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Saturday, April 30, 2016

Ind. Courts - "Retiring Indiana Justice Dickson hailed for civility"

Rick Callahan of the AP's story appears in many papers today, including the South Band Tribune. Some quotes:

INDIANAPOLIS — Indiana Supreme Court Justice Brent Dickson ended his long tenure on the state's high court Friday with a retirement ceremony filled with praise from the court's other justice for his civility, grace and a legacy of nearly 900 legal opinions.

About 200 people packed the court's Statehouse courtroom to toast Dickson, whose tenure of more than 30 years is second only to the 35 years that 19th century Justice Isaac Blackford served on the state's court of last resort.

The court's four other justices took turns paying homage to Dickson, who is retiring before reaching the court's mandatory retirement age of 75 in July. * * *


Dickson later offered farewell remarks to the gathering that included lawmakers, several federal judges and members of the state's appeals and tax courts.

He choked up as he thanked his staff, law clerks, colleagues and others for their assistance over the years.

"As I step down from this bench today I do feel an enormous sense of gratitude," he said.

Gov. Mike Pence told the gathering that Dickson had amassed "a career in public service which will inspire Hoosiers for generations to come."

The governor presented both Dickson and his wife, Jan, with Sagamore of the Wabash awards — among Indiana's highest honors. Jan Aikman Dickson is founder of the Judicial Family Institute, a national group that assists judicial households and their extended families.

You may watch the retirement ceremony here.

Posted by Marcia Oddi on Saturday, April 30, 2016
Posted to Indiana Courts

Ind. Decisions - "State’s high court kills Fortville annexation"

The Supreme Courts April 28th decision in Town of Fortville v. Certain Fortville Annexation Territory Landowners (ILB summary here) is the subject of a long story by Scott Slade in the Greenfield Daily Reporter. Some quotes:

In 2013, Fortville passed a resolution to annex almost 6,000 acres; a year later, the town reduced the area to 644 acres, comprised of 95 parcels of land, 65 homes and about 160 residents. More than 90 percent of the residents opposed the annexation, arguing the town had no plans for its future development, which would justify the annexation. * * *

A trial court had previously ruled in favor of property owners opposing the annexation; but the town appealed the decision and won, sending the case back to the trial court. But before the case returned to the trial court, the property owners asked the Supreme Court to take up the case, which it did.

Thursday’s decision upholds the original trial court decision in favor of the remonstrators — the property owners fighting annexation.

The Supreme Court ruling states a contention Fortville made in its successful appeal — that there was sufficient evidence the annexation area “was needed and can be used for Fortville’s development in the reasonably near future” — had been weighed correctly by the trial court that ruled against the town. * * *

The ruling notes “unrebutted evidence shows that Fortville has no plans to build roads through the territory ...; or provide sanitary sewer service until unspecified development moves into the Annexation Territory ...; or provide parks and recreation services to the Annexation Territory.”

The court also pointed to a 775-acre annexation Fortville approved in 2007 that included 500 acres of farmland that has not been developed.

Posted by Marcia Oddi on Saturday, April 30, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Carmel-based Mainstreet Property Group LLC is challenging a state-approved moratorium on new transitional care facilities

From Inside Indiana Business, this April 29th story by Dan McGowan begins:

HAMILTON COUNTY - Carmel-based Mainstreet Property Group LLC is taking the state to court over a state-approved moratorium on new transitional care facilities. The suit, filed Friday in Hamilton County Circuit Court, cites top Indiana State Department of Health officials and says the law is a violation of both the Indiana and U.S. Constitutions.

Senate Enrolled Act 460 became law last year without Governor Mike Pence's signature after its approval by the General Assembly. The Terre Haute-based Bopp Law Firm is representing the developer and says provisions of the law prevent the Department of Health from licensing new facilities or beds, certifying new beds to participate in state Medicaid or transferring beds between existing facilities.

Mainstreet adds that the law halted completion of pending projects, costing the company more than $9 million. The company has developed two dozen properties in the state and a handful out-of-state, with 30 currently under construction throughout the U.S.

Attorney Jim Bopp says "prohibiting a business like Mainstreet from doing business in our state, and losing the jobs that they can create, just to protect existing antiquated nursing homes makes no sense for Hoosiers. We believe that the Constitution prevents that from happening through this retroactive Moratorium."

Founder and Chief Executive Officer Zeke Turner says "after careful consideration, we believe that filing this lawsuit is our only recourse to challenge a moratorium that has stifled competition and essentially cut Hoosiers off from receiving care that gets them well and back to their lives."

The Terre Haute Tribune-Star also has a long story.

This Dec. 29, 2014 editorial in the Fort Wayne Journal Gazette, headed ""Lobbyists' protests shouldn't sink nursing home bill"," may add some background.

Posted by Marcia Oddi on Saturday, April 30, 2016
Posted to Indiana Government

Courts - More on "Illinois, Indiana join in funding move to keep Illiana Expressway alive"

Updating this ILB post from last Monday, April 25, the Gary Post-Tribune's Carrie Napoleon reported yesterday afternoon, April 29th in a long story - some quotes:

Local officials and opponents of the Illiana toll road say they were surprised to learn the Indiana Department of Transportation plans to make court-ordered corrections to the first phase of an environmental impact study for the stalled project and foot the bill.

In a court filing April 25, INDOT has agreed to fund the technical work needed to comply with the court's order in Openlands Et al. v. U.S. Department of Transportation et al., which last year found the study was flawed despite Illinois' inability to move forward due to lack of funding.

State Sen. Rick Niemeyer, R-6th, said he has been reaching out to INDOT for the past several months in an effort to get an official statement on where Indiana stands on the highway project -- whether it go forward, wait until Illinois has funding or scrap the effort – but has gotten no response.

"We know Illinois is on hold. I don't understand why Indiana is not coming out with a statement on this for Indiana residents," Neimeyer said. "I'm frustrated I haven't got the answers back."

The lack of communication has been an ongoing issue regarding the project, Niemeyer said, adding local residents are left to learn about the status from Illinois officials or in the media. News of the court motion was no different.

"I was unaware," he said.

Since the motion was filed, Niemeyer said he now has been in touch with INDOT officials who say too much money has been invested so far in the project to not at least try to address the issues raised in the lawsuit. The two states were directed by the court to either fix the problems with the study or to scrap the project. * * *

Allen Grosboll, co-director of legislative affairs for the Environmental Law and Policy Center, which filed the suit on behalf of several environmental groups, said the district court found the initial study to be severely wrong because everything was based on population numbers and future growth-of-the-region numbers that were not correct.

The study made assumptions about growth in the region that is entirely inconsistent with growth projections by other entities that look at those figures, Grosboll said. While INDOT has agreed to pay to fix the study, nobody knows what that fix will look like or if the fix will clear the way for a second study to proceed, he said.

"It is our position at the ELPC that this is a boondoggle project. The project should be halted and taxpayer money should be saved. What we should not be doing is continuing this project and dragging this on. It is a wasteful project not justified by the numbers in the region. It is simply a waste of money to continue," Grosboll said.

ILB: Here is the original disapproval, from June 15, 2015.

Posted by Marcia Oddi on Saturday, April 30, 2016
Posted to Courts in general

Ind. Decisions - Tax Court posted one Friday, April 29th

In Hamilton Southeastern Utilities, Inc. v. Indiana Department of Revenue, a 6-page opinion, a 6-page opinion, Judge Wentworth writes:

Hamilton Southeastern Utilities, Inc. challenges the Indiana Department of State Revenue’s assessment of Indiana’s utility receipts tax (URT) on connection fees it collected during the 2006, 2007, and 2008 tax years (the years at issue). This matter is currently before the Court on Hamilton Southeastern’s motion for partial summary judgment, which presents one issue: whether the amount of Hamilton Southeastern’s nontaxable connection fees is subject to URT because it was not separated from its taxable receipts on its returns. The Court finds that the amount of Hamilton Southeastern’s connection fees was separated from taxable receipts on its returns. * * *

Hamilton Southeastern’s connection fees are not subject to the URT because it has satisfied the requirements of Indiana Code § 6-2.3-3-2.

Posted by Marcia Oddi on Saturday, April 30, 2016
Posted to Ind. Tax Ct. Decisions

Friday, April 29, 2016

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

For publication opinions today (1):

In P & P Home Services, LLC v. Review Board of the Indiana Dept. of Workforce Development and Cynthia Hutcherson, a 7-page opinion, Judge Bailey writes:

P & P Home Services, LLC (“P & P”) appeals a decision of the Review Board of the Indiana Department of Workforce Development (“Review Board”) finding P & P’s former employee, C.H., to be eligible for unemployment compensation benefits. P & P presents the sole issue of whether the Board’s decision is contrary to law. We reverse and remand to the Review Board for further proceedings. * * *

The Review Board reached its decision based upon the premise that the employment relationship at issue was one of a temporary employer and temporary employee. Finding the relationship severed as a matter of law, the Review Board did not consider whether a permanent employment relationship was voluntarily severed by the employee. Accordingly, we remand for a factual determination of whether, in light of the communications between the parties and the surrounding circumstances, C.H. voluntarily left her employment without good cause. Reversed and remanded.

NFP civil decisions today (2):

In Jennifer Farr v. New Life Associates, P.C. and Planned Parenthood of Indiana, Inc., Steven Sams (mem. dec.), a 13-page opinion, Judge Robb writes:

Jennifer Farr filed a complaint against Planned Parenthood of Indiana, Inc. (“Planned Parenthood”) alleging public disclosure of private facts, breach of physician-patient privilege, negligent infliction of emotional distress, and negligent supervision after Planned Parenthood released her medical records to the Putnam County Prosecutor’s Office pursuant to a subpoena duces tecum issued by the Putnam Superior Court. The trial court granted summary judgment in favor of Planned Parenthood. Thereafter, Planned Parenthood filed a motion for attorney’s fees, arguing Farr’s claims were “frivolous, unreasonable, or groundless” under Indiana Code section 34-52-1-1(b). The trial court granted Planned Parenthood’s motion and ordered Farr’s attorney, Steven Sams, to pay $11,145.00 in attorney’s fees.

Sams appeals the trial court’s order awarding attorney’s fees, raising two issues: (1) whether Planned Parenthood waived its claim for attorney’s fees, and (2) whether the trial court erred in concluding Farr’s claims were “frivolous, unreasonable, or groundless.” Finding no error, we affirm the trial court’s order awarding attorney’s fees to Planned Parenthood.

Roger A. Andrick v. Angela L. Andrick (mem. dec.)

NFP criminal decisions today (8):

Alvin Richard v. State of Indiana (mem. dec.)

John F. Harris v. State of Indiana (mem. dec.)

Ryan James Shelley v. State of Indiana (mem. dec.)

Jason L. Holland v. State of Indiana (mem. dec.)

Sattore E. Cooper v. State of Indiana (mem. dec.)

Andrew Tyler Fisher v. State of Indiana (mem. dec.)

Theodore Hannibal v. State of Indiana (mem. dec.)

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

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

Ind. Courts - Hon. Brent E. Dickson's Retirement Ceremony Today at 1:00 PM

Justice Dickson's Supreme Court formal retirement ceremony will take place at 1:00 PM today, Friday, April 29th. It will be webcast here.

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

Ind. Courts - "New Monroe circuit court judge will likely have to start out small"

A few quotes from Laura Lane's report today in the $$ Bloomington Herald-Times:

The person elected to replace retiring Monroe Circuit Court Judge E. Michael Hoff will inherit his office and courtroom, but likely not his caseload.

Small claims court may well be his or her destination.

That’s because the county’s judges together decide how the thousands of civil disputes, divorces, probate cases, small claims and infractions are divvied up among the judges of the Monroe Circuit Court’s nine divisions. Historically, newly elected Monroe Circuit Court judges start out where the least-tenured judges — Elizabeth Cure and Valeri Haughton — find themselves, focusing on small claims, infractions, ordinance violations and divorces.

It’s where judges gain experience and cut their teeth on difficult real-world situations and decision making.

There currently are four criminal courts, one juvenile court and four others that handle civil cases ranging from marriage dissolutions to landlord-tenant disputes. Before 1990, when there were six courts, caseloads were diverse and each court handled one-sixth of every kind of case filed.

Hoff’s Division I caseload is a mix of plenary civil cases, divorces and probate matters. But there’s a good chance that whoever gets elected will have a significantly different file cabinet full of cases.

The county’s nine judges meet every fall to assess and discuss caseloads and court jurisdictions. Monroe Circuit Judge Kenneth Todd’s court oversees criminal cases and has for years. He said the judges consider individual preferences and each person's experience in different areas of the law when deciding who does what.

Of the candidates for Hoff’s seat, one is steeped in criminal law and the other three have more experience on the civil-law side.

The story continues, with details from interviews of the four Democratic candidates. No Republicans have filed.

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

Ind. Decisions - Supreme Court denies rehearing in asbestos statute of repose law decision

In an order filed late yesterday afternoon, the Supreme Court, by a vote of 3-2, denied the petitions for rehearing 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. The vote:

All Justices concur, except Rush, C.J., and Massa, J., who vote to grant rehearing.
David, J., concurs with separate opinion in which Dickson and Rucker, JJ., concur.
Massa, J., dissents with separate opinion in which Rush, C.J., concurs.
Massa and Rush also dissented in the original, March 2nd opinion.

From J.Massa's dissent yesterday (joined by CJ Rush):

The State’s Brief in Support of Rehearing raises issues worthy of more deliberative consideration, several of which were noted in dissents from the Court’s opinion. Myers v. Crouse-Hinds Div. of Cooper Indus., Inc., No. 49S00-1501-MI-35, 2016 WL 825111, at *6, *8 (Ind. Mar. 2, 2016) (Rush, C.J., and Massa, J., dissenting with separate opinions). The Brief overlooks, however, the most compelling precedents in its favor that should be noted sua sponte for lawyers and judges going forward.

Forty years ago, this Court unanimously and unequivocally held that the Attorney General must be served at the outset of suits attacking the constitutionality of a state statute. Sendak v. Denbro, 264 Ind. 323, 326, 343 N.E.2d 779, 781 (1976). Moreover, we made clear that the remedy for said failure of service is reversal and remand for new proceedings in the trial court where the Attorney General can meaningfully participate: * * *

Here, we are confronted with one of those “future cases” our predecessors set out to prevent. In response to the defendants’ motion for summary judgment, the plaintiffs argued the asbestos statute of repose, Ind. Code § 34-20-3-2, was unconstitutional. With that issue raised, the presiding trial courts had a statutory duty to notify our Attorney General: * * *

[much more worth reading]

A petition for rehearing is an important vehicle that gives our Court the “opportunity to correct its own omissions or errors.” Griffin v. State, 763 N.E.2d 450, 450–51 (Ind. 2002) (quoting Daviess–Martin Cnty. Rural Tel. Corp. v. Pub. Serv. Comm., 132 Ind. App. 610, 625, 175 N.E.2d 439, 440 (1961)). In my opinion, it is not just an opportunity, but our responsibility, which today we evade. For the reasons explained in my dissent in Myers, 2016 WL 825111 at *7–10, and because our precedent compels remand to allow State participation, I respectfully dissent.

From J.David's concurring opinion (joined by J.Dickson and J.Rucker)
I write separately to briefly address J. Massa’s dissent from denial of rehearing. While I appreciate Sendak’s mandate that we remand for new proceedings in the trial court where the Attorney General can meaningfully participate in the case when the Attorney General is not properly notified that a state statute is being challenged as constitutional, absent from the Sendak opinion is any mention that this Court permitted the Attorney General to brief the matter on its merits as we did in this case.
ILB: For more on the original decision, see this March 4th post, "Indiana Asbestos Exposure Repose Law Unconstitutional," and this March 30th post by Prof. Joel Schumm, headed "How Final is a 3-2 Opinion Issued Weeks Before Justice Dickson’s Retirement?" From the prescient post:
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.

Posted by Marcia Oddi on Friday, April 29, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - The Six Judges Participating in the 3-Year Commercial Courts Pilot Project

The new commercial court dockets open June 1st. See this list of ILB posts for all the details.

Posted by Marcia Oddi on Friday, April 29, 2016
Posted to Ind. Commercial Courts | Indiana Courts

Thursday, April 28, 2016

Ind. Decisions - Supreme Court decides a fourth case today

In Travis Allen v. State of Indiana, a 4-page, 5-0 opinion, Justice Dickson writes:

The defendant was convicted of four traffic offenses, two related to his driving while intoxicated and two related to his lack of a driver's license. His trial took place on October 8, 2014, almost three years after his arrest on December 9, 2011. This appeal asserts a single claim: that the trial court erroneously denied his Criminal Rule 4 motion for discharge for delay.

The defendant contends that he is entitled to discharge under Indiana Rule of Criminal Procedure 4(C), which provides that a defendant may not be held to answer a criminal charge for greater than one year "except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar . . . ." * * *

Therefore, whether declining to attribute delay to the defendant for failing to arrange for his transportation from Department of Correction custody and to appear for his trial scheduled for January 23, 2013, or whether attributing such failures to the defendant under Rule (C) and permitting the trial court and the State a reasonable time thereafter to bring the defendant to trial, the defendant was entitled to discharge pursuant to Indiana Criminal Rule 4(C), and his motion should have been granted.

We reverse the denial of the defendant's motion for discharge and remand to the trial court to grant the motion pursuant to Criminal Rule 4(C).

Posted by Marcia Oddi on Thursday, April 28, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Public access advocates say their fears about the recent Indiana Supreme Court decision are already coming true"

Hayleigh Colombo reports this afternoon for the IBJ in a story headed "Pence argues email privacy ruling should apply to him, too." A few quotes:

Gov. Mike Pence is using a recent Indiana Supreme Court decision to argue that he should not be required to release documents that have been deemed by law to be public records.

The Indiana Supreme Court ruled April 19 that it won’t compel lawmakers to release their emails to the public, even though it said the Access to Public Records Act applies to the General Assembly. The court said the separation of powers in the Indiana Constitution means the courts should not tread on lawmakers’ turf.

Now, Pence wants that same logic applied to him. * * *

Indianapolis attorney William Groth sued Pence last year over documents relating to the Republican governor's lawsuit related to illegal immigration. Pence was seeking to overturn an executive order by President Obama that deferred removal of about 4 million illegal immigrants. Seventeen other states also sued.

Groth asked a court to decide whether Pence’s heavy redaction and denial of those records was permissible under the Indiana Access to Public Records Act.

But Pence’s lawyers said last week the court should “decline to interfere in the executive’s internal operations” as it did with the Legislature in the recent case, Citizens Action Coalition of Ind. vs Koch.

“Just as the judiciary should not ‘intermeddle’ with the legislature’s determination of what constitutes its own work product, the judiciary should also not ‘intermeddle’ with the executive’s determination of what constitutes its own work product, deliberative material, or privileged material,” according to the filing submitted by Barnes & Thornburg, which is representing the Governor’s Office.

Groth said his lawyer informed him that the lawsuit was dismissed Friday by the Marion Superior Court. He said the dismissal did not mention the Koch case, so he can’t be sure if Pence’s argument clinched the decision, but that he will likely file an appeal.

Pence’s lawyers filed their argument in the case on April 22, three days after the Supreme Court ruled in the Koch case. * * *

Public access advocates say their fears about the recent Indiana Supreme Court decision are already coming true.

Kerwin Olson, executive director of the Citizens Action Coalition, said he was worried the Supreme Court case would have negative, far-reaching implications, and this appears to be one of them.

“The Pence administration is already citing Koch as an additional authority to deny releasing government documents,” Olson said. "it’s quite astonishing and troubling. It further shuts the door to accountability and transparency in government when we should be going the opposite direction.” * * *

Steve Key, executive director of the Hoosier State Press Association, said the implications of Pence’s request are troubling.

“If the judiciary takes this position, it would eviscerate the Access to Public Records Act because every agency would argue that a judge shouldn’t judge whether a document should be released under an APRA request if the agency’s position is that the record is part of its internal operations,” Key said. “The public’s ability to hold government officials accountable would be greatly hamstrung by such a policy.”

ILB: See also this ILB post from April 26th, which at the end includes a quote from Governor Pence's Submission of Additional Authority re Groth v. Pence.

Posted by Marcia Oddi on Thursday, April 28, 2016
Posted to Ind. Sup.Ct. Decisions | Indiana Government

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

For publication opinions today (6):

In Susan Stewart, Personal Representative of the Estate of Joanne Hatton, deceased v. Arthur Alunday, M.D., a 19-page case, Chief Judge Vaidik writes [ILB emphasis]:

In this medical-malpractice case, the plaintiff filed a motion for judgment on the evidence claiming that Dr. Arthur Alunday, M.D., made a judicial admission during his testimony that he breached the standard of care, thereby leaving only the issues of causation and damages for the jury. Although the trial court found that Dr. Alunday judicially admitted that he breached the standard of care, the court concluded that the judicial admission was not conclusive and binding but rather should be considered and weighed as other evidence. We clarify that, contrary to a line of authority that has developed in this Court, judicial admissions—as opposed to evidentiary admissions, which can be accepted or rejected by the trier of fact—are conclusive and binding on the trier of fact. Nevertheless, considering Dr. Alunday’s trial testimony as a whole, we find that he did not unequivocally admit that he breached the standard of care. We affirm the jury’s verdict in his favor. * * *

Because of an error made in 1990 in Waugh [Waugh v. Kelly, 555 N.E.2d 857 (Ind. Ct. App.] that commingled the standards for judicial and evidentiary admissions, which has since been repeated in other cases including Weinberger [Weinberger v. Boyer, 956 N.E.2d 1095 (Ind. Ct. App. 2011), trans. denied], we now clarify that unlike evidentiary admissions, which the trier of fact may accept or reject, judicial admissions are conclusive and binding on the trier of fact.

In Alfonso M. Aguayo and William O'Connor v. City of Hammond Inspection Department , a 10-page opinion, Judge Mathias writes:
The Inspection Department of the City of Hammond filed a small claims action against Alfonso M. Aguayo in Lake Superior Court seeking to recover rental registration fees. Aguayo initially failed to respond, and the trial court entered a default judgment in favor of the City. Aguayo then hired attorney William O’Connor to represent him and seek to have the default judgment set aside. Because O’Connor had previously acted as counsel for the City, the City filed a motion to disqualify O’Connor as Aguayo’s counsel, which the trial court granted. O’Connor appeals and argues that the trial court erred in disqualifying him from serving as counsel in this and other similar cases. We reverse. * * *

The trial court’s order disqualifying O’Connor was a valid exercise of the trial court’s authority, but only to the extent it disqualified O’Connor from the case immediately before the trial court. Once the case was dismissed on motion of the City, that dismissal mooted much of the trial court’s disqualification order as pertained to that case. However, the trial court exceeded its authority to the extent that it purported to disqualify O’Connor from representing clients with interests adverse to the City in future cases. We therefore reverse that portion of the trial court’s disqualification order.

In Gerald W. Stephenson v. State of Indiana , a 10-page opinion, Judge Najam concludes:
The State has provided sufficient evidence to support Stephenson’s conviction; the trial court did not abuse its discretion in sentencing him to the maximum sentence; and Stephenson has failed to persuade us that his sentence is inappropriate in light of the nature of his crime and his character. Affirmed.
In Corey T. Weaver v. State of Indiana, an 11-page, 2-1 opinion, Judge Mathis writes:
Corey Weaver (“Weaver”) was convicted in the Hendricks Superior Court for refusing to identify himself to a law enforcement official, as required pursuant to Indiana Code section 34-28-5-3.5. Weaver appeals and argues that his conviction is not supported by sufficient evidence. We reverse and remand for proceedings consistent with this opinion. * * *

[U]nder the specific and limited facts and circumstances before us, we do not consider Weaver’s question in response to being asked for his address to constitute refusal. Indeed, his legitimate question as to whether he was being arrested approaches constitutional magnitude under the statute. Because Weaver did not refuse to provide his address, the State did not meet its burden of proving that Weaver refused to provide his name, address, and date of birth. See I.C. § 34-28-5-3.5(1). We therefore reverse Weaver’s conviction for Class C misdemeanor failure to identify.

Kirsch, J., concurs.
Altice, J., dissents with opinion. [that begins, on p. 10] Our standard of review requires us to affirm Weaver’s conviction “unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Jackson v. State, No. 48S02-1509-CR-554, slip op. at 4 (Ind.
March 2, 2016). In my opinion, the trial court reasonably determined that the
evidence in this case sufficiently established each element of the offense.
Therefore, I must dissent.

In Tyreese Taylor-Bey v. State of Indiana, a 5-page opinion with a pro se defendant, Chief Judge Vaidik writes:
Tyreese Taylor-Bey was convicted of murder. He now appeals, arguing that the trial court lacked jurisdiction based on his status as a “Moorish American National Sovereign” and “Secured Party Creditor.” Because the trial court had jurisdiction, we affirm.
In Joshua Howell v. State of Indiana, an 11-page opinion, Chief Judge Vaidik writes:
At the time of the crime in this case, burglary was generally a Class C felony bu was a Class B felony if the building or structure was a “dwelling.” The State charged Joshua Howell with Class B felony burglary for breaking into a house just hours after the sole occupant was found dead inside. We find that it is reasonable to construe “dwelling” to include buildings and structures that have been occupied in the immediate past by a recently deceased resident. This is because even after the sole occupant of a house dies, it is common and expected for people still to be at the house. To find otherwise would reduce the criminality of burglars who target houses where the sole occupant has recently died. Further, the fact that the house was ordered vacated by the county health department just hours before Howell broke in does not impact whether it was a dwelling for purposes of our burglary statute. We therefore affirm.
NFP civil decisions today (2):

W.W. and A.V. v. Indiana Department of Child Services (mem. dec.)

Danny Huynh v. Nga Pham (mem. dec.)

NFP criminal decisions today (12):

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

Obed Bailey v. State of Indiana (mem. dec.)

Tanno Sheard v. State of Indiana (mem. dec.)

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

Brandon Foster v. State of Indiana (mem. dec.)

Alan E. Dewitt v. State of Indiana (mem. dec.)

Shandell T. Willingham v. State of Indiana (mem. dec.)

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

Earl D. Napier v. State of Indiana (mem. dec.)

Darren Morgan v. State of Indiana (mem. dec.)

Gregory Reasons v. Joanne Reasons (mem. dec.)

Julius Anderson v. State of Indiana (mem. dec.)

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

Ind. Decisions - Supreme Court decides a third case today

In Kathy L. Siner, Personal Representative of the Estate of Geraldine A. Siner, Deceased, et al. v. Kindred Hospital Limited Partnership, d/b/a Kindred Hospital of Indianapolis, et al., a 9-page, 5-0 opinion, Chief Justice Rush writes:

To obtain summary judgment in Indiana, a moving party must demonstrate the absence of any genuine issue of material fact on at least one element of the opposing party’s claim. Conflicting affidavits regarding an element of a claim cannot satisfy this burden because they create a disputed factual issue that must be resolved at trial.

In this medical malpractice case, the defendants’ own designated evidence revealed conflicting medical opinions on the element of causation. Because these conflicting opinions create a genuine issue of material fact, summary judgment is inappropriate and would deny the plaintiffs their rightful day in court. Accordingly, we reverse the trial court’s grant of summary judgment to the defendants. * * *

In this medical malpractice case, we find that Kindred and Dr. Majid did not affirmatively negate the Siners’ claims as required to merit summary judgment. Rather, Kindred and Dr. Majid themselves created a genuine issue of material fact by designating for summary judgment Dr. Krueger’s affidavits and the conflicting medical review panel’s opinion. Because their designated evidence shows that a conflict of evidence may exist on the element of causation, summary judgment for Kindred and Dr. Majid is inappropriate. The conflicting evidence must be resolved by a trier of fact, and we therefore reverse the trial court’s grants of summary judgment to Kindred and Dr. Majid.

Posted by Marcia Oddi on Thursday, April 28, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decide two today

In Leonard L. Suggs v. State of Indiana, a 7-page, 5-0 opinion, Justice Rucker writes:

The question presented is whether the sister of a brother who was once married to the defendant’s aunt is a “family or household member” within the meaning of the statute elevating misdemeanor battery to a level 6 felony. We think not. * * *

It appears to us that rather than extending the scope of “related by marriage” to an infinite configuration of marital relationships the legislature intended instead to employ the term in its commonly understood meaning namely, related by “affinity.” As applied to the facts here, we assume for the sake of discussion that Suggs’ aunt is his mother’s sister. Suggs is obviously related by blood to his mother and his mother’s sister. As for Warren, although she is related by blood to her own brother and related by affinity to her brother’s wife (the sister of Suggs’ mother), she is not related by blood or affinity to Suggs. And this is so because Suggs is the blood relative of one spouse—his mother’s sister—and Warren is the blood relative of the other spouse—her own brother. “There is no affinity between the blood relatives of one spouse and the blood relatives of the other.” 2 Wharton’s Criminal Law § 242 at 573.

In essence, the evidence is not sufficient to show that Suggs is related to Warren by marriage as the term is used in Indiana Code section 35-31.5-2-128. Accordingly, Warren is not a family or household member within the meaning of the statute elevating misdemeanor battery to a level 6 felony.

In Town of Fortville v. Certain Fortville Annexation Territory Landowners, a 5-0, 10-page opinion, Justice Rucker writes:
In this involuntary annexation case the trial court determined, after a bench trial, that a statutory requirement for annexation had not been met. Because the trial court’s judgment is not clearly erroneous, we affirm.

Posted by Marcia Oddi on Thursday, April 28, 2016
Posted to Ind. Sup.Ct. Decisions

Courts - "How a Vacancy on the Supreme Court Affects Cases in the 2015-16 Term"

This last updated April 15th NY Times annotated graphic shows the term's cases already decided 4-4, and shows what would be the impact of a 4-4 split in other remaining major cases.

Oddly, it also shows two cases decided before Justice Scalia's death.

Posted by Marcia Oddi on Thursday, April 28, 2016
Posted to Courts in general

Courts - Interesting legal fes dispute at the SCOTUS

Adam Liptak's April 25th NY Times story, headed "Copyright Case Victor Returns to Supreme Court for Legal Fees," ends:

The case, Kirtsaeng v. John Wiley & Sons, No. 15-375, opened a window on the cost of litigating a Supreme Court case. Mr. Kirtsaeng’s lawyers sought about $125,000 for their work in the lower courts and $1.9 million for their work in the Supreme Court, including, according to a brief from Wiley, “$531,085.25 for time spent soliciting and coordinating” supporting briefs “from sympathetic business groups.”

Wiley said it had spent $300,000 on its own Supreme Court case, an amount Mr. Kirtsaeng’s lawyers, in their own brief, called a “flat, bargain-basement fee its law firm charged for the firm’s own business reasons.”

Wiley’s brief also noted that Mr. Kirtsaeng “had no obligation whatsoever to pay the Supreme Court counsel who represented him even as they racked up millions of dollars in fees.”

Chief Justice John G. Roberts Jr. seemed put off by that argument.

“It seems to me that’s quite an intrusion into the relationship between the party and counsel,” he said of inquiries into fee arrangements.

Posted by Marcia Oddi on Thursday, April 28, 2016
Posted to Courts in general

Wednesday, April 27, 2016

Ind. Decisions - More on yesterday's 7th Circuit 2-1 opinion on Indiana sentencing appeal

Updating this ILB post from yesterday, Sentencing Law & Policy Blog has this new post headed "Intriguing intricate split Seventh Circuit panel discussing Indiana sentencing appeals and ineffective assistance of appellate counsel." Here is how it begins (ending with a teaser):

A split Seventh Circuit panel handed down an interesting habeas opinion yesterday in Miller v. Zatecky, No. 15-1869 (7th Cir. April 26, 2016) (available here). One needs to be a hard-core habeas AND state sentencing fan to be fully engrossed by all the substantive issues covered in the majority panel opinion or the dissent. Still, there is some interesting extra (law-nerd?) spice in both opinions thanks to good work by their authors --- Circuit Judge Easterbook and District Judge Lynn Adelman (sitting by designation), respectively.

What struck me as blog-worthy from Miller, especially because I spend a lot of time thinking about how to make appellate review of federal sentences efficient and effective in a post-Booker world, was this passage and footnote from the dissent about Indiana state sentencing appeals: ...

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

Ind. Courts - Some initial notes from Commercial Courts seminar this morning, including news of the Tax Court Task Force

Chief Justice Loretta Rush introduced the 3 hour CLE. She said the Supreme Court would be issuing the new commercial court rules this morning. (access the order here) She said that a Commercial Courts best practices handbook was to be expected by June 1, which is also when filings may begin in the new commercial courts.

The Chief Justice said that funding for law clerks for the new courts was not approved during the past General Assembly, but that the Court had managed to find funding of $3/4 million for the law clerks.

The Chief Justice's remarks about the reasons for the commercial court project echoed those of Indiana Chamber President and CEO Kevin Brinegar last June: "Businesses locate in states where disputes are resolved with consistency and reliability. Establishing commercial courts promotes confidence and predictability—which helps ensure the competitiveness of Indiana's business environment."

Chief Justice Rush also mentioned that the report on the Indiana Tax Court would be coming out soon. The order creating the Tax Court Task Force was issued May 15, 2015, and concludes:

The Task Force shall provide a written report to this Court not later than May 1, 2016, and provide copies of its report to the Indiana Judicial Center and Indiana Legislative Council.

Posted by Marcia Oddi on Wednesday, April 27, 2016
Posted to Ind. Commercial Courts | Ind. Tax Ct. Decisions

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

For publication opinions today (4):

In Molly A. Melton v. Indiana Athletic Trainers Board, David Craig, A.T., in his official and individual capacity, Larry Leverenz, A.T., in his official and individual capacity, et al. , a 19-page opinion, Judge Brown writes:

Molly A. Melton appeals orders of the trial court granting a motion to dismiss and a motion for judgment on the pleadings in favor of the Indiana Athletic Trainers Board (the “Board”), David Craig, A.T., Larry Leverenz, A.T., Scott Lawrance, A.T., Jennifer VanSickle, John Miller, M.D., John Knote, M.D., each in their individual and official capacities, and the Indiana Professional Licensing Agency (the “IPLA”, and collectively with the Board and the other named parties, the “Appellees”). The motion was filed following the Board’s decision finding Melton in default and ordering that her Indiana athletic training license be indefinitely suspended for a period of at least seven years. Melton raises a number of issues, one of which we find dispositive and revise and restate as whether the court erred in dismissing Melton’s complaint filed under 42 U.S.C. § 1983 pursuant to Ind. Trial Rule 12(C). We reverse and remand. * * *

The Board’s entry of the Notice of Proposed Default following the September 17, 2013 hearing, in which Melton’s counsel appeared, deprived Melton of her opportunity to be heard “at a meaningful time and in a meaningful manner,” which is the fundamental requirement of due process. Mathews, 424 U.S. at 333, 96 S. Ct. at 902. Under the circumstances, we must reverse the court’s grant of the Appellees’ 12(C) Motion dismissing Melton’s Section 1983 claim, remand with instructions to vacate the Board’s Order, and order the Board to provide Melton with an administrative hearing concerning the complaint filed against her Indiana athletic training license which comports with the dictates of due process.

In Betty Thurman and Carolyn Duncan v. Kimberly L. Skinner , a 10-page opinion, Judge Baker writes:
Betty Thurman and Carolyn Duncan (the Sisters) appeal the trial court’s order on their petition to determine the heirship of their brother, Lloyd Dyer (Lloyd), who died intestate. The trial court found that Kimberly Skinner (Kimberly) is Lloyd’s daughter and is entitled to inherit as his sole heir. The Sisters argue that there is insufficient evidence supporting this conclusion. They also argue that the trial court erred by denying their motion for Kimberly to undergo a DNA test to establish (or refute) her claim that Lloyd was her father. Finding sufficient evidence and finding no other error, we affirm. * * *

We find that the evidence in the record readily supports the trial court’s conclusion that Lloyd acknowledged Kimberly as his child. We decline the Sisters’ requests to reweigh the evidence and assess witness credibility. We affirm the trial court’s conclusion that Kimberly is entitled to inherit from Lloyd as though he and Linda were married at the time of Kimberly’s birth. * * *

In this case, the Sisters are not seeking to establish paternity. The purpose for which they seek genetic testing—to determine heirship—is not a valid reason to request genetic testing. Moreover, the results of any genetic or blood test would be irrelevant to the trial court’s ultimate determination under Indiana Code section 29-1-2-7(b). Consequently, we find no error in the trial court’s denial of the motion for genetic testing.

In Andrew Shotts v. State of Indiana, a 24-page opinion, Judge Baker writes:
Andrew Shotts appeals his conviction and sentence for Unlawful Possession of a Firearm by a Serious Violent Felon, a Class B Felony. Shotts argues that he was seized in violation of the Fourth Amendment to the United States Constitution and that evidence obtained as a result of this seizure should not have been admitted at trial. Finding that Shotts’s seizure was authorized pursuant to the United States Supreme Court’s decision in Michigan v. Summers, 452 U.S. 692 (1981), we find no error in the trial court’s refusal to exclude evidence obtained as a result of the seizure. We also find that the trial court did not err in sentencing Shotts and that his sentence is not inappropriate. Accordingly, we affirm the trial court and remand for the limited purpose of vacating Shotts’s conviction and sentence for Visiting a Common Nuisance, a Class B misdemeanor, as the charge had been dismissed before trial.
In Christopher Cowans v. State of Indiana, a 12-page opinion, Judge Baker writes:
Christopher Cowans appeals his conviction for Level 6 Felony Resisting Law Enforcement. He argues that the trial court abused its discretion when it refused his tendered instruction on mistake of fact. Finding that Cowans’s belief is better characterized as a mistake of law than of fact, we affirm. [Interesting discussion re "fleeing" to avoid arrest.]
NFP civil decisions today (0):

NFP criminal decisions today (2):

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

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

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

Ind. Courts - Interim Commercial Courts Rules issued

The Supreme Court today issued an 11-page order adopting Interim Commercial Court Rules for the Indiana Commercial Courts Pilot Project.

The ILB this morning attended a seminar on the new commercial court pilot program and is planning to post much more information on this important new project; the new commercial courts' dockets will be open June 1st.

Posted by Marcia Oddi on Wednesday, April 27, 2016
Posted to Ind. Commercial Courts

Ind. Decisions - Supreme Court decides one today, re a belated Notice of Appeal

In Ronald L. Sanford v. State of Indiana, a per curiam, 3-page, 5-0 opinion, the Court writes:

The plea agreement left sentencing to the discretion of the trial court, and in 1989, when Sanford was fifteen, the court sentenced Sanford to an aggregate term of 170 years in the Department of Correction. The trial court never advised him that he had the right to appeal his sentence.

Beginning in 1991, Sanford attempted to obtain his trial court transcripts to prepare a petition for post-conviction relief. Over the next four and a half years, all six of Sanford’s requests for transcripts were denied. After these repeated denials, Sanford felt he had reached a dead end. Then, beginning in 2004, Sanford again began seeking copies of his transcripts and other case filings. His motion requesting transcripts was denied by the trial court. His public records request to the Marion County Clerk’s Office could not be fulfilled because the original case file and the microfilm were missing from the clerk’s records. * * *

In February 2015, Sanford, by counsel, filed a petition for permission to file a belated Notice of Appeal under Indiana Post-Conviction Rule 2. The trial court held Sanford’s PCR petition in abeyance, and in April 2015, held a hearing on his Post-Conviction Rule 2 petition. The trial court denied Sanford’s petition and the Court of Appeals affirmed. Sanford v. State, --- N.E.3d ---, 2016 WL 359283 (Ind. Ct. App. Jan. 29, 2016). Sanford now asks this Court to grant transfer and permit him to file a belated Notice of Appeal to appeal his sentence.

A court will grant a defendant permission to file a belated Notice of Appeal under Post-Conviction Rule 2 if the defendant’s failure to file a timely Notice of Appeal was not his or her fault, and if the defendant has been diligent in requesting permission to file a belated Notice of Appeal under the Rule. Under the unique circumstances of this case, we find that Sanford should be permitted to file a belated Notice of Appeal. Accordingly, we grant transfer, reverse the judgment of the trial court, and remand with instructions to grant Sanford’s Post-Conviction Rule 2 petition. In all other respects we summarily affirm the Court of Appeals’ decision. See Ind. Appellate Rule 58(A)(2).

Posted by Marcia Oddi on Wednesday, April 27, 2016
Posted to Ind. Sup.Ct. Decisions

Tuesday, April 26, 2016

Ind. Decisions - 7th Circuit issues 2-1 opinion today

In Michael Miller v. Sup. of Pendleton Corr. Fac. (SD Ind., Barker), a 25-page, 2-1 opinion, Judge Easterbrook writes:

Michael Miller was convicted in Indiana of three counts of child molestation and sentenced to three consecutive 40-year terms. The sexual abuse, including anal intercourse, began when the victim was nine and continued for six years. When imposing the lengthy term (effectively life in prison), the state judge relied not only on the nature of Miller’s conduct but also on his four prior convictions, his failure to reform after stretches of imprisonment, and the absence of any mitigating factors.

The convictions were affirmed on direct appeal, see Miller v. State, No. 34A02-0307-CR-563 (Ind. App. June 8, 2004). Miller then filed a collateral attack, contending that his appellate lawyer furnished ineffective assistance by failing to contest the length of his sentence.* * * The state’s court of appeals eventually concluded that appellate counsel should have raised this issue, but that its omission did not result in prejudice under the standard of Strickland v. Washington, 466 U.S. 668, 694–96 (1984), and equivalent state decisions, which ask whether the petitioner has demonstrated a “reasonable probability” that the outcome of the direct appeal would have been different.

The court observed that the substantive standard for appellate review in Indiana is whether the sentence is “inappropriate in light of the nature of the offense and the character of the offender.” Ind. App. R. 7(B). (Miller does not contend that his sentence violates the Cruel and Unusual Punishments Clause or any other rule of federal law.) After reviewing the evidence, the appellate court held “that Miller has not established that his 120-year aggregate sentence is inappropriate in light of the nature of the offense and the character of the offender.” Miller v. State, 2013 Ind. App. Unpub. LEXIS 377 (Mar. 16, 2013) at *19. [sic. The ILB located this NFP opinion here, it was filed Mar. 26, 2013]

This means that, if Miller’s appellate lawyer had contested the sentence, the argument would have failed on the merits. Because, in the state court’s view, the chance of success was zero, it necessarily followed that Miller had not shown a “reasonable probability” that a better appellate lawyer could have obtained a lower sentence for him. A federal district judge then denied Miller’s petition for a writ of habeas corpus under 28 U.S.C. §2254. Miller v. Zatecky, No. 1:13-cv-913- SEB-TAB (S.D. Ind. Mar. 26, 2015).

Because Indiana addressed on the merits the question whether Miller has established prejudice, we must decide whether the state’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”. 28 U.S.C. §2254(d)(1). * * *

Miller has not shown that the state judiciary made an error of federal law, so he is not entitled to collateral relief. AFFIRMED

ADELMAN, District Judge [ED Wis., sitting by designation], dissenting. [beginning at p. 9 of 25] Because appellate counsel provided ineffective assistance by failing to challenge Michael Miller’s 120-year prison sentence, I would conditionally grant the writ. The majority concludes that Miller fails to show that the state judiciary made any error of federal law in rejecting this claim. For the reasons that follow, I respectfully dissent.

Posted by Marcia Oddi on Tuesday, April 26, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Will the non-justiciability rationale of CAC v. Koch be applied equally to the executive branch, further limiting APRA?

Here is a quote from Megan Banta's $$ April 18th story in the Bloomington Herald-Times on the CAC v. Ind. House Caucus oral argument:

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 [the CAC's attorney William] 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.

Groth raised this caution in his opening brief, as well as the rely brief. From pages 24-25 of the CAC's opening brief:
Fourth, any concerns about the release of communications from individual members of the public would apply equally to communications to the executive branch, but that would not justify the wholesale exemption of the executive branch from its APRA obligations. Thus, to hold this case nonjusticiable because it involves the legislative branch of government would call into question whether APRA claims involving the executive branch of government are also nonjusticiable.
And from the CAC reply, fn 4 at p. 11:
These are no reasons these same concerns would not equally apply to lobbyist or constituent communications with legislative bodies other than the General Assembly, such as city and county councils, as well as to Executive Branch communications, but the Caucus chooses selectively to focus solely on communications with its own members.
As the Herald-Times story pointed out, the justices raised concerns about justicability and its potential ramifications during oral argument. [the ILB is hoping later to insert timeline locators]

In their 4-1 April 19th opinion, the Court's majority stated:

However, we find non-justiciable the question of whether the documents requested in this case are exempt from disclosure under APRA’s work product exception, Indiana Code section 5-14-3-4(b)(14). Accordingly, under Indiana Trial Rule 12(B)(6), we affirm the trial court’s dismissal.
Justice Rucker, writing in dissent, said:
The majority’s ruling is not only premature, but it unfortunately weighs in on a significant separation of powers issue without an adequate record. I would refrain from so doing and instead remand this matter to the trial court for further proceedings.
This week, in an APRA case against Governor Pence in which attorney Groth is the plaintiff, Governor Pence is now asserting a nonjusticiability defense based on CAC v. Koch. Some quotes from an April 22nd document, Governor Pence's Submission of Additional Authority, in Groth v. Pence, a case in Marion Superior Court:
The Court thus held [in CAC v. Koch] that "determining whether the documents requested by Plaintiffs are excepted under APRA as legislative work product is a non-justiciable question."

This case presents the same non-justiciable question because it asks this Court to determine whether the documents requested by Mr. Groth directly from Governor Pence are excepted under APRA as work product, deliberative material, or attorney-client privileged material. Indeed, this case involves, in part, different subsections of the very statute at issue in Koch. See Ind. Code 5-14-3-4(b)(2), (6), (10).1 Just as the judiciary should not "intermeddle" with the legislature's determination of what constitutes its own work product, the judiciary should also not "intermeddle" with the executive's determination of what constitutes its own work product, deliberative material, or privileged material. The Koch plaintiffs sent their request directly to Representative Koch; here, Mr. Groth sent his request directly to the Governor. Complaint, Exhibit A. The requests to Representative Koch were denied based on exceptions to APRA, among other reasons, just as Governor Pence denied Mr. Groth' s requests based on exceptions to APRA. Mr. Groth now asks this Court to review Governor Pence's determinations, just as the Koch plaintiffs did. In Koch, the Indiana Supreme Court declined to engage in this review because it constituted interference in the internal operations of another branch of government. This Court should likewise decline to interfere in the Executive's internal operations under Koch.

Posted by Marcia Oddi on Tuesday, April 26, 2016
Posted to GA and APRA | Indiana Courts | Indiana Government

Ind. Decisions - Another Supreme Court opinion today

In In the Matter of the Term. of the Parent-Child Relationship of: N.G., L.C., & M.C. (Minor Children), and A.C. and J.G. (Their Parents) A.C. (Mother) v. Ind. Dept. of Child Services (mem. dec.), an 8-page, 5-0 opinion, Justice Dickson writes:

This is an appeal by a mother whose parental rights were terminated as to three of her four children. We affirm the trial court. * * *

The mother's appeal identifies three claims: (1) the trial court findings are not supported by the evidence; (2) the trial court judgment terminating the mother's parental rights and finding such action was in the best interest of the children is not supported by sufficient clear and convincing evidence; and (3) the trial court clearly erred when it failed to dismiss the petitions for termination of parental rights due to the concealment of recordings of counselling sessions in violation of the mother's due process rights. * * *

We conclude that there is probative evidence from which a reasonable fact-finder could have found findings #36 and #37 proven by clear and convincing evidence, and thus such findings are supported by sufficient evidence. * * *

We hold that a reasonable finder of fact could conclude based on clear and convincing evidence both (a) there is a reasonable probability that the conditions that resulted in the children's removal or the reasons for placement outside the home of the parents will not be remedied, and (b) the termination is in the best interests of the children. * * *

The mother's third appellate claim is that the trial court violated her due process rights by failing to dismiss the petition for termination of parental rights when evidence was presented that the DCS knew or should have known that the therapy sessions for L.C. and M.C. were vide-otaped, but failed to provide the videotapes when a subpoena was issued for them. Appellant's Br. at 9. We find that the mother has procedurally defaulted this claim on appeal by not making an objection in the trial court herself and by not joining the father's oral motion in the trial court. Furthermore, when the court asked how the parties were "doing with respect to the counseling videotapes," the mother's attorney answered, "[t]he matter is resolved, Your Honor." Tr. at 506. The mother's due process claim is thus waived. Furthermore, a party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal. McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). We decline to consider the mother's claim of due process violation.

We affirm the judgments of the trial court terminating the parental relationships of the parents, A.C. and J.G., with their children, N.G., L.C., and M.C.

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

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (3):

In Marion County Election Board and Marion County Board of Voter Registration v. Gregory Bowes, Mark King, Paul Ogden, Zach Mullholland, and Brian Cooper, a 14-page opinion, Judge Pyle writes:

Appellants/Defendants, the Marion County Board of Voter Registration (“MCVR”) and Marion County Election Board (“MCEB”), appeal the trial court’s award of attorney fees to Appellee/Plaintiff, Gregory Bowes (“Bowes”), an attorney who litigated a claim pro se under the Indiana Access to Public Records Act (“APRA”). Bowes also cross-appeals. At trial, the trial court concluded that Bowes could not recover attorney fees under APRA for his successful APRA claim because he had litigated the claim pro se. Nevertheless, the trial court awarded Bowes “expenses of litigation” reflecting an hourly rate for the amount of hours he had spent litigating his claim to compensate him for his lost opportunities and employment as an attorney.

On appeal, the MCVR argues that the trial court’s litigation expenses award was essentially an improper award of attorney fees and, alternatively, that the trial court erred in allowing Bowes to recover litigation expenses for his lost opportunities and employment. On cross-appeal, Bowes argues that the trial court erred in denying his request for attorney fees and abused its discretion in determining the amount of his litigation expenses. Because we conclude that Bowes was not entitled to recover attorney fees under APRA as a pro se attorney or litigation expenses for missed work and other opportunities for employment, we reverse the trial court’s decision. We remand with instructions for the trial court to vacate Bowes’ prior award of litigation expenses and to enter an award of $975.14 for his remaining court costs and litigation expenses.

In Richard Scott Lambert v. Michael Shipman and Kent Abernathy, a 12-page opinion, Judge Altice writes:
Richard Lambert appeals the denial of his verified petition seeking rescission of a lifetime suspension of his driving privileges. Lambert presents two issues for our review, which we restate as: 1. Does a trial court have authority to deny a petition for rescission of a lifetime suspension of driving privileges brought under Ind. Code § 9-30-10-14.1? 2. Did the trial court err in denying Lambert’s petition? * * *

Moreover, as noted above, the trial court, in concluding that not enough time had passed, indicated that it was persuaded more by the fact that Lambert had accumulated three lifetime suspensions and that after each suspension, he chose to ignore court orders that he not drive. The significance the trial court put on Lambert’s history was a matter within its discretion and supported its determination that rescission of Lambert’s lifetime suspension was not in the best interests of society and that his lifetime suspension was not unreasonable. Based on the foregoing, we conclude that the trial court did not err in denying Lambert’s petition for rescission of the lifetime suspension of his driving privileges. We affirm.

In Christopher C. Norris v. State of Indiana , a 25-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that J.B. was unavailable to testify as a protected person pursuant to I.C. § 35-37-4-6(e)(2)(B)(i); the trial court properly admitted the videotaped interview of J.B. at trial, together with the testimony of three other witnesses; the trial court committed harmless error by admitting vouching testimony; and there was no drumbeat repetition of J.B.’s allegations by different witnesses. Affirmed.
NFP civil decisions today (4):

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

In the Matter of the Term. of the Parent-Child Relationship of: R.H., C.H., and M.H., K.G. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

In re the Guardianship of K.K.L., C.T.L., Q.C.L., and A.S.L. (minor children), Dorothy Denise Carroll (mem. dec.)

James Chaplin v. J.S. (mem. dec.)

NFP criminal decisions today (8):

Joshua H. Field v. State of Indiana (mem. dec.)

Bryan N. Myers v. State of Indiana (mem. dec.)

Lavonte A. Wilderness v. State of Indiana (mem. dec.)

Franklin e. Heathscott v. State of Indiana (mem. dec.)

Jenneil Jackson v. State of Indiana (mem. dec.)

Philip A. Garrett v. State of Indiana (mem. dec.)

Joseph Hale v. State of Indiana (mem. dec.)

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

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

Ind. Decisions - Supreme Court decides one today

In William Bowman v. State of Indiana, a 12-page, 5-0 opinion, Justice Massa writes:

William Bowman was convicted after a jury trial of Class A Felony Dealing in a Narcotic Drug within 1,000 Feet of School Property and of being a Habitual Substance Offender. Bowman raises five contentions on appeal: (1) he was a victim of “sentencing factor manipulation” at the hands of the Connersville Police Department and its confidential informant, Ciji Angel; (2) the jury verdict may not have been unanimous, in that two baggies were introduced into evidence to support a single charge of dealing in heroin; (3) certain letters he wrote to potential witnesses from prison should not have been admitted; (4) there was insufficient evidence to support the conviction; and (5) his sentence of forty years for felony dealing was inappropriate. We find none of Bowman’s contentions merit reversal, and thus affirm.

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

Ind. Gov't. - Munster passes human rights ordinance

From the April 25th NWI Times:

The new ordinance, modeled on a similar law passed in Carmel, Indiana, prohibits discrimination against anyone on the basis of race, sexual orientation, disability or gender identity, making it illegal to obstruct someone from entering a business, entering into a contract, obtaining and maintaining employment or participating in any type of program or service available to the general public based on the classifications cited. Religious worship, clergy while engaged in religious activities, nonprofit clubs organized exclusively for religious purposes and private gatherings not open to the public would be excluded from the ordinance.

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

Ind. Courts - Hon. Brent E. Dickson's Retirement Ceremony

Justice Dickson's Supreme Court formal retirement ceremony will take place at 1:00PM this Friday, April 29th. It will be webcast here.

Posted by Marcia Oddi on Tuesday, April 26, 2016
Posted to Indiana Courts

Ind. Decisions - "A devastating blow to public's right to know" - three editorials [now 4]

That is the heading to the South Bend Tribune's editorial today about the Supreme Court's April 19th ruling in CAC v. Koch. Some quotes:

A ruling by Indiana’s highest court allows lawmakers to keep the people’s business shrouded in secrecy.

The state Supreme Court’s decision earlier this month means legislators can continue to withhold their communications with lobbying groups and businesses.

The decision comes in a taxpayer-funded lawsuit filed by Citizens Action Coalition, Common Cause of Indiana and Energy and Policy Institute. The nonprofit groups are seeking emails between Rep. Eric Koch, R-Bedford, and utility companies regarding his solar power bill. The House had denied an open records request for the correspondence, saying the General Assembly is exempt from the Indiana Access to Public Records Act.

In its ruling, the court said that the legislature is covered by the state’s public record law, but that ordering the release of the correspondence violates the state constitution’s separation of powers between the legislative and judicial branches of government.

Legislative leaders have maintained that withholding emails is necessary to protect the privacy of correspondence between lawmakers and their constituents. The groups seeking the release of the emails argued that the public is entitled to know about the communications between interest groups and legislators.

The court ruling said the General Assembly has the discretion to determine what qualifies as the work product of legislators and their staff members.

Recent history suggests otherwise. Instead of being judicious in deciding what documents to withhold and what to release, the House has defined “work product” as basically everything, shielding all from the public in whose interests members are trusted to act. And their concerns about the privacy of constituents who communicate with them could be addressed by finding a way to protect sensitive, private information while still adhering to the law’s goal of openness.

Other recent editorials take a similar position. From a Muncie Star-Press editorial of April 23, headed "Your right to know thwarted again." Some quotes:
Lost in the frenzy last week over Donald Trump's campaign stop in Indianapolis was this: The Indiana Supreme Court made it more difficult for Hoosiers to know what lawmakers are doing.

Or, put another way, the cozy relationship between lawmakers and lobbyists was preserved. How so? The court ruled lawmakers can continue withholding email correspondence with lobbying groups and businesses from the public.

We believe Indiana lawmakers ought to put accountability and transparency above lobbyists and enact rules to allow for the release of emails. But that's asking too much of them, unfortunately. * * *

Emails can be an important source of information that affects public policy. It was email that brought to light former Superintendent of Public Instruction Tony Bennett's efforts to change Christel House Academy's charter school letter grade from a "C" to an "A."

We believe if emails were made public, the state would have lawmakers serving in the Statehouse who keep lobbyists at arm's length. We believe that would make for better lawmakers. And that's something all of us deserve.

And strong words from the Indianapolis Business Journal, in an April 23rd editorial headed "High court sides with secrecy in legislator email case." Some quotes:
The Indiana Supreme Court took a timid and legally dubious course on April 19 when it ruled that Indiana lawmakers can continue withholding their correspondence with lobbying groups and businesses.

The ultimate losers from the decision were the people of Indiana, who stand to benefit from an open and transparent government. It’s a concept that is a bedrock of our nation. As our second president, John Adams, put it: “Liberty cannot be preserved without a general knowledge among the people, who have a right and a desire to know.”

Beyond that, secrecy can foster corruption—especially in a state like Indiana with a part-time Legislature. Indiana’s 100 House members and 50 senators have a wide range of other jobs, creating abundant opportunities for conflicts of interests. * * *

The high court [found] the APRA does apply to the General Assembly. But rather than taking the next logical step—concluding the Koch correspondence must be made public—it backed away, citing a 1993 opinion on the separation of powers that concluded the high court “should not intermeddle with the internal functions of either the executive or legislative branches of government.”

Following that reasoning, Justice Steven David, writing for the majority, took a pass on the particulars of the Koch case. “Because the issue before the court would require invasion into a core function of the legislative branch, this court declines to exercise its jurisdiction,” he said.

Taking a stand on such an important case would not have struck us as meddling. After all, it is the role of the judicial branch to interpret the meaning of laws, apply laws to individual cases, and decide if they violate the Constitution. * * *

“To protect communications with lobbyists outside the Statehouse is absolutely absurd,” Kerwin Olson, executive director of the Citizens Action Coalition, told The Associated Press after the decision.

We share his dismay, as should all Hoosiers who care about open government.

[Updated 4/28/16] Here is another editorial, from the April 27th Fort Wayne Journal Gazette, headed "Public loses as lawmakers gain records shield."

Posted by Marcia Oddi on Tuesday, April 26, 2016
Posted to GA and APRA | Ind. Sup.Ct. Decisions | Indiana Government

Monday, April 25, 2016

Ind. Decisions - 7th Circuit decided two Indiana cases late today, one a reversal

In Angel Houston v. C.G. Security Services, Inc. (SD Ind., Lawrence), an 8-page opinion, Judge Flaum writes:

This appeal arises out of a lawsuit brought by plaintiff‐appellee Angel Houston, who sustained injuries from a fall during a New Year’s Eve party at a Hyatt hotel in Indianapolis. Defendant‐appellant C.G. Security Services, Inc. (“C.G.”) provided security personnel for the party. During litigation, Houston filed several motions for sanctions against C.G. The district court referred the matter to a magistrate judge, who issued a report and recommendation regarding sanctions against C.G. for discovery violations. The district court adopted the magistrate judge’s report and recommendation to impose sanctions.

C.G. appeals. Specifically, C.G. claims that the district court abused its discretion by adopting the report and recommendation, as well as by awarding Houston’s counsel attorney’s fees. We conclude that there was no abuse of discretion and affirm the judgment of the district court.

In Brian Herron v. Douglas Meyer (SD Ind., Magnus-Stinson), a prisoner appeal, Judge Easterbrook writes:

In this Bivens suit, Brian Herron, a disabled federal prisoner, accuses guard Douglas Meyer of transferring him to a cell that the guard knew was likely to cause him injury. Meyer did this, Herron alleges, because he disliked the fact that Herron had filed grievances and had refused to share a cell with an inmate who he thought endangered him. Herron maintains that Meyer violated the First and Eighth Amendments. The district court dismissed the First Amendment theory and held that the guard is entitled to qualified immunity on the Eighth Amendment theory. 2014 U.S. Dist. LEXIS 20865 (S.D. Ind. Feb. 20, 2014) at *7–9 (First Amendment); 2015 U.S. Dist. LEXIS 28263 (S.D. Ind. Mar. 9, 2015) (Eighth Amendment). * * *

If Meyer set out to punish Herron for his grievances, then a price has been attached to speech. The district court thought otherwise in part because Herron had not attached his grievances to the complaint, but that was not necessary; a complaint narrates a claim and need not supply the proof. That comes later. Pratt v. Tarr, 464 F.3d 730, 732–33 (7th Cir. 2006). And if, as we doubt, an amendment to the complaint was required, the district court should have allowed it rather than dismissing the claim. See, e.g., Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 519–23 (7th Cir. 2015).

Whether a penalty has been attached to protected speech is potentially more difficult. Many decisions assume that essentially everything a prisoner says in the grievance sys tem—if not everything a prisoner says to a guard—is pro tected by the First Amendment. See, e.g., DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000); Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006). These decisions do not discuss a par allel line of cases about grievances that public workers make about the conditions of their employment. That line of cases attempts to distinguish statements on topics of public im portance (protected) from personal gripes (unprotected) and statements that disrupt the workplace (also unprotected). Compare Connick v. Myers, 461 U.S. 138 (1983), with Rankin v. McPherson, 483 U.S. 378 (1987); see Pickering v. Board of Ed ucation, 391 U.S. 563 (1968). The decisions in the prison-­‐‑ grievance line do not explain why the First Amendment of-­‐‑ fers greater protection to prisoners than to public employees. We do not get into that here, because the subject has not been addressed in the briefs. It is enough to flag the subject as worth attention, either in some future litigation or in this case if, contrary to our expectations, the First Amendment theory turns out to matter.

The judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion.

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

Courts - "Illinois, Indiana join in funding move to keep Illiana Expressway alive"

Updating a long list of ILB posts on the proposed, and controversial, Illiana Expressway, Crain's Chicago Business has an interesting story by Greg Hinz that begins:

In the latest sign that the proposed Illiana Expressway still has a heart beat, Illinois and Indiana appear to have reached a deal under which the latter will provide the cash needed for a key revamped environmental review of the controversial toll road.

A document filed in U.S. District Court here today [the Crain article links to the Illiana Document], the Indiana Department of Transportation says it has "agreed to fund the technical work needed to comply" with changes in the the Environmental Impact Statement (EIS) ordered by the court. That means that the Illinois Department of Transportation, whose funding has been limited by this state's continuing budget stalemate, will not have to come with money despite what the filing describes as "funding issues presented by IDOT."

The filing indicates that repairs on the rejected EIS could be completed by the end of July.

See earlier ILB posts on the initial disapproval from June 17, 2015 and Sept. 23rd.

Posted by Marcia Oddi on Monday, April 25, 2016
Posted to Courts in general

Ind. Gov't. - New Interface for Secretary of State Business Search

The Indiana Secretary of State has a new interface for business and corporation searches and documents. A reader writes:

It's much better! You can actually pull up a PDF of articles of organization and such, whereas before you could view, but not print those documents.

This should make it a lot easier for attorneys to find corporate information when looking for the proper entity to sue or name in actions.

Access it here.

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

Ind. Decisions - Supreme Court decided one late Friday, posted today

In Adam Gaff v. Indiana-Purdue University of Fort Wayne, a 5-page, 5-0 opinion, Justice Dickson writes:

The plaintiff, Adam Gaff, appeals from the grant of summary judgment sought by his former employer, defendant Indiana-Purdue University of Fort Wayne (IPFW), in this employment termination discrimination case. We grant transfer to clarify the application of Indiana summary judgment jurisprudence to such cases. [ILB emphasis]

As consolidated by the Court of Appeals, the plaintiff's appeal presents claims alleging that the trial court erroneously granted summary judgment as to the plaintiff's federal and state constitutional claims and as to the plaintiff's retaliation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Gaff v. Indiana-Purdue Univ. of Fort Wayne, 45 N.E.3d 458, 460 (Ind. Ct. App. 2015). With respect to the federal and state constitutional claims, we summarily affirm the decision of the Court of Appeals.

In affirming the summary judgment on the retaliation claim, however, the Court of Appeals noted language from Indiana Civil Rights Commission v. Culver Educational Foundation, wherein we stated that "the ultimate burden of persuasion that the defendant engaged in unlawful discrimination remains at all times with the plaintiff." 535 N.E.2d 112, 115 (Ind. 1989). The Court of Appeals in Gaff acknowledged that "IPFW is the party who moved for summary judgment," but nevertheless applied Culver Educational—which was not a summary judgment case—to hold that "the initial burden is still on Gaff to prove a prima facie case of retaliation." Gaff, 45 N.E.3d at 465. The Court of Appeals ventured that "Indiana's 'heightened' summary judgment standard, discussed in Hughley v. State, 15 N.E.2d 1000, 1003 (Ind. 2014), under which the moving party must negate an opponent's claim, does not apply to a Title VII claim." Gaff, 45 N.E.3d at 465 n.9. We disagree. * * *

As we recently emphasized in Hughley, "[e]ven though Indiana Trial Rule 56 is nearly identical to Federal Rule of Civil Procedure 56, we have long recognized that Indiana's summary judgment procedure . . . diverges from federal summary judgment practice. In particular, while federal practice permits the moving party to merely show that the party carrying the burden of proof lacks evidence on a necessary element, we impose a more onerous burden: to affirmatively negate an opponent's claim." * * *

We affirm the grant of summary judgment as to the plaintiff's retaliation claim under Ti-tle VII of the Civil Rights Act of 1964, and we summarily affirm the Court of Appeals as to all other issues. This cause is remanded to the trial court for further proceedings consistent with this opinion.

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

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

For publication opinions today (0):

NFP civil decisions today (2):

Edward Zaragoza v. Shella Zaragoza (mem. dec.)

Malcolm Williams v. Marion Thatcher (mem.dec.)

NFP criminal decisions today (1):

Kelly E. Culver v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, April 25, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Paul Henry Gingerich, sentenced as adult at 12, has hearing upon turning 18

Updating this most recent Gingerich post, from Feb. 4, 2014, From that story:

Gingerich currently is being held at the Pendleton Juvenile Correctional Facility.

[Gingerich's attorney Monica] Foster and prosecutor Daniel Hampton disagreed on how long Gingerich will have to remain in a juvenile facility. Foster said he could be placed in a residential facility as early as this summer [i.e. 2014] after receiving his high school degree, while Hampton said the earliest that could happen is after he turns 18.

As reported by Cincinnati's WLWT5 on April 23rd:
Paul Henry Gingerich turned 18 in February, and under a state law that bears his name, a judge can now consider three alternative sentencing options, including Gingerich's release. The judge could also transfer him to adult prison to serve the remainder of his 25-year sentence or place him on probation, home detention or work release.

Gingerich was believed to be the youngest person in Indiana to be sentenced as an adult. His case sparked an outcry that led to legislation known as "Paul's Law," which allows alternative sentences for juveniles who commit serious crimes.

Gingerich appeared Friday in a Kosciusko County courtroom for a hearing on those options, the Indianapolis Star reported. Gingerich's attorney, Monica Foster, is asking for probation or home detention. A decision is likely by summer.

"There is simply no legitimate penological purpose to be served by committing Paul Gingerich to further incarceration," Foster wrote in court records. "Indeed, to commit Paul Gingerich to an adult prison would run a very real risk of destroying the progress that has undeniably been made by this young man."

From Kristine Guerra's long April 23rd story in the Indianapolis Star:
During the hourlong hearing Friday, Kosciusko County Prosecutor Dan Hampton called the lead investigator on the case, John Tyler of the Kosciusko County Sheriff's Department, to the stand. Tyler recalled details of the crime, as well as what happened before and after Danner was killed.

Foster objected to Tyler testifying, saying the hearing was not about the crime but about Gingerich's progress in the juvenile system. Hampton argued that the court must know the "type of behavior that the juvenile facility has to address." The judge, James Heuer from neighboring Whitley County, allowed Tyler to testify.

After hearing testimony, Heuer must now decide where Gingerich will spend the next several years of his life. Gingerich could walk out a free man, but he also could be sent to adult prison for the remainder of his 25-year sentence, cut in half by credit for good behavior.

Because Gingerich wants to live with his mother in Fort Wayne if he is released, Heuer asked the defense attorney for information about programs in Allen County that Gingerich would be eligible for. He also asked the prosecution to determine Gingerich's eligibility for correction department programs.

Heuer said Gingerich's progress was "impressive." But he also said he cannot turn his back on the victim's family, some of whom attended the hearing.

"I do want to know what's out there in terms of alternatives," Heuer said.

Posted by Marcia Oddi on Monday, April 25, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending April 22, 2016 [Updated]

Here is the Clerk's transfer list for the week ending Friday, April 22, 2016. It is one page (and 13 cases) long.

One transfer was granted last week:

[Updated at 11:38 AM] As it turns out, this case was transferred with opinion late on Friday, April 22; here is the ILB summary of the Gaff opinion.

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

About this blog - ILB receives award from the Indiana Society of Professional Journalists

The Indiana Law Blog has been awarded the Slaymaker Service to Journalism Award by Indiana Society of Professional Journalists. Many thanks!

Will update later with a photo of the award.

Posted by Marcia Oddi on Monday, April 25, 2016
Posted to About the Indiana Law Blog

Ind. Courts - "Square Donut" name dispute goes to federal court

Some quotes from a long story the ILB missed, from the March 26th Gary Post-Tribune, reported by Teresa Auch Schultz:

Their doughnuts are both sweet and square, but a legal battle is rising between Family Express and a Terre Haute bakery that could leave one of them flat.

Valparaiso-based Family Express filed a complaint for declaratory judgment Thursday in U.S. District Court asking that it be allowed to continue to refer to its four-sided doughnuts as "Square Donuts." * * *

The complaint notes that the two companies' markets are starting to mix, as Square Donuts heads into northern Indiana and Family Express expands south.

Family Express argues in the complaint that the name is descriptive and generic, which would prohibit it from being trademarked. Family Express wants the court to rule that the company is not infringing by using the name Square Donuts and that the trademark is invalid.

The trademark case is "Family Express Corporation v. Square Donuts Inc." Here is the complaint.

Posted by Marcia Oddi on Monday, April 25, 2016
Posted to Indiana Courts

Ind. Courts - Gov. Pence has a little over two weeks left to name a new Supreme Court justice

Governor Pence has a little over two weeks left to name a new Supreme Court justice.

The Supreme Court has two oral arguments set for May 2nd. How many justices will be sitting?

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.

On March 11th the Judicial Nominating Commission formally submitted the names of three nominees to Governor Pence:

Posted by Marcia Oddi on Monday, April 25, 2016
Posted to Indiana Courts | 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 4/25/16):

Next week's oral arguments before the Supreme Court (week of 5/2/16):

Wednesday, April 20

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 4/25/16):

Wednesday, April 27

Thursday, April 28

Friday, April 29

Next week's oral arguments before the Court of Appeals (week of 5/2/16):

Wednesday, May 4

The past COA oral arguments 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, April 25, 2016
Posted to Upcoming Oral Arguments

Friday, April 22, 2016

Ind. Courts - ILB looking for the briefs in Lake Michigan Lakeshore case

The Court of Appeals brief of the Appellee State of Indiana and IDNR was filed April 20th and thanks to the new Court policy, is available online via the docket.

However, briefs filed before April 1, 2016 are not readily available. Those would include the 2/19/2016 Appellant Gunderson brief, the 3/21/2016 Appelleee Save the Dunes brief, the 3/23/2016 Appellee/Cross-Appellant Brief of Long Beach Community Alliance brief. If you can help. please contact the ILB.

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

Ind. Gov't. - "Wind farm neighbors concerned over property values"

Ken de la Bastide reports in the Anderson Herald Bulletin - some quotes:

NEW CASTLE — Several hundred Henry County residents gathered in opposition to a proposed wind farm near Middletown because of a concern over lower property values.

Residents met Wednesday in the Smith Building at Memorial Park to gather information about the Big Blue River Wind Farm and learn about efforts to stop the project.

Texas-based Calpine Corp. is proposing to construct up to 100 turbines in northwestern Henry County. The estimated investment is between $300 million and $350 million.

A request filed with the Henry County Planning Commission for the placement of a 328-foot meteorological tower for the purpose of gathering wind speed and directional data has been withdrawn indefinitely.

Steve Dellinger said he could have three or four turbines surrounding his home in the future. “I think it sucks,” he said of the project. “I don’t want to look at the behemoths for the rest of my life, because they’re going to be there.

“It’s not like crops that change every year,” Dellinger said. “Once they go up you can’t say I’ve changed my mind. For the rest of my life, I’m going to get up every morning and stare at these suckers.”

Dellinger said his main concern was the loss of the value of his property. “I moved here because it was peaceful, quiet, and you could see forever,” he said. “The things I’m accustomed to will no longer exist.” Dellinger said he is not opposed to wind power, but believes they should be constructed in non-populated areas. * * *

Danny Bennett was looking at a map of potential turbine sites — five of which could surround his property.

“I bought the property nine years ago to be in a quiet area with beautiful farm land,” he said. “We plan to retire there and we’ve put $100,000 into the house. Our value is going to drop. “No one will want to buy the house and my retirement will be impacted,” Bennett said.

Bennett said he has heard that some of the surrounding farmers have signed leases. He visited the wind farm in Randolph County and talked to people living close to the wind turbines.

“We stopped at six farm houses,” Bennett said. “Not one good thing was said about them. One person said they have to close their shades in the morning and evening because of the flicker.” * * *

Expecting turbines to be close to her home, Cheryl McCambridge attended the meeting to get more information on the wind farm.

“My concern is the number of turbines they’re proposing,” she said. “I’m concerned about property values and health risks.” McCambridge said she’s somewhat surprised that three wind farms are being proposed for the county.

“Usually things don’t change a lot in Henry County, and this is quite a change,” she said. “I just recently found out where the turbines are going, so I’m surprised elected officials would support it so early.”

James McShurley said a wind farm won’t be constructed near gated communities in Carmel and Zionsville because the people have the money to stop a project. “This will create an economic dead zone,” he said. “There will be no new homes built, less remodeling and a lowering of property values.”

McShurly said a corporate citizen doesn’t divide a community and trample on the heritage. “We’re not a bunch of rubes as they think,” he said. “We’re farmers and business owners. What good is any money if the community is not fit to live in.”

See a lengthy list of other ILB posts re wind turbines.

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

Ind. Decisions - "Court Ruling Strikes a Blow Against the Protection of Baby DNA"

The April 19th Court of Appeals ruling in A.B.Doe v. State Health Commissioner (ILB summary here) is the subject of a long story today by Deborah Hamilton in CharismaNews ("Breaking News. Spiritual Perspective"), headed "Court Ruling Strikes a Blow Against the Protection of Baby DNA." The story begins:

Patient privacy for some of Indiana's youngest citizens—and the fight for the protection of baby DNA nationwide—took a blow this week, as the Indiana Court of Appeals ruled against baby "A.B. Doe," her parents and other families they were representing.

Doe and her parents filed suit against the Indiana State Health Commissioner, the director of the Indiana State Department of Health (ISDH) Genomics and Newborn Screening Program and the Indiana State Department of Health, stating that the baby's dried blood spot taken at the time of her birth was stored without permission.

Judge Heather A. Welch instead ruled in favor of the plaintiffs, Dr. Jerome Adams, Indiana State Health commissioner, and Victoria Buchanan, director of the ISDH Genomics and Newborn Screening Program, stating that Doe "had not sustained, nor was she in immediate danger of sustaining, a direct injury as a result of the storage of her dried blood spot sample," according to court documents.

Citizens' Council for Health Freedom (CCHF), however, takes issue with the decision, stating that, at the core, a breach of constitutional rights is an injury.

"We disagree with the court's ruling that the storage of newborn bloodspots is 'reasonable' and therefore not an unreasonable search and seizure under the Fourth Amendment," said Twila Brase, co-founder and president of CCHF. "This is the child's DNA. Its value for newborn genetic screening disappears after six months and all that's left is the DNA. The long-term storage of baby DNA by state government is not reasonable. It's a constitutional violation."

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

Ind. Decisions - "Jury trial waiver requires defendant's personal assent"

Yesterday's Supreme Court decision in Horton v. State is the subject of a story by Dan Carden of the NWI Times that begins:

INDIANAPOLIS — The Supreme Court unanimously affirmed Thursday Indiana’s long-standing requirement that a criminal defendant must personally waive his or her right to a jury trial for the waiver to be valid.

Prior to his 2014 trial for felony domestic battery, Adam Horton, 36, of West Point, Indiana, remained silent when Tippecanoe County Superior Judge Les Meade asked Horton’s attorney whether Horton wanted a jury trial, where Hoosier citizens decide guilt, or a bench trial, where the judge alone decides.

The attorney said Horton was waiving his right to a jury trial. The judge then proceeded to conduct a bench trial where Horton was found guilty and received a two-and-a-half year sentence.

Chief Justice Loretta Rush, writing for the Supreme Court, ruled Meade committed fundamental error by not asking Horton personally whether he was waiving his right to a jury trial — a right guaranteed by both the U.S. and Indiana constitutions, as well as state law.

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

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

For publication opinions today (2):

In Kennedy Tank & Mfg. Co., Inc., and Hemlock Semiconductor Corp., and Hemlock Semiconductor, LLC v. Emmert Industrial Corporation, d/b/a Emmert International, a 16-page opinion, 2-1 opinion, Judge May writes:

Kennedy Tank and Manufacturing Company appeals the denial of its motion to dismiss a lawsuit Emmert International brought against Kennedy. The Indiana statute of limitation on which the trial court appears to have relied[1} is preempted by a federal statute establishing a shorter limitations period. As Emmert did not bring its lawsuit within that period, Kennedy’s motion should have been granted, and we must therefore reverse.[2] * * *

Emmert encountered a number of unforeseeable problems [in moving the equipment] that caused delays and additional expenses of almost $700,000.

Kennedy would not pay Emmert the additional amounts. Between June and August of 2013 the parties discussed submitting the dispute to arbitration, and on January 22, 2015, Emmert sued Kennedy for breach of contract, or in the alternative, unjust enrichment. On February 13, 2015, Kennedy moved to dismiss on the ground Emmert did not bring the action within the eighteen-month limitations period set forth in 49 U.S.C. § 14705(a), which Kennedy asserts preempts Indiana’s ten-year limitation period. The trial court denied the motion to dismiss. It determined the ten-year Indiana limitations period applied. * * *

The trial court in the case before us found no conflict preemption because “there is no reason why a shipper would not be able to comply with both statutes, at the same time, by bringing a claim prior to the 18 month deadline in the ICCTA.” (Appellant’s App. at 10.) It cited to no legal authority to support the premise that there is no “conflict” if a party can comply with both statutes simply by bringing an action within the shorter limitations period, and in light of the Arctic Express reasoning, we decline to so hold. The Indiana statute of limitations is preempted by the federal statute.

Conclusion. As Emmert did not bring its action against Kennedy within the applicable limitations period, Kennedy’s motion to dismiss should have been granted. We must therefore reverse.

Najam, J., concurs.
Riley, J., concurs in part, and dissents in part, with separate opinion. [which begins, at p. 12] I concur with the majority’s determination that 49 U.S.C. § 14705(a) preempts the statute of limitations set forth in Indiana Code section 34-11-2-11; therefore, Emmert failed to bring its action against Kennedy in a timely manner. However, I must dissent with respect to the majority’s resolution of Emmert’s estoppel claim.

On appeal, Emmert insists that even if the eighteen-month federal statute of limitations applies—as this court holds that it does, its claim should not have been dismissed because Kennedy should be estopped from asserting the statute of limitations as an affirmative defense. As detailed by the majority in Footnote 2, Emmert’s argument on this issue is devoid of any cogent reasoning or appropriate citations. Ind. Appellate Rule 46(A)(8)(a). Nonetheless, notwithstanding that Emmert has technically waived its argument, I find that this issue should be determined on its merits. * * *

Because the trial court ruled in Emmert’s favor—i.e., it denied Kennedy’s motion to dismiss on its finding that 49 U.S.C. § 14705 does not preempt the relevant Indiana statute of limitations—the trial court did not address Emmert’s estoppel claim in its Order. As there is nearly $700,000 at stake in this case, I would remand with instructions for the trial court to conduct further proceedings and make a factual determination as to whether Kennedy should be equitably estopped from asserting a statute of limitations defense.[5]
______________
[1] The trial court’s judgment refers to a “10 year (120 months [sic]) Indiana statute of limitations,” (Appellant’s App. at 8), but never explicitly says which statute that is. The parties appear to agree that the applicable statute is Ind. Code § 34-11-2-11 (an action on certain contracts in writing must be commenced within ten years after the cause of action accrues).
[2] Emmert also asserts dismissal was precluded by fact questions concerning whether Kennedy was estopped from asserting Emmert’s action was untimely. Emmert says it raised in the trial court that “if federal law were to apply, factual issues exist as to whether Kennedy is estopped under federal law from asserting untimeliness in filing the action.” (Br. of Appellee at 24.) The trial court did not address estoppel in its judgment. [ILB-the footnote continues at length, see pp. 2-3]
[5] In its reply brief, Kennedy contends that 49 U.S.C. § 14705(a) is a statute of repose rather than a statute of limitations, and “[t]he Seventh Circuit has held that, where federal statutes of limitations can be equitably estopped, statutes of repose cannot.” F.D.I.C., 12 F.Supp.3d at 1119.

In Byron Tinker and Travis Kelley v. State of Indiana , a 12-page opinion, Judge May writes:
On July 19, 2012, the State charged Byron Tinker[1] with one Class D felony and three Class A misdemeanors. On February 19, 2015, Tinker filed a motion to dismiss because he had not been brought to trial within the one year required by Criminal Rule 4(C). The trial court denied Tinker’s motion, but certified that decision for interlocutory appeal. On appeal, Tinker argues the trial court erroneously assigned periods of time to him that should have counted against the State for Rule 4(C) calculations. We reverse and order the charges against Tinker dismissed with prejudice. * * *

Tinker had an obligation to object only if, during the 365 day period, the court scheduled a new trial outside the 365 day period. * * *

There was no occasion on which, during the one-year period, the court attempted to reset trial outside the one-year period. Therefore, the trial court erred when it found Tinker had a duty to object.
__________
[1] Travis C. Kelley’s interlocutory appeal of the Clark Circuit Court’s denial of his Criminal Rule 4(C) motion to dismiss was consolidated with Tinker’s case for purposes of appeal. We dismissed Kelley’s appeal because the charges against Kelley were resolved by a plea agreement.

NFP civil decisions today (1):

Genahol, LLC, Genahol-Powers 1, LLC v. Earl Powers, Powers Energy One of Indiana, LLC, Worldnet Capital 1, LLC (mem. dec.)

NFP criminal decisions today (3):

Patrick Cummings v. State of Indiana (mem. dec.)

Leonard Talton v. State of Indiana (mem. dec.)

Raymond Lamont Hawkins v. State of Indiana (mem. dec.)

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

Thursday, April 21, 2016

Ind. Gov't. - PAC on copy fees for bulk records

Here is an April 19th opinion of the Public Access Counselor in response to an informal inquiry by the corporate counsel of the Zillow Group, based in Seattle. Some quotes:

The Zillow Group (“Zillow”) seeks to address whether a copy fee charged is appropriate for bulk records. Zillow requested bulk images from the Posey County Recorder (“Recorder”). The recorder responded that bulk image requests were fulfilled by its third-party vendor. Zillow contends it is entitled to the records in the form possessed by the Recorder and the copy fee is set at $0.07 per page. The Record contends the fee is $0.10 per page. * * *

Ind. Code § 36-2-7-10.1 governs the release of bulk data to requestors and provides for a maximum charge for the sale of bulk form images at $.07 a copy. The intent of the bulk data statute is to provide a more cost effective way for bulk users to purchase bulk form public records. In contrast, the Access to Public Records Act caps most documents at $.10 per page.

To my knowledge, nothing in Indiana Code prohibits the outsourcing of public record maintenance and is quite widespread throughout the State. In most instances, however, outsourcing lowers costs instead of increasing them. It cuts down on overhead in order that public agencies do not have to bear storage and maintenance costs. In this case, however, the Recorder argues that its actual costs are $.10 per page due to the third-party vendor arrangement. Actual cost is permitted to be charged under subsection (h) of the bulk data statute.

Outsourcing typically reduces variable labor, storage and inventory costs and is a substitute for overhead cost. Pursuant to subsection (h), labor and overhead is not to not to be calculated in the actual cost analysis, however, this is precisely what the Recorder is attempting to do. And instead of increasing efficiency and cost-effectiveness, it appears as if the inverse is true and those costs are being passed on to the end user. The labor and overhead are merely transferred to a third party.

Moreover, the Recorder ascribes a watermark to each image, thereby increasing the cost to produce an image. This watermark is applied pursuant to a local ordinance and is not mandated by statute. This is not a necessary element of ‘maintenance’ and is superfluous to the original form of the public record.

If a public agency voluntarily chooses to outsource a government function to a third-party, it has the discretion to enter into such an arrangement. But, it may not inflate costs or charge back the fee of overhead when a statute expressly prohibits doing so. It is clear from a plain reading of the statute that the intent of the General Assembly was to lower the costs associated with the transmission of bulk data, not to encourage raising them by outsourcing labor and overhead.

For the foregoing reasons it is the Opinion of the Public Access Counselor that the Posey County Recorder may only charge $.07 an image for the transmission of bulk data.

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

Ind. Gov't. - "Valpo family may lose their backyard chickens after complaint"

Longtime ILB readers will know that the blog has been following the topic of "urban chickens" for years.

In this 2009 entry, the ILB sought the definitive answer re raising chickens in Indianapolis and received an affirmative answer, in writing, from Indianapolis City Legal.

And this March the ILB published
the new Indianapolis zoning provisions, which allow up to 12 chickens on a residential lot.

A review of the other ILB posts (here is a long list of entries) will show the many Indiana cities and towns permitting the keeping of chickens. So it was with surprise I read this recent NWI Times story by Rob Earnshaw, headed "Valpo family may lose their backyard chickens after complaint." Some quotes:

VALPARAISO — Laurel Welter, 2, enjoys holding the eggs she gets from the chickens her older sister, Grace Welter, 6, has helped raise the last three years.

But the sisters may lose their four chickens because a city ordinance does not allow for chickens unless the property owner has five or more contiguous acres. * * *

Last week the Welters received a letter from the city about the ordinance stating that if the chickens weren't removed by April 22 (Liz Welter said it's ironic, being Earth Day), they would face fines and legal action. * * *

Liz Welter said they've reached out to their councilman, Robert Cotton, who seems open to help. When contacted by The Times on Wednesday, City Administrator Bill Oeding said he developed an urban chicken file several years ago after visiting Seattle, which allows chickens and that they are popular in some neighborhoods.

Just last year neighboring Chesterton changed its ordinance to allow on smaller parcels of land a maximum of four hens, no roosters and no slaughtering.

"I don’t believe, but I don’t really know, that anyone in city government is opposed to urban chickens and I suspect there will be some more discussion about allowing them," Oeding said.

Oeding said he has asked code enforcement to not pursue the chicken issue until he has an opportunity to address it.

"Liz and her chickens can remain for now," he said.

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

Ind. Decisions - Supreme Court decides one today, re waiver of jury trial

In Adam Horton v. State of Indiana, a 12-page, 5-0 opinion, Chief Justice Rush writes:

The Indiana Constitution guarantees the right to jury trial, which may be waived by one, and only one, person—the defendant. Unless the defendant personally communicates to the judge a desire to waive that right, he must receive a jury trial.

Here, Defendant Adam Horton merely remained silent while his attorney requested a bench trial on the second phase of a bifurcated trial, where the State sought to prove a D-felony domestic battery charge based on a prior conviction. Because Horton’s silence falls well short of personal waiver, the trial court committed fundamental error in proceeding to a bench trial. We therefore reverse and remand for a new trial on the D-felony domestic battery charge.

Even though the ineffective jury trial waiver is dispositive, we also address Horton’s insufficient-evidence claim because it raises an important question about judicial notice of court records. The trial court convicted Horton of the felony-level domestic battery offense based on judicial notice of its own file in a prior case, in which Horton had been convicted of misdemeanor domestic battery. We conclude that when a trial court takes judicial notice of a “record of a court” under Indiana Evidence Rule 201(b)(5), unambiguously identifying the publicly available records may be minimally sufficient. But the better approach, when practical, is to enter the particular documents into the record, so that both the litigants and appellate courts can know with certainty what evidence the court considered. The trial court’s omission of those documents here impedes our review but does not constitute error.* * *

On appeal, Horton argued that he did not validly waive his Indiana and federal constitu-tional jury trial rights and that because the sentencing order from the prior conviction was unsigned, insufficient evidence supported the felony domestic battery conviction.

The Court of Appeals affirmed the trial court on both issues. It first held that Horton “knowingly, voluntarily, and intelligently” waived his jury trial right because he had just been through a jury trial on the A-misdemeanor domestic battery count. Horton v. State [NFP], No. 79A02-1410-CR-765, slip op. at 9 (Ind. Ct. App. July 28, 2015). It further held that sufficient evidence supported the D-felony domestic battery conviction because although the sentencing order was not signed, the judge also took judicial notice of its case file from the prior conviction, with no objection from Horton. Id. at 5–7. We granted Horton’s petition to transfer to consider these issues. * * *

We decline to abandon the well-established requirement that a felony defendant personally communicate waiver of the Indiana constitutional jury trial right. By proceeding to trial absent personal waiver by Horton himself, the trial court committed fundamental error. But under the circumstances here, it was not an abuse of discretion to take judicial notice of the court records showing Horton’s prior conviction without formally entering them into the record. Therefore, although we do not disturb Horton’s conviction for Class A misdemeanor domestic battery, we reverse his conviction for D-felony domestic battery and remand with instructions to proceed to a new trial limited to that count.

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

Ind. Courts - Indiana Bar passage results over the past three years

On April 11th the ILB linked to the names of those who successfully passed the February 2016 Indiana bar exam. Now here are some statistics, derived from those compiled by the Board of Law Examiners.

Indiana Bar Exam Statistics
  Feb. 2016 July 2015 Feb. 2015 July 2014 Feb. 2014 July 2013
Total takers 258 495 270 552 266 557
1st time 154 432 166 472 162 484
Repeaters 104 63 104 80 104 73
Overall Pass Rate 51% 72% 64% 72% 61% 76%
1st Time Takers 62% 78% 74% 80% 77% 83%
Repeat Takers 35% 29% 48% 28% 38% 29%

See also this ILB post from Oct. 28, 2015, particularly the latter half.

[Updated at 3:23 PM] I just noticed that recurring "104" figure in the "Repeaters" column, and rechecked against the court stats to make sure - yes, it is correct.

Posted by Marcia Oddi on Thursday, April 21, 2016
Posted to Indiana Courts

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

For publication opinions today (2):

In Alexin, LLC v. Olympic Metals, LLC , a 24-page opinion, Judge Najam writes:

Alexin, LLC (“Alexin”) appeals the trial court’s judgment in favor of Olympic Metals, LLC (“Olympic”) on Olympic’s counterclaim seeking attorney’s fees under Indiana Code Section 34-52-1-1(b). Alexin presents a single issue for our review, namely, whether the trial court abused its discretion when it awarded Olympic attorney’s fees. Olympic cross-appeals and requests appellate attorney’s fees. We conclude that the trial court did not abuse its discretion when it awarded Olympic attorney’s fees, and we deny Olympic’s request for appellate attorney’s fees. We affirm.
In Victor Roar v. State of Indiana , an 11-page, 2-1 opinion, Judge Najam writes:
We hold that the State presented sufficient evidence from which a reasonable fact-finder could conclude that Roar had committed intimidation, and we are not persuaded by Roar’s argument that the conditional language he used in the communication of his threat obviates the State’s evidence of his intent to place his victim in fear of retaliation for a prior lawful act. We also hold that any error in the court’s admission of the evidence challenged on appeal was harmless. Affirmed. * * *

Riley, J., concurs.
May, J., dissents with separate opinion. [that begins, on p. 9] I would reverse Roar’s conviction, as the State did not prove Roar’s intent to place Olive in fear of retaliation for a prior lawful act. Therefore, I must dissent. * * *

The intimidation statute requires proof of intent that a victim be placed in fear of retaliation for a prior lawful act, and the State did not prove that. I must therefore respectfully dissent.

NFP civil decisions today (3):

GCCFC 2006-GG7 Beachway Drive, LLC v. William D. Boyce Trust 2350; William D. Boyce Testamentary Trust 3649; and William D. Boyce Testamentary Trust 3650 (mem. dec.)

Dukes Health System, LLc, d/b/a Dukes Memorial Hospital v. Christena Seifried (mem. dec.)

In re the Marriage of R.E.F. v. A.M.A. f/k/a A.M.F. (mem. dec.)

NFP criminal decisions today (4):

Brandon S. Spalding v. State of Indiana (mem. dec.)

Eric A. Bail v. State of Indiana (mem. dec.)

Dustin J. Spence v. State of Indiana (mem. dec.)

Max Nicholson v. State of Indiana (mem. dec.)

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

Ind. Gov't. - "Can coal companies afford to clean up coal country?"

An April 2, 2016 story in the Washington Post, reported by Steven Mufson and Joby Warrick, began:

A worsening financial crisis for the nation’s biggest coal companies is sparking concerns that U.S. taxpayers could be stuck with hundreds of millions, if not billions, of dollars in cleanup costs across a landscape of shuttered mines stretching from Appalachia to the northern Plains.

Worries about huge liabilities associated with hundreds of polluted mine sites have mounted as Peabody Energy, the world’s largest publicly traded coal company, was forced to appeal to creditors for an extra 30 days to pay its debts. Two of the four other biggest U.S. coal companies have declared bankruptcy in the past six months. * * *

The biggest coal companies typically pay third parties to ensure that mine sites are cleaned up in the event of financial hardship. But in recent years, many coal companies have relied on a cheaper technique called “self-bonding,” pledging only their own names and financial wherewithal to guarantee their cleanup obligations.

With mounting losses and debt loads, the companies do not have enough money to pay for all their obligations, and self-bonding is “not worth [the] paper [it’s] written on,” Steve Jakubowski, a bankruptcy lawyer with the firm Robbins, Salomon & Patt, said in an email. In a bankruptcy, where Alpha Natural Resources is now, a judge can decide which creditors are paid and how much — and state and federal governments could be left holding the bag for reclamation costs.

Subsequently, Peabody also declared bankruptcy, and on April 13th the same WAPO reporters had a story headed "How coal titan Peabody, the world’s largest, fell into bankruptcy." A quote from the second half of the story:
Peabody is the latest in a string of coal-company bankruptcies that have also engulfed other industry leaders, including Alpha Natural Resources and Arch Coal. The upheaval has raised concerns that the industry will not be able to afford to pay for cleanup costs related to its many mines across the country.

“Bankruptcy restructuring could provide coal companies with a way of escaping obligations to restore land,” reported The Washington Post’s Steven Mufson and Joby Warrick earlier this month. The issue has even drawn attention in the U.S. Senate. “American taxpayers should not be left on the hook to clean up coal mines when coal companies go bankrupt. The pollution they create is their responsibility to clean up, and we should have laws on the books that force them to do that,” said Senator Maria Cantwell (D-Wa.), ranking member of the U.S. Senate Energy and Natural Resources Committee, in a statement to the Post.

However, Peabody said Wednesday that the bankruptcy filing “does not change Peabody’s approach toward best practices in mining and its focus on sustainability to create high-quality land restoration for generations that follow.”

See also this March 2 ILB post quoting a story from the Washington Indiana Times Herald headed "'King Coal' losing crown: Coal industry in Daviess County dwindling."

Posted by Marcia Oddi on Thursday, April 21, 2016
Posted to Environment | Indiana Government

Courts - "Outraged by Kansas Justices’ Rulings, Republicans Seek to Reshape Court"

The ILB is doing some catch-up of good stories it missed during the hiatus. For instance, this lengthy, important story by Erik Eckholm of the NY Times, published on April 1, 2016, begins:

TOPEKA, Kan. — Washington is locked in partisan warfare over control of the Supreme Court. But it is hardly the only place. Look at the states, where political attacks on judicial decisions are common and well-financed attack ads are starting to jar the once-sleepy elections for State Supreme Court seats.

Nowhere is the battle more fiery than here in Kansas. Gov. Sam Brownback and other conservative Republicans have expressed outrage over State Supreme Court decisions that overturned death penalty verdicts, blocked anti-abortion laws and hampered Mr. Brownback’s efforts to slash taxes and spending, and they are seeking to reshape a body they call unaccountable to the right-tilting public.

At one point, the L egislature threatened to suspend all funding for the courts. The Supreme Court, in turn, ruled in February that the state’s public schools must shut down altogether if poorer districts do not get more money by June 30.

“A political bullying tactic” and “an assault on Kansas families, taxpayers and elected appropriators” is how the president of the Senate, Susan Wagle, a Republican, responded to that ruling, which was based on requirements in the state Constitution. Mr. Brownback spoke darkly of an “activist Kansas Supreme Court.”

In March, in the latest salvo, the Republican-controlled Senate passed a bill to authorize impeachment of justices if their decisions “usurp” the power of other branches. But the climactic battle is expected in the November elections, when conservatives hope to remake the seven-member Supreme Court in a flash, by unseating four justices regarded as moderate or liberal.

Partisan conflict over courts has erupted in many of the 38 states where justices are either directly elected or, as in Kansas, face periodic retention elections, without an opposing candidate. As conservatives in Washington try to preserve a majority on the federal Supreme Court, politically ascendant conservatives in several states are seeking to reshape courts that they consider to be overly liberal vestiges of eras past.

Posted by Marcia Oddi on Thursday, April 21, 2016
Posted to Courts in general

Ind. Gov't. - "BMV Reform bill comes with unsettling amendments"

That was the heading of an April 4th editorial in the Fort Wayne Journal Gazette:

The batch of legislation signed last week by Gov. Mike Pence includes a bill to overhaul the Indiana Bureau of Motor Vehicles. The governor hailed the legislation as an effort to cut red tape and improve government efficiency. What he didn’t mention was that the bill was intended to clean up a colossal mess at the BMV.

The bill reduces or eliminates 163 fees and reduces the number of ways to register a vehicle from 191 to 23. A harsh report released last spring by BKD, an accounting firm, found “errors and inconsistencies in a master table of fees, taxes, fund names, effective dates and other critical values used to calculate transactions,” as well as “overly complex and ambiguous legislative authority for fees and taxes.” * * *

Rep. Dan Forestal, who led the House Democratic Caucus effort to overhaul the BMV, was originally a sponsor of House Bill 1087, but he removed his name in objection to late amendments. One of those reduces the line of sight limits at Indiana railroad crossings from 1,500 feet to 250 feet. Even under the more stringent limits, Indiana had the fifth-highest number of grade-crossing fatalities last year, according to new figures from the Federal Railroad Administration. Twelve deaths were recorded.

Another amendment increases the fee for vehicles rented through Indiana car rental companies.

In the closing days of the session, Forestal accused bill author Rep. Ed Soliday, R-Valparaiso, of breaking his promise to keep the bill free of add-ons such as the railroad crossing measure.

“My Republican colleagues in the Statehouse shook my hand, looked me in the eyes and told me HEA 1087 would pay back Hoosier taxpayers and fix this embarrassing flap at the BMV,” the Indianapolis Democrat said in a news release. “Instead, they flat-out lied to me and deceived the people we are elected to represent.”

The governor didn’t address the additional measures when he signed the bill. “Today, we’re turning a new corner at the Indiana Bureau of Motor Vehicles,” Pence said.

That’s good news, but look twice for the speeding train.

ILB: HEA 1087 is 449 pages and over 6 MB! The railroad crossing changes begin on p. 58, SECTION 63.

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

Ind. Courts - "Supreme Court hears case at first state capitol"

Here is Dan Carden's good NWI Times coverage of yesterday's Supreme Court oral argument held in Corydon. It is accompanied by a number of photos. A few quotes from the long story:

CORYDON, Ind. — For the first time in nearly two centuries, the Indiana Supreme Court heard oral arguments Wednesday in its original chamber — a tiny room on the second floor of the state capitol abandoned in 1824 for Indianapolis.

Excluding the video cameras and microphones webcasting the bicentennial event to schools across the state, the setting and legal back-and-forth would have been familiar to the inaugural three-justice court that first heard cases in the square limestone building shortly after Indiana became a state on Dec. 11, 1816.

Likewise, the question at issue before the now five-member high court was the timeless debate of what duty a homeowner owes to his or her guests if they are injured while visiting. * * *

The Corydon case was the final oral argument Dickson is participating in. Rush noted that Justice Isaac Blackford, the only person to serve on the Supreme Court longer than Dickson, heard his first case in the same room.

Indiana's first Constitution also was written inside and under an elm tree outside the building that now is the Corydon Capitol State Historic Site, located near the Ohio River about 280 miles southeast of the Region.

You will be able to watch the video of the oral argument here, once it has been processed.

Posted by Marcia Oddi on Thursday, April 21, 2016
Posted to Indiana Courts

Wednesday, April 20, 2016

Ind. Courts - "One Outlet, Limited Space: Historic Courtroom Presents Challenge For Indiana Supreme Court "

Love that headline to this just-posted story by Brandon Smith, Statehouse Bureau Chief for Indiana Public Broadcasting, that begins:

The Indiana Supreme Court went back to its roots Wednesday, holding an oral argument in the state’s original Supreme Court courtroom in Corydon.

The Supreme Court holds oral arguments around the state every year so people can see the state’s high court in their local communities. But Chief Justice Loretta Rush says the trip to the original Supreme Court courtroom in Corydon – the state’s first capitol – presented unique challenges.

“There’s one outlet,” Rush says. “The original bench seats three justices – we’ll be pulling up extra chairs. We’ll be using flashcards for the time instead of the electronic timer.”

The Court heard a real case in the original courtroom, not a reenactment, and it was Justice Brent Dickson’s last argument.

Posted by Marcia Oddi on Wednesday, April 20, 2016
Posted to Indiana Courts

Ind. Gov't. - Recent SCOTUS opinions on reapportionment

Richard Wolf of USA TODAY reports in a story that begins:

WASHINGTON — The Supreme Court ruled unanimously Wednesday that states can draw legislative districts with different populations in an effort to benefit minority groups, even if the results help one political party over the other.

The decision signaled a recognition by the court that despite its disdain for both racial and partisan considerations, neither violates the Constitution's "one person, one vote" principle.

It also represented the justices' third consecutive ruling on political redistricting that has pleased Democrats more than Republicans following a landmark 2013 decision that went the other way -- Chief Justice John Roberts' 5-4 ruling that struck down a key section of the Voting Rights Act.

The court upheld state legislative lines drawn by an independent commission created in Arizona to take the job away from the legislators themselves. Just last June, the justices upheld the commission's creation by a 5-4 vote over the objections of Republican lawmakers who said the Constitution gives that task to state legislatures. * * *

As for politics, the high court has never established a standard for how much partisanship is too much when it comes to drawing district lines. During oral argument, several justices said even the commission's population variances didn't make any partisan considerations unconstitutional.

"Where is the district in which, ­­or the state in which, partisanship does not play a role in redistricting?" Roberts said then.

The ruling will have minimal impact on states, most of which look at political affiliation -- and, in many cases, race and ethnicity -- in placing voters in districts. If the justices had ruled that race or politics could not justify population differences, it would have thrown other states' maps into question as well.

Amy Howe of SCOTUSblog has this "Opinion Analysis" of today's "narrow, but unanimous, ruling on Arizona redistricting."

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

Courts - "The Scandal-Singed DAs Who Want to Be Judges"

From The Marshall Project ("nonprofit journalism about criminal justice"), a a long story by Beth Schwartzapfel that begins:

For the past year, the district attorney's office in Orange County, Calif., has been battling the fallout from revelations of a decades-old scheme of planting secret informants near defendants' jail cells.

Under this practice, prosecutors gathered information from informers in the county jail — information they were obligated to reveal to the defense but didn't — and then lied about it in court. Once these unethical and unconstitutional practices became known, the DA's office was forced to dismiss or reduce charges or re-try cases for more than a dozen people accused of murder and other serious crimes. In the process, the DA's office and the county judiciary have ended up in a protracted legal sparring match.

Now two longtime prosecutors from that same office — Michael Murray and Larry Yellin — are running for Superior Court judgeships, aiming to take the bench alongside judges who have called them out for misconduct. Neither prosecutor has been formally sanctioned in the scandal. But both are supervisory-level district attorneys in an office that a judge recently ruled "habitually ignored the law over an extended period of time." Both, by their own admission, have withheld evidence. And both are considered shoo-ins by the local press. (Two other prosecutors are running for judgeships, but they have not been implicated in the scandal.)

If elected, Murray and Yellin won't be the first prosecutors to join the bench after withholding evidence or being accused of misconduct. Legal scholars and critics have long noted how rarely prosecutors are publicly accountable for misbehavior. A recent investigation by the New England Center for Investigative Reporting, for example, identified 120 Massachusetts criminal convictions that were reversed in the last 30 years because of prosecutorial misconduct; at least seven of these prosecutors went on to higher posts, including judgeships, the reporters found.

See also this post today at Sentencing Law & Policy re a new SSRN article, titled "Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution."

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

Ind. Courts - "Special judge appointed to Hammond City Court "

Ed Bierschenk of the NWI Times reported this morning:

HAMMOND — City Court Judge Jeffrey Harkin has appointed an attorney who serves as a court referee as special judge for the court.

The appointment by Harkin of Gerald P. Kray was made last Friday, three days after a Times article raised questions about Harkin's ability to serve because of health issues.

Harkin has been absent from court on a number of occasions this year. In the last month, Harkin appointed Public Defender Randy Godshalk four times to serve as a temporary judge. On other occasions, one of the referees served in his place.

Indiana law provides for "appointed judicial officers," who may be called magistrates, commissioners or referees, to serve court judges, according to Richard T. Payne, staff attorney for the Indiana Supreme Court's Division State Court Administration. These officers generally hear cases and make a recommendation to the judge concerning the outcome, but it is the judge who makes the final decision, Payne said. * * *

If Harkin is unable to continue to serve, Gov. Mike Pence would be responsible for appointing a replacement until an election could take place for the post. Harkin, who made $80,377 last year, was re-elected to another four-year term in November.

The appointment of a special judge is the latest in a tumultuous few months at Hammond City Court.

Yesterday's story begins with this photo, showing long lines of people "lining the hallway at Hammond City Hall awaiting their turn to appear in court."

Posted by Marcia Oddi on Wednesday, April 20, 2016
Posted to Indiana Courts

Ind. Gov't. - PAC opinion re access to audio recordings of grand jury

Daniel Brewington, an Ohio resident who, per this Sept. 11, 2013 IndyStar story, "was convicted in 2011 of intimidation of a judge, attempted obstruction of justice and perjury for comments he wrote on a blog about the Dearborn County judge who presided over his contentious divorce case," and who appealed his conviction to the Indiana Court of Appeals and Supreme Court [see list of related posts here], where he prevailed on the 1st Amendment portion of his appeal, recently filed a complaint with the Indiana Public Access Counselor (PAC), alleging "Violation of the Access to Public Records Act by the Dearborn County Superior Court 2." Brewington was attempting to obtain the audio recordings of grand jury proceedings in his criminal case.

Here is the 4-page opinion issued by the PAC on April 14, 2016. Some quotes:

The transcripts of the proceedings were indeed made available to you in 2011. You seek the audio recordings to compare with the transcripts. You also seem to take exception to the Court’s language stating that individuals who broadcast or publish the records may be held in contempt of court.

The heart of this issue is whether audio recordings are any different from paper copies for the purposes of public records release. Although the definition of public record includes both (see Ind. Code § 5-14-3-2(o), there are instances when electronic records are distinguished from paper records. A public agency that maintains records electronically, such as audio recordings, should make reasonable efforts to provide a duplicate of those records. See Ind. Code § 5-14-3-3(d).

When it comes to the judiciary, the APRA is balanced against several other regulatory considerations. For example, pursuant to Administrative Court Rule 9(D)(4), a Court may manage access to audio and video recordings of its proceedings to the extent appropriate to avoid substantial interference with the resources or normal operation of the court. According to the information provided, Judge Hill previously exercised his discretion under Ind. Code § 35-34-2-10 to allow reproduction of the grand jury transcript during the criminal proceedings. Because the case has been adjudicated and the transcript released, it stands to reason that providing you an audio copy of the proceeding would neither prejudice the operation of the court, nor compromise grand jury proceedings. Consider the commentary to Administrative Rule 9: [omitted] * * *

Neither should your reason for wanting the recordings prohibit your access. A requestor of public access should not have to justify the purpose of the request to any public agency, regardless of your intentions or reservations of the agency. With very limited exception, a compelling interest is not required for obtaining access to public records.

Finally, you note the Judge’s prohibition on broadcasting or publishing the materials. Under Judicial Code of Conduct Rule 2.17, a judge shall prohibit the broadcasting of information without prior approval of the Supreme Court. A judge may exercise some discretion in certain circumstances, but issuing an Order to prohibit broadcasting generally is appropriate.

RECOMMENDATIONS. Based on the forgoing, it is the Opinion of the Public Access Counselor that because the transcript of the grand jury proceedings have previously been provided to you, a copy of the audio recordings of said proceedings should be released as well. I have spoken with Judge Hill and he has indicated his willingness to amend the February 4, 2016 order and instruct the Dearborn County Court to produce the recordings.

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

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

For publication opinions today (1):

In Eddie G. Love v. State of Indiana , a 6-page opinion, Judge Bailey writes:

Eddie G. Love (“Love”) appeals the denial of his petition for habeas corpus and motion to dismiss from the Elkhart Circuit Court, raising several issues for our review. Because we conclude that Love improperly filed a successive petition for post-conviction relief without permission from this Court in accordance with Indiana Post-Conviction Rule 1(12), we remand to the Elkhart Circuit Court with instructions to dismiss Love’s claims. * * *

Love has previously sought post-conviction relief. On multiple occasions, he has failed to properly request permission to file a successive post-conviction petition from this Court or the Indiana Supreme Court. The same is true in the instant action. Accordingly, we order the trial court to vacate its judgment (except sanctions) and remand with instructions to otherwise enter an order of dismissal.

NFP civil decisions today (3):

C.L. and J.L. v. Indiana Department of Child Services (mem. dec.)

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

In Leroy Burke, Jr. v. Matthew Elkin (mem. dec.), a 4-pageopinion, Judge Altice writes:

Leroy Burke filed a frivolous lawsuit against Matthew Elkin, and Elkin responded with a counterclaim for abuse of process and a motion for summary judgment. Both parties proceeded pro se. The trial court granted summary judgment in favor of Elkin and set the matter for a damages hearing. At the hearing, Elkin, an attorney, testified regarding the time he spent defending against Burke’s frivolous suit and indicated that his hourly rate was $200. Based upon this evidence, the trial court awarded damages to Elkin in the amount of $1600 plus costs. On appeal, Burke argues that Elkin was not entitled to recover his own attorney fees as damages. We affirm. * * *

In Ziobron v. Crawford, 667 N.E.2d 202, 208 (Ind. Ct. App. 1996), trans. denied, this court adopted the majority rule permitting an attorney representing him or herself to recover an award of attorney fees for the time and effort spent in defending against a frivolous lawsuit. The court expressly held, “an attorney may recover compensation for the time and effort spent in defending against a malicious prosecution as an element of his damages.” Id. The court explained: “To hold otherwise would be analogous to prohibiting an auto body repairman, who had repaired his own car, from recovering reasonable compensation from the vandal who had damaged the car.”

NFP criminal decisions today (5):

Eric Farrell v. State of Indiana (mem. dec.)

John A. Bridges, Jr. v. State of Indiana (mem. dec.)

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

Dustin Hinz v. State of Indiana (mem. dec.)

Corey Brown v. State of Indiana (mem. dec.)

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

Ind. Gov't. - More on the office of Indianapolis City Prosecutor

The elected Marion County prosecutor is Terry Curry. The WRTV6 story the ILB quoted earlier this morning concerns a different office, the Indianapolis (City) Prosecutor. Here is what I discovered, from the IndyGov page, about that position:

It is the mission of the Office of Corporation Counsel (OCC) to provide professional legal services to help our clients make decisions in the best interests of the residents and taxpayers of the City of Indianapolis.

OCC is comprised of three sections:

  • City Prosecutor, which prosecutes violations of the civil code;
  • Counseling, which counsels the city/county officials, agencies, departments, boards, and commissions; and
  • Litigation, which defends city/county officials, agencies, departments, boards, and commissions in court cases.
The office is managed by the Corporation Counsel, a mayoral appointee who serves as chief attorney for the City of Indianapolis and Marion County. The current Corporation Counsel, Andrew J. Mallon, began serving on January 1, 2016. [ILB emphasis]
According to this list of city attorneys, Deborah Law "returned to the Office of Corporation Counsel in February 2016 where she serves as City Prosecutor."

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

Ind. Courts - Former Indianapolis prosecutor admits to doctoring records

Jordan Fischer of WRTV6 aired the story last evening. Some quotes:

INDIANAPOLIS -- The former Indianapolis city prosecutor is arguing the city's lawsuit against a kennel owner shouldn't be thrown out even though he doctored public records.

In a motion filed Monday, attorney Mark Pizur, now a deputy city prosecutor for the city of Indianapolis, admitted he altered public records in a "moment of frustration and total lapse of judgment."

The records in question were email communications between Pizur and Call 6 Investigator Kara Kenney following the death of puppies at the city shelter. * * *

A key issue in the battle is whether the city knew some of the dogs were pregnant.

Pizur told Kenney in January that the city was never informed that some of Upton's dogs were pregnant.

“At no time did Mr. Upton or his legal team notify ACC, the city or the court that any of his female dogs were pregnant and/or about to give birth prior to these events in late December 2015,” Pizur wrote in an email to Call 6 Investigates.

But when Pizur was deposed in March as part of a countersuit against the city, he claimed he was misquoted.

A subsequent records request by Upton's attorney, Marshall Pinkus, revealed Pizur had made that statement to Kenney, but that it had been removed from copies of those records submitted to Pinkus.

Court records show during the November sweep, an Upton's staff member told Indianapolis Animal Care and Control two female dogs were believed to be pregnant.

On Friday, Pinkus filed a motion to have the city's ongoing case against Upton thrown out, claiming Pizur's conduct violated Upton's right to due process:

"What is known is that Mr. Pizur would rather accuse a reporter of falsely quoting him than admit his mistake; would rather accuse the media as a whole of having 'an agenda' than admit it is he who was maliciously scheming; would rather strip the Defendant of his First Amendment and Article I right to freedom of speech than admit it is he who was misleading the public; would rather accuse an attorney who has been practicing for forty years of misleading the court when it is he who was knowingly making false statements to this tribunal. Mr. Pizur's projection is unmatched."

The long story concludes:
In his response Monday, Pizur took sole responsibility for his statement and doctoring the records, and said it would be inappropriate for the court to dismiss the case or appoint a special prosecutor.

"It would be unfair and unwarranted to prejudice the City's litigation of this case and enforcement of its animal care and treatment ordinances against Defendant merely for the lapse of judgment of the undersigned counsel in this case," Pizur wrote.

Pizur removed himself from the case against Upton on Monday. He has also been demoted to deputy prosecutor.

The city's case against Upton's kennel is scheduled for trial on August 22.

Pinkus sent copies of his filing to the Marion County prosecutor, Indiana Attorney General and the Indiana Supreme Court Disciplinary Commission – the agency that disciplines attorneys.

Posted by Marcia Oddi on Wednesday, April 20, 2016
Posted to Indiana Courts

Tuesday, April 19, 2016

Ind. Decisions - Reactions to CAC v. Koch decision re legislative emails [Updated at 5:15 PM]

With respect to the CAC v. Koch decision issued earlier today by the Supreme Court, here are some reactions.

Joint Statement of CAC, Common Cause and the Energy and Policy Institute:

We completely agree with the Indiana Supreme Court's conclusion that the General Assembly is subject to the Access to Public Records Act, and that the trial court erred in holding otherwise -- and that is a victory for the citizens of Indiana. However, Justice Rucker is exactly correct that the majority, in holding that APRA’s “work product” exception applies to all emails sent to or received by state legislators, has deprived us (and for that matter any other citizens who might be interested in reviewing legislative communications) of any opportunity to make arguments that the work product exception is inapplicable to any and all legislative communications. As Justice Rucker aptly put it: “The majority’s ruling is not only premature, but it unfortunately weighs in on a significant separation of powers issue without an adequate record.”

The Supreme Court unfortunately has effectively slammed shut the door of transparency that the passage of APRA several decades ago had opened. It is indeed a sad day for those who advocate for open and transparent State government in Indiana, and for all citizens who believe that government is the servant of the people rather than vice versa. It is now up to the General Assembly to remedy this blow against transparency by making clear it will honor the promise of open government contained in APRA’s preamble despite the license the Court has just given the General Assembly to keep the public in the dark about its communications with lobbyists. Until it does, it is open to fair criticism that its passage of APRA was little more than a fraud perpetrated on the people of Indiana.

Here is Niki Kelly's story this afternoon in the Fort Wayne Journal Gazette. Some quotes:
INDIANAPOLIS - The Indiana Supreme Court ruled Tuesday the legislature is governed by the Indiana Access to Public Records Act but declined to force lawmakers to follow it.

That's the upshot of a 4-1 decision that found it is up to the General Assembly to determine what counts as its own work product.

"Since the General Assembly and its members constitute a "public agency," the statute itself expressly reserves to the General Assembly the discretion to disclose or not to disclose its work product," the decision said. "We are not inclined to make determinations that may interfere with the General Assembly’s exercise of discretion under APRA."

Though "work product" is not defined under the law, the Indiana House and Senate have language in employee handbooks that essentially says it covers any and all communications of any kind for individual members and partisan staff. * * *

Justice Robert Rucker dissented in the case, saying his colleagues went too far in the ruling.

"The glaring problem here however is that neither before the trial court, nor indeed even before this Court, did the parties address the merits of this work product exemption," he said. "And importantly, in responding to Plaintiffs’ complaint Defendants never alleged a work product exemption or asserted 'emails, draft records, notes, minutes, scheduling records, text messages, and all other correspondence or records' fall within the exemption umbrella."

The groups that sued issued a joint statement saying the Supreme Court "has effectively slammed shut the door of transparency that the passage of APRA several decades ago had opened. It is indeed a sad day for those who advocate for open and transparent state government in Indiana, and for all citizens who believe that government is the servant of the people rather than vice versa," the groups said in a joint statement."

The plaintiffs encouraged the General Assembly to address the blow against transparency.

"Until it does, it is open to fair criticism that its passage of APRA was little more than a fraud perpetrated on the people of Indiana," the statement said.

House Speaker Brian Bosma and Senate President Pro Tem David Long fought the lawsuit to protect Hoosiers who regularly send private information to their legislators that should not be public.

"Today's decision is a win for Hoosiers who reach out in confidence to their legislators for help," Bosma said. "Constituents sharing personal information deserve to do so with the assurance that those details will not end up in the media or in their neighbors' hands. This communication has long been treated as legislative work product and we appreciate our state's highest court leaving that long-standing practice in place."

Nothing in the ruling or under the law prohibits the release of the information. It is at the discretion of the legislature.

Here is a statement issued by House Speaker Brian Bosma:
"Today's decision is a win for Hoosiers who reach out in confidence to their legislators for help. Constituents sharing personal information deserve to do so with the assurance that those details will not end up in the media or in their neighbors' hands. This communication has long been treated as legislative work product and we appreciate our state's highest court leaving that long-standing practice in place."
Here is Kristine Guerra's Indianapolis Star story. Some quotes:
The state's highest court upheld a Marion County judge's decision to dismiss a lawsuit accusing legislators of improperly hiding emails between House Energy Committee Chairman Eric Koch and utility companies. Marion Superior Court Judge James Osborn ruled last year that he could not interfere in the operation of the legislative branch.

The 4-1 ruling comes about a year after the Citizens Action Coalition, the Energy and Policy Institute and Common Cause Indiana filed a lawsuit to try to make the records public. These include emails that Koch, who has reported an economic interest in dozens of oil, gas and energy companies, may have exchanged with Duke Energy and Indianapolis Power & Light Co.

The plaintiffs accused Koch, R-Bedford, and the Indiana House Republican Caucus of violating the Indiana Access to Public Records Act (APRA). Lawmakers, however, argued that the law exempts the "work product" of members of the General Assembly from disclosure. The law does not define what information falls under "work product."

Although the Supreme Court held that the General Assembly is subject to public records laws, it also ruled that deciding what is and isn't exempted from the law is up to the legislature.

Citing a previous ruling, the court said it "should be very careful not to invade the authority of the legislature."

Posted by Marcia Oddi on Tuesday, April 19, 2016
Posted to Ind. Sup.Ct. Decisions | Indiana Government

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

In Curtis Ellison v. Dushan Zatecky (ND Ind., Moody), a 7-page opinion, Judge Williams writes:

A disciplinary officer found in-mate Curtis Ellison guilty of possessing heroin at Pendleton Correctional Facility in Indiana. The officer punished Ellison by stripping him of 90 days’ good-time credit. After exhaust-ing his administrative remedies, Ellison petitioned the dis-trict court for collateral review under 28 U.S.C. § 2254, and he now appeals the denial of that petition. Because Ellison was prevented from defending against the accusation that he possessed a controlled substance, we vacate the district court’s decision and remand for further proceedings.

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

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 15 NFP memorandum decision(s))

For publication opinions today (2):

In A.B. Doe, a minor child by and through her parent(s); individually and on behalf of all others similarly situated v. Jerome Adams, M.D., in his capacity as the Indiana State Health Commissioner, et al, a 28-page opinion, Judge Kirsch writes:

A.B. Doe, a minor child, by and through her parents (“Doe”) brought an action against the Indiana State Health Commissioner and the Director of the Indiana State Department of Health Genomics and Newborn Screening Program, in their individual and official capacities, and the Indiana State Department of Health (collectively, “ISDH”), alleging violations of the United States and Indiana constitutions and state law for retaining her newborn dried blood spot sample without permission. The trial court granted ISDH’s Indiana Trial Rule 12(B)(6) motion to dismiss, and Doe appeals, raising three issues, of which we find the following one dispositive: whether the trial court erred when it determined that Doe had not sustained, nor was she in immediate danger of sustaining, a direct injury as a result of the storage of her dried blood spot sample, and, therefore, she lacked standing. * * *

Doe was born in 2006. At the time of her birth, a small amount of blood was collected from Doe, pursuant to Indiana’s newborn screening program, which is codified at Indiana Code chapter 16-41-17. * * * Nothing in the newborn screening program statutes directs if and how the ISDH may store the DBS samples. However, from approximately 1991 to June 2013, ISDH retained and stored that portion of the newborn screen card that contained the DBS sample taken from each infant. * * *

In June 2013, ISDH changed its storage and retention policies:

* * * Although saved DBS, as of June 2013, will be available for medical research, no identifiable information about your baby will ever be released. If a parent or guardian indicates they do not want a baby’s DBS used for medical research, then the DBS is kept for 6 months to ensure additional screening is not necessary and then destroyed.
On September 25, 2014, Doe filed a Class Action Complaint and Request for Emergency Declaratory and Injunctive Relief (“Complaint”) against ISDH. The proposed class is defined as “[a]ll individuals who had a blood sample taken pursuant to IC 16-41-17-8 that has been or will be stored by the [ISDH] for more than six months without any documentation of consent.” * * *

The record before us reveals that ISDH presented evidence to the trial court to show that Doe’s blood – which was taken pre-June 2013, when ISDH’s policy on retention of DBS samples was changed – was not used for medical research, nor will it be without parental authorization. Indeed, the ISDH website, which Doe cited to in her Complaint, states that DBS samples of babies born before June 1, 2013, which includes Doe’s, have “not been made available for medical research.” See http://www.in.gov/isdh/20215.htm (last visited Mar. 23, 2016). ISDH also presented evidence, namely Bowman’s Affidavit, that there were only two instances in which DBS samples had been released without authorization, and neither involved Doe’s DBS sample (Allen County Child Fatality Review Team and a doctor request for parent-sought genetic testing). ISDH also presented evidence to demonstrate that Doe’s parents could at any time request that her DBS sample be destroyed. Under the facts of this case, Doe’s fear of potential misuse is, as the trial court found, “speculative,” and does not constitute the type of direct injury necessary to support a finding of standing. ISDH presented evidence to establish that, as a matter of law, Doe lacked standing, and Doe did not present evidence to create any genuine issue of material fact to preclude judgment in favor of ISDH. Affirmed.

In William Gordon v. Toyota Motor Manufacturing of Indiana, a 13-page opinion, Judge Najam writes:
William Gordon appeals the decision of the Full Worker’s Compensation Board of Indiana (“the Board”) affirming the Single Hearing Member’s decision awarding Gordon compensation for temporary total disability (“TTD”) benefits for injuries he sustained while working for Toyota Motor Manufacturing of Indiana (“Toyota”). Gordon presents two issues for our review, which we consolidate and restate as a single issue, namely, whether the Board erred when it awarded Gordon TTD benefits for thirty weeks instead of the more than two years of benefits Gordon had sought. We reverse. * * *

Once Gordon testified that he had terminated his employment because he was physically unable to do the light duty work, the burden shifted to Toyota to show that it had complied with the notice provision of the statute, but Toyota did not present any such evidence. The Full Board erred to the extent that it found Gordon had waived the notice issue. Gordon was not required to point out to the Single Hearing Member that Toyota had not met its burden. Because notice was required as a matter of law, it was appropriate for Gordon to raise the notice issue for the first time to the Full Board.

Further, Gordon’s argument to the Full Board on the notice issue preserved that issue for our review. This court has said that, in a worker’s compensation case, we will not review a claim that was not raised before either the Single Hearing Member or the Board. See Indiana Michigan Power Co. v. Roush, 706 N.E.2d 1110, 1115 n.4 (Ind. Ct. App. 1999) (emphases added), trans. denied. Here, because Gordon raised the notice issue to the Full Board, he has not waived it. And because there is no evidence that Toyota gave Gordon the notice required pursuant to Indiana Code Section 22-3-3-11(b), Gordon is entitled to TTD benefits from August 5, 2008, through December 7, 2010. See, e.g., K-Mart, 609 N.E.2d at 32.

NFP civil decisions today (0):

In the Matter of the Termination of the Parent-Child Relationship of S.S., Mother, and A.C., Father, and H.S., Child: A.C. v. Indiana Department of Child Services (mem. dec.)

Joshua A. Hinman v. Members Choice Federal Credit Union (mem. dec.)

NFP criminal decisions today (13):

State of Indiana v. Robert Collier (mem. dec.) - Reversed.

D.E.F. v. State of Indiana (mem. dec.)

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

Audrico Berry v. State of Indiana (mem. dec.)

Darius L. Crockett v. State of Indiana (mem. dec.)

Maurice Knight, Sr. v. State of Indiana (mem. dec.)

Jason Morehouse v. State of Indiana (mem. dec.)

Jose Jesus Macias v. State of Indiana (mem. dec.)

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

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

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

William E. Stanard v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Tuesday, April 19, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides Indiana House email case, finding for the House

In Citizens Action Coalition of Indiana, Energy Policy Institute, and Common Cause of Indiana v. Eric Koch, and Indiana House Republican Caucus, a 13-page, 4-1 opinion, Justice David writes:

The case before us involves the delicate balance that must be maintained between the three branches of government. This Court has been called upon to determine whether it should exercise its jurisdiction to resolve a dispute, or decline to do so in order to faithfully uphold Indiana’s express constitutional separation of powers. Because the issue before the Court would require invasion into a core function of the legislative branch, this Court declines to exercise its jurisdiction. Whether the work product exception within the Indiana Access to Public Records Act applies to the Indiana General Assembly presents a non-justiciable question. Accordingly, we affirm the trial court’s order of dismissal. * * *

We now hold that the Indiana Supreme Court does have subject matter jurisdiction to hear the case, which is distinguishable from a determination of whether a case is justiciable. As to the general applicability of APRA to the legislature, we hold that this issue is justiciable and conclude that APRA does apply to the Indiana General Assembly, necessarily including the members and groups that make up the General Assembly. However, under our controlling precedent in State ex rel. Masariu v. Marion Superior Court No. 1, 621 N.E.2d 1097 (Ind. 1993) and Berry v. Crawford, 990 N.E.2d 410 (Ind. 2013), we hold that the specific question of whether the APRA requests at issue in this case are exempt from disclosure as legislative “work product” is non-justiciable. * * *

Under Article 4, Section 16 of the Indiana Constitution, “[e]ach House shall have all powers, necessary for a branch of the Legislative department of a free and independent State.” The General Assembly itself carries out those powers delegated to the legislative branch under Article 4, Section 16. Consequently, only the General Assembly can properly define what work product may be produced while engaging in its constitutionally provided duties. Thus, defining work product falls squarely within a “core legislative function.” * * *

We hold that determining whether the documents requested by Plaintiffs are excepted under APRA as legislative work product presents a non-justiciable question.

Conclusion. The general question of whether APRA applies to the Indiana General Assembly and its members is justiciable, and we hold that APRA does apply. However, we find non-justiciable the question of whether the documents requested in this case are exempt from disclosure under APRA’s work product exception, Indiana Code section 5-14-3-4(b)(14). Accordingly, under Indiana Trial Rule 12(B)(6), we affirm the trial court’s dismissal.

Rush, C.J., Dickson and Massa, J.J., concur.
Rucker, J., concurs in part, dissents in part with separate opinion. [that begins at p.14] I agree with the majority that the Access to Public Records Act (APRA) is fully applicable to the legislature. As the majority correctly points out: “Because the General Assembly contemplated APRA’s application to itself and its members, we see no prudential reason why this question should be avoided on grounds of justiciability.” Slip op. at 7; accord Maclver Inst. for Pub. Policy, Inc., v. Erpenbach, 848 N.W.2d 862, 875 (Wis. Ct. App. 2014) (Reilly, J., concurring in opinion compelling state senator to disclose certain policy-related emails) (“If legislators do not like the law they created they can repeal it—but until then they must abide by it.”). Thus I agree the trial court erred in granting Defendants’ Rule 12(B)(1) motion to dismiss for lack of subject matter jurisdiction. But the majority takes a wrong turn in granting relief based on Rule 12(B)(6). In essence my colleagues have offered an advisory opinion and made a pre-emptive strike on a matter that deserves further record development. On this issue I respectfully dissent. * * *

There is no question APRA exempts from disclosure “[t]he work product of individual members and the partisan staffs of the general assembly.” Ind. Code § 5-14-3-4(b)(14). The glaring problem here however is that neither before the trial court, nor indeed even before this Court, did the parties address the merits of this work product exemption. And importantly, in responding to Plaintiffs’ complaint Defendants never alleged a work product exemption or asserted “emails, draft records, notes, minutes, scheduling records, text messages, and all other correspondence or records” fall within the exemption umbrella. It is worth recalling that the question before us is whether Plaintiffs have “state[ed] a claim upon which relief can be granted . . . .” Ind. Trial Rule 12(B)(6). Absent evidence the legislature has deemed exempt the specific documents Plaintiffs request, it is plain to me Plaintiffs’ complaint survives Defendants’ 12(B)(6) motion to dismiss. The majority’s ruling is not only premature, but it unfortunately weighs in on a significant separation of powers issue without an adequate record. I would refrain from so doing and instead remand this matter to the trial court for further proceedings.

ILB's Initial Impressions. Rather than distinguishing Masariu and Berry, the majority has elected to broaden their application. J. Rucker points out in dissent: "The majority’s ruling is not only premature, but it unfortunately weighs in on a significant separation of powers issue without an adequate record." That parallels what the Court did in Masariu in 1993; a decision that has now expanded into an unmoveable precedent.

Posted by Marcia Oddi on Tuesday, April 19, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Ind. Supreme Court declines to hear Carmel's appeal in traffic ordinance case

Yesterday in its weekly Transfer List survey, the ILB discussed that the Supreme Court had declined transfer in the case of Jason J. Maraman v. City of Carmel.

This morning Chris Sikich has posted this comprehensive story to the Indianapolis Star, headed "Carmel suffers big loss at Indiana Supreme Court on traffic violations." Some quotes:

A court ruling that invalidated a traffic ordinance Carmel used to ticket thousands of motorists will stand now that the Indiana Supreme Court has declined to hear the city's appeal.

The state Court of Appeals on Dec. 11 unanimously ruled that Carmel's ordinance 8-2, which defines general traffic regulations, improperly duplicated state law. After considering legal briefings filed by all sides, the Supreme Court declined to hear the case last week.

"The Supreme Court determined that the appellate court decision was correct on all accounts and the ordinance has been deemed to be invalid as a matter of law," said attorney Ed Bielski, who is pursing a class-action lawsuit in federal court from motorists who received tickets under the ordinance. * * *

The Indiana Association of Cities and Towns and Indiana Municipal Lawyers Association had filed briefs supporting Carmel's effort, saying in court filings the ruling could have dire impacts on cities and towns throughout Indiana with similar ordinances.

While no other ordinances have been challenged in court, Carmel named Evansville, Fort Wayne, Franklin, Griffith, Hamilton County, Hammond, Indianapolis, Lafayette, LaPorte, Peru, South Bend and Westfield as governments it believed had similar traffic ordinances.

Despite Carmel's opinion, Indianapolis and Hamilton County attorneys said they reviewed local ordinances and found them to be in compliance with state law. Peru's city attorney advised the police department to quit citing motorists under its own traffic law, according to a story in the Kokomo Tribune. He told the paper the city's ordinance does essentially duplicate state law and he is reviewing options to make it comply with state law.

More from the story:
Carmel's predicament stems from a traffic ticket Jason J. Maraman received last year that cited him under Carmel traffic ordinance 8-2 for driving 30 mph in a 20 mph zone. The state Court of Appeals ruled Carmel's traffic ordinance 8-2 was invalid because it simply copied the state code governing traffic.

The state's Home Rule Act says local governments can't simply duplicate a state statue, Maraman argued in court, representing himself. If local governments adopt traffic ordinances, he argued that under the Home Rule Act they have to write local ordinances detailing their specific interests, for instance, reduced speed in front of a school.

Maraman, who said he has no legal training, said he decided to represent himself because he felt the law was clear. He said he was surprised he was being cited for violating a state statute under a city ordinance.

“There is really no question here,” he said. “This is clearly established law. Carmel tried to argue the law doesn’t apply to them, and the appellate court said, no, the law does apply to Carmel.”

Here is the Court of Appeals opinion, from Dec. 15, 2015.

Posted by Marcia Oddi on Tuesday, April 19, 2016
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Decisions - Angie's List fails in effort to enjoin three top sale employyees moves to HomeAdvisor

Here is the 20-page order from Judge Pfleging of Hamilton Superior 2. From p. 20:

89. Myers, Leonard, and Crabtree did not sign non-compete agreements with Angie's List, and are free to work for HomeAdvisor or any other competitor of Angie's List. Even if a noncompete existed, non-competition agreements are disfavored under Indiana law as restraints of trade. Press-A-Dent, Inc., 849 N.E.2d at 668. The Court finds that the public interest would be disserved through the imposition of a de facto non-compete implemented by the Court where no contractual agreement existed between the parties.
From the news release issued by Indianapolis attorney Kathleen DeLaney:
Three of Angie’s List’s top sales performers got caught in the cross-fire of competition between Angie’s List and its chief rival, HomeAdvisor, which recently opened an office in Indianapolis. After these top sales representatives left Angie’s List and joined HomeAdvisor’s sales team, Angie’s List sued them and sought a court order to prohibit them from working for HomeAdvisor, even though the salespeople had not signed non-compete agreements with Angie’s List.

Following a bench trial on Angie’s List’s request for a preliminary injunction, on Friday, April 15, 2016, the Hamilton Superior Court rejected that request. The court found that “Angie’s List did not do all that equity requires before resorting to litigation,” that “Angie’s List is not likely to succeed on the merits of its claims,” that “Angie’s List has not established that it will suffer irreparable harm,” and that the balance of harms and the public interest favored the former employees, and not Angie’s List. The court further found that Angie’s List failed to prove that the employees had misappropriated trade secrets or solicited other Angie’s List employees to move to HomeAdvisor.

The court expressly ruled that these three top sales representatives may continue to work for HomeAdvisor. Angie’s List must now decide whether to pursue the legal case further, notwithstanding the Court’s findings and conclusions.

The court noted in its twenty page ruling that since HomeAdvisor announced the opening of its Indianapolis office, more than 200 Angie’s List employees have applied for jobs at HomeAdvisor.

Posted by Marcia Oddi on Tuesday, April 19, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - New Indiana Select Committee on Immigration Issues meeting today

The Indiana Select Committee on Immigration Issues is meeting today at 1 PM in the Statehouse. You may watch it live here.

Here is today's agenda
. The topic of this first meeting: "A common understanding of federal and state immigration law and the options available at the state level." After introductory matters:

4. Overview of Senate Enrolled Act 590 (2011) and subsequent case law

5. Overview of current federal and state immigration laws, including certain states' proof-of-citizenship voter registration requirement – Kansas Secretary of State, Kris Kobach, and Executive Director & General Counsel for the Immigration Reform Law Institute, Dale Wilcox

6. Public Comment

The ILB last wrote about this new committee on Feb. 4th and Feb. 15th. See also this Sept. 23, 2015 story by Dan Carden of the NWI Times, headed "Immigration battle could flare up at Indiana Statehouse." The ILB has a very long list of entries on "immmigration," going back to 2004.

Posted by Marcia Oddi on Tuesday, April 19, 2016
Posted to Indiana Government

Monday, April 18, 2016

Ind. Courts - "Vigo Drug Court Closing"

Deana Reece reports in MyWabashValley.com:

Vigo County's Drug Court is going out of business. Court officials say the Vigo County Council appropriated no funds for the program, so it will shut down at the end of the year.

Founded in 1996, the Vigo program was the first felony drug court in Indiana. It provided, intensive, supervised treatment for qualified drug offenders, instead of prison.

Posted by Marcia Oddi on Monday, April 18, 2016
Posted to Indiana Courts

Ind. Gov't. - "Legal fee to fight open records suit is more than $160,000"

That is from the headline to an April 5th Fort Wayne Journal Gazette story by Niki Kelly. Some quotes:

INDIANAPOLIS – Hoosier taxpayers have paid $160,000 in legal fees to shield Indiana House and Senate communications from public view in just eight months.

The final tab will be higher because the most recent tally from the Indiana Auditor’s Office doesn’t include a bill covering the March 17 oral argument before the Indiana Supreme Court. * * *

The suit came after the Indiana House denied the request, saying the Indiana General Assembly is exempt from Indiana’s Access to Public Records Act. The state’s Public Access Counselor disagreed and ruled the legislature must comply with the state law.

A Marion County judge dismissed the case on separation-of-powers grounds, since the Supreme Court previously has ruled the judicial branch of government must not interfere in the internal workings of the legislative branch.

Instead of using the Indiana Attorney General’s Office to handle the legal challenge, Bosma hired the Taft Stettinius & Hollister law firm in Indianapolis. Specifically, attorney Geoffrey Slaughter, whose rate is $440 per hour, and a second lawyer assisting at a rate of $345 per hour.

Slaughter –a finalist for a spot on the Supreme Court – argued the justices should defer to the legislative branch on questions of process. But he also said if the court does intercede, the request should be denied under a legislative work product exception.

The costs for the case are being split with the Indiana Senate and paid out of legislative General Fund dollars. So far the billing covers from May 2015 to the end of February 2016. The highest single bill was $36,000.

Here is a long list of ILB posts on the case, CAC v. Koch. An April 8th editorial in the South Bend Tribune begins:
Indiana taxpayers are paying the price for their legislators’ insistence on keeping the public’s business private.

So far, the tab is at $160,000 and still running.

A lawsuit from the Citizens Action Coalition, Common Cause Indiana and Energy and Policy Institute lies at the heart of this taxpayer-funded battle. The nonprofit groups are seeking emails between Rep. Eric Koch, R-Bedford, and utility companies regarding his solar power bill. The House had denied an open records request for the correspondence, saying the General Assembly is exempt from Indiana’s Access to Public Records Act.

Adding insult to injury, rather than use the state’s attorney general office to defend the lawsuit, Republican House Speaker Brian Bosma hired Indianapolis law firm Taft Stettinius & Hollister. As revealed last year, the outside attorney charges about $440 an hour; a second lawyer assisting charges $345 an hour.

Posted by Marcia Oddi on Monday, April 18, 2016
Posted to Indiana Courts | Indiana Government

Ind. Courts - Indiana's six pilot commercial courts will begin hearing cases June 1st

Indiana's six pilot commercial courts will begin hearing cases June 1, 2016. According to a statement from the Indiana Courts:

These specialized trial courts will benefit all court users by resolving complex business cases more efficiently, which will afford more court resources for other case types. The commercial courts also benefit businesses by promoting earlier and more frequent settlement of cases and predictable resolution of business disputes, which helps businesses make operational decisions.
The ILB intends to closely follow the developments related to the new commercial courts. To that end, a new ILB category, Ind. Commercial Courts, has been created. There are already four entries (including today's) in the new category; watch for many more.

Posted by Marcia Oddi on Monday, April 18, 2016
Posted to Ind. Commercial Courts

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

For publication opinions today (2):

In Chuck W. Adams, Charles E. Howard, et al. v. ArvinMeritor, Inc., et al. , a 6-page, 2-1 opinion on rehearing, Judge Robb writes:

In Adams v. ArvinMeritor et al, 2015 WL 8319119 (Ind. Ct. App. Dec. 9, 2015), we held, in part, that inmates at the Indiana Department of Correction Correctional Industrial Facility participating in an offender work program operated by a private enterprise had a private right of action to enforce the statutory prevailing wage requirement. Accordingly, we reversed the trial court’s order dismissing the wage claim against Meritor and the State defendants and remanded for further proceedings. Meritor has filed a petition for rehearing,1 contending we unreasonably interpreted Indiana Code section 11-10-7-4 and the decision should be revisited because it will result in “presumably unintended consequences.” Meritor Appellees’ Petition for Rehearing at 4. We grant rehearing to address Meritor’s argument. * * * For these reasons, we reaffirm our earlier opinion in all respects.

Mathias, J., concurs.
May, J., concurs in part and dissents in part with opinion: [that begins on p.5, and includes] I cannot agree with the majority analysis on rehearing, because as explained in my dissent in our original opinion, Ind. Code § 11-10-7-4 should not be interpreted to provide a private right of action.

In Toddrick Ogburn v. State of Indiana , a 22-page opinion, Judge Robb writes:
Following a jury trial, Toddrick Ogburn was convicted of possession of marijuana with intent to deliver, in an amount greater than ten pounds, a Class C felony. Ogburn appeals, raising two issues for our review, one of which we find dispositive: whether the trial court abused its discretion by admitting evidence obtained in violation of the Fourth Amendment. Concluding the trial court abused its discretion, we reverse and remand.
NFP civil decisions today (1):

In the Matter of the Involuntary Term. of the Parent-Child Relationship of V.F. and S.F. (Minor Children) and S.C. (Mother) and J.F. (Father) v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (3):

Albert L. Armstrong v. State of Indiana (mem. dec.)

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

Idowa Dontray Hood v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, April 18, 2016
Posted to Ind. App.Ct. Decisions

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

Here is the Clerk's transfer list for the week ending Friday, April 15, 2016. It is one page (and 13 cases) long.

Three transfers were granted last week:

In addition, there was one case last week where transfer was denied by a 3-2 vote: ILB: Maraman has been the subject of several ILB posts, starting with the summary of the Court of Appeals decision. See especially this one from Jan. 8th, headed "All eyes on Carmel in traffic lawsuit."

Posted by Marcia Oddi on Monday, April 18, 2016
Posted to Indiana Transfer Lists

Courts - "Major Wisconsin cases could hang in balance at short-handed Supreme Court"

Milwaukee Journal-Sentinel reporter Patrick Marley has a major story today on how the 4-4 SCOTUS split could affect pending Wisconsin (and really all 7th Circuit) cases. Some of the cases are unique to Wisconsin, others have parallels in Indiana. Some quotes from the long story:

Madison — Having the U.S. Supreme Court short one justice for the foreseeable future could affect Wisconsin cases dealing with voter ID, abortion, an investigation of Gov. Scott Walker's campaign and how legislative districts are drawn. * * *

Other legal challenges on voter ID and abortion are pending and could eventually wend their way to the U.S. Supreme Court. Similar laws in other states are also being challenged, and those cases may have a better chance at making it to the high court than the cases from Wisconsin. Here's a look at where the Wisconsin cases stand. * * *

Abortion. Wisconsin Republicans approved a law in 2013 requiring doctors who provide abortions to have admitting privileges at a hospital within 30 miles of where they perform the procedure.

U.S. District Judge William Conley in Madison ruled the law violated the right to abortion. In a 2-1 ruling, a 7th Circuit Court of Appeals panel agreed with that finding.

Attorney General Brad Schimel last month asked the U.S. Supreme Court to take up the case.

The nation's high court showed divisions in March when it heard arguments over a Texas law that requires admitting privileges and places other restrictions on abortion that critics say would force the closure of three-quarters of Texas' abortion clinics.

If the court split 4-4 on the Texas case, it would leave in place a 5th Circuit Court of Appeals decision largely upholding those abortion restrictions. But a similar split in the Wisconsin case would cause the opposite result because of the 7th Circuit's ruling.

Posted by Marcia Oddi on Monday, April 18, 2016
Posted to Courts in general | Ind. (7th Cir.) Decisions | Indiana Courts

Catch-up: What have you missed since the ILB shut down the end of March?

There are two options. You can just click here for all of April's ILB posts on one long page, starting with the most recent posts and going back to April 1.

Or you may pick and choose:

From Sunday, April 17, 2016:

From Saturday, April 16, 2016: From Friday, April 15, 2016: From Thursday, April 14, 2016: From Wednesday, April 13, 2016: From Tuesday, April 12, 2016: From Monday, April 11, 2016: From Sunday, April 10, 2016: From Friday, April 8, 2016: From Thursday, April 7, 2016: From Wednesday, April 6, 2016: From Tuesday, April 5, 2016: From Monday, April 4, 2016: From Friday, April 1, 2016:

Posted by Marcia Oddi on Monday, April 18, 2016
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

Next week's oral arguments before the Supreme Court (week of 4/18/16):

Wednesday, April 20

Next week's oral arguments before the Supreme Court (week of 4/25/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/18/16):

Monday, April 18 Tuesday, April 19 Thursday, April 21 Friday, April 22 Next week's oral arguments before the Court of Appeals (week of 4/25/16):

Wednesday, April 27

Thursday, April 28

Friday, April 29

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, April 18, 2016
Posted to Upcoming Oral Arguments

Sunday, April 17, 2016

Ind. Courts - State court administrative structure being overhauled; also, Justice Rucker is planning to retire

Niki Kelly, statehouse reporter for the Fort Wayne Journal Gazette, has two-stories-in-one in the Sunday J-G.

The lengthy story reports about half-way through that Justice Robert Rucker plans to retire in 2017, although he won't turn 75 until 2022.

As for the overhaul:

In the past few months, several key people have announced they are leaving and two high-level posts have been created with interviews underway.

Rumors that all employees have been asked to reapply for jobs are just that – rumor.

“We can’t just stop. We have to move forward,” [Chief Justice Loretta] Rush said of streamlining operations for more efficiency. “We are evaluating from top to bottom so we don’t become stagnant.”

To the average citizen, the Indiana Supreme Court is five justices in black robes and some law clerks who help craft opinions.

But in reality there are about 200 employees and the court encompasses nine other agencies or programs. * * *

[T]he Division of State Court Administration ­stretches into the trial court level in all 92 counties – working on court procedures, administering payroll for judges and prosecutors, reporting caseload and fiscal information and providing technology support to all courts.

There is also the Indiana Judicial Center, which provides education and research for judicial officers, trains probation officers and oversees specialized courts.

Three years ago, Chief Justice Brent Dickson became concerned that as the court gained new justices and employees aged, a lot of institutional knowledge would be lost.

Rush said next year – after Justice Robert Rucker retires – the court will have five justices with six years’ experience or less on the bench. * * *

The first major change is the adding of two new positions: the Chief Administrative Officer and a Fiscal Officer. Applications were due April 1 and should be filled this summer. The administrative post will pay between $133,600 and $141,100. The fiscal position will pay between $88,100 and $97,950.

Rush said the Chief Administrative Officer is a new layer between her and the individual agencies and boards. It provides a single point of contact when staff across the spectrum are trying to get an item on the conference schedule for all five justices to consider. And that person will report directly to Rush.

The Fiscal Officer will prepare budgets and manage payment claims. Rush said 22 people now touch various pieces of the fiscal process with no one in charge.

“Our goal is to be better, to be stronger,” she said.

Judson is one of two key departures at hand. She has been with the court in various positions since 1977. She leaves later this summer after helping with the transition of the new Chief Administrative Officer.

“I’ve grown roots here,” she said.

David Remondini – who served the court for more than 20 years and was most recently the interim executive director of the Division of State Court Administration – also recently bid farewell. He is leaving to be a jet pilot.

He already cut his goodbye cake but is sticking around behind the scenes until the end of the month to help with the transition to his successor.

Also, in March, Clerk of Courts Kevin Smith abruptly resigned. Interim Clerk Greg Pachmayr is filling in but a new clerk will be hired soon.

The ILB had a post on Feb. 10th headed "Big changes in Indiana court administration underway," that began:
The Supreme Court has announced this morning that the Supreme Court is organizing single Office of Judicial Administration.

Posted by Marcia Oddi on Sunday, April 17, 2016
Posted to Indiana Courts

Saturday, April 16, 2016

Environment - “Everglades of the North: The Story of the Grand Kankakee Marsh”

One of my favorite recent stories, Andrea Neal wrote in the Indiana Policy Review late last year about the draining of the Kankakee Basin.

You can watch the 4-minute trailer of the video, "Everglades of the North."

Posted by Marcia Oddi on Saturday, April 16, 2016
Posted to Environment

Ind. Decisions - 7th Circuit decided two Indiana cases Friday

In Consumer Health Information Co v. Amylin Pharmaceuticals, Inc. (SD Ind., Pratt), an 11-page opinion, Judge Sykes writes:

Consumer Health Information Cor-poration sued Amylin Pharmaceuticals, Inc., alleging copyright infringement. 17 U.S.C. §§ 101 et seq. The dispute centers on copyright ownership: Who owns the copyright in certain patient-education materials Consumer Health developed for Amylin’s use in marketing its diabetes drug Byetta? The parties’ contract, executed in March 2006, unambiguously assigns the copyright to Amylin. This suit is an attempt to reclaim ownership of the copyright and recover damages for infringement. To that end, Consumer Health alleges that the contract was induced by fraud or economic distress and seeks rescission. The district court dismissed the suit as untimely.

We affirm. Consumer Health assigned the copyright to Amylin in 2006 but did not file this suit until July 2013, several years too late under either of two applicable statutes of limitations. A four-year limitations period applies to claims for contract rescission under California law, which governs the parties’ contract. CAL. CIV. PROC. CODE § 337. Claims under the Copyright Act are subject to a three-year statute of limitations. 17 U.S.C. § 507(b). Consumer Health’s cause of action accrued in March 2006, when the contract was executed; at that point Consumer Health knew that Amylin owned the copyright, and the limitations clock on a suit to reclaim ownership started ticking. Under either statute of limitations, the suit is untimely. * * *

We’re persuaded by the unanimous line of cases from our sister circuits and now hold that when the gravamen of a copyright suit is a question of copyright ownership, the claim accrues when the ownership dispute becomes explic-it—that is, when the claimant has notice that his claim of ownership is repudiated or contested. Applying this accrual rule here, Consumer Health knew when it signed the Master Services Agreement in March 2006 that Amylin owned the copyright via express assignment. Consumer Health’s suit to reclaim copyright ownership—filed in July 2013—was more than four years too late. AFFIRMED.

In Merrill Roberts v. Commissioner Internal Revenue (US Tax Court), a 15-page opinion, Judge Posner writes:
In 2014 the Tax Court held that the taxpayer, petitioner Merrill Roberts, had deducted the expenses of his horseracing enterprise on his federal income tax returns for 2005 and 2006 erroneously because the enterprise was a hobby rather than a business. The court assessed tax deficiencies of $89,710 for 2005 and $116,475 for 2006. But it also ruled that his business had ceased to be a hobby, and had become a bona fide business, in 2007, and the Internal Revenue Service has not challenged Roberts’ bona fides since, as far as we know. Though now in his seventies, he continues to operate his horse‐racing business. His appeal challenges the assessments for 2005 and 2006. [ILB: There is much about the Indiana horse-racing industry in the opinion.] * * *

The Tax Court’s judgment, insofar as it upholds the deficiencies assessed against the petitioner by the Internal Revenue Service for business deductions in 2005 and 2006, is reversed with instructions to void the deficiencies.

Posted by Marcia Oddi on Saturday, April 16, 2016
Posted to Ind. (7th Cir.) Decisions

Friday, April 15, 2016

Indiana Decisions - Tax Court decision yesterday involved whether taxpayer was a professional, or a hobby gambler

In Popovich v. Ind. Dept. of Revenue, a 12-page opinion, Judge Wentworth writes:

Nick Popovich claims that he is a professional gambler and, as such, reported income and deductions associated with his trade. The Indiana Department of State Revenue disagreed that gambling was his occupation and issued adjusted gross income tax (AGIT) assessments for the 2003, 2004, and 2005 tax years (“years at issue”). The matter, currently before the Court on the Department’s Motion for Summary Judgment, presents the following issues for the Court to decide: whether the Department’s 2003 AGIT assessment was timely; and whether Popovich was a professional gambler eligible for certain deductions from his adjusted gross income. Upon review, the Court finds in favor of Popovich in part and denies the Department’s Motion. * * *

For the above-stated reasons, the Court finds that there are no genuine issues of material fact regarding the untimeliness of the Department’s 2003 Proposed Assessment, and therefore, the Court GRANTS summary judgment to Popovich with respect to this issue. Nonetheless, because there are genuine issues of material fact regarding whether Popovich was a professional gambler eligible for certain deductions from his adjusted gross income for the 2004 tax year, the Court DENIES summary judgment to either party with respect to this issue. Consequently, the Court will order the parties to file a joint status report under separate cover.

Posted by Marcia Oddi on Friday, April 15, 2016
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (1):

In Paul Angel v. Vanderburgh County Treasurer and Townsquare Media, LLC, a 13-page opinion, Judge Brown writes:

Paul Angel appeals the trial court’s order denying his Motion to Establish Redemption Amount. Angel raises two issues which we consolidate and restate as whether the court’s order is clearly erroneous. We reverse and remand. * * *

Based upon the record, we conclude that Angel is entitled to recover from Townsquare under Ind. Code § 6-1.1-25-12, as it existed at the time the trial court ordered rescission of the tax deed. We thus reverse and remand for a determination of the amount Angel is entitled to recover and for an order directing the parties to comply with their respective obligations under Ind. Code §§ 6-1.1-25-12 and -13 as they existed at the time the tax deed was ordered rescinded. See Scott v. Millikan, 104 Ind. 75, 3 N.E. 647, 649 (1885).

NFP civil decisions today (2):

Kathryn Arnold v. Dennis Arnold (mem. dec.)

A.C. James Jr. v. Allen County Sheriff's Department et al. (mem. dec.)

NFP criminal decisions today (2):

Tyrone Goodman v. State of Indiana (mem. dec.)

Jose Carreno v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, April 15, 2016
Posted to Ind. App.Ct. Decisions

About the ILB: "Indiana Law Blog will be back online Monday"

That is the headline of Kristine Guerra's story today in the Indianapolis Star, following on Guerra's March 9th story headed "Indiana Law Blog to shut down due to lack of funding."

From today's story:

The Indianapolis law firm Hoover Hull Turner will fund the long-running legal blog with the goal of keeping it online indefinitely, said Wayne Turner, a partner at the law firm, which will be the blog's exclusive sponsor.

The announcement comes a little more than a month after retired Indianapolis lawyer Marcia Oddi said she was ending the blog she created 13 years ago because "financial support simply isn't there." Oddi said she had unsuccessfully spent the past year exploring funding options for the blog, which went offline April 1.

Turner said his law firm reached out to Oddi after reading an IndyStar story about the blog shutting down. He and Oddi "shook hands across the breakfast table this morning," Turner said Thursday, adding they will have a formal written agreement later.

"A lot of lawyers, especially those of us who practice in the litigation area, followed the law blog as a resource and were really troubled and concerned to see that it might end," Turner said. "We contacted Marcia to try to find out how we could help. Someone needed to step up and keep the blog alive."

Also today, Ed Feigenbaum's weekly $$$ newsletter, Indiana Legislative Insight, notes:
Our brief local legal nightmare is over. The Indiana Law Blog returns April 18 courtesy of sponsor Hoover Hull Turner LLP.
Here are quotes from the Hoover Hull Turner news release Thursday:
Hoover Hull Turner LLP is proud to announce it has become the exclusive sponsor of the Indiana Law Blog, an essential source of information vital to Indiana’s legal community.

Attorney Marcia Oddi began the Indiana Law Blog in 2003, providing a one-stop resource for appellate opinions, news stories, and analysis of issues affecting lawyers around the state. Oddi had planned on shuttering the ILB at the end of March 2016, but agreed to continue her important work with assistance from Hoover Hull Turner. “The Indiana Law Blog is simply too valuable a resource to let disappear,” said firm partner Wayne Turner. “We reached out to Marcia, hoping we could convince her to keep the ILB going with some help on our end. Thankfully, she said yes.”

“I am thrilled to be able to continue and expand the ILB,” Oddi said. “It was difficult to think about walking away from the blog, a project I have invested much effort into over the years. And I’m doubly pleased to have the highly-respected law firm of Hoover Hull Turner as the exclusive sponsor.”

The firm expects the ILB to remain a go-to resource for news about Indiana’s judicial system. In addition to the analysis the blog already provides, partner Andy Hull noted the June kick-off of the state’s commercial court pilot project, and the move toward electronic filing, as state-wide developments for which ILB coverage is well suited. “Gathering information about those systemic changes into one place will be incredibly helpful to lawyers and judges around the state,” Hull said. “That is just one of many important roles the ILB fills, for those of us who turn to it regularly.”

Posted by Marcia Oddi on Friday, April 15, 2016
Posted to About the Indiana Law Blog

Thursday, April 14, 2016

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

For publication opinions today (1):

In Mason W. Meunier-Short v. State of Indiana, an 18-page opinion, Judge Robb concludes:

We remand to the trial court to conduct an indigency hearing prior to the termination of Meunier-Short’s probation, or in the event the State files a petition to revoke his probation, prior to revoking Meunier-Short’s probation for failure to pay fines, costs, and fees. In addition, we vacate the portion of the Supplemental Probation Order imposing a $200.00 substance abuse fee and $200.00 alcohol and drug countermeasures fee. The trial court was without authority to impose either fee and erred by doing so. As for the probation condition requiring Meunier-Short to return to school and maintain a “C” average, we conclude the trial court abused its discretion by imposing this condition in addition to requiring he maintain full time employment. We remand with instructions to amend the Probation Order by giving Meunier-Short the option to either maintain full time employment or “faithfully pursue” a course of study that will equip him for suitable employment. Ind. Code § 35-38-2-2.3(a)(1). Reversed in part and remanded with instructions.
NFP civil decisions today (4):

David Patrick Walters v. Jessica R. (Walters) Wittman (mem. dec.)

In the Term. of the Parent-Child Relationship of: K.M. (Minor Child) and T.M. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

Barn Phil, LLC, et al. v. TWCF Property, LLC (mem. dec.)

Robin L. Rajski v. Robert Rajski (mem. dec.)

NFP criminal decisions today (4):

Dejuan Wells v. State of Indiana (mem. dec.)

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

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

James Lee Roby v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, April 14, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides interesting Illinois case today; and Indiana prisoner appeal

In John Lewert v. P.F. Chang's China Bistro, Inc (ND Ill), a 12-page opinion, Chief Judge Wood writes:

About two months after they dined at P.F. Chang’s China Bistro, in Northbrook, Illinois, John Lewert and Lucas Kosner received the unwelcome news that the restaurant’s computer system had been hacked and debit- and credit–card data had been stolen. Lewert and Kosner brought separate suits, which were later consolidated, seeking damages resulting from the theft on behalf of themselves and a class. Concluding that they had not suffered the requisite personal injury, the district court dismissed for lack of standing. FED. R. CIV. P. 12(b)(1). In light of Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688 (7th Cir. 2015), we reverse and remand for further proceedings. * * *

This is not our first time to examine standing in a case involving a data breach. In Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688 (7th Cir. 2015), the high–end department store Neiman Marcus experienced a data breach that potentially exposed the payment–card data of all customers who paid with cards during the previous year. * * *

We conclude that the plaintiffs have alleged enough to support Article III standing. In so ruling, we express no opinion on the merits or on the suitability of this case for class certification. The district court’s judgment is REVERSED and the case REMANDED for further proceedings consistent with this opinion.

In Terrance Flynn v. Marion Thatcher (ND Ind., DeGuilio), a 4-page per curiam opinion, the court writes:
Terrance Flynn, an Indiana prisoner, ap-peals the dismissal of his suit brought under 42 U.S.C. § 1983, in which he claims that he is being denied equal pro-tection because he does not receive the same privileges as participants in an inmate “Honor Program.” Because we agree with the district court that Flynn’s complaint fails to state a claim, we affirm the dismissal. * * *

Even Flynn concedes in his appellate brief that the program “rewards” prisoners “for good behavior.” He argues, however, that there can be no valid reason to deny him the same privileges because he has demonstrated the same good behavior and meets all of the criteria for admission. But there are many rational reasons for requiring an application to evaluate the prisoner before awarding benefits. See McGinnis, 410 U.S. at 272–73.

Posted by Marcia Oddi on Thursday, April 14, 2016
Posted to Ind. (7th Cir.) Decisions

Wednesday, April 13, 2016

Ind. Decisions - 7th Circuit decides Wis. case re damages to strip club owners

In Six Star Holdings, LLC v. City of Milwaukee (ED Wis.), a 15-page opinion, Chief Judge Wood writes:

This case requires us to visit the world of strip clubs—establishments that no one seems to want, officially, but that are somehow quite lucrative. Prior to March 1, 2012, the City of Milwaukee had various licensing requirements for this type of place, but it no longer defends their constitutionality. * * *

Before us now are two Milwaukee ordinances, now re-pealed, that required certain licenses before a business was permitted to offer nude or partially nude entertainment. * * *

Two companies—Six Star Holdings, LLC, which applied for a license under one of these ordinances, and Ferol, LLC, which did not—challenged these ordinanc-es, seeking injunctive relief and damages. Once the ordi-nances were repealed, the plaintiffs dropped their requests for injunctive relief but continued to pursue damages. The latter request saves the case from mootness. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 608–09 (2001). The district court held that the ordinances addressed time, place, and manner of expression, but that they did not include the necessary procedural safe-guards. A jury then decided that but for the unconstitutional ordinances, Ferol would have opened a club providing nude entertainment. It awarded Ferol compensatory damages in the form of lost profits, and gave Six Star nominal damages.

The City has appealed. It argues that Ferol had no injury and therefore no standing to challenge the ordinances. It also challenges Ferol’s theory of causation and the award of nominal damages to Six Star. Finding no merit in any of these points, we affirm the district court’s judgment. * * *

The City is fighting a losing battle over a regime whose time has passed.

Posted by Marcia Oddi on Wednesday, April 13, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Michael Garrison and Janet Garrison v. Elesha Ford and United Farm Family Mutual Insurance Company , a 6-page opinion, Judge Bailey writes:

Michael and Janet Garrison (“the Garrisons”) bring an interlocutory appeal as of right,1 challenging a change of venue from Marion County to Johnson County of heir complaint against Elesha Ford (“Ford”) for personal injury and property damages and against United Farm Family Mutual Insurance Company (“Farm Bureau”) in relation to underinsured motorist coverage. The Garrisons present the sole issue of whether their complaint, filed in the county where defendant Farm Bureau maintains its resident agent, was subject to a change of venue to another county of preferred venue. We reverse and remand. * * *

We do not employ a separate rule for the sake of convenience, as Farm Bureau suggests. “The balance of convenience, even if it were an explicit factor, is not sufficient to disturb the plaintiffs’ selection of a forum that meets preferred venue requirements.” Meridian Mut. Ins., 671 N.E.2d at 864. We are obligated to follow precedents established by the Indiana Supreme Court. Patton v. State, 507 N.E.2d 624, 626 (Ind. Ct. App. 1987), trans. denied. We hold that the Marion County court had no authority to transfer the case to a different county.

Conclusion. Marion County, where the Garrisons filed their complaint, is a preferred venue. As such, the Marion County Superior Court erred in granting the motion for a change of venue.

NFP civil decisions today (1):

Tim Johnson v. Julie Johnson (mem. dec.)

NFP criminal decisions today (6):

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

Christopher D. Manley v. State of Indiana (mem. dec.)

Arcine Cook v. State of Indiana (mem. dec.)

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

Cameron L. Kizer v. State of Indiana (mem. dec.)

Thomas Moore v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, April 13, 2016
Posted to Ind. App.Ct. Decisions

Tuesday, April 12, 2016

Ind. Decisions - 7th Circuit decides interesting Wisconsin case today, re curtilage

In USA v. Lonnie Whitaker (WD Wis.), a 10-page opinion, Judge Darrah (ND Ill., sitting by designation) writes:

Acting on information that drugs were being sold from a certain apartment in Madison, Wisconsin, law enforcement obtained the permission of the apartment property manager and brought a narcotics-detecting dog to the locked, shared hallway of the apartment building. The dog alerted to the presence of drugs at a near-by apartment door and then went to the targeted apartment where Whitaker was residing. After the officers obtained a search warrant, Whitaker was arrested and charged with drug and firearm crimes based on evidence found in the apartment. * * *

On appeal, Whitaker raises four issues. First, he argues the use of the dog was a search under the Fourth Amendment and Florida v. Jardines, 133 S. Ct. 1409 (2013). * * * For the reasons discussed below, we reverse the district court’s holding regarding the search. The remaining issues are therefore moot.

See this April 13th post by Orin Kerr at the Volokh Conspiracy, headed "Use of a drug-sniffing dog at an apartment door is a ‘search,’ 7th Circuit holds." It begins:
Courts are divided on whether a tenant who lives in an apartment building has Fourth Amendment rights in the common areas of the building. On Tuesday, the 7th Circuit handed down a new twist on the problem. The court held that although a tenant does not have Fourth Amendment rights in common areas generally, use of a drug-sniffing dog in the hallway at the tenant’s door is a “search.”

Posted by Marcia Oddi on Tuesday, April 12, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court decides a third case today

In In Re the Custody of M.B. B/N/F S.C. and D.C. v. S.B. and S.W., a 10-page opinion, Justice David writes:

Indiana Code § 31-17-2-3(2) allows any person other than a parent to commence a custody action over a child, which is not incidental to a marital dissolution, legal separation, or child support action. In the present case, the paternal aunt and uncle of minor child, M.B., filed an independent action seeking custody of M.B. However, this action was dismissed by the trial court, finding that Aunt and Uncle did not have standing to bring an independent custody action, and the circuit court had no jurisdiction to hear a conflicting action, because a child in need of services (CHINS) proceeding involving M.B. was already pending in the Posey County Juvenile Court. We now grant transfer and reverse the circuit court. Aunt and Uncle had standing to bring the independent custody action, and the circuit court had subject matter jurisdiction over the custody action. However, where the juvenile court was already exercising exclusive jurisdiction over the CHINS proceeding, and Aunt and Uncle’s independent custody action did not arise under one of the enumerated exceptions to that exclusive jurisdiction, the circuit court should stay any proceedings and abstain from exercising its jurisdiction until the CHINS case has concluded. Accordingly, dismissal on the grounds of lack of standing and subject matter jurisdiction was error. We reverse and remand to the circuit court. * * *

[T]he trial court determined that Aunt and Uncle did not have standing to bring an independent custody action, and the court did not have jurisdiction to hear the independent custody matter while a CHINS case was pending.

Aunt and Uncle appealed, and the Court of Appeals affirmed the trial court. In re the Custody of M.B., 40 N.E.3d 930 (Ind. Ct. App. 2015), vacated. We now grant transfer thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A). We reverse the trial court, as dismissal for lack of standing and jurisdiction was error. We hold that Aunt and Uncle had standing to bring the independent custody action. We also hold that the Posey Circuit Court has subject matter jurisdiction over the independent custody action, but should have stayed the proceedings and abstained from exercising its jurisdiction until the CHINS action concluded. The juvenile court’s exercise of exclusive jurisdiction over the CHINS proceeding did not divest the circuit court of subject matter jurisdiction over an independent custody action, but it did require the circuit court to postpone its exercise of jurisdiction. We advise that the term “jurisdiction” should not be used too broadly. * * *

We hold that a third-party, who seeks to commence an independent child custody action under Indiana Code § 31-17-2-3(2), may properly do so in circuit court, but if a CHINS case is pending when the custody action is filed and no exception to the juvenile court’s exclusive jurisdiction is applicable, the circuit court should abstain from exercising its jurisdiction and stay any proceedings on the custody action until final disposition of the CHINS proceeding. We reverse the trial court’s dismissal of Aunt and Uncle’s independent custody action and remand for further proceedings.

Posted by Marcia Oddi on Tuesday, April 12, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In William Clyde Gibson III v. State of Indiana, a 13-page, 5-0 opinion, Chief Justice Rush writes:

William Clyde Gibson III pleaded guilty to murdering Stephanie Kirk, and the trial court sentenced him to death. Gibson directly appeals his sentence to this Court, raising four issues: (1) whether there was insufficient evidence to prove two aggravators—that he murdered Kirk while committing two forms of criminal deviate conduct—beyond a reasonable doubt; (2) whether allowing the State to amend the charging information was fundamental error; (3) whether the court manifestly abused its discretion in weighing mitigators and aggravators; and (4) whether his death sentence is inappropriate in light of his character and the nature of the offense. We affirm the trial court in all respects.
In Scott Hitch v. State of Indiana, a 19-page, 5-0 opinion, Justice Rucker writes:
Scott Hitch appeals the trial court’s determination declaring he committed a crime of domestic violence. Concluding there was no violation of Hitch’s Sixth Amendment right to trial by jury, and further concluding the evidence was sufficient to sustain the determination, we affirm the judgment of the trial court. * * *

In Blakely v. Washington, the United States Supreme Court held “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” * * *

According to Hitch the firearm prohibition constitutes punishment within the meaning of the Sixth Amendment and thus the underlying facts supporting the prohibition—a determination of domestic violence—must be found by a jury and proven beyond a reasonable doubt. Otherwise, Hitch contends, the prohibition is in violation of his Sixth Amendment right to trial by jury as explicated in Apprendi, Blakely and Southern Union. The State counters the firearm prohibition is not a punishment at all, but instead “the intent and effect of a domestic violence determination in Indiana is to facilitate compliance with the pre-existing federal law that prohibits domestic violence offenders from possessing firearms.” * * *

It is difficult to determine legislative intent in this case because as with most Indiana statutes there is no available legislative history and the statute does not contain a purpose statement. However we have noted that “[i]n the absence of a stated purpose, one way to determine legislative intent is to examine where the statute is located within the Code.” Jensen v. State, 905 N.E.2d 384, 390 (Ind. 2009) (citation omitted). And as the Court of Appeals has pointed out, “Section 35-38-1-7.7, which directs the trial court to determine whether a defendant committed a crime of domestic violence, is located in the criminal code.” Goldsberry v. State, 821 N.E.2d 447, 465 (Ind. Ct. App. 2005). According to the court this placement along with the legislature’s explicit declaration that the statute is “an act to amend the Indiana Code concerning criminal law and procedure” demonstrates “the legislature intended the sanction to be a criminal punishment.” Id.

Although we agree location of the statute within the criminal code represents a strong indication the legislature intended a punitive intent, this fact alone is not dispositive. As discussed in slightly more detail later in this opinion the statute also advances a legitimate regulatory purpose, namely public safety by ensuring firearms are kept out of the hands of domestic abusers. * * *

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect, three factors—affirmative disability or restraint, traditional aims of punishment, and application to criminal behavior—point in favor of treating the effect of the firearm prohibition statute as punitive. The remaining factors, particularly factor seven—excessiveness—point in the other direction. As we indicated earlier although “no one factor is determinative,” Wallace, 905 N.E.2d at 379, we nonetheless give “greatest weight” to factor seven, Pollard, 908 N.E.2d at 1153, and “our task is not simply to count the factors on each side, but to weigh them.” Wallace, 905 N.E.2d at 379 (citation omitted). After weighing these factors we conclude the firearm prohibition statute is non-punitive. But even if the balancing of these factors indicated that statute was slightly punitive, the statute is not so punitive in effect that we can say with certainty the statute negates our assumption the legislature intended to create a civil, non-punitive regulatory regime. * * *

The statute makes clear domestic violence includes a person who “was cohabitating with or had cohabitated with the defendant as a spouse . . . .” I.C. § 35-31.5-2-78(2)(C) (emphasis added). Therefore, regardless of whether the second cohabitation was romantic the parties’ first romantic cohabitation satisfies the statutory mandate. Thus, the evidence was sufficient to sustain the trial court’s domestic violence determination and thus its judgment was not clearly erroneous.

Conclusion. We affirm the judgment of the trial court.

Rush, C.J., and David, J., concur.
Massa, J., concurs in result with separate opinion in which Dickson, J., joins. [which begins, at p. 16]

Massa, J., concurring in result with separate opinion.

I agree with the holding of the Court today, that the loss of firearm privileges which accompanies a “crime of domestic violence” determination by a trial judge at sentencing does not violate Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and its progeny. I do not, however, concur in the Court’s rationale, because I believe it begins a slow march in the wrong direction.

[More] See this April 14th NWI Times story by Dan Carden on the Hitch opinion, headed "Indiana high court OKs restriction on right to bear arms ."

Posted by Marcia Oddi on Tuesday, April 12, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (1):

Smith Law Office, P.C. v. Lawrence J. Cevelo and Carol L. Cevelo (mem. dec.)

NFP criminal decisions today (1):

Candelario Rangel v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, April 12, 2016
Posted to Ind. App.Ct. Decisions

Monday, April 11, 2016

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

In U.S.A. v. Berton Mays (SD Ind., Magnus-Stinson), a 14-page opinion, Judge Ripple writes:

Berton Mays left the scene of a fight and was followed by an investigating officer who wanted to interview him about the altercation. Mr. Mays repeatedly declined to stop and talk to the officer, expressing his declination in colorful and abusive language. After observing Mr. Mays’s demeanor and suspecting that he might be armed, the officer told him to stop and touched his shoulder in order to keep a distance between the two. Mr. Mays’s manner of turning made the officer concerned for his safety, and he employed his already drawn Taser. A semi-automatic firearm fell to the ground.

Mr. Mays ultimately was prosecuted in federal court for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty to the offense, but reserved the right to appeal the district court’s denial of his motion to suppress the firearm, which he contended was the product of an illegal seizure. He also reserved the right to appeal the district court’s denial of his motion to suppress a statement he had made to federal agents while he was in pretrial confinement. Mr. Mays now appeals, raising these preserved challenges.

We affirm the judgment of the district court. As the district court determined, the officer’s stop was supported by reason-able suspicion as required by the Fourth Amendment. With respect to the statement, there was no independent violation of Mr. Mays’s Sixth Amendment right to counsel.

Posted by Marcia Oddi on Monday, April 11, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court decides one today, upholding Indianapolis' non-smoking ordinance that exempts satellite gambling facilities but not bars and restaurants

In Whistle Stop Inn, Inc. and Louise Liford d/b/a Thirsty Turtle v. City of Indianapolis, Mayor Greg Ballard, Indianapolis City-Council, and Hoosier Park, LLC, an 11-page, 5-0 opinion, Justice Dickson writes:

We uphold Indianapolis' non-smoking ordinance ("Ordinance"), finding that it does not violate the Equal Privileges and Immunities Clause of Article 1, Section 23 of the Indiana Constitution. While the Ordinance provides an exemption to satellite gambling facilities but not to bars and restaurants, Article 1, Section 23 does not prohibit this disparate treatment. * * *

The challenged Ordinance does not violate the Equal Privileges and Immunities Clause of the Indiana Constitution. The Ordinance's exemption for satellite gambling facilities is reasonably related to the inherent differences distinguishing satellite gambling facilities from bars and restaurants. The Ordinance also does not create a monopoly or treat similarly situated classes disparately in violation of Article 1 Section 23. We affirm the trial court's grant of summary judgment in favor of the City.

Posted by Marcia Oddi on Monday, April 11, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Dorothea Bragg, on Behalf of Herself and All Others Similarly Situated v. Kittle's Home Furnishings, Inc. , a 36-page opinion, Judge Bradford writes:

Appellant-Plaintiff Dorothea Bragg was employed as a retail sales consultant by Appellee-Defendant Kittle’s Home Furnishings, Inc. (“Kittle’s”) from November of 2011 until September of 2013. Pursuant to the terms of Bragg’s employment, Bragg earned a regular bi-weekly salary. She also had the potential to earn additional compensation, in the form of commission, if she completed a certain level of delivered sales. Bragg voluntarily terminated her employment at Kittle’s in September of 2013.

On June 4, 2014, Bragg, both on behalf of herself and on behalf of a proposed class of unknown current and former Kittle’s employees (the “unknown purported class members”), filed a lawsuit against Kittle’s. In this lawsuit, Bragg alleged that Kittle’s had failed to pay its employees earned commissions within the ten-day limit set forth in the Indiana Wage Payment Statute (the “Wage Payment Statute”). Of note, Bragg did not allege that Kittle’s had failed to pay her or any of the other unknown purported class members any commissions actually earned by the employees, only that Kittle’s failed to do so within the ten-day limit set forth in the Wage Payment Statute.

Kittle’s subsequently filed a motion to dismiss the lawsuit. With respect to the claims relating to any of the unknown purported class members whose employment had been involuntarily terminated by Kittle’s, the trial court granted Kittle’s motion to dismiss for lack of subject matter jurisdiction. With respect to the claims relating to Bragg, and seemingly any potential remaining unknown purported class members, the trial court converted Kittle’s motion to dismiss into a motion for summary judgment. After the parties submitted designated evidence and legal argument in support on their position on Kittle’s motion for summary judgment, the trial court granted summary judgment in favor of Kittle’s.

Upon review, we conclude that (1) the trial court lacked subject matter jurisdiction over the claims raised on behalf of any unknown purported class members whose employment with Kittle’s was involuntarily terminated because said unknown purported class members failed to first submit their claims to the Indiana Department of Labor (“DOL”) as required by the Indiana Wage Claims Statute (“Wage Claims Statute”); (2) the trial court did not abuse its discretion in denying certain discovery requests made by Bragg. We therefore affirm the judgment of the trial court; and (3) the trial court properly granted summary judgment in favor of Kittle’s on the claims raised by Bragg and any remaining unknown purported class members because the ten-day time limit set forth in the Wage Payment Statute did not apply to the commissions at issue as said commissions did not qualify as wages under the Wage Payment Statute.

NFP civil decisions today (2):

In the Term. of the Parent-Child Relationship of: H.W. (Minor Child) and S.L. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

Lora (McIlwain) Marshall v. Gregory McIlwain (mem. dec.)

NFP criminal decisions today (1):

Emerson Wade Bixler v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, April 11, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending April 8, 2016

Here is the Clerk's transfer list for the week ending Friday, April 8, 2016. It is two pages (and 20 case) long.

Two transfers were granted last week:

In addition, there were three cases last week where transfer was denied (or, in the case of a Tax Court opinion, review was denied) by a 3-2 vote:

Posted by Marcia Oddi on Monday, April 11, 2016
Posted to Indiana Transfer Lists

Ind. Courts - Applicants who passed the Feb. 2016 Indiana Bar Exam

Here is the list, publicly announced this morning.

Posted by Marcia Oddi on Monday, April 11, 2016
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/11/16): Next week's oral arguments before the Supreme Court (week of 4/18/16):

Wednesday, April 20

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/11/16):

Thursday, April 14

Friday, April 15

Next week's oral arguments before the Court of Appeals (week of 4/18/16):

Monday, April 18 Tuesday, April 19 Thursday, April 21 Friday, April 22

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, April 11, 2016
Posted to Upcoming Oral Arguments

Sunday, April 10, 2016

Ind. Decisions - Tax Court posted one Friday, April 8th

In Marion County Assessor v. Simon DeBartolo Group, LP, DeBartolo Realty Partnership, LP, and SPG Lafayette Square, LLC, a 15-page opinion, Judge Wentworth writes:

This case examines whether the Indiana Board of Tax Review erred when it reduced the Respondents’ real property assessments for the 2006 and 2007 tax years. Upon review, the Court finds that the Indiana Board did not err.

The subject property, Lafayette Square Mall, is located on the northwest side of Indianapolis. At the time the Mall was constructed in 1968, it was the first enclosed mall in Indiana and one of the largest midwestern shopping centers outside of Chicago. * * *

The Assessor has not met his burden in demonstrating that the Indiana Board’s final determination is contrary to law or constitutes an abuse of discretion, as his arguments on appeal are unpersuasive and often incoherent, rife with open-ended questions, and lack citations to either facts in the administrative record or to legal authority. (See Pet’r Br.; Pet’r Reply Br.; Oral Argument Tr. at 3-48.) Accordingly, the Indiana Board’s final determination in this matter is therefore AFFIRMED.

Posted by Marcia Oddi on Sunday, April 10, 2016
Posted to Ind. Tax Ct. Decisions

Friday, April 08, 2016

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):

Joshua S. Black v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, April 08, 2016
Posted to Ind. App.Ct. Decisions

Thursday, April 07, 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 8 NFP memorandum decision(s))

For publication opinions today (2):

In Community Health Network v. Pamela D. Bails , an 8-page opinion, Judge Bailey writes:

Community appeals the trial court’s denial of its motion to correct error. * * *

While Community did not appear for trial or replead in compliance with the trial court’s order, the parties’ mutual decision to enter into an agreed judgment precluded appellate review—let alone the dismissal of the underlying case and a judgment against Community requiring its return of monies garnished in satisfaction of the judgment.

Based upon this, we conclude that the trial court erred when it dismissed Community’s case, vacated the agreed judgment, and ordered damages in favor of Bails. We accordingly reverse the judgment of the trial court, with instructions to reinstate the agreed judgment, vacate the judgment against Community, and proceed with this case in a manner not inconsistent with our decision today.

In Victor J. DiMaggio III v. Elias Rosario; Elias Rosario v. Victor J. DiMiaggio III , a 22-page opinion, Sr. Judge Darden writes:
Victor J. DiMaggio appeals from the trial court’s order granting summary judgment in favor of Elias Rosario on DiMaggio’s complaint alleging breach of an oral contract; breach of fiduciary duty; and, usurpation of corporate opportunity. Rosario cross-appeals, contending, in the alternative, that the trial court erred by denying his first motion for summary judgment based on the statute of limitation. We affirm.
NFP civil decisions today (5):

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

Sadia Khan v. Syed Hussain (mem. dec.)

Krystal Wilburn v. State of Indiana, and the Consolidated City of Indianapolis/Marion County, and the Metropolitan Law Enforcement Agency (mem. dec.)

Roger F. Florkiewicz v. Deborah E. Florkiewicz, n/k/a Deborah E. Marshall (mem. dec.)

Heather Renee Czahor v. Eric Anthony Czahor (mem. dec.)

NFP criminal decisions today (3):

Ryan Patrick Rucker v. State of Indiana (mem. dec.)

Bronco Morgan v. State of Indiana (mem. dec.)

Charles L. Larson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, April 07, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Lawsuit filed against abortion bill"

HEA 1137, which will go into effect July 1, s the subject of a lawsuit filed today. The action, filed by ACLU of Indiana and Planned Parenthood of Indiana and Kentucky in federal court, asks the court:

to block enforcement of a new law that imposes unconstitutional restrictions on women seeking abortions and their health care providers. The ACLU of Indiana and PPINK claim the law violates due process and equal protection under the Fourteenth Amendment as well as First Amendment rights of free speech.
Here is the complete ACLU news release. Here is the 12-page complaint.

Niki Kelly of the Fort Wayne Journal Gazette has filed this story this morning on the lawsuit. Here is an Indianapolis Star story by Stephanie Wang and Chelsea Schneider.

Posted by Marcia Oddi on Thursday, April 07, 2016
Posted to Indiana Courts | Indiana Government

Wednesday, April 06, 2016

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

In Nora Chaib v. Geo Group, Incorporated (SD Ind., Pratt), a 9-page opinion, Judge Peterson (WD Wis., sitting by designation) writes:

Nora Chaib worked for The GEO Group, Inc., a private company that managed a correctional facility for the State of Indiana. She was fired for “unbecoming conduct” because she improperly extended her medical leave following a workplace injury. Chaib sued GEO Group under Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, alleg-ing discrimination on the basis of sex, race, and national origin, and retaliation for her reports of workplace discrimi-nation. Chaib also alleged, under Indiana law, that GEO Group had retaliated against her for filing a workers’ compen-sation claim.

The district court granted summary judgment in favor of GEO Group, concluding that Chaib had failed to present evidence of discrimination or retaliation sufficient to support a reasonable jury verdict. We affirm.

Posted by Marcia Oddi on Wednesday, April 06, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Carrie Baker v. Michael Baker , a 13-page opinion, Judge Brown writes:

Carrie Baker (“Wife”) appeals an order granting a motion to strike and dismiss, as well as denying motions to reconsider and to correct errors, in favor of Michael Baker (“Husband”). Wife raises one issue which we revise and restate as whether the court erred in granting Husband’s motion and denying her motion to reconsider and to correct errors without a hearing. We reverse and remand. * * *

Here, Porter County Civil Rule 3300.20 is not incompatible with Ind. Trial Rule 60(B) because Rule 60(B) contains the savings clause mentioned above which allows for motions to be filed outside of the time periods specified in certain subsections of that rule. Thus, the local rule should be followed.

Conclusion. For the foregoing reasons, we reverse the court’s grant of Husband’s Motion to Strike and remand for a hearing consistent with this opinion.

In Larry J. Jernas and R & R Horse Haven, Inc. v. Kevin J. Gumz , a 28-page opinion, Judge Brown writes:
The issue is whether the judgment of the trial court that an enforceable agreement existed between R & R and Gumz and that Gumz is entitled to retain the earnest money deposit is clearly erroneous. * * *

In sum, even assuming R & R did not waive its affirmative defense of the Statute of Frauds, the Statute does not serve as a valid defense to the enforcement of the Agreement. * * *

The trial court properly concluded that, pursuant to the provisions of the Agreement governing R & R’s earnest money deposit, R & R and Jernas are not entitled to a refund of the deposit. * * *

As we affirm the trial court’s ruling in favor of Gumz, we cannot say the court erred or abused its discretion in failing to award attorney fees to R & R and Jernas. Neither R & R nor Jernas is entitled to a refund from Gumz of the earnest money deposit.

For publication opinions today (2):

J.V. v. Ja.V. (mem. dec.)

In the Matter of: L.S., C.S., & W.S., (Minor Children) and J.S. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (3):

In re T.D.H. v. State of Indiana (mem. dec.)

Jair Ortega Regalado v. State of Indiana (mem. dec.)

Roger E. Carlson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, April 06, 2016
Posted to Ind. App.Ct. Decisions

Tuesday, April 05, 2016

Ind. Decisions - 7th Circuit decides two Indiana cases today

In Asher Hill v. Jerry Snyder (SD Ind., Young), an 8-page opinion, Judge Hamilton writes:

Asher Hill, an Indiana inmate, sued prison staff under 42 U.S.C. § 1983, alleging that they had violated the Eighth Amendment by failing to protect him from inmates who threw feces at him on four occasions. The district court granted summary judgment for defendants on the ground that Hill had not exhausted administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We conclude that summary judgment was improper for three of the incidents, so we vacate the judgment in part and remand the case for further proceedings. * * *

In this case, Hill sought the required form not from a ran-domly chosen staff member but from his counselor and unit manager. Each of those officials was responsible under the grievance policy for giving Hill an available grievance form upon request. Hill’s affidavit shows that they refused to do so for the third incident and, construed at this juncture in his favor, permits an inference they refused to do so for the fourth. The record also does not indicate that either had any legitimate reason for refusing his request. The evidence of their refusals to give Hill an available form is sufficient to permit a finding that Hill was prevented from grieving these incidents. The administrative remedies were not available to him. He was not required to hunt for a form from other staff members. Defendants are not entitled to summary judgment based on this defense.

Accordingly, we VACATE the judgment of the district court in part, with respect to the exhaustion ruling on the claim regarding the first incident of February 2011 and the third and fourth incidents of June and August 2012, and REMAND for further proceedings on those claims. In all other respects, the judgment is AFFIRMED.

In Arlene Nunez v. Indiana Department of Child Services (ND Ind., DeGuilio), a 7-page opinion, Judge Hamilton writes:

The Indiana Department of Child Services (“DCS”) oversees state child protection services, child support enforcement, and the Indiana foster care system. For nine years, plaintiffs Arlene Nuñez and Veronica Martinez worked as investigators in the DCS Gary office. On August 20, 2014, Nuñez and Martinez sued the DCS for violations of the overtime provisions of the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a). They allege that DCS required them to work during lunch and to remain on call after their shifts, despite being paid for only forty hours per week. Plaintiffs seek injunctive and declaratory relief, damages, and attorney fees.

In Alden v. Maine, 527 U.S. 706 (1999), the Supreme Court held that enactment of the federal FLSA did not abrogate states’ Eleventh Amendment immunity, but the Court left open the possibility that states could consent to such suits. Id. at 754–55. Plaintiffs argue that Indiana has given consent, but the district court held that it has not. * * *

When Indiana enacted the current codification of § 34‐13‐1‐1 in 1998, plaintiffs argue, application of the FLSA to state employees was settled law, so we should infer that Indiana legislators made a deliberate choice not to preserve sovereign immunity expressly in statutory text. * * *

Finally, the argument reads far too much into the 1998 recodification of Title 34 of the Indiana Code dealing with civil procedure. Public Law 1‐1998 was intended to recodify existing law, not to change substantive law, and certainly not to do anything as substantive as implicitly waive the state’s Eleventh Amendment immunity. See Ind. Code § 34‐7‐1‐4 (instructions on how to construe recodification act of 1998); Cheri A. Harris, Cleaning House in Title 34: Recodification of the Civil Code of 1881, Res Gestae, April 1998, at 26 (“An effort is made to resolve ambiguities in current law whenever possible, but with the condition that no substantive changes are to be made in the law.”). The recodification of the older statute of limitations did not indicate any deliberate choice by the state to waive the protections of the Eleventh Amendment.

Posted by Marcia Oddi on Tuesday, April 05, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Pain Medicine and Rehabilitation Center and Anthony Alexander, M.D. v. State of Indiana , a 7-page opinion, Judge Najam writes:

In February of 2015, the State, acting through its Medicaid Fraud Control Unit and in accordance with various federal, state, and local agencies, opened a criminal cause of action against Pain Medicine and Rehabilitation Center and Dr. Anthony Alexander (collectively, “PMRC”) for the sole purpose of enforcing a subpoena duces tecum against PMRC. In response, PMRC filed a motion for a preliminary injunction against the State, which the trial court denied without a hearing. PMRC purports to appeal from that judgment, but we hold that PMRC’s motion in the trial court was not procedurally correct and, in turn, that this appeal is not properly before us. * * *

[W]e agree with the State that PMRC’s appeal is not properly before us. First, the trial court’s general denial of PMRC’s procedurally incorrect motion was not a final judgment. Again, a final judgment “disposes of all issues as to all parties thereby ending the particular case.” Ind. Newspapers, Inc., 980 N.E.2d at 857 (quotations omitted). Here, the only dispute the trial court has been asked to rule on is a discovery dispute. And to conclude that this limited cause of action resolved “all issues as to all parties thereby ending the particular case” would mean that all discovery disputes brought pursuant to Indiana Code Section 4-6-10-3 would be immediately appealable, contrary to long-standing Indiana law that prohibits “an appeal as of right from every order to produce documents during discovery.” State v. Hogan, 582 N.E.2d 824, 825 (Ind. 1991). Second, as explained above, while PMRC styled its motion in the trial court as a motion for a preliminary injunction, that was incorrect. Accordingly, PMRC is not entitled to an appeal as of right under Indiana Appellate Rule 14(A)(5). Because there is no other basis for appellate jurisdiction, we dismiss.

In Jennings Daugherty v. State of Indiana , a 20-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that Daugherty was not denied the effective assistance of appellate counsel when counsel did not raise the double enhancement issue. However, we conclude that Daugherty was denied the effective assistance of appellate counsel when counsel did not raise the issue of statutory limitation for consecutive sentences arising out of a single episode of criminal conduct. Affirmed, in part, reversed, in part, and remanded for resentencing consistent with this decision.
NFP civil decisions today (2):

Jordan D. Christie v. Tamara L. Waller (mem. dec.)

Phillip Gray v. YMCA of Greater Indianapolis, Stacy Meyers, Greg Hiland, Christopher Butler, and Aquatics Coordinator of the Fishers YMCA (mem. dec.)

NFP criminal decisions today (5):

Thomas A. Conway v. State of Indiana (mem. dec.)

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

Melvin Macon v. State of Indiana (mem. dec.)

Samuel Goldsmith v. State of Indiana (mem. dec.)

Tommy Borders v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, April 05, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides three today

In Michael Ackerman v. State of Indiana, a 34-page, 5-0 opinion, Justice David writes:

This case raises an issue of first impression in Indiana and has divided both state and federal jurisdictions. Under the Sixth Amendment to the United States Constitution, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The primary question is whether the admission of an autopsy report into evidence violates the defendant’s constitutional rights under the Confrontation Clause, where it has been demonstrated that the pathologist who performed the autopsy is unavailable to testify at trial, and the defendant had no prior opportunity for cross-examination. After examining U.S. Supreme Court precedent, precedent from other jurisdictions, relevant state statutes, secondary sources, and the circumstances of the present case, we now conclude that the autopsy report in the present case was not testimonial. Thus, Ackerman’s confrontation right was not violated when the report was admitted into evidence, nor did a violation arise when a surrogate pathologist testified regarding the information detailed in the autopsy report.

In addition, although Ackerman’s prosecution for the murder of a toddler occurred many years after the child’s death, the delay did not actually or substantially prejudice Ackerman, nor could Ackerman demonstrate that the State intentionally delayed prosecution. Thus, we also hold that the delay, under the circumstances of this case, did not result in a due process violation. Finally, we hold that even if the trial court erred at sentencing by taking into consideration sentencing statutes that were inapplicable in this case, the error was harmless. * * *

We hold that the autopsy report in this case was not prepared for the primary purpose of aiding in a future criminal investigation or prosecution. Because the autopsy report was not intended to substitute as trial testimony, we conclude that the autopsy report was non-testimonial for confrontation purposes. The admission of the autopsy report did not violate Ackerman’s constitutional rights under the Confrontation Clause. Accordingly, the testimony provided by the pathologist, who did not perform the autopsy, also did not rise to a confrontation violation. This holding does not mean that every autopsy report will be found non-testimonial. Such a bright-line rule would seemingly go against the fact-sensitive analysis that is demanded by the primary purpose test. Rather, the particular circumstances of this case have not persuaded this Court that the autopsy report should be found to be testimonial in nature.

We also hold that Ackerman’s due process rights were not violated based upon delayed prosecution. We affirm the trial court’s denial of Ackerman’s motion to dismiss. Finally, we conclude that, while it would be inappropriate for the current sentencing scheme to have influenced the trial court’s decision on what sentence to impose under the 1976 sentencing statute that was controlling in this case, any error was harmless. As such, Ackerman’s conviction for second degree murder and sentence of life in prison with the possibility of parole are now affirmed.

In City of Beech Grove v. Cathy J. Beloat, a 13-page, 5-0 opinion, Justice David writes:
Cathy Beloat, a citizen of Beech Grove, Indiana, fell and injured herself when she stepped into a hole on one of the Beech Grove City streets. She subsequently brought a claim against the City for her injuries. The City claimed it was immune from any liability under the discretionary function immunity provision within the Indiana Tort Claims Act (ITCA), among other things. The trial court denied the City’s motion for summary judgment. We now affirm that denial. To prevail on a claim that the City was entitled to discretionary function immunity under the ITCA, the City had the burden of showing that its omission was an official “policy decision made by consciously balancing risks and benefits.” Peavler v. Board of Com’rs of Monroe County, 528 N.E.2d 40, 46 (Ind. 1988). The designated evidence failed to demonstrate that the City engaged in a policy decision to implement a total reconstruction project over carrying out individual repairs of road damage in the relevant area. Moreover, on summary judgment, “[a]ll facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party.” Mangold ex rel. Mangold v. Indiana Dept. of Natural Resources, 756 N.E.2d 970, 973 (Ind. 2001). As such, we affirm the trial court’s denial of summary judgment and remand for further proceedings.
In Kevin Allyn Ammons v. State of Indiana, a 3-page, 5-0, per curiam opinion, the Court writes:
Kevin Ammons committed child molesting in Indiana in 1988 and was convicted in 1989, before passage of any part of Indiana’s Sex Offender Registry Act (the “Act” or “SORA”). Ammons was released in 2006 and completed parole in 2007. Ammons registered as a sex offender as the law at the time required of him. In 2009, Ammons moved to Iowa, where he was also required to register as a sex offender. In 2013, Ammons moved back to Indiana and in 2014 the State notified him he was required to register as a sex offender. Ammons sought removal from the registry, and the trial court ultimately denied his motion. Ammons appealed, and a divided Court of Appeals affirmed. Ammons v. State, 36 N.E.3d 1079 (Ind. Ct. App. 2015). * * *

Because Ammons was already under an obligation to register, and Indiana Code sections 11-8-8-5(b)(1) and -19(f) do not impose any additional punishment on him, we find no ex post facto violation. Accordingly, we grant transfer, thereby vacating the Court of Appeals’ opinion, Ind. Appellate Rule 58(A), and affirm the trial court on those grounds.

Posted by Marcia Oddi on Tuesday, April 05, 2016
Posted to Ind. Sup.Ct. Decisions

Monday, April 04, 2016

Ind. Decisions - Transfer list for week ending April 1, 2016

Here is the Clerk's transfer list for the week ending Friday, April 1, 2016. It is one page (and 10 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, April 04, 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):

NFP criminal decisions today (3):

Richard Lee Dulin v. State of Indiana (mem. dec.)

Paul F. McGiffen v. State of Indiana (mem. dec.)

Darreus Rainwater v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, April 04, 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 4/4/16):

Thursday, April 7

Next week's oral arguments before the Supreme Court (week of 4/11/16):

Webcasts of Supreme Court oral arguments are available here.


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

Monday, April 4

Next week's oral arguments before the Court of Appeals (week of 4/11/16):

Thursday, April 14

Friday, April 14

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, April 04, 2016
Posted to Upcoming Oral Arguments

Friday, April 01, 2016

Ind. Decisions - No opinions on Friday, April 1st

There were no opinions issued by the COA or Supreme Court today. In addition, there were no Indiana-related 7th Circuit opinions.

Posted by Marcia Oddi on Friday, April 01, 2016
Posted to Ind. (7th Cir.) Decisions | Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions