies. During those meetings, roads were closed and opened. Specific routes were set out to haul coal. The meetings could last for days.

This year’s coal meeting lasted only a few minutes. Daviess County has one active mine, Solar Sources Antioch Mine. Peabody is in the process of closing its Viking mine. Only a handful of people showed up to raise a few questions. Simply, King Coal has lost its crown.

“It just shows from our coal meeting there is not a lot going on,” said President of the Daviess County Commissioners Michael Taylor. “We’ve got some old road issues we’re working on. Everything is slowing down.”

Two big factors have played into the demise of coal. One is the energy markets. Domestic discoveries of natural gas and oil have driven down, not just the price for those commodities, but also the price of coal. In addition, clean air regulations have been especially hard on the coal industry and midwestern power generating companies that used to rely exclusively on coal.

“With all of the new EPA regulations, it is slowing them down and they’re not nearly as profitable as they once were,” said Taylor. * * *

While the fight [against EPA air regs] goes on in D.C. in court, in Daviess County the impacts of coal are slipping further and further from the days when mines operated all the way from Epsom to Alfordsville.

“It’s really concerning,” said Daviess County Highway Supervisor Phil Cornelius. “Consider the amount of taxes the coal mines brought into the county. Over the next few years, the rest of the property tax owners will be picking up the additional cost from the loss of mine revenues.”

But the impact will be much deeper than property taxes. It has hit wages, and businesses in southern Indiana.

“There is the loss of income for the people who used to work there and for the companies that supplied the mines,” added Cornelius. “It’s just a bad deal. I know they have some detrimental effects on the roads and tracking dirt. The pluses, though, far outweighed the minuses, and we are going to miss them.”

Posted by Marcia Oddi on Wednesday, March 02, 2016
Posted to Indiana Government

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

For publication opinions today (0):

NFP civil decisions today (1):

J.C. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (2):

Randall L. Capatina v. State of Indiana (mem. dec.)

Maxine Lauren Kemper v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, March 02, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Lawmakers approve Dunes pavilion alcohol, other controversial measures"

Dan Carden of the NWI Times reported last evening:

INDIANAPOLIS — State lawmakers have decided they want alcohol available at a renovated Indiana Dunes State Park pavilion, regardless of local opposition.

The Senate voted 33-17 Tuesday, with all Region senators opposed, to send House Bill 1386 to a House-Senate conference committee for final adjustments before likely advancing it to Gov. Mike Pence for his signature or veto.

The measure allows the Department of Natural Resources to obtain "state park" alcohol permits, for any or all of its parks, without having to follow most of the procedures typically required to get state permission to sell beer, wine or liquor — including local review.

Developer Pavilion Partners last year twice was denied an alcohol sales permit by the Porter County Alcoholic Beverage Commission.

The Dunes legislation was among dozens of proposals the General Assembly acted on Tuesday as lawmakers work toward a March 10 adjournment.

Here are some of the other measures to pass the House or Senate: "Bills" were changed in the legislative process and must be re-approved to go to the governor; "Enrolled Acts" are eligible for a Pence decision.

Abortion — House Bill 1337 prohibits doctors from performing an abortion if the doctor knows the patient is seeking an abortion due to diagnosis of a genetic fetal disability, or because of the gender, race, color, national origin or ancestry of the fetus. It also mandates burial or cremation for aborted fetuses and obligates abortion doctors to comply with numerous additional paperwork directives. * * *

Environment — House Bill 1082, sponsored by Charbonneau and Randolph, bars proposed state environmental regulations that are more stringent than federal standards from taking effect until the Legislature has time to review them.

Police cameras — House Bill 1019, sponsored by Randolph, establishes a procedure to publicly release police video recorded by body or dashboard cameras. Videos generally would be available unless police identify one of several specific reasons justifying denial.

'Canned' hunting — Senate Enrolled Act 109, sponsored by state Sen. Jim Arnold, D-LaPorte, legitimizes and regulates Indiana's seven fenced hunting preserves where Hoosiers can shoot an unlimited number of captive deer, sheep, goats, elk, caribou, moose and reindeer. The industry currently is unregulated after state courts last year concluded that prior regulations were invalid.

Posted by Marcia Oddi on Wednesday, March 02, 2016
Posted to Indiana Government

Ind. Gov't. - "IPS waited six days before contacting authorities in child seduction case" [Updated]

That is the headline to this WTHR13 story last evening by Rich Van Wyk. (Hat Tip to Advance Indiana.) Some quotes (ILB emphasis):

INDIANAPOLIS - An Indianapolis Public Schools guidance counselor accused of having sex with her students will be charged with 11 separate crimes Wednesday.

By all indications it appears that numerous school administrators broke the law, along with IPS policies, when they waited almost a week to call authorities. IPS has launched an internal investigation to determine whether or not its reporting was consistent with the district's legal obligations.

Despite graphic photos and text messages, credible evidence that Shana Taylor was having sex with one of her students, detectives say IPS administrators didn't notify authorities until six days later, according to court documents. Experts insist that gave the guidance counselor ample time to destroy evidence and put her alleged victims in danger. * * *

Because of this incident and a similar one at Park Tudor School, the Department of Child Services is considering refresher seminars for superintendents and principals, reminding them of the need to immediately report suspected cases of child abuse or neglect.

Really.

ILB: See these ILB posts from Feb. 7th and Feb. 14th on the Park Tudor incident. A Feb. 6th IndyStar story quoted in the Feb. 7th post included:

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.]
ILB: Again, that was a 2014 Supreme Court opinion, much publicized at the time.

[Updated at 1:14 PM] Marisa Kwiatkowski of the Indianapolis Star posted this story a few minutes ago, headed "Indianapolis Public School officials waited 6 days to report abuse, court documents show." Some quotes:

Marion Superior Court records indicate Indianapolis Public Schools officials waited six days to report allegations of sexual abuse involving a guidance counselor and two teenage students — a delay that may have violated state law.

Shana Taylor, 37, was charged Wednesday with nine felony counts of child seduction, one felony count of dissemination of matter harmful to minors and one misdemeanor count of contributing to the delinquency of a minor, according to court records. * * *

Court records indicate at least four school officials knew about the allegations as early as Feb. 17, but no one reported them to the Indiana Department of Child Services until Feb. 23 — six days later. Indiana law requires certain school officials to immediately report instances of suspected child abuse at their institutions to DCS or law enforcement.

Posted by Marcia Oddi on Wednesday, March 02, 2016
Posted to Indiana Government

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

Updating this ILB post from Feb. 23rd, the Notre Dame Observer reports today that HB 1022 passed the Senate yesterday, but with amendments.

That would include this amendment made by Sen. Glick on 2nd reading, which, inter alia, includes this provision on p. 2:

(d) A record of an educational institution's police department is a public record subject to IC 5-14-3, if the record meets the requirements of IC 5-14-3-2.2.

Posted by Marcia Oddi on Wednesday, March 02, 2016
Posted to Indiana Government

Ind. Decisions - No opinions from COA March 1st

In case you've been looking, the Court of Appeals posted no opinions yesterday, March 1st.

Posted by Marcia Oddi on Wednesday, March 02, 2016
Posted to Ind. App.Ct. Decisions

Tuesday, March 01, 2016

Courts - More on: SCOTUS "asked to review appeals court ruling in EPD SWAT raid"

Updating this ILB post from Nov. 5, 2015, re the case of Louise Milan v. Billy Bolin (see list of all ILB posts here), Zach Evans of the Evansville Courier & Press reports that the SCOTUS said "no." The story begins:

A federal appeals court ruling against the Evansville Police Department in a botched SWAT raid in 2012 was upheld after the U.S. Supreme Court on Monday denied to hear the city’s appeal.

That means the city is out of appeal options, and a lawsuit between Louise Milan and the police department can proceed to settlement or a jury trial.

A federal appeals court said in August 2015 that the Evansville Police Department “committed too many mistakes” to be shielded from liability in Milan’s lawsuit over a 2012 SWAT raid on her home.

According to federal court records, the Supreme Court denied the city’s petition to hear its appeal on Monday.

Posted by Marcia Oddi on Tuesday, March 01, 2016
Posted to Courts in general

About this Blog - ILB will go dark the end of March

The ILB's first post was March 16, 2003, so the publication will be ending after a little over 13 years, on March 31st.

During March, posts will be less frequent, but will continue to cover the Supreme Court vacancy and the daily opinions of the appellate courts. At the end of this month, the ILB, and all that it entails, including the archives, will go totally dark -- it is too expensive a proposition for one person to maintain going forward.

I have devoted much of each working day to the ILB, trying to gather in one place the legal news of the day, to place it in context, and, when I thought worthwhile, to raise issues. The ILB was aimed at our state's attorneys, government officials, and interested citizens, and I have taken my self-assigned responsibility seriously.

The ILB isn't replicated anywhere else. I have been told that "attorneys, judges, policy makers, and members of the media have come to rely on it, not just for one-stop shopping, but for some analysis and -- like the Drudge Report does for politics -- what the agenda-setting issues and items will be."

Interest in the ILB has been high, averaging about 4,000 hits a day during the work week. On occasion, the hits have been much higher, on Feb. 19th for instance, Day #3 of the 2016 Supreme Court interviews, they nearly topped 10,000. In 2015 the ILB had 933,037 hits.

I appreciate the individuals and entities who have proved financial support to the ILB in the past, and the devoted readers who have sent kind words.

I have enjoyed producing the ILB and would continue, except that the essential financial support simply isn't there. During the past year I have spent much time exploring options, with no result, so I must move on.

Thanks for reading over the years.

Posted by Marcia Oddi on Tuesday, March 01, 2016
Posted to About the Indiana Law Blog

Ind. Decisions - 7th Circuit decides one Indiana case today, finds appeal frivolous and grants sanctions

In Christopher White v. George Keely (SD Ind., Pratt), a 13-page opinion, District Judge Pallmeyer (ND Ill.), sitting by designation, writes:

Plaintiffs-appellants Christo-pher White and his company Reffco II, L.P. (collectively “White”) 1 filed suit against several current and former officers of the National Bank of Indianapolis (“NBI Employees”) pursuant to the Federal Reserve Act, 12 U.S.C. § 503. That statute establishes civil liability for bank officers and direc-tors who violate certain substantive provisions of the Federal Reserve Act and the False Entry Statute. White’s complaint alleges that the NBI Employees violated the False Entry Statute, 18 U.S.C. § 1005, by falsifying official bank reports in order to cover up unauthorized transfers made from White’s business accounts at the National Bank of Indianapolis (“NBI”). White claims these § 1005 violations caused him to suffer harm and that the NBI Employees are liable to him pursuant to 12 U.S.C. § 503. The district court dismissed White’s complaint for failure to allege that he relied on the false statements, and White timely appeals that decision. The NBI Employees contend the appeal is frivolous and have asked for an award of sanctions pursuant to Federal Rule of Appellate Procedure 38. Because White has not pleaded that he was harmed as a consequence of the alleged § 1005 violations, we affirm the district court’s dismissal of White’s complaint. We further agree with defendants-appellees that White’s appeal is frivolous, and therefore grant their motion for sanctions. * * *

Based on our review of the complaint and the legal histo-ry of this case, which has embroiled NBI in costly litigation with White for seven years, we find that White’s appeal is frivolous and sanctionable under Rule 38.

Posted by Marcia Oddi on Tuesday, March 01, 2016
Posted to Ind. (7th Cir.) Decisions

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

A Jan. 25, 2016 ILB post began:

SB 152 is dead, according to Brandon Smith, Statehouse Bureau Chief for Indiana Public Broadcasting.
But last evening Chelsea Schneider and Tony Cook of the Indianapolis Star reported in a story headed "House panel approves increase in state's cap on medical malpractice claims" that:
State lawmakers on Monday revived an effort to increase the cap that Indiana puts on medical malpractice damages.

The House Judiciary Committee gutted an unrelated bill and replaced it with language to raise Indiana’s medical malpractice cap – among the lowest in the nation. The move also would represent the first increase to the cap in nearly two decades.

Under the proposal, lawmakers are considering a $400,000 increase to the cap to set a new limit for those claims at $1.65 million beginning in 2017. The cap also would increase over time to $2.25 million by 2031 in an attempt to keep up with inflation – an aspect of the proposal strongly opposed by doctors and some medical lobbyists.

A key author of the proposed changes, Sen. Brent Steele, said Indiana’s current $1.25 million cap is outdated and that periodic increases are important.

“We, the legislature, don’t do a very good job about keeping pace with the cost of living,” said Steele, a Bedford Republican. * * *

Lawmakers say Indiana’s current cap is susceptible to court challenges. Indiana is one of only three states that caps total damages, and of those Indiana’s is the lowest, according to the Indiana Hospital Association.

Senate President Pro Tempore David Long said Thursday he fears the courts may scrap Indiana’s law altogether, as they have in at least half a dozen other states where caps were found to be unconstitutionally low and unfair to claimants.

“Those caps are getting old and they’re dangerously low,” Long said. “And lot of people are concerned that as we try to be frugal and conservative with this, we go too far and the cap could be struck down and then there’s no protection for our doctors and our hospitals.”

Still, it’s going to be a “tough sell,” he said. “It’s possible nothing happens.”

Dan Ladendorf, a representative of the Indiana Trial Lawyers Association, said the group doesn’t believe in capping damages and questioned the proposed $1.65 million limit. If Indiana’s cap was based on a medical cost index, it would exceed $2.2 million, he said.

“Even with these proposed changes, the opponents to this bill have told you Indiana would still be the most favorable state in the nation for medical malpractice,” he argued. “If you are going to commit medical malpractice, come to Indiana, because we’re the most favorable state in the nation.”

Lawmakers say the proposal is a result of three years of negotiations among trial lawyers, hospitals and doctors. An original proposal by Steele to increase the cap didn't advance earlier this legislative session.

On Monday, the [House] Judiciary Committee moved the proposal in Senate Bill 28 by an 11-1 vote. That bill now goes to the full House for consideration.

Posted by Marcia Oddi on Tuesday, March 01, 2016
Posted to Indiana Government

Ind. Decisions - Supreme Court decides one today

In Austin Blaize v. State of Indiana, a 9-page, 5-0 opinion, Justice Rucker writes:

Arising out of a confrontation at the home of his ex-girlfriend’s father, Austin Blaize was convicted of murder, attempted murder, felony murder, burglary resulting in serious bodily injury, intimidation with a deadly weapon, pointing a firearm, and carrying a handgun without a license. The jury recommended and the trial court imposed life without parole for the murder conviction, and the trial court imposed a term of years for the remaining convictions. In this direct appeal Blaize complains his convictions should be reversed and a new trial granted because of comments the trial judge made to the jury. We disagree and affirm the convictions and sentences. * * *

We rephrase the single claim Blaize raises on appeal: whether the trial court’s comment regarding the cell tower evidence deprived him of a fair trial by vouching for the credibility of the State’s evidence and thereby discrediting his alibi defense. Blaize thus seeks reversal of his conviction and a remand for a new trial. * * *

Considering the evidence as a whole, we are not persuaded a two-sentence remark about cell phone towers and sites during the course of a ten-day trial made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process. Halliburton, 1 N.E.3d at 678. In sum, Blaize has failed to demonstrate the judge’s comment amounted to fundamental error requiring reversal of his convictions and a new trial.

Posted by Marcia Oddi on Tuesday, March 01, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - How did urban chichens fare under the new Indy zoning rewrite?

The Bingham Greenebaum Doll LLP Newsletter for March 2016 contains a good "Overview of Indianapolis Zoning Ordinance Amendments Effective April 1, 2016," by Mary E. Solada and Gregory J. Ewing, AICP. But the overview does not look at how the new rules impact urban chickens, long a favorite topic of the ILB. Fortunately, the article links to the entire 622-page rewrite. And here is the answer, beginning on p. 446 (and continuing on p. 447):

Posted by Marcia Oddi on Tuesday, March 01, 2016
Posted to Indiana Government