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Tuesday, May 31, 2016

Ind. Decisions - 7th Circuit posts one Indiana case decided May 27th

In USA v. Maurice D. Moore (ND Ind., DeGuilio), an 8-page opinion, Judge Pallmeyer (Rebecca R. Pallmeyer, ND Illinois, sitting by designation) writes:

Marcus Hayden, a federal probationer, engaged in an armed battle with police on April 9, 2012. One officer was injured in the gun fight, and Hayden himself was shot and killed. The government recovered the firearm Hayden used and has charged Defendant Maurice Moore with selling that weapon to Hayden, a known felon, and falsely reporting that the weapon was stolen. In Moore's upcoming trial, the government seeks to introduce evidence of a phone number Hayden had provided his probation of-ficer. Moore made several calls to that number in the hours surrounding the purported theft of the firearm. The district judge has granted Moore's motion to exclude the probation officer's records as inadmissible hearsay. We conclude, how-ever, that the records are admissible under the residual hear-say exception, Fed. R. Evid. 807, and therefore vacate the dis-trict court's order.

Posted by Marcia Oddi on Tuesday, May 31, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 7 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (7):

In Joseph C. Lehman v. State of Indiana ,a 14-page opinion with a pro se defendant, Judge Bradford writes:

In February of 2014, the Indiana Supreme Court suspended Appellant-Defendant Joseph Lehman from practicing law in the state of Indiana for not less than two years. In the year following his suspension, Lehman continued to provide various legal services to new and existing clients. Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged Lehman with three counts of Class B misdemeanor practicing law by a non-attorney. After a bench trial, Lehman was found guilty as charged. Lehman raises three contentions for our review on appeal: (1) whether the trial court erred in denying his request for change of judge; (2) whether Lehman waived his right to a trial by jury; and (3) whether there was sufficient evidence to support his convictions. We affirm the trial court in all respects.
In David C. Varble v. Stephanie J. (Carroll) Varble and James T. Carroll; In Re: The Matter of the Paternity of: A.C., A Minor Child, David C. Varble v. Stephanie J. (Carroll) Varble and James T. Carroll, a 16-page opinion, Judge Brown writes:
David C. Varble (“Varble”) appeals the trial court’s denial of his motion for relief from judgment. Varble raises one issue which we revise and restate as whether the court abused its discretion in denying his motion for relief from judgment. We affirm. * * *

Varble argues that a child who is not the biological child of both parties to a dissolution is not a child born of the marriage, that “a dissolution Court does not have subject matter jurisdiction over that child,” * * * and that orders issued without subject matter jurisdiction are void. He requests that we direct the trial court to grant his motion for relief from judgment, find that A.C. was not a child of the marriage of Carroll and Stephanie, and remand for further determinations regarding Carroll’s motions for de facto custody and/or step-parent parenting time.

Carroll maintains that a dissolution decree in which a child is stipulated to be a child of the marriage has the effect of establishing legal paternity and that such orders are not void but are voidable and retain their legal force and effect until successfully challenged or reversed. * * *

Carroll requests this court to affirm the court’s denial of Varble’s motion for relief from judgment and remand for further proceedings on his de facto custody petition. * * *

Based upon the record, we conclude that the trial court did not abuse its discretion in denying Varble’s motion for relief from judgment under Cause No. 631.

In Larry M. New, and Heritage Medical Group, Inc., f/k/a Heritage Medical Services, Inc. v. T3 Investments Corporation, a 17-page opinion, Judge Brown writes:
Larry M. New, and Heritage Medical Group, Inc., f/k/a Heritage Medical Services, Inc. (“Heritage,” and collectively with New, the “Appellants”) appeal the trial court’s Order on the Summary Judgment Motions Filed by the Parties granting summary judgment in favor of T3 Investments Corporation (“T3”) and denying the Appellants’ summary judgment motion. The Appellants raise one issue which we revise and restate as whether the court erred in granting summary judgment in favor of T3 and denying the Appellants’ cross-motion for summary judgment. * * *

We agree with the trial court that consideration is not present between T3 and the Appellants to support the existence of a contractual relationship between them, and that, accordingly, the release contained in the Settlement Agreement is not applicable to T3’s contribution claim.

For the foregoing reasons, we affirm the court’s Summary Judgment Order.

In Faye E. Warfield and Keyotta Warfield a/k/a Nicole Warfield v. Jim Dorey d/b/a JRD Construction Services and JRD Enterprises, LLC, a 16-page opinion, Judge Riley writes:
The Warfields raise six issues on appeal, which we consolidate and restate as the following single issue: Whether the contract between Faye and Dorey is void under the Home Improvement Contracts Act (HICA). * * *

Because Dorey was yet to be licensed at the time he solicited the roofing work and failed to apply for the required permit, we conclude that he committed an incurable deceptive act as he intended to mislead Faye that he was a licensed contractor providing work in compliance with the statutory requirements and local ordinances. See I.C. § 24-5-0.5-2(a)(8). While we acknowledge that “the General Assembly did not intend that every contract made in violation of HICA to automatically be void;” the violation before us is precisely one of the
“well-known abuses found in the home improvement industry” which the HICA intended to protect the consumer against. Imperial Ins. Restoration & Remodeling, Inc. v. Costello, 965 N.E.2d 723, 729 (Ind. Ct. App. 2013); Benge, 855 N.E.2d at 720. Therefore, we declare the Contract between Dorey and Faye void. * * *

Based on the foregoing, we conclude that the trial court abused its discretion affirming the Contract between Faye and Dorey. Declaring the Contract void under HICA, we hold that Dorey can recover the invoiced amounts under the theory of quantum meruit and we remand to the trial court to calculate the prejudgment interest at eight percent per annum.

In Edward Rusnak and Rebecca Rusnak v. Brent Wagner Architects, a 20-page opinion, Judge Robb writes:
In 2006, Edward and Rebecca Rusnak contracted with Brent Wagner Architects (“BWA”) for the design of a home to be constructed on a lot they had recently purchased. Alan R. Sommers Construction Company (“Sommers”), as general contractor, constructed the home between 2008 and 2010. This litigation commenced in 2013 when Sommers sued, seeking to enforce the Rusnaks’ obligation to pay for the home.1 The Rusnaks filed a third party complaint against BWA for breach of contract. BWA filed a motion for summary judgment; shortly after the motion was fully briefed and set for hearing, the Rusnaks filed a motion to amend their third party complaint to add an additional cause of action against BWA. The Rusnaks appeal the trial court’s orders on those motions, raising the following issues for our review: 1) whether the trial court erred in granting summary judgment to BWA, and 2) whether the trial court erred in denying their motion to amend the third party complaint. Concluding the trial court erred in granting summary judgment to BWA and abused its discretion in denying the Rusnaks’ motion to amend, we reverse and remand. * * *

There are issues for the factfinder regarding the nature of BWA’s obligations under the contract and whether it met them; therefore, summary judgment for BWA was improper at this stage. The trial court abused its discretion in denying the Rusnaks’ motion to amend their complaint to add an additional claim because no prejudice will result to BWA. The judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion.

In Tracy K. Barber v. Amy Henry , a 19-page opinion, Judge Riley writes:
Appellant-Respondent, Tracy K. Barber (Father), appeals the trial court’s Order, granting Appellee-Petitioner’s, Amy Henry (Mother), verified petition to modify foreign child support order. We affirm, in part, reverse, in part, and remand with instructions.

Father raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion by calculating Mother’s income at minimum wage when she is a medical doctor and has a historical income in excess of $150,000 but elects to stay at home with her children; and
(2) Whether the trial erred in concluding that Father was responsible for payment of expenses incurred prior to the filing of Mother’s modification petition. * * *

It is not our function to “force parents to work to their full economic potential or make their career decisions based strictly upon the size of potential paychecks.” Buehler, 576 N.E.2d at 1356. Although the trial court could have imputed no income to Mother, here, the trial court allotted Mother the minimum income in its calculation of child support. “While the Guidelines clearly indicate that a parent’s avoidance of child support is grounds for imputing potential income, it is not a necessary prerequisite.” In re Paternity of Pickett, 44 N.E.3d 756, 766 (Ind. Ct. App. 2015). Instead, “it is within the trial court’s discretion to impute potential income even under circumstances where avoiding child support is not the reason for a parent’s unemployment.” Id. Accordingly, the trial court did not abuse its discretion in its calculation of the weekly child support. * * *

Based on the foregoing, we conclude that trial court did not abuse its discretion when it imputed minimum wage to Mother after concluding that she was not voluntarily unemployed. We reverse the trial court with respect to the award of civil attorney fees and remand with instructions to determine which portion of these fees can be attributed to the protective order. We affirm the trial court with respect to all other reimbursement expenses.

In Mark D. Nichols v. State of Indiana , a 17-page opinion, Judge Brown writes:
Mark D. Nichols appeals his convictions for three counts of sexual misconduct with a minor as class B felonies and two counts of sexual misconduct with a minor as class C felonies. Nichols raises two issues which we revise and restate as: I. Whether the trial court abused its discretion in admitting evidence that Nichols did not attend an interview with a detective or ask about the investigation; and II. Whether the admission of testimony by a polygraph examiner and counselor resulted in fundamental error. We affirm.
NFP civil decisions today (5):

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

James Albert Costello and Lisa Renee Costello v. Wayne Zollman and Teresa Zollman (mem. dec.)

Jennifer Ansari v. Sirius Satellite Radio (Sirius XM) (mem. dec.)

Mary J. Coate v. Timothy D. Coate (mem. dec.)

Carrie Sturdivant v. Michael Sturdivant (mem. dec.)

NFP criminal decisions today (4):

Trevor Rujuwa v. State of Indiana (mem. dec.)

Mathias Gaumer v. State of Indiana (mem. dec.)

Marcus Russell v. State of Indiana (mem. dec.)

Brandy G. Hoebee v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, May 31, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 27, 2016

Here is the Clerk's transfer list for the week ending Friday, May 27, 2016. It is one page (and 16 cases) long.

No transfers were granted last week.

In one case last week, transfer was denied by a 2-2 vote, and thus failed:

Posted by Marcia Oddi on Tuesday, May 31, 2016
Posted to Indiana Transfer Lists

Law. - "EPA accuses Kokomo Opalescent Glass of violating air pollution permit" Historic Indiana company made glass for Tiffany

That is the headline to a May 3rd story in the Kokomo Tribune. The subhead: "Nation's oldest art glass factory will fight EPA on alleged violations." From the story, by Carson Gerber :

Kokomo Opalescent Glass and the Environmental Protection Agency are at odds over allegations that the company is violating federal clean-air standards and emitting elevated amounts of potentially toxic materials.

The EPA last month notified the company that it was violating the Clean Air Act by failing to obtain a federal permit that regulates glass manufacturers, and alleged that the violation has resulted in Kokomo Opalescent Glass (KOG) emitting elevated amounts of metals into the air such as cadmium, chromium and arsenic.

The company, which is the nation's oldest manufacturer of opalescent glass, currently operates under an Indiana Registration Permit, which was reissued most recently in 2004.

KOG holds that permit because it emits fewer pollutants than the more stringent federal permits required for art glass factories, according to the Indiana Department of Environmental Management.

However, the EPA has alleged the company should be required to obtain a federal Title V permit because of the furnaces it uses to melt glass.

According to the agency, KOG employs a continuously fired, natural-gas fueled melting furnace to produce colored sheet glass and glass blocks using raw materials that could emit hazardous air pollutants.

Under the National Emission Standards for Hazardous Air Pollutants set for glass manufacturers, operating a continuously fired furnace requires the company to obtain a more stringent Title V permit, which would increase the amount of oversight and air-pollution regulations the company has to follow.

Those requirements include emissions limits and increased monitoring, record keeping and reporting. It would also require KOG to report its compliance with permit conditions to IDEM.

The EPA has turned a critical eye towards art glass manufacturers all across the country after an investigation last year revealed a glass factory in Oregon was allegedly releasing dangerous amounts of toxic metals.

In that case, the U.S. Forest Service found moss collected from trees around art glass manufacturers in the Portland, Oregon, area had much higher concentrations of heavy metals than other areas in the city.

The findings prompted the Oregon Department of Environmental Quality (ODEQ) to set up an air monitoring system near the Bullseye Glass art-glass manufacturing facility to collect 24-hour air samples every few days over a 30-day period in October.

In February, the tests revealed high levels of cadmium and arsenic in the air, which prompted the ODEQ to begin investigating potential sources of the pollution.

According to the EPA, preliminary work suggested the metals found in the monitoring were coming in large part from Bullseye Glass. Elevated cadmium levels were also found in proximity to another Portland glass manufacturer called Uroboros Glass.

The investigation prompted the EPA to identify 14 other art-glass manufacturers, including KOG, that use similar processes as the factories in Oregon.

In February, the EPA Office of Air and Radiation sent a memo to its regional directors asking for assistance in determining whether there were emissions concerns at any art glass factory in their area.

That led to the EPA’s inspection of KOG’s manufacturing facilities located at 1310 S. Market St. on March 7. A month later, the agency issued its findings of violation to the company.

But KOG President Richard Elliott Tuesday adamantly denied the EPA’s allegations that the company’s manufacturing techniques have resulted in elevated emissions of hazardous pollutants.

“We’re probably the cleanest decorative art glass manufacturer on the planet,” he said. “I think Kokomo Opalescent Glass has been an incredibly responsible corporate citizen in this community for nearly 130 years.”

More from the story:
Elliott said the company now plans to fight the EPA’s findings during a conference to be held later this month in Chicago.

The biggest challenge is to the agency’s claim that KOG employs a continuously operated furnace, which would require the factory to receive a more stringent permit.

Elliott said the company does have a furnace on 24 hours a day, but they don’t continually produce glass. Instead, they use a “batch” process, in which the glass is inserted into the furnace and then removed until the next batch is put in.

“The definition of continually operated furnaces is subject to interpretation,” he said. “I’ve never described our furnaces as continuous.”

Elliott said the company also uses potentially toxic metals like cadmium, chromium and magnesium to color the glass, but those materials don’t emit pollution from the factory’s stacks because of the melting process they use.

“We are a decorative glass manufacturer and we need those pigments, but we use them responsibly,” he said. “We’re incredibly responsible with the ways that we use these pigments.”

Elliott said now he hopes he can convince EPA officials to see his side of the story. He said he plans to attend the conference later this month with the company’s furnace expert, environmental consultant and a lawyer to help make his case.

“I’m not going to roll over and play dead,” he said. “I’m going to show them why they’re wrong.”

Kokomo Glass made glass for Louis Tiffany (" In 1893 Louis Tiffany purchased over 10,000 pound of glass from Opalescent Glass Works"). I've watched glass sheets being made at the Kokomo Opalescent Glass plant. It is done entirely by hand, in small batches. You can watch the process online. Each sheet is mixed from globs of molten glass taken from an oven and handrolled on a special table. See the video.

In the middle of the 20th century, interest in stained glass declined to a point where original Tiffany lamps were occasionally found in flea markets. Most manufacture of stained glass stopped, but Kokomo continued. Interest started picking up again in the late 1960s, so much so that Kokomo stopped accepting new customers. With demand for stained glass increasing, a number of new plants began operating in the NorthWest. Most of them, I believe, used electrical-fired, rather than gas-fired, kilns.

One of the first of these new companies, Spectrum Glass, was in the news May 12th, in this story (among others) headlined "Washington's Spectrum Glass To Close Citing Financial Issues, EPA Scrutiny." Some quotes:

One of the leading makers of art glass in the Pacific Northwest has announced it will close its doors.

Spectrum Glass, based in Woodinville, Washington, is one of three top art glass producers in the region.

It’s a competitor with Portland’s Bullseye Glass, and a sometime collaborator with another Portland firm, Uroboros.

In a written statement, the company said a combination of weak post-recession sales and new EPA scrutiny on air emissions have made it financially infeasible to continue operations.

A long April 12th story from OPB News in Portland Oregon is headed: "Bullseye Glass Resumes Using Cadmium With Pollution Controls." It begins:
Bullseye Glass has announced it plans to resume using cadmium in its glassmaking operation now that the company has installed a pollution control device to reduce harmful emissions.

The company voluntarily suspended its use of cadmium and arsenic in February after a U.S. Forest Service study and follow-up air testing revealed heavy metal hot spots near the Southeast Portland facility. In March, Bullseye announced plans to install a pollution control device.

Last week, the company sent a letter to the Oregon Department of Environmental Quality notifying the agency that the pollution filtration equipment was installed and in use. The agency shared the company’s letter in a Tweet Monday night.

“We will be resuming the usage of raw materials containing cadmium in the controlled furnace,” company controller Eric Durrin wrote.

DEQ spokeswoman Jennifer Flynt said her agency has inspected the device.

In a news release Tuesday, Bullseye said the installation of the pollution device, called a baghouse, was “a first step in updating our equipment” in response to air monitoring results.

“Now that the filtration system (the baghouse) is installed, Bullseye is able to use raw materials containing cadmium to make glass again, in limited quantities in the controlled furnace,” the company said Tuesday. “This is good news for our neighbors who wanted Bullseye to install filtration systems, for artists both local and international, whose work depends on having red, orange and yellow compatible glass, and for our 150 employees, whose work also depends on these colors.”

The company says it plans to add more emission control systems in the future that will cover all of its furnaces.

Posted by Marcia Oddi on Tuesday, May 31, 2016
Posted to Environment | General Law Related

Courts - "Indiana ready to try out commercial courts"

Indiana's new commercial courts project goes into operation tomorrow, June 1. Today the Fort Wayne Journal Gazette has this story by Sherry Slater. Here are some quotes:

A group of judges and lawyers from large and small firms statewide met regularly, reviewing other states’ commercial courts’ guidelines and crafting rules for Indiana.

“We’re learning from others,” said Michael Michmerhuizen, a partner with Barrett McNagny.

“We did not reinvent the wheel on this,” Bobay said of interim rules that define, among other things, the kinds of cases the court will accept. The committee borrowed heavily from Ohio and Michigan rules.

Bobay and Michmerhuizen led a three-hour continuing education session this month at the Allen County Bar Association’s office. They were joined by Karen Moses, a partner with Faegre Baker Daniels, and Shane Mulholland, a partner with Burt, Blee, Dixon, Sutton & Bloom. About 25 attorneys attended.

Attorneys are being encouraged to share feedback – good and bad – after they gain experience with commercial court. The working group plans to revise the rules along the way.

Presenters outlined the kinds of cases commercial court can handle: lawsuits involving trade secrets, contracts, noncompete agreements, sales transactions, antitrust law and franchise relationships.

What doesn’t qualify? Personal injury claims, eminent domain cases, routine debt collection, lemon law cases, federal law- or state law-based discrimination cases, most environmental cases and most employment law cases.

Indiana’s rules relied heavily on Michigan’s business court, which launched in October 2012, Bobay said. John Nevin, the Michigan Supreme Court’s spokesman, said the state has 16 business courts.

One was established in every circuit with three or more judges.

“It’s going really well,” he said, referring to 940 [Michigan] opinions that have already been rendered and posted online. * * *

Bobay sees some distinct advantages to going the commercial court route – for qualifying cases filed Wednesday or later.

Some cases are incredibly complex, he said. By designating a half dozen judges statewide to handle them, the court system is allowing those judges to develop a greater expertise in the intricacies of business, patent law and various relatively arcane rules.

Well-informed judges, presumably, would render predictable decisions when deciding similar cases.

Nevin said that advantage seems to be playing out in Michigan, where business court judges are developing expertise in business matters.

Commercial courts push lawyers to be prepared, work with opposing counsel when feasible and alert the court when a technicality might delay the process. Typical civil cases can take years to settle – 10 years or more. With this approach, lawyers agree not to request more time or use other delay tactics. * * *

Although some people have expressed concern that fast-tracking some commercial cases will shove other civil cases into the slow lane, Bobay doesn’t expect that to happen.

Taking complex cases away from judges who don’t want to deal with them will make the system work more efficiently, he said.

Commercial court is also designed to encourage opposing parties to settle disputes without going to trial in the first place.

See all the ILB's posts on the new commercial courts here.

Posted by Marcia Oddi on Tuesday, May 31, 2016
Posted to Ind. Commercial Courts

Ind. Decisions - "Email access a clear black and white case to journalists"

The $$ Bloomington Herald-Times ran a signed editorial Sunday, written by Bob Zaltsberg, editor of The Herald-Times. Some quotes:

A career in journalism has taught me that people can see many shades of the same thing.

But an April ruling by the Indiana Supreme Court ... it’s really difficult for me to understand how something so clear blue to me can be red or green to the court. * * *

In April, the Indiana Supreme Court decided they could not force state legislators to release email correspondence, though it agreed that the Indiana Access to Public Records Act does apply to legislators. At the same time, four of the five justices said they would not address one key dispute that allows email correspondence to stay private. They said acting would violate the state’s constitutional separation of power.

If they can’t resolve a dispute over what records our legislative branch must release to the public it presumably serves, who can?

With all due respect to the justices, don’t you see that Hoosiers need your help? Without it, legislators are essentially free to do as they please without being concerned about judicial intervention. * * *

Indiana state government, as well as local governments in the state, are “of the people.” They get their power from the people, their money to spend from the people, and their actions are taken on behalf of the people. What they do should be available for public inspection, as spelled out in the Indiana Access to Public Records Act.

It seems logical that the judicial branch would provide the checks and balances on a legislative branch or an executive branch when it comes to matters of law.

That’s the only shade I see on this one.

Posted by Marcia Oddi on Tuesday, May 31, 2016
Posted to GA and APRA

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/30/16):

Thursday, June 2

Next week's oral arguments before the Supreme Court (week of 6/6/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/30/16):

Thursday, June 2

Friday, June 3

Next week's oral arguments before the Court of Appeals (week of 6/6/16):

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

Past Court of Appeals oral arguments which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Tuesday, May 31, 2016
Posted to Upcoming Oral Arguments

Friday, May 27, 2016

Ind. Gov't. - "Appeals court ruling brings an end to big box stores ripping off local communities’ tax dollars"

Don't get too excited. That is the headline to a story from Eclectablog (a respected Michigan political blog) - big h/t to Dan Carden of the NWI Times for spotting it. Some quotes from the blog piece, authored by Chris Savage,owner and publisher of Eclectablog:

Back in 2013, I penned a piece titled “Multibillion dollar Meijer, Inc. finds another way to screw Michigan cities and kids” that went somewhat viral, getting over 60,000 hits. The gist of the piece is that Meijer, along with other so-called “big box” stores in Michigan, have used something called “dark store” valuation when determining the value of their store. This method of valuation – which ultimately determines the store’s tax bill – compares the store to other buildings in the area. Often the comparison building is either sitting vacant and therefore has a much lower value than it would if it were open for business or the site has a deed restriction that prohibits a retail store from reopening on the site. These sorts of deed restrictions are often placed on buildings that have been sold by a corporation so that they can build a bigger one nearby. The deed restriction helps protect them against competitors moving into the area.
After describing the big box/dark box issue, which the ILB has covered in Indiana in a number of posts, the Michigan blog continues:
A Michigan Court of Appeals ruling this week brings an end to this disgusting practice:
The big, owner-occupied stores are never sold as going concerns, and the owners argue the best way of assessing their value for tax purposes is by comparing sales of similar big box stores that have closed and are sitting vacant.

But in a published opinion released Thursday, a three-judge panel of the Michigan Court of Appeals ruled in favor of the City of Escanaba and against Menard Inc. in just such a dispute.

The court said the comparable sales submitted by Menards were not a good basis for determining taxable value because, like many former big box stores that close and become vacant, they had deed restrictions that limited how a new owner could use the properties.

You can read the ruling HERE.

On top of this, a bill was introduced in the State House last month with bipartisan support – House Bill 5578 – that will essentially write the court’s ruling into law.

As I was writing the above, I got a note from another ILB reader, pointing to a just-published Detroit Free Press story, headed "Ruling could bring local governments more money from 'big box' stores." Some quotes:
LANSING -- In what is seen as a significant victory for local governments, the Michigan Court of Appeals has rejected a controversial method of assessing the value of “big box” stores that has cost Michigan local governments millions of dollars in property tax revenue. * * *

But in a published opinion released Thursday, a three-judge panel of the Michigan Court of Appeals ruled in favor of the City of Escanaba and against Menard Inc. in just such a dispute.

The court said the comparable sales submitted by Menards were not a good basis for determining taxable value because, like many former big box stores that close and become vacant, they had deed restrictions that limited how a new owner could use the properties.

The Free Press reported that when big box stores close one location, often to open a larger big box store nearby, they often put deed restrictions on the former property to keep away competitors.

In the Escanaba case, Appeals Court Judges Michael Talbot, Joel Hoekstra and Douglas Shapiro sent the case back to the Michigan Tax Tribunal, instructing the tribunal to "take additional evidence with regard to the market effect of the deed restrictions."

If that won't work, the tribunal should consider using another assessment method, which was favored by the city, based on the cost of constructing the building, less depreciation, the panel said.

ILB: In Indiana, the Tax Court has now heard two oral arguments in big box/dark box appeals, but there have been no rulings. See ILB posts from Jan. 4, 2016 and May 16, 2016.

Posted by Marcia Oddi on Friday, May 27, 2016
Posted to Indiana Government

Ind. Gov't. - "State audits of local government few and far between"

Keith Roysdon of the Muncie Star-Press reported yesterday in a long story that begins:

MUNCIE — State audits of local government, historically an important means of discovering costly financial mistakes or wrongdoing by officials, have been dramatically cut back in Indiana.

The State Board of Accounts formerly audited cities and counties each year and school corporations every two years, but now, thanks to a change in state law, SBOA conducts audits only every four years — or earlier if certain red flags go up.

"Now it's based on risk," Todd Caldwell, director of audit services for the SBOA, told The Star Press.

The FBI is conducting an investigation of potential wrongdoing in city government, but the kind of oversight provided over the decades by the SBOA is a thing of the past: The city of Muncie and Delaware County government have not been audited for three years, local officials confirmed this week.

"The statute on frequency of audits changed last year from annual or biannual to a risk-based approach," Caldwell said. "The longest length of time between (examiners) being somewhere is four years."

Posted by Marcia Oddi on Friday, May 27, 2016
Posted to Indiana Government

Ind. Decisions - "Anderson attorney placed on indefinite suspension"

In the Matter of: Stephen W. Schuyler is a "Published Order Converting Suspension for Noncooperation with the Disciplinary Process to Indefinite Suspension," filed May 26th.

Ken de la Bastide of the Anderson Herald Bulletin has a story today.

Posted by Marcia Oddi on Friday, May 27, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In J.B. v. State of Indiana , a 6-page opinion, Judge May writes:

The trial court ordered J.B., a juvenile, to pay restitution in two cases. It reduced the restitution orders to civil judgments and added civil judgment fees. J.B. appealed the civil judgment order and corresponding fees. The State concedes there was error and remand is appropriate. During the pendency of this appeal, the trial court rescinded the challenged order, making moot the issue J.B. raised on appeal. Because the issue is likely to recur and is of public importance, we address whether the trial court had authority to impose a civil judgment as part of a restitution order. It did not. * * *

After J.B filed this appeal, the trial court rescinded the August 17 Order that is the subject of this appeal. Thus, the issue J.B. raises is moot. A case should be dismissed as moot when no effective relief can be rendered to the parties before the court. W.R.S. v. State, 759 N.E.2d 1121, 1122-23 (Ind. Ct. App. 2001). However, a public interest exception to the mootness doctrine allows us to review issues of great public importance. Id. at 1123. The public interest exception is usually recognized in cases that involve issues likely to recur. Id. Whether a juvenile court may reduce a restitution order to a civil judgment has not been addressed in any published Indiana opinion. We accordingly address that issue. * * *

There is no judgment lien provision in the juvenile statute, and we decline to read into the juvenile code a provision not explicitly stated. * * * The trial court therefore did not have authority to order J.B. to pay the restitution owed to his victims as a civil judgment.

Conclusion. A trial court may not order a juvenile to pay restitution as a civil judgment because Ind. Code § 31-37-19-5(b)(4) does not permit it to do so. However, since the trial court has rescinded the August 17 Order, we will not disturb the proceedings of the trial court. Remanded.

NFP civil decisions today (1):

In The Lewallen Revocable Trust, et al. v. Fifth Third Mortgage Company (mem. dec.), a 7-page opinion, Judge Najam writes:

Randall Lewallen1 (“Randall”) appeals the trial court’s “Post-Appeal In Rem Judgment Entry and Decree of Foreclosure” granting Fifth Third Mortgage Company (“Fifth Third”) a decree of foreclosure on Randall’s one-half interest in the Lewallen Revocable Trust (“Trust”) property. On appeal, Randall raises three issues, which we consolidate and restate as follows: whether the law of the case doctrine precludes the trial court’s post-appeal order. We reverse. * * *

Here, in the first appeal, we decided the issues raised in this case, and no additional facts or evidence were elicited after we issued our memorandum decision.

We (once again) reverse the trial court’s order granting Fifth Third a decree of foreclosure on Randall’s one-half interest in the Property, and we remand to the trial court with instructions to enter judgment in favor of Randall as to his one-half interest in the Property.

NFP criminal decisions today (4):

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

Daniel Joseph Kriete v. State of Indiana (mem. dec.)

Michael Francis Corley v. State of Indiana (mem. dec.)

Philip P. Fletcher v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, May 27, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Vacated COA opinion now reinstated after oral argument and 2-2 vote by Supreme Court

On Thursday, May 26th, the Supreme Court heard oral argument in the case of A.W. v. R.W. You may watch the oral argument here.

However, later that afternoon, the currently 4-member Court split 2-2 on disposition of the case. Accordingly, it issued this order, filed late on May 26th:

On March 17, 2016, the Court issued an order granting transfer of jurisdiction over this appeal from the Court of Appeals. That order vacated the decision of the Court of Appeals under Appellate Rule 58(A). After oral argument and further review, the four members of the Court are evenly divided on the proper disposition of the case.

This rare circumstance is anticipated in our rules, which provide that when “the Supreme Court is evenly divided after transfer has been granted, the decision of the Court of Appeals shall be reinstated.” Appellate Rule 58(C).

The Court of Appeals decision, Wood v. D.W. ex rel. Wood, 47 N.E.3d 12 (Ind. Ct. App. 2015), is hereby reinstated, and the Clerk of Courts is directed to certify that decision.

This Court of Appeals opinion, Wood v. D.W. ex rel. Wood, as issued Nov. 30, 2015 by the Court of Appeals, has been reinstated.

ILB note: Although the Supreme Court order refers to the "The Court of Appeals decision," the revised Appellate Rule 65(a) distinguishes between COA "opinions" and "decisions" and reserves "decision" for those not to be "published" ...

Posted by Marcia Oddi on Friday, May 27, 2016
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Ind. Courts - Still more on "IU goes to court to oppose new fetal tissue law"

Updating this ILB post from yesterday, here is a long, important May 26th story by Rick Seltzer in Inside Higher Ed headed "Turning Research Into a Felony: Indiana U says important research on Alzheimer's disease is imperiled by new state abortion law." It begins:

Indiana University on Wednesday challenged a new state abortion law in federal court, arguing it restricts academic freedom by criminalizing the acquisition or transfer of fetal tissue used for research.

The move stands out because the university is challenging the actions of the state that supports it. The dispute also comes at a time when many state and federal legislators are proposing laws to curtail abortion. And it arrives as lawmakers scrutinize fetal tissue research in the wake of a series of controversial videos released in 2015 showing Planned Parenthood officials discussing the use of fetal tissue.

The Indiana law in question was approved as House Bill 1337 in March, and it goes into effect at the beginning of July. Its provisions include requiring miscarried and aborted fetuses to be buried or cremated. Other parts of the law prohibit individuals from acquiring, receiving, selling or transferring fetal tissue. It makes the transfer or collection of fetal tissue a felony punishable by up to six years in prison.

Supporters of the law have argued it is a moral move affirming the value of human life. But IU leaders claim it leaves the university in an untenable position. The university legally obtained fetal tissue for important research, they said. Yet the law would leave it trapped with that tissue and unable to transfer it, putting its researchers at legal risk.

The law would also prohibit any researchers from obtaining additional fetal tissue for future needs.

Indiana is arguing the law is unconstitutionally vague and burdensome. The university’s complaint also said the law violates the First Amendment academic freedom rights of Debomoy Lahiri, a professor of psychiatry and a primary investigator for its Stark Neurosciences Research Institute in Indianapolis. IU and Lahiri conduct Alzheimer’s disease research using mixed cell cultures and components like RNA and DNA derived from fetal tissue.

Their projects include research funded by the National Institutes of Health, which requires researchers to retain samples they use, IU said in its complaint. The NIH requires researchers to share those samples upon request so that their work can be verified. But that would mean transferring fetal material, making it impossible for IU to comply with both the new law and NIH regulations, the university said.

The story also provided a link to the IU May 25th complaint, which the ILB has made available here.

Posted by Marcia Oddi on Friday, May 27, 2016
Posted to Indiana Courts

Thursday, May 26, 2016

Ind. Decisions - 7th Cir. decides Wis. case re arbitration clauses and NLRA

In Jacob Lewis v. Epic Systems Corporation (WD Wis.), a 22-page opinion, Chiuef Judge Wood writes:

Epic Systems, a health care software company, required certain groups of employees to agree to bring any wage-and-hour claims against the company only through individual arbitration. The agreement did not permit collective arbitration or collective action in any other forum. We conclude that this agreement violates the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151, et seq., and is also un-enforceable under the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1, et seq. We therefore affirm the district court’s denial of Epic’s motion to compel arbitration. * * * Because it precludes employees from seeking any class, collective, or representative remedies to wage-and-hour dis-putes, Epic’s arbitration provision violates Sections 7 and 8 of the NLRA. Nothing in the FAA saves the ban on collective ac-tion. The judgment of the district court is therefore AFFIRMED.

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

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

For publication opinions today (3):

In John Doe #1, et al. v. Indiana Department of Child Services, a 2-1, 18-page opinion, Judge Altice writes:

John Doe #1 (Doe) and his family, wife – Jane Doe #1, two young adult sons – John Doe #2 and John Doe #3, and minor daughter – Jane Doe #2, filed a civil action against the Indiana Department of Child Services (DCS) alleging negligence in failing to protect Doe’s identity as the reporting source of suspected child neglect. Although acknowledging that the disclosure violated Ind. Code § 31-33-18-2, DCS filed a motion for summary judgment arguing that the statue did not provide for a private right of action. The trial court granted summary judgment in favor of DCS and dismissed the action with prejudice. On appeal, the Does argue that summary judgment was improperly granted because DCS owed Doe a duty to maintain confidentiality under both the statute and common law. We reverse and remand. * * *

The parties present us with an issue of first impression: whether I.C. § 31-33-18-2 confers a private right of action for a violation of DCS’s statutory duty to protect a reporter’s identity. * * *

Thus, the statute requires redaction of DCS reports before they are provided to certain individuals, like Ditton. DCS does not dispute this and acknowledges that its own policy manual and written code of conduct require confidentiality. While the disclosure of Doe’s identity clearly violated the statute, DCS argues that the statute does not confer a private right of action. * * *

A special relationship was clearly established when Doe made the call to the DCS hotline and, after making his report, indicated his reluctance to give identifying information. Justifiably relying on the DCS employee’s explicit assurance that such information would be kept confidential, Doe then provided the information. The reasonable foreseeability of harm to Doe and his family upon improper disclosure of this information was evident, as implicitly recognized by DCS’s own policies and I.C. § 31-33-18-2. Ultimately, the Does were left in a far worse position after Doe called the hotline and relied on DCS’s promise. * * *

Under the specific circumstances of this case, the Does have established the existence of a private duty owed to Doe by DCS. Accordingly, we reverse the entry of summary judgment and remand this action to the trial court for further proceedings. Judgment reversed and cause remanded.

Kirsch, J., concurs.
Vaidik, C.J., dissents with opinion. [that begins on p. 12] I respectfully dissent. Although the majority left “for another day” the issue of whether Indiana Code section 31-33-18-2 creates a private right of action when DCS fails to protect the identity of a person who reports child abuse or neglect, I believe that this issue must be addressed and that the legislature did not intend to create a private right of action. And because there is no private right of action under the statute, there is no special relationship between DCS and a person who reports child abuse or neglect when that DCS employee essentially reiterates the requirements of the statute to the reporter. Put differently, no special relationship was created when Doe called the DCS hotline and was told by the DCS employee that his information was confidential, because the DCS employee’s response was nothing more than a statement of what Section 31-38-18-2 requires. I would therefore affirm the trial court’s grant of summary judgment in favor of DCS. * * *

The purpose of the confidentiality requirement is to encourage reporting—not to protect against the harm that might occur when a reporter’s identity is revealed. Moreover, the statute contains no civil-enforcement provisions, and the legislature has provided that public employees or officials who disclose confidential information are subject to a Class A infraction. * * *

In addition, this Court has already determined that victims of child abuse or neglect do not have a private right of action against people who fail to report the child abuse or neglect. See Sprunger v. Egli, 44 N.E.3d 690, 693 (Ind. Ct. App. 2015); C.T. v. Gammon, 928 N.E.2d 847 (Ind. Ct. App. 2010). Accordingly, if victims of child abuse or neglect do not have a private right of action under this statutory scheme, then it logically follows that reporters of child abuse or neglect should not either. I therefore conclude that the legislature did not intend to create a private right of action when DCS violates Section 31-33-18-2’s confidentiality requirement.

Also, I disagree with the majority’s conclusion that “DCS owed Doe a private duty based on the common law.” * * * To allow a common-law claim in these circumstances would provide an end-run around the legislature’s intent that Section 31-38-18-2 does not create a private right of action when DCS fails to protect a reporter’s identity.

In In Re the Adoption of W.M. (Minor Child), D.M. and J.M. v. F.F., M.F., and The Indiana Department of Child Services, an 8-page opinion, Judge Baker writes:
J.M. (Grandfather) and D.M. (Grandmother) (collectively, Grandparents) appeal the order of the Greene Circuit Court transferring their adoption petition to the Monroe Circuit Court. Finding no error, we affirm. * * *

Grandparents have one argument on appeal: “[e]xclusive jurisdiction over the adoption proceeding pertaining to [Child] lies with the Greene Circuit Court.” Appellant’s Br. p. 3. They argue that, because they filed an adoption petition in Greene County before Aunt and Uncle filed an adoption petition in Monroe County, it was impermissible for the Greene Circuit Court to transfer the case to the Monroe Circuit Court. * * *

It is clear that Grandparents were allowed to file their adoption petition in Greene County, under Indiana Code section 31-19-2-2(a)(1), as that is their county of residence. But Aunt and Uncle were also allowed to file their adoption petition in Monroe County, under Indiana Code section 31-19-2-2(a)(2), as that is where Child’s wardship was located. Thus, both courts have “jurisdiction,” as either can hear adoption cases. The question becomes whether, as Grandparents contend, the Monroe Circuit Court was divested of jurisdiction when Grandparents filed their adoption petition in the Greene Circuit Court.

Grandparents’ argument that the Greene Circuit Court had “exclusive jurisdiction” is foreclosed by our decision in In re Adoption of Z.D., 878 N.E.2d 495 (Ind. Ct. App. 2007). * * *

Since the first adoption petition did not create “exclusive jurisdiction,” we went on to decide the case based on preferred venue: * * *

For precisely the same rationale, the Monroe Circuit Court was the preferred venue in this case. All of the following are pending in that court: (i) Child’s CHINS case; (ii) a termination of parental rights case; and (iii) Aunt and Uncle’s adoption petition. Moreover, Grandparents successfully intervened in the CHINS case before the Monroe Circuit Court. * * *

In essence, Grandparents are asking us to reverse the trial court for proactively and correctly solving the issue that arose in the Z.D. case. We decline to do so.

In Joseph Sidener v. State of Indiana , a 10-page opinion, Judge Baker writes:
Joseph Sidener appeals his conviction for Burglary, a Class C felony, as well as the finding that he is an habitual offender. Sidener argues that law enforcement’s use of a GPS tracking device to track the movements of a vehicle in which he was a passenger violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. We find that Sidener may not challenge the constitutionality of the search, as he lacked a reasonable expectation of privacy in the vehicle. We also find Sidener’s challenges to the sufficiency of the evidence and to the State’s amendment of the charging information to be unavailing. Accordingly, we affirm the judgment of the trial court. * * *

Sidener makes three arguments on appeal. He first argues that any evidence relating to the GPS monitoring of the vehicle should have been suppressed because the search exceeded the scope of the warrant. He also argues that the evidence presented was insufficient to support his conviction. Finally, he argues that the State should not have been allowed to amend the charging information with regard to the habitual offender allegation so close to the start of trial. * * *

[GPS Search] However, Sidener’s case does not raise these concerns because the government had no interest in Sidener’s movements, nor did it seek to invade his privacy. In fact, the officers did not even know that Sidener was a passenger until they stopped the vehicle. Accordingly, Sidener has not shown that his personal interests were affected by the GPS monitoring of Green’s vehicle and, therefore, he cannot challenge the search of the vehicle under the U.S. or Indiana constitution.

NFP civil decisions today (0):

NFP criminal decisions today (5):

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

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

Eric John Tulk v. State of Indiana (mem. dec.)

Loretta A. Manier v. State of Indiana (mem. dec.)

Nicholas G. Collins v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, May 26, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Legislative interim study committee list finalized

Inside Indiana Business has the entire list (an 8-page resolution), as part of a brief story by Alex Brown headed "Study Committee Topics Set." Most notably:

Among the topics are civil rights issues related to gender identity and sexual orientation, which stems from Senate Bill 344 that died in the previous legislative session.

Posted by Marcia Oddi on Thursday, May 26, 2016
Posted to Indiana Government

Ind. Courts - More on "IU goes to court to oppose new fetal tissue law"

Updating this ILB post from May 23rd, and this post from May 24th ("IU's motion to intervene has been denied"), IU yesterday:

As expected, Indiana University filed its own, separate lawsuit Wednesday challenging Indiana’s new abortion law that will take effect July 1.

The complaint was filed in the U.S. District Court for the Southern District of Indiana a day after that court denied IU’s request to join a lawsuit brought in April by Planned Parenthood of Indiana and Kentucky Inc. and the American Civil Liberties Union of Indiana in relation to House Enrolled Act 1337. The court denied IU’s request because its reasons for filling a lawsuit are different from those of Planned Parenthood and the Civil Liberties Union.

IU spokesman Mark Land said the details of the lawsuit IU filed Wednesday are essentially the same as the previous complaint.

Those quotes are from the start of a story today in the $$ Bloomington Herald-Times, reported by Michael Reschke.

Posted by Marcia Oddi on Thursday, May 26, 2016
Posted to Indiana Courts

Wednesday, May 25, 2016

Ind. Decisions - 7th Circuit "parking while black" 2-1 split, Hamilton dissents

The 16-page, 2-1 May 17th opinion, out of Wisconsin, is USA v. Randy Johnson. From Judge Easterbrook's opinion for the majority:

Police in Milwaukee saw a car stopped within 15 feet of a crosswalk, which is unlawful unless the car is “actually engaged in loading or unloading or in receiving or discharging passengers”. Wis. Stat. §346.53(5). One police car drew up parallel to the stopped car, and an other drew up behind. Shining lights through the car’s windows (it was after sunset), police saw a passenger in the back seat try to hide a firearm. Randy Johnson, the passenger, was prosecuted for possessing a weapon that, as a felon, he was forbidden to have. 18 U.S.C. §922(g)(1). After the district court denied his motion to suppress the gun, see 2014 U.S. Dist. LEXIS 135367 (E.D. Wis. Sep. 25, 2014), adopting 2014 U.S. Dist. LEXIS 135374 (E.D. Wis. Aug. 7, 2014), Johnson entered a conditional guilty plea and was sentenced to 46 months’ imprisonment. His sole argument on appeal is that the district judge should have granted the motion to suppress. * * *

HAMILTON, Circuit Judge, dissenting. The police violated the Fourth Amendment rights of defendant Johnson and the four other occupants of the car. What happened here was extraordinary. No other court has tolerated such tactics in such a case. Five officers in two police squad cars seized the passengers of a parked car. They swooped in on the car, parking close beside and behind it, with bright lights shining into it from both directions, opened the doors, pulled all passengers out, and handcuffed them. The passengers were seized before the officers had any sign that one passenger might have a firearm.

The sole basis offered to justify this highly intrusive, even terrifying, “investigatory stop” was a suspected parking violation! The phenomenon of police seizures for “driving while black” has long been recognized. See, e.g., David A. Harris, Driving While Black and all Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544 (1997). In this case, we seem to be taking the further step of enabling police seizures for “parking while black.”

"7th Cir. Sides With Cops in ‘Parking While Black' Spat," is the heading of a Bloomberg BNA story by Lance J. Rogers, dated May 19th, that begins:
Five members of a special police task force didn't act unreasonably when they swooped down with two squad cars on a stationary vehicle in a high-crime area, yanked the occupants out and cuffed them while purportedly checking to see whether the car had been parked illegally, a divided U.S. Court of Appeals for the Seventh Circuit ruled May 17.

The decision is notable because a dissenting judge accused his colleagues of giving cops the green light to seize minorities for minor infractions in the hope that the detention “will lead to bigger and better things.”

[h/t to Howard Bashman, How Appealing]

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

Ind. Decisions - Why is this NFP? Notes today from two readers

Brighthouse service is back up. While it was down I receievd notes from two different readers asking about two different Court of Appeals memorndum (NFP) decisions today:

Posted by Marcia Oddi on Wednesday, May 25, 2016
Posted to Ind. App.Ct. Decisions | Why is this NFP?

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 14 NFP memorandum decision(s))

For publication opinions today (1):

In Kelly C. Mullen v. State of Indiana , a 16-page opinion, Judge Crone writes:

The State charged Kelly C. Mullen with level 4 felony possession of a firearm by a serious violent felon (“SVF”) and class A misdemeanor resisting law enforcement. Mullen now brings this interlocutory appeal challenging the trial court’s denial of his motion to suppress. He contends that the handgun recovered by police was seized in violation of the federal constitutional guarantees against unreasonable search and seizure. We conclude that the police had reasonable suspicion that criminal activity had occurred justifying an investigatory stop of Mullen and a reasonable belief that he was armed. Therefore, we conclude that the handgun was constitutionally seized and affirm the denial of Mullen’s motion to suppress. * * *

When Mullen told the police that he had a knife and reached toward his pockets as though he was going to draw it, the police were permitted under the Fourth Amendment to secure Mullen and do a patdown search. Accordingly, we affirm the denial of Mullen’s motion to suppress the fruits of that search.

NFP civil decisions today (5):

Robert J. Fiedler and Dianne C. Fiedler v. LaGrange County Regional Utility District (mem. dec.)

Kirk R. Jocham v. Discover Bank (mem . dec.)

Jodie Meyer v. Elizabeth Cochran (mem. dec.)

D.S. II v. M.C. (mem. dec.)

The Estate of Diana K. Blake by Nicole Walker, Personal Representative v. Select Specialty Hospital-Fort Wayne, Inc. (mem. dec.)

NFP criminal decisions today (9):

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

Terry Criss v. State of Indiana (mem. dec.)

Jerome C. Lockhart v. State of Indiana (mem. dec.)

James A. Love v. State of Indiana (mem. dec.)

Marlon Coley v. State of Indiana (mem. dec.)

Mark Johnson a/k/a Garland P. Jeffers v. State of Indiana (mem. dec.)

William Alan Seydel v. State of Indiana (mem. dec.)

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

Jonathan J. Tipton v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, May 25, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - 7th Circuit Indiana opinion yesterday re sentencing

In USA v. John Lewis (SD Ind., Magnus-Stinson), a 13-page opinion, Judge Hamilton writes:

A jury found appellant John A. Lewis guilty of five federal sex offenses. The district court sentenced Lewis, who is 66 years old and in poor health, to the statutory mandatory minimum sentence of 35 years in prison. Lewis has appealed, but he does not challenge either his convictions or the prison term. The district judge, while recognizing that the chances Lewis will survive his prison sentence are low, also included in his sentence a life term of supervised release. The only issues before us concern the supervised release portion of his sentence. (Lewis also raised a minor forfeiture issue, but that has been resolved by agreement; we do not address it.)

Lewis raised no objections in the district court to any aspect of the supervised release term and conditions. Represented by new counsel on appeal, however, Lewis argues that the court’s findings and explanations were not sufficient and that we must vacate the sentence and remand for resentencing, or at least for further consideration of supervised release. See generally, e.g., United States v. Kappes, 782 F.3d 828 (7th Cir. 2015); United States v. Thompson, 777 F.3d 368 (7th Cir. 2015); United States v. Siegel, 753 F.3d 705 (7th Cir. 2014).

We affirm the judgment of the district court. Sound application of principles of waiver and forfeiture convinces us there is no need to send this case back to the district court. The defense had ample advance notice of the terms of proposed release that were contemplated and ultimately imposed. Before sentence was actually imposed, the court expressly invited objections and requests for further findings or elaboration. The defense expressly declined the invitation. That was waiver. Even if it were deemed only forfeiture, there was no plain error requiring remand.

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

Ind. Decisions - Still more on May 6, 2016 Trial Court Order in State v. IBM Case, including IBM's filings this morning

Background:

The ILB had two posts on the IBM case on May 9th. The first was headed "Statement on May 6, 2016 Trial Court Order in State v. IBM Case," and quoted a news release from Peter Rusthoven, Barnes & Thornburg LLP, who is representing the State of Indiana.

The second post quoted from a FWJG story by Niki Kelly, including:

A Marion County judge on Friday issued a bombshell ruling, refusing to give any damages to the state even though the Indiana Supreme Court found in March that IBM breached its $1.3 billion welfare contract with Indiana. The case was remanded to Marion County Judge David Dreyer to determine an appropriate amount of compensation. Indiana had claimed $175 million in damages. * * *

The newest ruling is the latest volley in a six-year dispute about whether IBM failed to deliver its part of a deal to privatize Indiana's welfare system.

[Peter] Rusthoven said Dreyer's new decision came before a 10-day period for the state to move for a mandatory judge change. That motion was filed Friday afternoon and Barnes & Thornburg LLP "will promptly take steps seeking to have the trial court’s ruling set aside," a statement said.

Clint Roswell, spokesman for IBM, said "it's unfortunate that the private attorneys representing the state in the case have decided to prolong this case, all at the great expense of Indiana taxpayers."

The State has paid Barnes & Thornburg more than $11.5 million in the legal battle with IBM.

Here are the:

What has Happened Since:

There have been filings with both the Marion County Superior Court, and with the Indiana Supreme Court, including the following.

The ILB has this morning obtained a copy of the statement by IBM in response to the recent filings made by the State of Indiana. IBM is represented by Andrew W. Hull, of Hoover Hull Turner*:

I offer the following statement in response to the recent filings made by the State of Indiana:

The State of Indiana has filed two petitions with the Indiana Supreme Court.

First, the State filed a “Petition for Writ in Aid of Appellate Jurisdiction “ asking the Supreme Court to vacate the trial judge’s May 6, 2016 order denying the State damages. The State’s challenges to the validity of that 24-page order are factually incorrect.

  • The State’s damage claim was fully litigated during and following the six-week trial in which the State submitted all its evidence, made closing arguments, and expanded those arguments in post-trial briefs. Ultimately, the Supreme Court, on remand, instructed the trial court to make a “calculation” of the parties’ damages. The trial court did so correctly based on the trial record. It is wrong for the State to suggest that the “calculation” of damages was made without giving the State a sufficient opportunity to be heard.

  • The State is also wrong to claim that the trial court considered evidence the Supreme Court said it should not. The Supreme Court provided no instruction to the trial court regarding evidence to be considered in deciding the damages issue. In fact, the extensive evidence of benefits IBM provided the State under the contract is directly relevant to whether the State incurred any monetary damages as a result of any breach by IBM. The same is true of the evidence showing that IBM was not responsible for the costs that the State claims as damages. The trial judge’s damages order makes these points clear.

  • The trial court has been affirmed both by the Indiana Court of Appeals and subsequently, the Indiana Supreme Court that the State owes IBM at least $49,510,795, which consists of $40,000,000 in assignment fees and $9,510,795 in equipment fees.
Second, the State filed a “Petition for Writ of Mandamus and Writ of Prohibition” asking the Supreme Court to order that the trial court grant the State’s May 6, 2016 motion for a change of judge. The State is not entitled to a new judge because, among other things, no issue before the court requires either a hearing or new evidence, both of which are required for a change of judge motion.
ILB: In addition, IBM has filed three documents this morning in the Marion County Superior Court.
Quotes from this morning's IBM motion for post-judgment interest:
International Business Machines Corporation (“IBM”), by its counsel, respectfully requests that the Court assess post-judgment interest against the State of Indiana, acting on behalf of the Family & Social Services Administration (the “State”) on the $49,510,795 awarded to IBM in 2012, affirmed on appeal by both the Court of Appeals and the Supreme Court, and yet still unpaid by the State. * * *

5. As demonstrated in the table below, the amount of post-judgment interest accrued to date is $9,115,411 as of May 23, 2016. That amount increases by $8,138.76 with each passing day: [table omitted] * * *

WHEREFORE, IBM respectfully asks that the Court order the State to pay post-judgment interest in the amount of (1) $9,115,411 through May 23, 2016 plus (2) $8,138.76 per day until the judgment is satisfied.

___________
*Disclosure: Although Hoover Hull Turner sponsors the ILB, the ILB remains editorially independent.

Posted by Marcia Oddi on Wednesday, May 25, 2016
Posted to Ind. Trial Ct. Decisions

Tuesday, May 24, 2016

Ind. Courts - More on: "IU goes to court to oppose new fetal tissue law"

Updating this ILB post from May 23rd, IU's motion to intervene has been denied. Access the 11-page ruling by federal magistrate Debra McVicker Lynch. A quote:

Finally, allowing IU to participate in this case would disrupt the orderly presentation of facts and law in this case and in IU’s case.

All that said—and to repeat—denial of IU’s motion to intervene does not foreclose IU from filing its own case or seeking an expedited schedule for discovery and resolution of its preliminary injunction motion before July 1.

Posted by Marcia Oddi on Tuesday, May 24, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Report of the Tax Court Task Force is now available

As the ILB has mentioned several times, including most recently at the end of this April 27, 2016 post:

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.

The ILB has been inquiring about the availability of this public document. Today the document was posted on a "Reports" page of the General Assembly's website, along with other, earlier reports to the General Assembly from the Supreme Court.

The ILB has extracted pp. 3-35 of the report, which are the 7-page "Findings and Recommendations of the Ad Hoc Advisory Task Force to Study Resources and Caseload of the Indiana Tax Court" plus the 24-page "Final Report of the National Center for State Courts" to the task force (completed in Dec. of 2015) - you may access the combined document here.

ILB readers may recall that on Sept. 14, 2014, the ILB had a lengthy post on the Tax Court backlog, headed "Ind. Courts - A look at the Indiana Tax Court." An update followed on Nov. 18, 2014.

[More]
Your attention is directed to the observations and recommendations of the NCSC, beginning at p. 27 of the document the ILB has posted.

Posted by Marcia Oddi on Tuesday, May 24, 2016
Posted to Ind. Tax Ct. Decisions | Indiana Courts | Indiana Government

Ind. Courts - "Purvi Patel appeals in feticide, neglect case"

Here is Jill Disis' lengthy Indianapolis Star story on yesterday's oral argument before the Indiana Court of Appeals in the Purvi Patel case.

For related links to the briefs and the video of the oral argument, see this ILB post from yesterday.

Posted by Marcia Oddi on Tuesday, May 24, 2016
Posted to Indiana Courts

Ind. Courts - "Defense lawyer can't reach ex-attorney"

The ILB has had a number of stories referencing former Indiana law blogger E. Thomas Kemp, Richmond, both from before and after his legal troubles.

As I wrote in 2014: Kemp, Doug Masson, and I all started blogging at about the same time, over ten years ago. A link to Kemp's blog, KEMPlog, used to appear in the right-hand column of the ILB, as an Indiana resource, but I removed it a number of years ago because it appeared to be moribund. (The ILB still links to Masson's blog.) Here is an ILB reference to Kemp's blog, from 2006.

Today Jason Truitt reports in a long story the Richmond Palladium-Item that begins:

With his trial just about a month away, a former Wayne County attorney has stopped responding to his defense lawyer, leading to a court order that he appear for a meeting Wednesday in Superior Court II.

E. Thomas Kemp, 49, of Greens Fork, has a trial scheduled for 8:30 a.m. on June 20 in front of Judge J. Steven Cox of Franklin County Circuit Court No. 1. Cox was appointed as a special judge in the case after Judge Gregory Horn recused himself because of Kemp's former work as a Wayne County public defender.

The Wayne County Prosecutor's Office filed 10 Class D felony theft charges against Kemp on Aug. 14. He is accused of mishandling money in a trust fund in one count and of accepting money without performing any legal services in the nine other counts.

Last week, the prosecutor's office added nine misdemeanor counts of criminal conversion to the list of charges. The dates and listed victims for those nine counts match nine of the 10 theft charges Kemp already faced.

Also last week, Chief Deputy Prosecutor William Hoelscher filed a request for a status conference. Hoelscher's motion said he had been in negotiations with Kemp's defense attorney, Nathaniel Connor, "in an attempt to resolve the pending charges against the Defendant and/or determine if the Defendant in this matter wishes to proceed to trial."

The hangup with those discussions was the fact that Connor had been unable to contact Kemp by telephone despite repeated attempts since May 3, according to Hoelscher's motion.

Posted by Marcia Oddi on Tuesday, May 24, 2016
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 19 NFP memorandum decision(s))

For publication opinions today (2):

In Kaitlyn Schneider v. Paragon Realty, LLC , a 12-page opinion, Judge Najam writes:

Kaitlyn Schneider appeals the trial court’s entry of summary judgment in favor of Paragon Realty, LLC (“Paragon”) on Schneider’s complaint alleging that, as a result of the negligence of Paragon and other defendants, Schneider sustained personal injuries. Schneider presents a single issue for our review, namely, whether there exists a genuine issue of material fact precluding summary judgment in favor of Paragon. * * *

Considering the designated evidence on summary judgment, none of Schneider’s contentions support a claim against Paragon. As Heartland’s property manager, Paragon was responsible for physical maintenance and administrative duties, such as collecting rents. While Schneider was Paragon’s invitee with respect to the physical integrity of the common areas outside of Bubbaz, there was no contractual or other relationship between the parties with respect to the allegations against Paragon set out in her complaint. Neither as a matter of law nor as a matter of fact did Paragon exercise control over, or have any responsibility for, the manner in which Heartland’s tenants conducted their businesses. The trial court properly entered summary judgment in favor of Paragon. Affirmed.

In Tresa Megenity v. David Dunn , a 16-page, 2-1 opinion, Judge Najam writes:
Tresa Megenity appeals the trial court’s entry of summary judgment in favor of David Dunn on Megenity’s complaint, in which she alleged that Dunn was negligent and reckless and proximately caused her serious bodily injury during a karate practice session. Megenity presents a single issue for our review, namely, whether there exists a genuine issue of material fact precluding summary judgment in favor of Dunn. * * *

We hold that the “general nature of the conduct reasonable and appropriate for a participant” in a karate practice drill is not “commonly understood and subject to ascertainment as a matter of law.” See Pfenning, 947 N.E.2d at 403-04. And Megenity has designated evidence to establish a genuine issue of material fact whether Dunn’s kick was a jump kick and, if so, whether such a kick was outside the range of ordinary behavior for a karate student engaged in a kicking-the-bag practice drill. Accordingly, we cannot say that Dunn did not breach his duty of care to Megenity as a matter of law, and the trial court erred when it entered summary judgment in favor of Dunn. Reversed and remanded for further proceedings.

May, J., concurs.
Riley, J., dissents with separate opinion. [that begins, at p. 13] I respectfully dissent from the majority’s decision reversing the trial court’s summary judgment and holding that a genuine issue of material fact exists as to whether Dunn’s kick “was outside the range of ordinary behavior for a karate student engaged in a kicking-the-bag practice drill.”

NFP civil decisions today (4):

In the Termination of the Parent-Child Relationship of J.B. (Minor Child), A.C. v. Indiana Department of Child Services (mem. dec.)

In the Matter of: K.D., a Child in Need of Services, S.D. (Mother) and Ke.D. (Father) v. Ind. Dept. of Child Services (mem. dec.)

In the Termination of the Parent-Child Relationship of K.J. and J.J. (Minor Children), R.J. (Mother) and Jo.J. (Father) v. Indiana Department of Child Services (mem. dec.)

In the Term. of the Parent-Child Relationship of I.C., N.K., L.L., and L.L., III (Minor Children), E.B. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (15):

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

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

Vincent James, a/k/a, Victor James v. State of Indiana (mem. dec.)

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

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

Brett Conover v. State of Indiana (mem. dec.)

Nicolas Webb v. State of Indiana (mem. dec.)

Tyrone D. Miller v. State of Indiana (mem. dec.)

Gary A. Williams v. State of Indiana (mem. dec.)

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

Matthew A. Cornell v. State of Indiana (mem. dec.)

Kyree Guajardo v. State of Indiana (mem. dec.)

Tony Edelen v. State of Indiana (mem. dec.)

Mark Allen Smith v. State of Indiana (mem. dec.)

Basil C. Halkides v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, May 24, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Proposed Factory Farm Threatens Popular Youth Camp" [Updated]

House of Prayer Ministries Inc., according to a news release issued yesterday:

has filed suit in Rush County asking the court to reverse the Rush County Board of Zoning Appeals’ recent decision to grant a Special Exception to Milco Dairy Farm, LLC., allowing construction of a concentrated animal feeding operation (“CAFO”) within a half mile and upwind from Harvest Christian Camp. The proposed factory farm will have 1,400 dairy cows along with three outdoor waste lagoons for collecting about 20 million gallons of feces, urine, food waste, contaminated storm water, and wastewater. The collected waste will be emptied from the lagoons and spread on properties in Rush and Henry Counties that surround the factory farm and Harvest Christian Camp.

Harvest Christian Camp, legally represented by the Hoosier Environmental Council (HEC), filed the lawsuit on Monday contending that the waste and pollution from the factory farm will jeopardize the health, safety and well-being of the many children entrusted to the Camp’s care. Children ages 4 to 17 attend the Camp’s daily and overnight summer camp programs as well as special programs and community events throughout the year. Due to the number of young children, camp staff, teachers, and volunteers present at the Camp facility, the lawsuit maintains that the Rush County BZA should have afforded the youth camp the same one-mile setback protection from a CAFO that the county ordinance requires for a school. The suit also claims that the Special Exception violates Harvest Christian Camp’s constitutionally protected rights to free exercise of religion, equal protection and due process.

“Over the years, thousands of parents have sent their children to our church camp because it offers a safe and healthy rural setting for children to be educated, to grow in faith and enrich their relationship with God, and to be enhanced by the outdoors,” said the camp’s pastor, David Todd. “This factory farm will destroy the outdoor experiences for children that are central to Harvest Christian Camp’s 30-year mission and threatens our very existence.”

“This confined livestock facility will produce about 8 times as much feces and urine as the entire population of people in nearby Rushville,” said Dr. Indra Frank, a physician and public health expert with HEC. “The difference is that Rushville isn’t allowed to store human waste in massive open-air lagoons. The air pollutants released from manure -- including ammonia, hydrogen sulfide, endotoxin and volatile organic compounds -- can seriously impact the health of people downwind. Harvest Camp is just a half mile downwind, and I am most concerned for children at the camp who have asthma because most of the pollutants from CAFOs aggravate asthma. I am also concerned the CAFO could expose children to disease-causing bacteria like E.coli and Salmonella, which can run off with manure into Shankatank Creek -- a creek which runs right through Harvest Christian Camp.”

The lawsuit against the Rush County BZA, filed by HEC Senior Staff Attorney Kim Ferraro, is the second legal action HEC has taken to protect the youth camp. In December of 2015, HEC filed an administrative appeal on the Camp’s behalf, challenging the Indiana Department of Environmental Management’s issuance of a permit to Milco for construction and operation of the proposed CAFO. The administrative appeal is based on claims about the nature and extent of its troublesome environmental record in violation of Indiana’s “bad character” disclosure requirements for Confined Feeding Operations permit applicants, among other allegations.

Here is the case docket. Here is the Verified Petition for Judicial Review, filed May 19th.

This is somewhat reminiscent of the YMCA Camp Tecumseh hog farm lawsuit, about which the ILB had a number of entries in 2013-15, the most recent from Feb. 18, 2015.

[Updated 5/28/16] The AP now has this story, posted late yesterday, May 27.

Posted by Marcia Oddi on Tuesday, May 24, 2016
Posted to Environment | Indiana Courts

Environment - "High water causing headaches on Lake Michigan"

Joseph Dits had this long story in Monday's South Bend Tribune. Some quotes:

Since it hit a record low in January 2013, Lake Michigan has risen 4 feet, the Chicago Tribune reported last week. The lake is expected to keep rising by more than 10 inches over the next six months, which would put it 1 foot shy of the record high hit set in 1986, according to data from the National Oceanic and Atmospheric Administration.

Beyond that, scientists say, it’s difficult to predict.

While this winter was relatively mild, the region is still recovering from the severity of the two prior winters, plus more rainfall than usual, said Keith Kompoltowicz, chief of watershed hydrology for the Army Corps of Engineers in Detroit.

"To simply put it,” he told the Chicago Tribune, “the problem is more water is coming into the lakes than leaving."

Lake levels never declined in the fall, as they typically do, Drew Gronewold, a NOAA hydrologist who has studied more than 100 years' worth of data on the Great Lakes' water levels, told the Chicago Tribune.

“We just came out of one of the longest low-level periods in history,” he said. “Water levels were below average for more than 16 years. During that time, people have gotten used to lower water levels and have put in infrastructures and have adapted.” * * *

The Indiana Dunes National Lakeshore closed its Central Avenue Beach, just west of Mount Baldy and Michigan City, last summer. It remains closed because of erosion from both rising waters and a harbor structure that has limited the natural flow of sand, said spokesman Bruce Rowe.

But most of the park’s other 15 miles of beach remain open, he said, “so people who are willing to walk a bit from the access points will still find plenty of space.”

The beaches are narrower because of lake levels. The U.S. Army Corps of Engineers has replenished sand in years past, but now the money is lacking to do that, he said.

“We are working with other agencies and local communities to explore ways to accomplish beach nourishment projects for the park's hardest hit beaches,” Rowe said.

Posted by Marcia Oddi on Tuesday, May 24, 2016
Posted to Environment

Ind. Gov't. - Legislative Council meeting tomorrow, May 25

It will convene at 10 AM in Rm. 404 of the Statehouse. Here is the agenda. Item #3 is:

You may watch it live here.

Posted by Marcia Oddi on Tuesday, May 24, 2016
Posted to Indiana Government

Ind. Courts - 7th Circuit yesterday on whether an attorney misconduct sanction lacking a monetary component is appealable

In Mary E. McClellan v. Elaine E. Bucklo (ND Ill.), a 13-page opinion, Judge Posner writes:

The principal question presented by this appeal is whether an order by a district court imposing a sanction on a lawyer for misconduct in a case before the court can ever be appealed if the sanction lacks a monetary component.

As part of a lawsuit charging the City of Chicago and others with malicious prosecution and other torts, the plaintiffs sought by subpoena to discover documents lodged in the Cook County State’s Attorney’s Office. The lawyers rep-resenting the Office, who included Mary McClellan, the appellant, told the plaintiffs’ lawyers that the files they were looking for no longer existed. A year later, however, when Judge Grady, the presiding judge, ordered the Office to al-low the plaintiffs’ lawyers to inspect 181 boxes of documents stored in a warehouse, the lawyers quickly found the documents they’d asked for—and moved the district court to sanction McClellan and her colleagues for obstructing the plaintiffs’ discovery by insisting that the documents the plaintiffs needed no longer existed. * * *

McClellan appealed to us, but before the appeal was heard the entire $35,522.94 in money sanctions was paid by the Cook County State’s Attorney’s Office, leaving McClel-lan owing nothing. She didn’t drop her appeal, however, doubtless because if Judge Grady’s sanctions order stands it will have a number of adverse consequences for her professionally, such as requiring her—should she ever move for admission to the bar of another court—to acknowledge having been censured in a judicial order and ordered to contribute to the monetary sanctions that the judge imposed. See, e.g., U.S. District Court for the Northern District of Illinois, Petition for Admission to the General Bar (Jan. 2016). Or, should she be asked by judges, potential clients, or potential employers whether her professional conduct had ever been the subject of an investigation, she would have to answer (unless she lied, which could get her into worse trouble) that she had indeed been investigated for professional misconduct—for Judge Grady’s order triggered an investigation of her by the Attorney Registration and Disciplinary Commission of the Illinois Supreme Court, though as far as we know no disciplinary action has been taken against her by the ARDC. * * *

As a result of the Cook County State’s Attorney’s Office having paid the entire sanctions judgment, McClellan has no standing to challenge the monetary sanction. But the sanctions order contains detailed findings of professional misconduct by her, findings likely to inflict a significant reputational injury having adverse financial consequences for her. Such an injury, inflicted in a formal judicial order, can be serious enough to make the order appealable. Were the order false, it would be akin to a defamatory accusation. * * *

In sum, we deny the plaintiffs’ motion to dismiss the appeal for lack of jurisdiction, and likewise McClellan’s petition for a writ of mandamus, which seeks the same relief as her appeal, just under a different rubric; and we affirm the orders issued by the two judges. But because of the tension between, on the one hand, our analysis and the decisions on which it rests (decisions from eight circuits, as noted in the Second Circuit’s decision in Keach, cited earlier), and on the other hand our decision in the Clark case—which we hereby overrule to the extent that it deems a formal, but non-monetary, sanction not appealable—we have circulated our opinion in advance of publication to all the judges of the court in regular active service, pursuant to Seventh Circuit Rule 40(e), for a determination of whether a majority of the judges want to rehear the case en banc. None of the judges voted to hear it en banc. The judgment is AFFIRMED.

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

Monday, May 23, 2016

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

For publication opinions today (4):

In Douglas Costello and Profit Search, Inc. v. Gersh Zavodnik, a 13-page opinion, Chief Judge Vaidik writes:

When Massachusetts resident Douglas Costello posted a used printer on Craigslist in 2009, he could not have predicted that he would spend much of the next seven years locked in a legal battle in Indiana. But he sold the printer—for less than $75—to Gersh Zavodnik, who has a penchant for suing after entering into online transactions. Zavodnik, claiming the printer was defective, sued Costello in small-claims court. He asked for the small-claims maximum of $6000, but Costello defended the case and prevailed, based on the fact that Zavodnik had prematurely disposed of the printer. Unfazed, Zavodnik appealed the matter to superior court, where he was allowed to conduct discovery. Zavodnik sent Costello requests for discovery pursuant to Indiana Trial Rule 36(A), asking Costello to admit, among other things, that he is liable for $30,044.07. Costello, who remained unrepresented following his victory in small-claims court, failed to respond (he later said he never received the requests). When Costello learned that his failure to respond rendered the matters admitted under Rule 36(A), he hired an attorney and moved to withdraw the admissions under subsection (B) of the rule. The trial court, believing itself constrained by our Supreme Court’s interpretation of Rule 36, denied Costello’s motion and awarded Zavodnik a judgment of $30,044.07. In light of Zavodnik’s abuse of Rule 36, we conclude that the trial court should have granted Costello’s motion. * * *

The trial court abused its discretion by partially denying Costello’s motion to withdraw admissions; it should have granted the motion in full. Because the trial court granted summary judgment in favor of Zavodnik based on the unwithdrawn admissions, we reverse the judgment and remand this matter to the trial court. Before conducting any further proceedings, the trial court shall hold a hearing for purposes of determining whether this case should be dismissed pursuant to Trial Rule 41(E), based on Zavodnik’s repeated, flagrant, and continuing failure to comply with Indiana’s rules of procedure.

In Michael Ryan v. TCI Architects/Engineers/Contractors, Inc. and BMH Enterprises, Inc., d/b/a Craft Mechanical , a 15-page, 2-1 opinion, Judge May writes:
Michael Ryan was injured while working on a construction project. Ryan worked for Romines, a subcontractor to Craft, who was a subcontractor to the general contractor, TCI. Ryan sued Craft and TCI, claiming they had a duty to provide him a safe workplace and their breach caused his injury. Ryan moved for partial summary judgment, claiming both defendants had a non-delegable contractual duty toward him. TCI moved for summary judgment on duty, breach, and proximate cause. As TCI had no duty toward Ryan, we affirm. * * *

The TCI contract is more like those in Helms and Shawnee, and it does not impose a duty of care toward the employees of TCI’s subcontractors because the contract terms do not “go beyond requiring that [TCI] merely supervise the work of its employees and subcontractors” as they did in Capitol. Rather, as noted above, TCI “recognizes the importance of” safety, and its Safety Representative is obliged to “supervise the implementation and monitoring” of safety matters. (App. at 71.) We accordingly affirm summary judgment for TCI. Affirmed.

Najam, J., concurs.
Riley, J., dissents with separate opinion. [that begins, on p. 13] I respectfully dissent from the majority’s conclusion that “the TCI contract does not impose a duty of care toward the employees of TCI’s subcontractors because the contract terms do not ‘go beyond requiring that [TCI] merely supervise the work of its employees and subcontractors[.]’” Slip op. p. 12. The majority’s decision is based on an analysis of the contractual language and its close resemblance to Helms, which, in turn, distinguishes it from Stumpf, Capitol, Perryman, and Harris.

By analogizing to Helms and distinguishing from Stumpf, the majority elevates form over substance in its interpretation of the contractual provisions regarding safety.

In Consumer Attorney Services, P.A., et al. v. State of Indiana , a 27-page opinion, Judge Barnes writes:
Consumer Attorney Services, P.A. (“CAS”), The McCann Law Group, LLP (“MLG”), and Brenda McCann (“McCann”) (collectively “the Defendants”) appeal the trial court’s denial of summary judgment against the Attorney General of Indiana (“Attorney General”). We affirm in part and reverse in part.

The issues before us are:
I. whether MLG, CAS, and McCann are exempt from liability under the Credit Services Organization Act under that Act’s exemption for attorneys;
II. whether MLG, CAS, and McCann are exempt from liability under the Mortgage Rescue Protection Fraud Act under that Act’s exemption for attorneys;
III. whether MLG, CAS, and McCann are exempt from liability under the Home Loan Practices Act; and
IV. whether MLG, CAS, and McCann are exempt from liability under the Deceptive Consumer Sales Act. * * *

MLG/CAS is entitled to summary judgment on the Attorney General’s claims against it under the CSOA, the MRPFA, and the HLPA, and as to the claim under the DCSA based upon violations of the CSOA. We reverse the denial of summary judgment with respect to those claims and direct that summary judgment be entered in MLG/CAS’s favor. MLG/CAS is not entitled to summary judgment on the independent DCSA claim for deceptive representations, and we affirm the denial of summary judgment as to MLG/CAS to that extent. McCann personally is not entitled to summary judgment on any of the Attorney General’s claims, and we affirm the denial of summary judgment as to her in its entirety. In conclusion, we presume the Indiana Supreme Court Disciplinary Commission is well aware of MLG/CAS’s and McCann’s activities in this state, given its punishment of Jackson for his association with MLG/CAS.

In James E. Saylor v. State of Indiana, a 23-page opinion, Chief Judge Vaidik writes:
James E. Saylor was convicted of molesting his stepdaughter, pled guilty to being a habitual offender, and was sentenced to 138 years. We affirmed on direct appeal. Saylor then sought post-conviction relief raising numerous issues, including that his trial counsel was ineffective for conceding his guilt to two counts of Class A felony child molesting during closing argument and that his guilty plea to the habitual-offender charge was not knowing, voluntary, and intelligent because he did not personally waive his right to a jury trial.

As for Saylor’s ineffective-assistance claim, Saylor’s defense at trial was that he did not commit the crimes, and defense counsel consistently argued this during closing argument. Nevertheless, in making a point about the State’s medical evidence, defense counsel inadvertently said that Saylor “was not the only person that was having sex with” the victim. Given Saylor’s consistent defense and the fact that the State did not capitalize on this statement during its rebuttal argument, we find that defense counsel’s inadvertent statement, although a mistake, was not a judicial admission to two counts of Class A felony child molesting. And in light of the overwhelming evidence of Saylor’s guilt, we find that there is not a reasonable probability that, but for defense counsel’s mistake, the result of the proceeding would have been different.

As for Saylor’s argument that he did not personally waive his right to a jury trial on the habitual-offender charge, the Indiana Supreme Court recently reaffirmed the personal-waiver requirement when a defendant proceeds to a bench trial in Horton v. State, No. 79S02-1510-CR-628 (Ind. Apr. 21, 2016). Although this case involves a guilty plea—and not a bench trial like in Horton—and there is a different statute that governs guilty pleas, we find that the same rationale applies when a defendant waives his right to a jury trial when pleading guilty. Accordingly, because Saylor did not personally waive his right to a jury trial— rather, his attorney did—when he pled guilty to being a habitual offender, we vacate his habitual-offender adjudication and remand for a new trial on that charge. We affirm the post-conviction court on all other issues that Saylor raises.

NFP civil decisions today (3):

N.H. v. Indiana Department of Child Services (mem. dec.)

Boubacar Mbengue v. Karen M. Novak (mem. dec.)

In the Term. of the Parent-Child Relationship of: J.P. and C.P., Minor Children, and C.T., Mother v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (5):

Marvon Cole v. State of Indiana (mem. dec.)

Craylon D. Bell v. State of Indiana (mem. dec.)

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

William L. Howard v. State of Indiana (mem. dec.)

Philip H. Chamberlain v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, May 23, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 20, 2016

Here is the Clerk's transfer list for the week ending Friday, May 20, 2016. It is one page (and 8 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, May 23, 2016
Posted to Indiana Transfer Lists

Ind. Courts - Is it time for the 7th Circuit to move to videocasts of its oral arguments, kindof like Indiana has been doing for years?

As reported in this May 20th story by Kristine Guerra in the Indianapolis Star, sub-headed "Jared Fogle, the former Subway pitchman, is asking a federal appeals court to shorten his nearly 16-year prison sentence":

[Fogle's attorney, Ron] Elberger and Assistant U.S. Attorney Steve DeBrota presented opposing arguments Friday in the 7th U.S. Circuit Court of Appeals in Chicago. The hearing, which lasted less than 30 minutes with almost no questions from the appellate judges, came about six months after Pratt sentenced Fogle in November. * * *

The appellate judges will issue a ruling on Fogle's request at a later date

The long story never identifies the judges on the 7th Circuit panel.

ILB: A reader who was listening to the oral argument sent me a note Friday:

Listening now. Fogle's lawyer went 7 minutes and sat down. Not a single question. Judge then welcomes the government lawyer to the bench using the wrong name (using the guy's name who just sat down).
Yes, you can listen to the 7th Circuit oral arguments, live and archived, via the Court's official website. It is pretty bare bones. Here is the link to the oral argument May 20th in USA v. Jared S. Fogle, click the link and the argument begins instantly, on a black page. No indication of who is on the panel, or who are the lawyers. And of course, no video.

It is possible to find out this information by using PACER, as I did in the instance:

But that still doesn't help to tell who is saying what, unless you already are familiar with the voices of the various speakers.

When the 7th Circuit first began making its oral arguments available via MP3s, it was ahead of its time, insofar as the federal circuits were concerned. But now, maybe it is time for the 7th Circuit to move into the 21st Century.

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

Ind. Courts - "IU goes to court to oppose new fetal tissue law"

Rod Spaw reported May 21 in the $$ Bloomington Herald-Times - some quotes:

Indiana University fears it could lose hundreds of millions of dollars in grant funding and suffer "catastrophic" setbacks to important medical research from a state law that places new restrictions on abortion and prohibits the use or transfer of fetal tissue, effective July 1.

IU has filed a lawsuit in U.S. District Court for the Southern District of Indiana challenging provisions of House Enrolled Act 1337, which the university argues could potentially subject its researchers to criminal prosecution simply by complying with conditions of research grants. The law also potentially delays research that could lead to "breakthroughs in treatments and cures" for people with a variety of neurological disorders, including Alzheimer's disease and autism spectrum disorders, according to documents filed with the court.

The university filed a motion last Monday with the district court to intervene, or join, a lawsuit brought in April by Planned Parenthood of Indiana and Kentucky Inc. and the American Civil Liberties Union of Indiana that challenges the constitutionality of the new law. Among other provisions, the bill passed this year by the Indiana General Assembly bans abortions sought solely because of genetic abnormalities and mandates than an aborted fetus be buried or cremated.

Then, on Friday, IU's lawyers filed a motion asking the court to bar the state from enforcing the new law until a court rules on the merits of its claims, which concern provisions not addressed in the Planned Parenthood lawsuit. * * *

The problematic language, according to IU's lawsuit, is a section that makes it a level 5 felony — punishable by one to six years in prison and a fine up to $10,000 — to internationally acquire, receive, sell or transfer fetal tissue, which that section further defines as the "tissue, organs or any other part of an aborted fetus."

IU does not conduct research using whole fetuses at any stage of viability, but it does acquire fetal tissue to create cell cultures used in research on Alzheimer's disease and other neurological disorders. According to court documents, the tissue has been obtained for several years from a laboratory at the University of Washington, which acquires it both from elective abortions and miscarriages. * * *

The university's request to intervene in the lawsuit was opposed Friday by motion filed by the office of Indiana Attorney General Greg Zoeller on behalf of defendants in the Planned Parenthood lawsuit. Among its objections was the issues raised by IU were different than those in the original lawsuit and would be better handled in a separate lawsuit. As it stands, Planned Parenthood's motion for a preliminary injunction is scheduled for a hearing before the court on June 14.

The Indianapolis Star reported May 21st, in a story by Michael Anthony Adams - some quotes:
In their motion, IU's attorneys argue that the new abortion law "criminalizes millions of dollars of ongoing, federally funded IU research regarding Alzheimer’s disease."

But Indiana's attorney general's office said the state does not have a right to meddle in the suit, saying the school's argument and the lawsuit are "distinct legal issues" that shouldn't be heard in the same case. It asks the court to deny IU's request.

Bryan Corbin, a spokesman for Indiana's attorney general, said the school "can and should raise their legal claims by filing a separate lawsuit rather than joining an existing one."

“These two separate disputes do not sufficiently overlap to justify litigating them together; IU is not making the same legal argument as Planned Parenthood or even challenging the same statute as Planned Parenthood,” Indiana Attorney General Greg Zoeller said in a statement Friday, after the state filed its objection. * * *

IU claims in its motion, filed Monday, that the law’s criminalization of acquiring, receiving, selling or transferring fetal tissue is unconstitutionally vague. IU's motion also cites the First Amendment, saying that the law would infringe on university scientists' right to academic freedom.

Dr. Debomoy Lahiri, a member of IU's faculty who is party to the school's motion, conducts research on the biochemical differences between autism and Alzheimer’s disease, and uses fetal tissue in his research. The new law, set to go into effect July 1, would block IU scientists, such as Lahiri, from conducting ongoing research and prevent them from acquiring the materials they need to continue that research, the school's motion states.

IU seeks to add as parties to the lawsuit the school’s trustees, its vice president of research and two IU researchers. That includesLahiri, a professor of psychiatry and a primary investigator for IU’s Stark Neurosciences Research Institute.

The motion states that when researchers join or leave IU, “they transfer their laboratory materials with them.”

“Therefore, even were Dr. Lahiri to stop doing his research in the state of Indiana as a result of the Enrolled Act, he runs the risk that the mere act of transferring his research to another institution would constitute a felony,” IU’s motion states.

"(The law) jeopardizes the personal liberty of IU research scientists who are unable to conform their conduct to the fetal tissue statute’s restrictions," the motion reads. "(It) exposes IU to tremendous losses of federal (National Institutes of Health) funding, of which IU receives nearly $200 million annually ... (and) impairs IU’s standing as a pre-eminent research institution and discourages prominent researchers from choosing to conduct their research at IU."

ILB: Here is AG Zoeller's May 20 news release.

Posted by Marcia Oddi on Monday, May 23, 2016
Posted to Indiana Courts

Ind. Courts - "Indiana appeals court to hear Granger woman's feticide case"

This afternoon at 2 PM, a panel of the Court of Appeals (Chief Judge Nancy H. Vaidik, Judge L. Mark Bailey and Judge Terry A. Crone), convening in the Supreme Court Chambers, will hear oral argument in the case of Purvi Patel v. State.

You may watch the oral argument live here.

The ILB has had a number of posts relating to the Purvi Patel appeal of her feticide and child neglect conviction. Here is the appellant's brief in Patel v. State, filed Oct. 2, 2015, and here is the brief of the appellee, the State of Indiana, filed Dec. 9th. Access the docket here, at least 29 organizations and individuals are listed as "Friend of the Court."

The South Bend Tribune on Sunday published this AP story.

Posted by Marcia Oddi on Monday, May 23, 2016
Posted to Upcoming Oral Arguments

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/23/16):

Thursday, May 26

Next week's oral arguments before the Supreme Court (week of 5/30/16):

Thursday, June 2

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/23/16):

Monday, May 23 ILB Note: The ILB has had a number of posts relating to the Purvi Patel appeal of her feticide and child neglect conviction. Here is the appellant's brief in Patel v. State, filed Oct. 2, 2015, and here is the brief of the appellee, the State of Indiana, filed Dec. 9th. Access the docket here, at least 29 organizations and individuals are listed as "Friend of the Court."

Next week's oral arguments before the Court of Appeals (week of 5/30/16):

Thursday, June 2

Friday, June 3

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

Past Court of Appeals oral arguments which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, May 23, 2016
Posted to Upcoming Oral Arguments

Friday, May 20, 2016

Ind. Decisions - Federal Judge Barker decides GEFT challenge to Indianapolis digital sign prohibition

For background see this Oct. 13, 2015 ILB post, "Marion County sign ordinance challenged in federal court." In their Oct. 2015 complaint, GEFT OUTDOOR, LLC argued that "the sign ordinance, the digital ban, and the highway digital ban violate the free speech clauses of the 1st amendment of the US Const., and Art. I, Sec. 9 of the Indiana Constitution, as well as the equal protection clause of the 14th amendment and Art. I, sec. 23 of the Indiana constitution." The argument relied on last term's SCOTUS opinion, Reed v. Town of Gilbert. Since the suit's filing, Indianapolis has adopted a new sign ordinance.

Today Judge Sara Evans Barker has issued a 35-page opinion, GEFT Outdoor LLC v. Consolidated City of Indianapolis et al. Some quotes:

This matter is before the Court for decision on the First Amendment issues arising from Plaintiff’s challenge to the constitutionality of Chapter 734 of the Indianapolis City-County Code – both the original version in effect at the time this lawsuit was filed (“the Sign Ordinance”) and the recently amended version of that ordinance (“the Amended Sign Ordinance”). Plaintiff GEFT Outdoor LLC (“GEFT”) seeks to enjoin Defendants Consolidated City of Indianapolis and County of Marion, Indiana; Department of Metropolitan Development; and Department of Code Enforcement (collectively, “the City”) from enforcing either version of the sign ordinance on the grounds that both favor commercial speech over noncommercial speech and contain content-based restrictions on speech in violation of the First Amendment as applicable to the states under the Fourteenth Amendment, both facially and as applied to GEFT.

GEFT filed its Complaint in this action on October 5, 2015, alleging that the Sign Ordinance was violative of the free speech clause of the First Amendment because it contained content-based speech regulations similar to those found unconstitutional by the United States Supreme Court in Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218 (2015). Plaintiff’s Complaint also alleges that the Sign Ordinance violated the equal protection clause of the Fourteenth Amendment, Indiana’s ascertainable standards rule, and various provisions of the Indiana Constitution. * * *

[II. The Constitutionality of the Sign Ordinance] Because there was no provision in the Sign Ordinance which provided that noncommercial speech was permitted wherever commercial speech was permitted nor was it clear that the on-premises and off-premises definitions applied only to commercial speech, striking the noncommercial exemption does not resolve all of the ordinance’s constitutional infirmities. Without the noncommercial exemption, the Sign Ordinance is completely silent as to noncommercial opinion speech. Such speech rarely involves a locational component; thus, presumably it would come within the off-premises definition, which means that, while on-premises sign owners previously could display such speech based on the noncommercial exemption as a freestanding sign that met certain size dimensions, when that provision is no longer applicable, on-premises sign owners no longer have a clear means by which they can display noncommercial opinion speech. Distinguishing between different categories of noncommercial speech as well as favoring commercial speech over noncommercial speech violates First Amendment guarantees, and simply striking the noncommercial exemption from the Sign Ordinance will not rescue the remaining portions of the ordinance.

The nonseverable Sign Ordinance violates the First Amendment, as we have said. The City thus is liable to GEFT for whatever monetary damages GEFT is able to prove that resulted from the impact the ordinance had on it. That is the extent of GEFT’s entitlements under the challenged ordinance. * * *

[III. Constitutionality of the Amended Sign Ordinance] [W]e find that the City’s on/off-premises regulations are constitutionally permissible given that they directly advance the City’s interests in aesthetics and traffic safety.

We reach the same conclusion with respect to the Amended Sign Ordinance’s digital regulations. The Amended Sign Ordinance does not permit any sign to be one hundred percent digital. Instead, the ordinance restricts to no more than forty percent of an on-premises sign the utilization of digital components. It imposes additional restrictions on on-premises signs with digital components, including limiting the frequency with which the message changes and requiring that the sign go dark in the event of a malfunction. We do not construe this narrow exception to the digital ban to swallow the rule or to undermine the City’s overarching goals of traffic safety and aesthetics. Even the inclusion of an exception for on-premises signs does not defeat or overcome the regulation’s advancement of the City’s interests. * * *

[W]e hold that the City’s ban on off-premises digital signs is not broader than necessary and therefore satisfies the narrowly tailored requirement.

For these reasons, we hold that the Amended Sign Ordinance passes intermediate scrutiny, and that the revised ordinance is therefore facially valid. GEFT also presents no persuasive evidence in support of its as-applied challenge to the on/off-premises regulations, including the digital ban on off-premises signs.

IV. Conclusion

For all of the reasons explicated above, the Court declares that: (1) GEFT’s claims related to the original Sign Ordinance seeking declaratory and injunctive relief are denied as moot based on the passage of the Amended Sign Ordinance, but its damages claims survive; (2) the original Sign Ordinance in its entirety violates the First Amendment making the City liable to GEFT for any resultant monetary damages it can establish; and (3) the Amended Sign Ordinance is constitutional under the First Amendment, thereby binding GEFT to its requirements. GEFT’s First Amendment money damages claims and the remaining substantive claims alleged in its Second Amended Complaint will proceed accordingly.

Posted by Marcia Oddi on Friday, May 20, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Purvi Patel v. State oral argument at 2PM Monday

As noted at the end of this "Upcoming Oral Arguments" post from last Monday, the argument before the Indiana Court of Appeals in Purvi Patel v. State is this coming Monday, May 23rd at 2:00 PM.

You will be able to watch the oral argument via this link.

Posted by Marcia Oddi on Friday, May 20, 2016
Posted to Upcoming Oral Arguments

Ind. Gov't. - "Oregon Ban on Commercial Water Bottling Could Leave Industry High and Dry"

That is the headline to a lengthy $$ story today in the Wall Street Journal, reported by Jim Carlton, that begins:

The bottled water industry, thirsty for new sources as demand grows, is coming up dry in some places as communities around the country push back against bottling plants, citing drought concerns and environmental impacts.

This week, voters in Hood River County, Ore., approved the nation’s first ban on commercial water bottling in a measure that passed overwhelmingly Tuesday. The vote could scuttle an eight-year effort by a division of Swiss giant Nestlé SA to open a bottled water plant in the county town of Cascade Locks about 40 miles east of Portland.

The ILB has been following this topic since 2007, when the Indianapolis Star reported:
Kentland doesn't have an Ice River, but it's near a natural spring that will help produce jobs in northwest Indiana.

The Indiana Economic Development Corp. announced today that Canadian water bottler Ice River Springs will build a 273,000 square-foot production and distribution center in the town’s industrial park.

That quote is found in this Oct. 22, 2007 ILB post, which concludes with the ILB observation:
No talk here of water management policies. The day may soon be past, and perhaps it should be already, when a community will so eagerly, and with the help of the state administration, sell off the rights to draw down its aquifer for the promise of 100 jobs.
Also of interest are these related ILB posts:
Environment - California water bottling company to build Plainfield plant

Bruce C. Smith reports today in the Indianapolis Star:The largest private label bottler of water in the country will build a plant in Plainfield. Niagara Bottling Co., a family-owned operation based in southern California, plans to invest at least $35...
Posted in The Indiana Law Blog on September 16, 2009 09:05 AM

Environment - "The variety of threats Lake Michigan faces"

Heather Augustyn of the NWI Times reports:VALPARAISO | Members of the League of Women Voters listened to a guest speaker on a freezing Saturday morning talk about the variety of threats Lake Michigan faces. Jeanette Neagu, co-president of the Lake...
Posted in The Indiana Law Blog on January 20, 2008 01:21 PM

Environment - More on "States eye lakes water management"

Following up on yesterday's ILB entry, Tim Jones of the Chicago Tribune has a lengthy story headed: "Great Lakes key front in water wars: Western, Southern states covet Midwest resource." It begins:While the West burns and the Southeast bakes, there...
Posted in The Indiana Law Blog on October 28, 2007 05:35 PM

Also worth reading is this story this week (May 18) by Don Behm of the Milwaukee Journal Sentinel, headed "Great Lakes group backs Waukesha lake water diversion." Some quotes:
The City of Waukesha would receive Lake Michigan water, and turn off its deep wells drawing radium-contaminated water from a sandstone aquifer, under a recommendation approved Wednesday by representatives of Great Lakes states and provinces.

The group on a 9-0 vote affirmed that the city's application for a Lake Michigan water supply would comply with terms of a Great Lakes protection compact if numerous conditions the representatives recommended were imposed on the plan. * * *

Governors of the eight states, or their designated representatives, will meet in Chicago in late June to consider the regional group's conditional approval and vote on the city's request.

Posted by Marcia Oddi on Friday, May 20, 2016
Posted to Environment | Indiana Government

Ind. Courts - "Ex-bankruptcy attorney avoids jail time on 8 theft charges"

Updating this brief Aug. 9, 2013 ILB post, headed "Former Richmond attorney arrested on 26 counts of theft," Mike Emery of the Richmond Pal-Item reports today in a long story that begins:

A former Richmond bankruptcy attorney avoided jail time Thursday on eight felony theft charges for taking fees and prepaid Visa cards from clients but never filing their bankruptcy petitions.

Charles R. Hyde Jr., 61, received six years of probation from Special Judge Marianne Vorhees of Delaware County Circuit Court. Vorhees divided the eight Class D felony convictions into three groups — two that included three counts each and one that included two counts. She sentenced Hyde to two years of incarceration with all time suspended to probation for each of the eight counts.

Sentences on the counts within each group will be served concurrently, but the sentences for the three groups will be served consecutively. That created the six years of probation agreed upon in a plea agreement reached by Hyde and the Wayne County Prosecutor's Office.

"I don't think it's appropriate for incarceration," said Vorhees, adding Hyde can better spend the time earning money for the $54,669 in restitution he's agreed to pay.

More from the long story:
Wayne County Prosecutor Mike Shipman had seven victims and five former employees of Hyde's legal practice testify during Thursday's hearing. After about an hour and a half, defense attorney James Williams agreed that other victims would testify in a similar fashion, removing the need for all of the victims among the 50 or so people in attendance to testify. [ILB emphasis]

Victims detailed how they paid Hyde to help them file for bankruptcy, and he required all of their payment up front before he would begin the process. Those who testified said he would reassure them their cases were progressing, even as he became harder to reach in his office or by phone. After their cases dragged for months or Hyde had closed his office without warning in 2012, they found other attorneys who filed their bankruptcy petitions promptly.

They also explained how creditors called them asking for a bankruptcy case number that they never had received. They talked about the stress they endured and how they experienced health and financial problems.

Employees spoke about the deterioration of the office environment, with up to 100 bankruptcy cases waiting for Hyde's approval and signature before they could be submitted and about how delays required new information be gathered from clients and caused clients to have to retake credit counseling classes for additional fees.

Posted by Marcia Oddi on Friday, May 20, 2016
Posted to Ind. Trial Ct. Decisions

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

For publication opinions today (3):

In Nikki Jones, as Personal Representative of the Estate of Phillip Matthew Jones v. Hancock County Board of Commissioners, a 20-page opinion, Judge Brown writes:

Nikki Jones as Personal Representative of the Estate of Phillip Matthew Jones (the “Estate”) appeals from the order of the trial court entering summary judgment in favor of the Hancock County Board of Commissioners (the “Board” or the “County”). The Estate raises one issue which we revise and restate as whether the court erred in entering summary judgment in favor of the Board. We affirm in part, reverse in part, and remand. * * *

The Estate contends that the Board was not entitled to legislative immunity because the alleged negligence did not arise from a failure to pass or enforce an ordinance, but rather arose from a failure to monitor and maintain the county’s roadways in a reasonably safe condition, a duty that is not subject to legislative decision-making. The Estate’s argument is that the Board failed to exercise reasonable care in installing proper traffic control devices, that such devices include non-regulatory signs such as warning signs, and that monitoring traffic accident frequency, conducting engineering studies of dangerous intersections, and erecting or modifying non-regulatory signs do not require ordinances or other legislative action in order to be commenced. It also argues that the entry of summary judgment is an incentive for counties to neglect their duty to follow the Manual, and that the Board chose to remain ignorant of the peril posed by the intersection.

The Board maintains that, irrespective of how the Estate attempts to characterize its claim, tort liability is predicated upon whether or not the intersection was reasonably safe due to the two-way and not four-way stop, and that the Estate’s claim is barred under Ind. Code § 34-13-3-3(8). It contends that any failure to monitor the number of traffic accidents at the intersection relates to whether the intersection should have been converted to a four-way stop prior to the accident and is not an independent basis for tort liability. The Board further maintains that stop signs and other regulatory signs may be installed by the adoption of an ordinance, and that whether it complied with the Manual is irrelevant where legislative immunity defeats the Estate’s claim as a threshold determination. * * *

Based upon the designated evidence, we conclude that the Board is immune under Ind. Code § 34-13-3-3(8) from liability for any loss resulting from the adoption of Hancock County Ordinance 1992-12F or any failure to adopt an ordinance, in response to the frequency of traffic accidents discovered by monitoring or for any other reason, or take other legislative action related to the intersection of CR 400W or CR 200N. * * *

Having found that the Board is immune from liability for any loss resulting from the adoption of Hancock County Ordinance 1992-12F or for its failure to adopt any traffic control ordinance with respect to the intersection of CR 400W or CR 200N, we turn to whether the County was entitled to summary judgment with respect to its alleged failure to monitor the frequency of accidents at the intersection and to erect appropriate warning signs. * * *

Based upon the summary judgment materials and Lowe, we reverse the entry of summary judgment as to the claim the County failed to erect warning signs, affirm the entry of judgment in all other respects, and remand for further proceedings.

In David L. Kimbrough v. Ramona F. Anderson , a 27-page opinion, Judge Mathias writes:
David Kimbrough (“Kimbrough”) filed a complaint in Monroe Circuit Court against Ramona Anderson (“Anderson”), alleging that Anderson was liable for damages when Kimbrough’s basement flooded on numerous occasions between 2008 and 2011 after Anderson excessively watered her yard. A jury found in favor of Anderson, and Kimbrough now appeals, raising eight issues, which we consolidate and restate as:
1. Whether the trial court abused its discretion in precluding testimony from Anderson’s insurance company regarding instructions given to Kimbrough;
2. Whether the trial court abused its discretion in admitting Kimbrough’s prior home insurance claim file into evidence;
3. Whether the trial court abused its discretion in admitting a hydrogeologist’s expert report into evidence;
4. Whether the trial court abused its discretion in denying Kimbrough’s motion for judgment on the evidence on two of Anderson’s affirmative defenses; and
5. Whether the trial court abused its discretion in instructing the jury on final instruction numbers 8 and 9, concerning Anderson’s affirmative defenses. We affirm. * * *

Conclusion. For all of these reasons, we conclude that the trial court did not abuse its discretion in precluding testimony from Anderson’s insurance company regarding instructions given to Kimbrough, in admitting Kimbrough’s prior home insurance claim file, and in admitting one of Anderson’s expert reports into evidence. Further, the trial court did not abuse its discretion in denying Kimbrough’s motion for judgment on the evidence on two of Anderson’s affirmative defenses or in instructing the jury with final instructions number 8 and number 9.

In Derek Scisney v. State of Indiana , an 8-page opinion, Judge Mathias writes:
Derek Scisney (“Scisney”) was convicted in Marion Superior Court of unlawful possession of a firearm by a serious violent felon (“SVF”) and resisting law enforcement. Scisney appeals his conviction for unlawful possession of a firearm by an SVF and argues that the trial court abused its discretion when it admitted the firearm into evidence. Specifically, he argues that his encounter with the law enforcement officer was not consensual and the officer lacked reasonable suspicion to conduct a Terry stop and the accompanying pat down search. We affirm.
NFP civil decisions today (8):

Jason L. McDonough, as Personal Representative of the Estate of Donna L. Allen, Deceased v. Kentucky Avenue Land Company (mem. dec.)

Ana Milomira Stanisic v. Steven Massa (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of C.B., Mother, B.G., Father, and N.W., S.G. and R.B., Minor Children, C.B. and B.G. v. Ind. Dept. of Child Services (mem. dec.)

Carla S. Love v. Mauricio Bellido (mem. dec.)

Victoria H. Rybicki v. U.S. Bank National Assoc., Successor Trustee to BoA, N.A., as Successor to LaSalle Bank, N.A., et al. (mem. dec.)

James H. Calkins and Walnut Hills Development, LLC v. James Leto and Colony Bay Apartments, LLC (mem. dec.)

Olabisi Nard v. Mark Sevier (mem. dec.)

Kirsten L. Nolan v. Matthew A. Huff (mem. dec.)

NFP criminal decisions today (4):

Kurt Hinkle v. State of Indiana (mem. dec.)

Jonathan Wallace v. State of Indiana (mem. dec.)

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

Larisha Lee v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, May 20, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Appellants file for rehearing in House email/public records case

Updating yesterday's ILB post, here are several stories on the filing.

From the AP, here via the Chicago Tribune: "Court asked to reconsider ruling that shields Indiana lawmakers from records request." The long story ends:

Indiana's Public Records Act declares "it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees."

In practice, however, lawmakers have long acted in a manner that goes against the stated intent off the law. Their actions were taken to court last year when consumer advocates sued the House Republican Caucus to obtain emails that House energy committee Chairman Eric Koch may have exchanged with Duke Energy and Indianapolis Power and Light.

The Bedford Republican, who has reported an economic interest in dozens of oil, gas and energy companies, sponsored an unsuccessful bill last year that would have cut how much utilities must pay for excess electricity generated by home solar power systems. Opponents of the bill said would eliminate the incentive to buy them.

First, a Marion County judge ruled that he could not interfere in the operation of the legislative branch. That decision was upheld when state Supreme Court justices issued their 4-1 ruling in April. The court found lawmakers were bound by the state's public records law, but they also ruled that the state constitution's separation of powers between the legislative and judicial branches of government prevented them from ordering the release of Koch's emails.

Advocates argue in a court filing that the court's decision was vague, overly broad and could allow the Legislature to "hide from the public the very existence of correspondence with lobbyists."

But their request faces long odds. Last year, 13 similar requests were made with all but two denied, said Indiana University law professor Joel Schumm. He added that usually when the court agrees to a rehearing, "it's on a pretty narrow legal issue."

"It's extremely rare that a rehearing will be granted to change the outcome of the case," Schumm said.

From the Fort Wayne Journal Gazette, some quotes from this story by Niki Kelly:
The court ruled in April that the state open records law does apply to the legislature but found it is up to the General Assembly to determine what constitutes its own work product.

Essentially the decision means the executive and legislative branch can claim certain exemptions from the public records law and no third party can review and determine if those are being applied appropriately. * * *

Gov. Mike Pence – about a week after the ruling in the House case – used the same argument in a separate lawsuit over a records request to his office.

“Unless the Court agrees to reconsider its April 19 ruling, Hoosiers’ right to be fully informed of the activities of those who serve them in state government will have been damaged beyond repair,” said William Groth, the lead attorney for the groups.

Groth is also the person who sought records in the Pence case. * * *

Another interesting facet is that attorney Geoffrey Slaughter argued the case on behalf of the General Assembly before the Indiana Supreme Court, and just last week was named by Pence as the next Indiana Supreme Court justice.

It is unclear when he will take the oath and if he is still representing the House in the case. [ILB: Slaughter's request to withdraw from the case was granted by the Supreme Court on May 18th, as noted in this ILB post yesterday.] * * *

The Pence case began back in 2014 when he hired outside counsel – Barnes & Thornburg – to join a multistate suit led by Texas against President Obama’s executive order providing work permits and protection from deportation to as many as 5 million immigrants in the country illegally.

Groth filed a public records request for the attorney’s contract and invoices, as well as emails between Texas officials and Pence’s office. The documents he received were heavily redacted or not produced, so he filed a lawsuit. As soon as the House case was decided, Pence’s attorneys submitted a new argument in the case saying the Koch case means the courts can’t get involved.

Posted by Marcia Oddi on Friday, May 20, 2016
Posted to GA and APRA | Ind. Sup.Ct. Decisions | Indiana Government

Ind. Courts - More on "Disciplinary Commision recommends discipline for former Marion Co. prosecutor Carl Brizzi"

Updating yesterday's ILB post, Rafael Sanchez of WRTV6 had an interesting report last evening, headed "Former Marion Co. prosecutor Carl Brizzi believed complaints were dismissed: Brizzi releases letters as proof." SoThe story begins:

INDIANAPOLIS -- Carl Brizzi believed accusations about a real estate deal and his involvement in handling a drug case plea deal were a thing of the past.

Brizzi released to Call 6 Investigates two letters from the State Disciplinary Commission dated March 2, 2015. Both letters say, “The Commission considered a grievance against you” on February 13. Both letters also say, “The Commission dismissed the grievance on the grounds that there is not reasonable cause to believe that you are guilty of misconduct which would warrant disciplinary conduct.”

The commission opened its review of the plea deal on October 16, and the real estate deal on October 23. Despite months of discussions and extensions in the fall of 2014 and winter of 2015, RTV6 has learned that Brizzi’s legal team at the law firm of Lewis & Wagner believed the issues were resolved when they received the letters from the Commission.

“It’s eight years old, and notwithstanding the fact that it’s the same stuff investigated by the FBI," Brizzi said.

Later in the story:
Spokesperson [for the Supreme Court] Kathyrn Dolan told RTV6, “The charges are only allegations and the attorney has a right to respond in writing. Ultimately, only the Supreme Court can determine what (if any) misconduct has occurred."

In 2015, the Indiana Supreme Court weighed in on 32 disciplinary complaints, though the Commission received 1,422 complaints about attorneys statewide.

Possible punishments range from a private reprimand to disbarment.

ILB: For those unaware of how the lawyer disciplinary process proceeds, the formal misconduct complaint of the Disciplinary Commission is only the start of the public process. Next, the Supreme Court appoints a hearing officer:
A hearing officer is appointed by the Supreme Court to hear the evidence. The Disciplinary Commission must prove its charges by a higher burden than in a civil case. The hearing officer's responsibilities are like those of a trial court judge, except that the hearing officer cannot make a final decision in the case. The hearing officer makes a report on the case to the Supreme Court, which makes a final decision.
Or the parties may propose a settlement agreement to the Supreme Court:
If the Disciplinary Commission and the lawyer can agree to the facts of the case and an appropriate disciplinary sanction, the agreement is submitted to the Supreme Court for approval. If the Court accepts the agreement, the agreed sanction is imposed by the Supreme Court and the case is over. If not, there is a hearing.
Source: Indiana Courts: Discipline

ILB: How long?

Likely, many months or even years may pass until the Brizzi process concludes. For example, a disciplinary complaint was filed in March of 2015 against Floyd County Prosecutor Keith Henderson. The hearings concluded in late October, 2015. So far as the ILB can determine, no report has yet been issued by the hearing officer in the case. Here is the docket in the case.

Posted by Marcia Oddi on Friday, May 20, 2016
Posted to Indiana Courts

Thursday, May 19, 2016

Ind. Decisions - Tax Court decides one today

In Miller Pipeline Corporation v. Indiana Department of State Revenue, a 24-page opinion, Sr. Judge Fisher writes:

Miller Pipeline Corporation has appealed from the Indiana Department of State Revenue’s denial of its claim for refund of sales/use taxes remitted for the 2006 and 2007 tax years (the years at issue). The issue before the Court is whether the Department erred in denying that refund claim. * * *

Miller Pipeline has rebutted the presumption of validity afforded to the Department’s Proposed Assessments as they relate to the treatment of the transactions discussed in Issues I, II, III, IV, VII, and XI of this opinion. Accordingly, the Department’s audit findings with respect to these transactions are REVERSED.

Miller Pipeline has not, however, rebutted the presumption of validity afforded to the Department’s Proposed Assessments as they relate to treatment of the transactions discussed in Issues V, VI, VIII, IX, and X of this opinion. Accordingly, the Department’s audit findings with respect to these transactions are AFFIRMED.

The Court REMANDS this matter to the Department with instructions to make the adjustments to its statistical sample consistent with this opinion. Once the Department has made those adjustments, it shall reconcile Miller Pipeline’s overall tax liability/refund opportunity in accordance with the recomputed statistical sample, reducing that amount by the credits already received and discussed in Issue VII.

Posted by Marcia Oddi on Thursday, May 19, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court posts order imposing reciprocal discipline

In In the Matter of: Jeannette M. Conrad, the Court writes:

On September 21, 2015, the Supreme Court of Illinois found Respondent’s conduct violated that jurisdiction’s rules of professional conduct. For this misconduct, the Supreme Court of Illinois suspended Respondent for six months and until further order of that Court. * * *

Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state as of the date of this order. Respondent is already under suspension for noncompliance with this state’s continuing legal education (“CLE”) requirements.* * *

If Respondent is granted reinstatement in Illinois, Respondent may file a “Motion for Reinstatement” pursuant to and in full compliance with Admission and Discipline Rule 23(28)(e), provided there is no other suspension order in effect at the time, including Respondent’s current CLE noncompliance suspension order.

Posted by Marcia Oddi on Thursday, May 19, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court authorizes bulk release of data excluded from public access re certain juvenile cases

In the Matter of the Request by the University of Cincinnati Corrections Institute for Release of Bulk Data or Compiled Information Excluded from Public Access is a 5-page, May 17th order of the Supreme Court authorizing the release of specified data from two thousand juvenile cases, equally divided between 2014 and 2015 for specific research purposes, with conditions.

Posted by Marcia Oddi on Thursday, May 19, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In In re the Matter of: R.H. (Minor Child) and T.H. (Mother) v. The Ind. Dept. of Child Services, a 15-page opinion, Judge Robb writes:

R.H. was adjudicated a child in need of services (“CHINS”) shortly after her birth. During the CHINS proceedings, the Marion County Department of Child Services (“DCS”) filed a motion seeking an order that reasonable efforts to reunify R.H. and T.H. (“Mother”) were not required. The juvenile court issued such an order on August 17, 2015, and thereafter held a permanency hearing on September 15, 2015, and changed the permanency plan for R.H. from reunification to adoption. Mother appeals the no reasonable efforts order, raising one issue for our review: whether the juvenile court’s order finding that reasonable efforts to reunify the family are not required violated her rights under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“RA Section 504”). Concluding the juvenile court did not violate Mother’s rights in finding DCS was not required to make reasonable reunification efforts, we affirm.
In Steven M. Bush v. Robinson Engineering & Oil, Co., Inc., a 16-page opinion appealing an order issued by the full Indiana Worker’s Compensation Board, Judge Kirsch concludes:
Here, there was a “presence of evidence adverse to [Bush’s] contentions” and, ultimately, we agree with Robinson that “the Board was free to reject Dr. Sasso’s reports as not credible or rely on the other evidence in the record that contradicted Bush’s claim of cervical injury” as having occurred on, or been exacerbated by, the August 13, 2010 incident. Smith, 754 N.E.2d at 23; Appellee’s Br. at 6. Accordingly, we affirm the decision of the Board concluding that Bush did not suffer a compensable cervical injury in the August 2010 incident and denying Bush’s claim for additional evaluation of and treatment to his cervical spine. Affirmed.
In Mitchell Carroll v. State of Indiana , a 12-page opinion, Judge Bailey writes:
Mitchell Carroll (“Carroll”) was charged with a number of offenses in the Grant Superior Court. In response to Carroll’s behavior during hearings conducted both by video conference and with Carroll physically present in the courtroom, the trial court found Carroll to be in direct contempt of court and, as a result, ordered Carroll incarcerated for ninety days. Carroll appeals. We affirm.

Carroll raises two issues for our review. We restate these as:
I. Whether, because Carroll’s conduct occurred while he was not physically present in the courtroom, a contempt citation is barred under Indiana law; and
II. Whether the trial court erred when it concluded that Carroll’s conduct on two occasions was contumacious. * * *

That Carroll’s conduct occurred while Carroll was in the Grant County Jail, across the street from the courthouse in which the trial court was located, does not preclude applicability of the direct contempt statute, so long as his conduct created a disturbance in a court of record. This is so whether or not Carroll himself was physically present in the courtroom at the time. Holding otherwise would read the statute too narrowly, and would compromise the ability of trial courts to ensure their ability to conduct business and dispense justice. * * *

That Carroll’s conduct occurred during a video hearing, and not in a courtroom, did not preclude application of the contempt statute. The trial court did not abuse its discretion in twice finding that Carroll was in contempt of court.

NFP civil decisions today (2):

Courtney Allen v. Jeffrey Shelburne (mem. dec.)

Richard A. Vagedes v. Betty Jo Vagedes (mem. dec.)

NFP criminal decisions today (3):

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

Sherease Holmes v. State of Indiana (mem. dec.)

Rodney Tyms v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, May 19, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Appellants file for rehearing in House email/public records case

The Appellants in Citizens Action Coalition of Indiana, et al v. Eric Koch, and Indiana House Republican Caucus (CAC v. Koch) have today filed with the Supreme Court a petition for rehearing:

... arguing that the Court’s April 19 ruling is inconsistent with the narrow doctrine of separation of powers non-justiciability and that it effectively renders APRA impotent in both the legislative and executive branches as a tool to enable the people to know what their state government is up to, and second, asking the Court to remand to the trial court for a determination of Appellants’ fees since they prevailed with respect to important public issues in the case, namely the applicability of APRA to the General Assembly, its members and political party caucuses.
The Appellants add:
We will be supported on the merits by an extremely well-written amicus brief filed by Graydon Head & Ritchey LLP, representing the Indiana Society of Professional Journalists.
Here is the docket in the case. A notable docket item, dated May 18th, is the Court's order granting Attorney Geoffrey G. Slaughter’s motion requesting withdrawal of his appearance as counsel for the Appellees. Mr. Slaughter was appointed to the Supreme Court by Gov. Pence on May 9th.

Posted by Marcia Oddi on Thursday, May 19, 2016
Posted to GA and APRA | Ind. Sup.Ct. Decisions | Indiana Government

Ind. Courts - "Disciplinary Commision recommends discipline for former Marion Co. prosecutor Carl Brizzi" [Updated Twice]

So reported Jordan Fischer of WRTV6 late last evening. A disclaimer at the top of the story notes: "Carl Brizzi has served as an on-air legal analyst for RTV6 in the past, but has no ongoing affiliation with the station." A snippet from the story itself:

INDIANAPOLIS -- The Indiana Supreme Court's Disciplinary Commission recommended disciplinary action Monday against former Marion County prosecutor Carl Brizzi.

A verified complaint for disciplinary action filed this week claims Brizzi committed three violations of the Rules of Professional Conduct for Attorneys at Law related to a real estate deal in Elkhart, Indiana, and a plea deal given in a criminal case in Marion County – both connected to his friend and then-business partner Paul Page.

[Updated at 9:00 AM] Vic Ryckaert, Indianapolis Star, has posted this story, headed "Commission recommends discipline for ex-Prosecutor Carl Brizzi." The story begins:
The Indiana Supreme Court's Disciplinary Commission recommended sanctions after finding former Marion County Prosecutor Carl Brizzi engaged in a "pattern of misconduct."

In an eight-page verified complaint filed Monday, the commission slammed Brizzi for lying, failing to disclose a shady real estate deal and intervening in a criminal case as a favor to a business partner.

"The current matter involves the use of public office to benefit the client of a friend and business partner and is in violation of the public trust," the complaint states.

The commission said Brizzi showed a "pattern of misconduct in his official capacity as the elected prosecutor."

Brizzi, a Republican who served two terms as prosecutor from 2003-2010, could not immediately be reached for comment. * * *

The recommendation is now before the Indiana Supreme Court, which makes the final decision on disciplinary action .

[Updated at 5:15 PM] Kristine Guerra of IndyStar has posted a long retrospective headed "Carl Brizzi's past was not a quiet one. Here's a snapshot." The story begins:
Carl Brizzi has avoided controversy over the past couple of years. But this week, the embattled former Marion County prosecutor — once mired in two malpractice lawsuits, he also had ties to swindler Tim Durham — found himself back in the spotlight.

The Indiana Supreme Court's disciplinary arm is accusing Brizzi, a Republican who served two terms as prosecutor from 2003 to 2010, of a "pattern of misconduct." More specifically, the disciplinary commission claims he intervened in a plea deal that resulted in a lenient sentence for a client of Paul Page, a former defense attorney and developer who is also Brizzi's friend and business partner.

Posted by Marcia Oddi on Thursday, May 19, 2016
Posted to Indiana Courts

Wednesday, May 18, 2016

Ind. Courts - More on: Plaintiffs sue for special election do-over of 2014 Marion County Superior Court election

Updating this ILB post from Jan. 5, 2016, this afternoon federal Judge Richard L. Young ruled there should be no special election of Marion County judges to correct the constitutional defect in the 2014 election.

Here is today's 8-page opinion. The conclusion:

Plaintiffs cannot overcome the significant burden a special election would have on the Marion County judiciary, the candidates, the Marion County Clerk, the Marion County Election Board and its volunteers, and the county as a whole.

First, because the court held the entire statutory scheme unconstitutional, there is no process for how to select Marion Superior Court judges. The Indiana Lawyer recently published an article stating that Indiana lawmakers “punted the decision until next year.” Haley Colombo, Lawmakers Punt Marion County Judge-Selection Bill to Next Year, INDIANA LAWYER, May 11, 2016, www.theindianalawyer.com/lawmakers-punt-marioncounty- judge-selection-bill-to-next-year/PARAMS/article/39732. Under these circumstances, ordering a special election is legally unsound. Second, a special election involving only those judicial candidates from the 2014 primary is arbitrary, and Plaintiffs have given no principled reason why only those judges—and not all thirty-six judges— should be required to run again. Third, opening up the Marion County judiciary to reelection would be highly disruptive to the administration of justice. Fourth, a special election would burden the candidates, as it would require them to gather a campaign team, devise a campaign strategy, and fundraise in a truncated campaign season lasting less than six months. Therefore, the court finds that the state’s interest in the orderly administration of justice and the stability and reliability of election results outweighs the Plaintiffs’ interest in running for office. Plaintiffs’ request for a special election is therefore DENIED.

The plaintiffs have not yet decided on an appeal.

Posted by Marcia Oddi on Wednesday, May 18, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Judge Posner's separate concurring opinion today in a Wisconsin case

The case is USA v. Shontay Dessart. The panel is Posner, Easterbrook and Sykes. Judge Sykes authors the opinion affirming the district court. Judge Easterbrook concurs. The opinion concludes on p. 15-16:

Dessart raises two complaints. First, he argues that the instruction should have included the definition in subsection (B). We don’t see why. The evidence did not show—and the government never argued—that Dessart’s products qualified as “prescription drugs” because they were approved as such by the FDA. Second, Dessart argues that the instruction should have included the definition of “prescription drug product” found in 21 U.S.C. § 379g. Again, we don’t see why. Section 379g is part of the Prescription Drug User Fee Act of 1992, a discrete statutory scheme that collects user fees to help fund the FDA’s review and approval of new drug applications. By its terms § 379g provides that its definition of “prescription drug product” applies “[f]or purposes of this subpart” only. There was no instructional error. AFFIRMED

[Judge Posner's concurring opinion begins on p. 17:]

I agree with the decision but have reservations about some of the verbal formulas in the majority opinion. I do not criticize the majority for reciting them, because they are common, orthodox, even canonical. But they are also inessential and in some respects erroneous, and on both grounds ripe for reexamination. * * *

To repeat what I said at the outset, I don’t disagree with the decision to affirm the district court. I disagree merely with the rhetorical envelope in which so many judicial decisions are delivered to the reader. Judicial opinions are littered with stale, opaque, confusing jargon. There is no need for jargon, stale or fresh. Everything judges do can be explained in straightforward language—and should be.

ILB: Incidentally, respected federal circuit Judge Sykes is on Donald Trump's list today of potential Supreme Court candidates.

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

About this blog - Please recommend the Indiana Law Blog to your colleagues

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Then please recommend the Indiana Law Blog to three colleagues.

They may follow us here, indianalawblog.com, or follow us via Twitter, @indianalawblog.

(We don't deluge you with emails.)

Posted by Marcia Oddi on Wednesday, May 18, 2016
Posted to About the Indiana Law Blog

Ind. Decisions - Supreme Court decides one today, a rare disbarment

In In the Matter of: Elton D. Johnson, a 7-page, 4-0, per curiam opinion, the Court writes:

We find that Respondent, Elton Johnson, committed attorney misconduct by providing incompetent representation, converting client funds, and failing to cooperate with the disciplinary process. For this misconduct, we conclude that Respondent should be disbarred. * * *

During his short-lived legal career Respondent has demonstrated a continuing pattern of serious misconduct, much of it predicated upon efforts to unjustly enrich himself at his clients’ expense. In exercising our disciplinary authority, we have an obligation to protect the public and the profession from the tactics of unscrupulous lawyers. See Matter of Shumate, 647 N.E.2d 321, 325 (Ind. 1995). We consistently have imposed disbarment where a lawyer exhibits a pattern of conversion of client funds, dishonesty, or deception of clients. Id.; Matter of Ouellette, 37 N.E.3d 490 (Ind. 2015); Matter of Stochel, 34 N.E.3d 1207 (Ind. 2015); Matter of Brown, 766 N.E.2d 363 (Ind. 2002). Respondent’s neglect, incompetence, dishonesty, conversion of client funds, noncooperation with the Commission, and failure to meaningfully participate in these proceedings all persuade us that disbarment is the appropriate sanction here as well.

Conclusion. Respondent already is under indefinite suspension for failure to cooperate with the Commission’s investigation and a separate suspension for noncompliance with continuing legal education requirements. For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent, and the hearing officer appointed in this case is discharged.

The Roll of Attorneys shows Johnson's address as South Bend, and his admission date as 5/17/2010.

Posted by Marcia Oddi on Wednesday, May 18, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In Craig Neibert v. Jody A. Perdomo , an 18-page opinion, Judge Crone writes:

In this interlocutory appeal, Craig Neibert challenges the trial court’s grant of involuntary dismissal of his implied contract and unjust enrichment claims against his ex-girlfriend Jody A. Perdomo, arising out of the renovation of one house and the construction of another. He submits that the trial court erred in (1) granting Perdomo’s motion for involuntary dismissal before he had rested his case; (2) concluding that he had not presented evidence of breach of implied contract and/or unjust enrichment sufficient to survive Perdomo’s motion for involuntary dismissal; (3) excluding an expert witness’s report concerning the value of Neibert’s renovation, excavation, and construction services; (4) failing to issue special findings of fact as part of its interlocutory order; and (5) failing to address his claim for replevin in its interlocutory order. Finding that the uncontroverted evidence is sufficient to support Neibert’s contractual claims, we conclude that the trial court clearly erred in granting Perdomo’s motion for involuntary dismissal. Finding this issue dispositive, we need not address the remaining issues, except for the admissibility of Neibert’s expert witness’s report, as it relates to the record on remand. As such, we reverse and remand for proceedings consistent with this opinion.
In Jack Sheets v. David Birky, Interra Credit Union, Curt Bechler, and Venture International, LLC., a 17-page oopinion, Judge Bailey writes:
Jack Sheets (“Sheets”) was discharged from his employment with Interra Credit Union (“Interra”). He subsequently filed a complaint alleging that Interra Vice-President David Birky (“Birky”) had committed defamation per se, for which Interra was vicariously liable; and that management consultant Venture International, LLC (“Venture”) and its owner, Curt Bechler (“Bechler”), had been negligent in the monitoring of Sheets’s condition after sick leave, had negligently investigated and reported a hotline call, had breached a fiduciary duty, and had intentionally interfered with Sheets’s employment-at-will contract with Interra. Summary judgment was granted to Birky and Interra; partial summary judgment was granted to Venture and Bechler. Negligence and tortious interference claims against Venture and Bechler proceeded to trial, and a jury found in favor of the defendants. Sheets challenges the grant of summary judgment to Birky and Interra and the judgment in favor of Venture and Bechler on the claim of interference with an employment contract. We affirm. * * *

Recent Indiana decisions clarify that defamation per se as to one’s profession involves actual misconduct as opposed to a generalized opinion. * * *

Birky’s communication regarding Sheets did not impute occupational misconduct without resort to extrinsic evidence. The trial court properly concluded, as a matter of law, that Birky’s statements did not constitute defamation per se. Accordingly, the trial court properly granted summary judgment on this claim to Birky and Interra. * * *

Sheets did not demonstrate that the rejected instruction was a correct statement of the law, supported by evidence of record, and not covered by other instructions of the trial court. As such, he has demonstrated no abuse of discretion.

Conclusion. Summary judgment was properly granted on the defamation per se claim. The trial court did not abuse its discretion when it refused Sheets’s incomplete instruction on the protection afforded by Indiana law to an at-will employment contract.

In Lonny Hodges v. State of Indiana, a 19-page two opinion ruling, Judge Crone writes:
While on probation for other crimes, Lonny Hodges was charged with class C felony possessing chemical reagents or precursors with intent to manufacture a controlled substance, and class D felony possession of methamphetamine. The evidence supporting these charges was discovered during a warrantless search of a garage on Hodges’s property. Hodges filed a motion to suppress the evidence, arguing that the warrantless and suspicionless search violated his constitutional rights pursuant to both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. The trial court denied the motion. The trial court certified its decision at Hodges’s request, and we accepted jurisdiction of this interlocutory appeal. Finding no constitutional violation, we affirm the denial of the motion to suppress. * * *

In State v. Vanderkolk, 32 N.E.3d 775 (Ind. 2015), a Fourth Amendment case, our supreme court very broadly held that “Indiana probationers and community corrections participants who have consented or been clearly informed that the conditions of their probation or community corrections program unambiguously authorize warrantless and suspicionless searches, may thereafter be subject to such searches during the period of their probationary or community corrections status.” * * *

Affirmed.
Bailey, J., concurs.
Vaidik, C.J., concurs in result with opinion. [that begins, at p. 12] I agree with the result reached by the majority, but I do not agree that State v. Vanderkolk, 32 N.E.3d 775 (Ind. 2015), bars all probationers who are subject to search conditions from raising lack-of-reasonable-suspicion challenges to probation searches. I do not believe that is what our Supreme Court held in Vanderkolk, and extending Vanderkolk to apply to all probationers is inconsistent with United States Supreme Court precedent. However, because reasonable suspicion existed to search Hodges’ garage, I respectfully concur in result.

NFP civil decisions today (0):

NFP criminal decisions today (2):

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

Michael Joseph Mueller v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, May 18, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Long Beach Residents’ Case Over Lakefront Heads For High[er] Court Review"

Annie Ropeik of Lakeshore Public Media reported on April 20th:

A property rights battle over public access to Indiana’s Lake Michigan shoreline is likely to go before the Indiana Supreme Court. The state is filing its brief in that case this week, with oral arguments expected by June. It stems from a 2013 lawsuit by Long Beach homeowners, who say their property extends to the water.

A Superior Court judge ruled against them last year, saying the public can use the beach below the high water mark. That’s as defined by a certain distance above sea level. But advocacy groups, like the Long Beach Community Alliance, say that mark should be easier to define.

Patricia Sharkey is an alliance board member with a house about a block from the lakeshore. Her group argues the high water mark is where the lake bed ends and vegetation begins. “The tension between who owns the property and what is available for members of the public to use is palpable, and we need that definition to be clear and visible for everybody,” Sharkey told IPBS.

The lakefront groups are appealing the ruling, as are homeowners, meaning all roads lead to the high court. The case would set a precedent for Indiana. Michigan and Wisconsin already use the high water mark to define their public beaches.

ILB: Actually, the case is before the Court of Appeals. As the ILB posted on April 22nd:
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.

Unfortunately, no earlier briefs have been forthcoming.

A second story by reporter Ropeik, dated April 21st and linked in the same post, was headed "Erosion Complicates Property Rights Battle," and included:

[Patricia] Sharkey is part of the Long Beach Community Alliance, and says the public has the right to use the beach below the high water line.

“So you have some of the natural dune remains. You’ve got the natural vegetation, which forms what we believe is the actual ordinary high water mark,” says Sharkey.

But a county Superior Court ruling last year didn’t satisfy either side. It put the line higher than the water — but lower than the grass — in an area that’s sometimes underwater. Advocacy groups and homeowners are each appealing the case, meaning it’s likely to go to the state Supreme Court.

And now Sharkey’s group has another issue to worry about: preservation. She says the lake is way up this spring. Sharkey says the walls cause erosion, and she wants the town to allow fewer of them.

“We’re of course concerned about how do we preserve public spaces and public beaches — at the same time that folks are also concerned about how they preserve their private construction that has, in our view, been built on public properties, says Sharkey.

The preservation battle is still playing out at the local level, but Sharkey says the issue could become more pressing as the beach disappears and the fight over what’s left moves forward in appeals court. Oral arguments are expected by June.

Here is the ILB's March 30, 2015 post, headed " "Court of Appeals rules for Long Beach homeowners." Note the update from April 6, 2015, which includes, from a Michigan City News Dispatch story by Jessica O'Brien:
While the article said the Indiana Court of Appeals has ruled in favor of Long Beach property owners on Lake Michigan, the court case is far from over. That decision, said Patrick Cannon of the Long Beach Community Alliance, simply means the state must be made a party in the case that had previously been appealed.

However, a second lawsuit has already been filed by the plaintiffs in that case listing the state as a party. That case is scheduled to go before Judge Richard Stalbrink in La Porte County Superior Court No. 2 for a hearing later this month.

This ongoing court battle began with a suit filed years ago in which the Long Beach Lakefront Homeowners Association and two individual property owners fought the town of Long Beach over where their property line was officially drawn.

This was followed by a July 27, 2015 story by reporter O'Brien reporting in part:
MICHIGAN CITY — Judge Richard Stalbrink issued an order Friday ruling against lakefront homeowners in Long Beach, saying these property owners do not own exclusive rights to the beach lying north of their deeded land.

This lawsuit was filed by plaintiffs Long Beach Lakefront Homeowners Association, Don Gunderson and Margaret West, who argue the northern boundary of private lakefront properties is the water's edge of Lake Michigan.

Their argument was based partially on the fact that their deed gives no northerly dimension to their plat — contending that their property must run to the water's edge.

However, defendants in the case — including the State of Indiana, Department of Natural Resources, Long Beach Community Alliance, Save the Dunes, Alliance for the Great Lakes and several individuals — argue that the state owns the lakebed up to the ordinary high water mark (OHWM) as determined by the Army Corps of Engineers, which is currently 581.5 feet above sea level.

The OHWM is intended to distinguish between public and private lands.

This issue was brought before Stalbrink in La Porte County Superior Court No. 2 earlier this year on an appeal after La Porte County Circuit Court Judge Tom Alevizos first ruled against the lakefront homeowners.

The docket indicates that a motion for oral argument was filed May 11th by the appellants, but the Court has not yet responded.

Posted by Marcia Oddi on Wednesday, May 18, 2016
Posted to Indiana Courts

Ind. Gov't. - "Are daily police logs now being made available to the public adequate under public access law?"

The heading to today's post is the same as the heading to this March 4, 2012 ILB post. It quoted a no longer available 2012 South Bend Tribune story that began:

The daily police logs two St. Joseph County departments provide to the public appear to be falling short of what is required by Indiana's Public Access Laws.

The Tribune recently asked the state’s public access counselor for an advisory opinion about the thoroughness of the police logs — reports of crimes and other incidents — provided to the public and the media by three local departments: South Bend, Mishawaka and St. Joseph County.

In an advisory opinion, Public Access Counselor Joe Hoage said last week that two of the departments, Mishawaka and St. Joseph County, are omitting certain required details from their logs. [ILB: The SBT provides samples of the three logs for comparing.]

Police agencies are required by law to provide a daily log or record that lists suspected crimes, accidents, or complaints, as well as a number of other details.

The logs or information are to be updated every 24 hours from the time of the alleged crime or incident and made available to the public and media representatives to examine and copy.

Tribune reporters and other local journalists go through the three departments’ police logs daily to report on public safety in the county. Police briefs and other write-ups regarding police incidents that appear in print and online often come from cases pulled from the log.

Apparently issues continue. On May 5, 2016, Public Access Counselor Luke Britt issued 16-INF-09; Police Logs to Margaret Fosmoe, South Bend Tribune. Some quotes:
You seek a determination as to what additional information is required for the daily logs created by law enforcement in response to various kinds of calls. You specifically question whether the names of victims and other factual circumstances must be included in the log and if a member of the public is interested in the incident, must that person ask for each piece of required information or should it be given all at once. * * *

For daily logs, Ind. Code § 5-14-3-5(c) contemplates disclosure that is enough to explain the substance of the incident, but must give the reader an idea of what happened. Ind. Code 5-14-3-4(b)(1) provides discretionary release of records to protect the integrity of the investigation. Reading these two provisions together, a daily log should contain enough information to provide the public information about the general substance of the incident, but not so much as to impair law enforcement’s ability to investigate. The information disclosed would be situation-specific, but the APRA generally contemplates as much information as possible.

For example, just the words “traffic stop in 36000 block of Gumwood Road” would not be enough. There would need to be more details regarding the factual circumstances of the case. There may or may not be a victim, but there would be a reason for the stop, i.e. speeding, broken taillight, erratic driving, etc.

This information must be created within 24-hours and placed on some kind of log or report. When the public asks for this ‘log’, law enforcement should give the entire list of required details and not a piecemeal release of information bit-by-bit, so the requestor is continually fishing for descriptions.

Posted by Marcia Oddi on Wednesday, May 18, 2016
Posted to Indiana Government

Tuesday, May 17, 2016

Ind. Decisions - "Judge dismisses Highland lawsuit against Terre Haute"

Howard Greninger of the Terre Haute Tribune-Star is reporting this afternoon:

A federal judge today dismissed with prejudice a lawsuit filed by Highland TH LLC and Overseas Lease Group against the city of Terre Haute, city officials, including Mayor Duke Bennett, and a company that constructed the city's new wastewater treatment facility.

The lawsuit had sought $172 million, alleging the city and its officials had defaulted on an agreement to remove water from waste, using the sludge to produce diesel fuel.

Federal Judge Jane Magnus-Stinson dismissed all eight counts filed against the city and officials, as well as against Plocher Construction Co., which built the wastewater treatment plant. By ruling a dismissal with prejudice, the plaintiffs are barred from filing another case on the same claim; however, they can file an appeal with the U.S. 7th Circuit Court of Appeals.

"We are thrilled with the outcome and it is exactly what we have been arguing from the beginning," said Paul Vink, attorney for the Indianapolis law firm Bose McKinney & Evans, representing Terre Haute.

"We have stated from the outset that the contracts at issue are not valid under Indiana law due to the fact that they lacked a prior appropriation and were illegal investment contracts. The Court agreed with that position, and in so doing, we believe faithfully followed Indiana law. The Court also dismissed with prejudice all non-contract counts, including the fraud and receivership claims that lacked any merit whatsoever," Vink said.

The Trib-Star also includes a link to the 33-page opinion in Highland v. City of Terre Haute. Some quotes, starting at the bottom of p. 10:
Here, Plaintiffs have affirmatively pled themselves out of any possibility of demonstrating that there was an appropriation to cover the City’s obligations under the Agreement by alleging: (1) that revenue for the City’s obligations would come from the agreements with other cities related to sludge treatment; (2) that the Agreement provided this was the source for revenue; (3) that the revenue never materialized; and (4) that, consequently, the City, THWW, and the Board breached their obligations under the Agreement. These facts, which the Court accepts as true at the motion to dismiss stage, show that the Agreement was invalid due to lack of an appropriation. See Atkins, 631 F.3d at 832 (plaintiff’s claim is insufficient when it “plead[s] facts that show that [it] has no legal claim”). In other words, the Court is not finding that Plaintiffs have not adequately alleged there was an appropriation, but rather finds that Plaintiffs have affirmatively pled facts that establish there was no appropriation – a prerequisite for the Agreement’s validity.

Additionally, Indiana law is emphatic that it is the duty of a private party contracting with a municipality to ensure that the municipality has taken the necessary steps to enter into the contract. See, e.g., Cablevision of Chicago v. Colby Cable Corp., 417 N.E.2d 348, 355-56 (Ind. Ct. App. 1981) (“What is certain is that when our laws clearly limit the authority of government officials to act, or when the law clearly prescribes a procedure to be followed, private parties must carefully take note of that limitation or procedure before dealing with a governmental entity…. Similarly, when the public record contains information relevant to the individual’s circumstance, he must seek it out”); Lohrig v. Rochat, 169 N.E. 77, 81 (Ind. Ct. App. 1929) (“It is well established that any person dealing with a municipality, or with municipal authorities…, is bound to know their limited authority to enter into contracts involving the expenditure of public funds….”). Consequently, Plaintiffs’ allegations in the Amended Complaint that Highland relied on Mr. Thompson’s statements in entering into the Agreement are of no moment, and do not excuse Highland or OLG from fulfilling the requirement of an appropriation. Those allegations instead establish that Highland took Mr. Thompson’s word regarding the City obtaining revenue from agreements with other cities which, again, indicates that there was no appropriation.

The Agreement is invalid because Plaintiffs allege facts indicating that there was no appropriation related to the City’s obligations under the Agreement, and the Terre Haute Defendants are entitled to dismissal of Count 1. However, the Court will briefly address an additional argument the Terre Haute Defendants raise in connection with the validity of the Agreement.

Posted by Marcia Oddi on Tuesday, May 17, 2016
Posted to Ind Fed D.Ct. Decisions | Indiana Government

Ind. Decisions - 7th Circuit decides a second Indiana case today

In USA v. Kris Koglin (SD Ind., McKinney), an 8-page opinion, Judge Sykes writes:

Kris Koglin appeals the district court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on the retroactive 2014 amendment to the drug-quantity sentencing guideline. Because the amendment does not have the effect of lowering Koglin’s guideline sentencing range, he is not eligible for a sentence reduction. * * *

Accordingly, the judge correctly concluded that because Amendment 782 does not have the effect of lowering Koglin’s guideline range, he is ineligible for a sentence reduction. AFFIRMED

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

Ind. Courts - More on: Supreme Court creates assessment team to review its entities that now focus on issues involving unrepresented litigation

Recall this ILB post from June 10, 2015 (and this interesting followup from Aug. 4), that announced:

An ad hoc assessment team has been created to review the three Supreme Court entities that predominantly focus on issues involving unrepresented litigation in Indiana. The three entities are:
  1. Indiana Pro Bono Commission
  2. Committee on Unrepresented Litigants
  3. Indiana Commission to Expand Access to Civil Legal Services
* * * The assessment team will provide a written report, with findings and recommendations, to the Indiana Supreme Court by September 1, 2015.
Today the Supreme Court has announced the creation of the Coalition for Court Access, to work on civil legal aid. Here is the 18-page Court order, accompanied by rule changes to implement the creation of the new entity and its work. The new membership list is appended to the order.

Posted by Marcia Oddi on Tuesday, May 17, 2016
Posted to Indiana Courts

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

In Samaron Corp. v. United of Omaha Life Insurance (ND Ind., Lozano), a 6-page opinion, Judge Easterbrook concludes:

From beginning to end, Troyer’s brief rests on the asser tions that Holtz was misled by United and did not know that Troyer was the policy’s beneficiary. That approach commits the legal error of confusing Holtz with Troyer; the corpora tion’s knowledge, not Holtz’s, is what matters. And it com mits the factual error of ignoring what happened at the board meeting, where Buck made sure that everyone present knew that Troyer was legally entitled to the proceeds. If this left Troyer the corporation, or Holtz personally, in a state of confusion, either could have had a lawyer investigate and clear things up. Instead the board elected to let the money go to Buck, and we have explained why the route it took to get there does not matter. AFFIRMED

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

Ind. Gov't. - "Counties under extra pressure after criminal sentencing reforms"

That is the heading to this long editorial today in the Fort Wayne Journal Gazette. It begins:

The Indiana General Assembly took on a tough balancing act when it tackled a criminal sentencing overhaul in 2013. The goal was to make punishments more proportional to the crimes, to ensure the most serious offenders received longer sentences and to keep drug addicts and low-level offenders out of the state corrections system and in more cost-effective community programs.

Three years later, the population of local jails is growing while the numbers at the Indiana Department of Correction are declining. But the cost savings the state planned to pass on to local government haven’t materialized. State officials say it’s still too soon to see savings, but legislative budget leaders would be wise to reconsider the math in case the fiscal calculation was flawed. County government needs time to respond to both growing numbers of offenders and the money needed for housing and treatment.

Niki Kelly’s report last week showed the Department of Correction has seen the number of adult offenders fall by 17 percent since July 2014, when the revised sentencing guidelines went into effect. A second adjustment, keeping the lowest level of offenders out of the state system, went into effect Jan. 1.

The effects are obvious at the local level. The Allen County Jail began nearing its 741-inmate capacity almost immediately. Allen County Sheriff David Gladieux said last month the population of the jail was fluctuating around the maximum number every day. Last year, there were as many as 100 empty beds. The jail has some flexibility in housing inmates in a transitional “lock-up” area, and in housing three inmates in cells built for two.

Marion County, however, is in “crisis mode,” according to Sheriff Louis Dezelan. The three jails there would have surpassed maximum capacity had the Marion County Sheriff’s Office not moved inmates to Elkhart County and to jails in Kentucky.

The conclusion:
The General Assembly’s goals in 2013 were worthy, but implementation is the key. The budget calculations that determined cost savings at the Department of Correction level could pay for grants to local government might have been too optimistic. Legislative leaders need to act immediately to ensure resources are available. If the goal was to keep low-level offenders in the community, with less-costly services, it makes no sense for Marion County to be forced to transfer inmates out of state or even to Elkhart County.

Even more troubling is the continuing pressure to build more state prison cells. Lawmakers might have miscalculated the effect of giving judges more discretion in sentencing. If judicial officials aren’t comfortable with alternatives to prison, it’s time to take another look at sentencing reform.

Here is Niki Kelly's May 13th FWJG story, headed "No savings seen yet in state prisoner shift." Some quotes:
INDIANAPOLIS – The Indiana Department of Correction is enjoying a steady drop in the number of adult offenders at the same time local jails are seeing an increase.

The shift is part of a plan by lawmakers to revise the sentencing system and divert low-level offenders out of prison and into local jails or programs.

But the state apparently isn’t saving any money – cash that was supposed to be passed on to help local units of government with increased costs.

“Not enough time has passed to be able to determine what cost-savings have been achieved at this time,” DOC Chief Communications Officer Doug Garrison said. “We will carefully monitor this as the months go on and try to gauge what, if any, savings can be realized after this law has had time to go into effect.”

Monthly snapshot reports on the DOC population show since Jan. 1 the adult population has dropped by 617, or 2.3 percent. Since July 1, 2015, the DOC population has dropped by more than 1,100 or 4 percent.

Overall, the reduction is more than 5,000 inmates – or 17 percent – since the initial law went into effect in July 2014.

Part of the drop is due to reconfiguring sentences so that non-violent offenders serve less time and violent offenders serve more. And part is due to the Department of Correction no longer accepting Level 6 felonies – the lowest category – as of Jan. 1.

Rep. Greg Steuerwald, R-Avon, said by the end of the year the drop should be 5,700 inmates.

“Eventually, if this population holds we would have to look at closing a DOC facility,” he said, although DOC is yet to report any savings. And the department last year was asking the legislature for tens of millions to build another prison.

Meanwhile, some local jails – especially in urban areas – are seeing an uptick in holding the Level 6 offenders they are now statutorily required to house rather than DOC. That number has jumped from 342 at the beginning of the year to more than 1,000.

See also this May 10th ILB post, "Overcrowding puts Marion County Jail in 'crisis mode,'" and this May 13th story from the Goshen News, reported by John Kline, headed "New influx of Marion County inmates could mean big payday for Elkhart County: Sheriff says 141 prisoners from Indy area will bring in an extra $2M in revenue."

Posted by Marcia Oddi on Tuesday, May 17, 2016
Posted to Indiana Government

Law - New stories on secret stringray cellphone tracking

Adding to the ILB's long list of stories on secret stringray cellphone tracking, here are two recent additions:

Posted by Marcia Oddi on Tuesday, May 17, 2016
Posted to General Law Related

Ind. Gov't. - "Two Indianapolis Public Schools employees will appear in court Tuesday on charges they failed to report sexual abuse allegations involving a school counselor" [Updated]

That is the lede to this story this morning by Vic Ryckaert of the Indianapolis Star. More:

[The two] are scheduled to appear for initial hearings on misdemeanor counts of failure to make a report. The hearings begin 9 a.m. Tuesday before Marion Superior Judge Linda Brown.

Prosecutors say [the two] knew about allegations of abuse against school counselor Shana Taylor as early as Feb. 17 but the abuse went unreported for about a week, according to court records. * * *

At least seven school officials knew about allegations against Taylor as early as Feb. 17, but no one reported them to DCS until Feb. 23, according to court records and interviews. None of the other five have been charged.

[Updated at 4:20 PM] "IPS officials won't serve time after failing to report abuse" is the headline to this story posted by Marisa Kwiatkowski of the IndyStar earlier this afternoon. A quote:
The Marion County prosecutor's office has reached agreements with the two Indianapolis Public Schools officials accused of failing to report suspected child abuse. * * * [E]ach faced a misdemeanor count of failure to make a report, Marion Superior Court records state. On Tuesday, they both agreed to pretrial diversion, meaning their misdemeanors will be dismissed as long as they don't commit another offense within six months.

Posted by Marcia Oddi on Tuesday, May 17, 2016
Posted to Indiana Government

Ind. Gov't. - "Crossing the Line: Judicial selection"

In March the ILB highlighted a Dan Carden weekly NWI Times column, "Crossing the Line," comparing and contrasting Indiana/Illinois legal/governmental requirements. Then it was the Governor's veto in each state.

Last weekend it was judicial selection in Indiana and Illinois.

Posted by Marcia Oddi on Tuesday, May 17, 2016
Posted to Indiana Government

Monday, May 16, 2016

Courts - SCOTUS asks lower courts to continue working on ACA birth control mandate

Updating this post of Sept. 18, 2015 quoting a Lyle Denniston SCOTUSblog piece on how the federal appeals courts were now officially split:

Enhancing the likelihood that the Supreme Court will soon take up the legality of the Affordable Care Act’s birth control mandate, a federal appeals court on Thursday differed with six others and temporarily barred the government from enforcing the mandate. That outcome came in two decisions by the U.S. Court of Appeals for the Eighth Circuit.

These cases, and seven others already pending at the Supreme Court, are sequels to the Supreme Court’s ruling last year in Burwell v. Hobby Lobby Stores. That case involved a for-profit business, but this new round of cases involves charities and non-profit operators of businesses, colleges, and schools. All have religious objections to some of the contraceptives mandated by the ACA.

The lead case in the appeal was Zubik v. Burwell and today the SCOTUS acted. Here is Lyle Denniston's opinion analysis, headed "A compromise, with real impact, on birth control." A quote:
The Court largely shifted to six federal appeals courts the task of ruling on the mandate’s legality — the task that the Court had agreed last November to take on itself in seven of the cases. Five appeals courts had ruled in favor of the mandate, and one had ruled against. All were ordered to re-think those outcomes in the wake of new positions that the two sides in the controversy had made in recent filings in the pending Supreme Court cases.
How Appealing has collected other major stories, including Adam Liptak's NYT report, headed ""Justices, Seeking Compromise, Return Contraception Case to Lower Courts"."

Posted by Marcia Oddi on Monday, May 16, 2016
Posted to Courts in general

Ind. Law - "State-Mandated Mourning for Aborted Fetuses"

The Atlantic has a lengthy May 14th story by Emma Green sub-headed: "A new Indiana law is part of a wave of legislation that requires burial or cremation following abortions. What’s behind it?" Here are a few quotes:

Here’s what will happen after a woman gets an abortion in the state of Indiana, starting this July. She will be told, verbally and in writing, that she has the right to choose what she does with her aborted fetus. She will be given a list of her options for disposal, and offered counseling. The fetus does not have to be named, but it will receive its own burial-transit form, just like any dead body. This form will travel with it to a funeral home, where it will be buried or cremated. There won’t necessarily be a ceremony; the fetus may not get its own headstone or urn. But it will be laid to rest in the way of a human. Aborted fetuses in Indiana, nearly all smaller than a peapod, will no longer be treated as medical waste. * * *

Burial and cremation laws in the United States vary widely. States create their own rules, and though national lawmaking bodies have created some standard guidelines for organ and tissue donation, many legislatures have devised their own versions of these laws. In general, this is a somewhat murky area, said Tanya Marsh, a law professor at Wake Forest University. “The question of what we own of ourselves—what is the legal status of biological material that’s been removed from us—there’s very little law about that, except to say that it’s not ours,” she said. When someone’s arm is amputated or her kidney is removed, those body parts enter a sort of gray zone of legal ownership: The body parts don’t exactly belong to the person they came from, and are effectively considered abandoned.

For fetuses, the question of ownership becomes even more complicated. “That’s an area in between people born alive and a part of a person that had no capability of independent existence,” Marsh said. “These are deep philosophical, religious, and legal questions that we’ve punted.”

Posted by Marcia Oddi on Monday, May 16, 2016
Posted to Indiana Law

Vacancy on Supreme Court 2016 - How long will the seat remain vacant?

Judge Loretta Rush was named by Gov. Daniels to the Supreme Court on Sept. 14, 2012. According to this Nov. 2, 2012 ILB post, she planned to take the:

... oath of office as Indiana’s 108th Supreme Court Justice on November 7th. The private oath will be administered by Chief Justice Brent E. Dickson. A public, formal swearing-in ceremony will take place December 28th.
So it was nearly two months after her selection in mid-Sept. And the seat had been vacant since the end of August 2012 with Justice Sullivan's resignation.

Geoffrey Slaughter was named to the Court by Gov. Pence last week, on May 9th, and according to a quote from a story by Niki Kelly in this ILB post:

Slaughter said he has to wrap up his private law practice at Taft Stettinius & Hollister and hopes to be sworn in between June 1 and July 1.

Posted by Marcia Oddi on Monday, May 16, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - Transfer list for week ending May 13, 2016

Here is the Clerk's transfer list for the week ending Friday, April 15, 2016. It is two pages (and 19 cases) long.

One transfer was granted last week:

In addition, there were two cases last week where transfer was denied by a 2-2 vote:

Posted by Marcia Oddi on Monday, May 16, 2016
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (1):

In BSA Construction LLC v. Jimmie E. Johnson, a 13-page opinion, Judge Bailey writes:

BSA Construction, LLC (“BSA”) entered into an agreement to sell residential real estate to Lilia Lopez (“Lopez”). Lopez obtained financing from Bank of America (“the Bank”), pending the Bank’s final approval upon appraisal of the property. The Bank contracted with LandSafe, an appraisal agency, which in turn retained Jimmie E. Johnson (“Johnson”) to conduct the appraisal. Based upon Johnson’s appraisal, the Bank refused to extend financing. BSA sued Johnson, alleging negligence, fraud, and slander of title. Johnson sought summary judgment on all of BSA’s claims, and the trial court granted the motion. BSA now appeals. We affirm. * * *

LandSafe retained Johnson to perform the appraisal of the property. Johnson appraised the real estate at a value of $50,000, $10,000 less than the agreed-upon sale price. As a result of the appraisal, the Bank declined to extend Lopez financing to purchase the property. * * *

On September 26, 2011, BSA filed suit against Johnson in Hendricks County, articulating theories of relief based in negligence of a professional to a third party, fraud, slander of title, and statutory causes of action for deceptive practices associated with a home loan transaction. Johnson sought a change of venue, and by the parties’ stipulation the case was transferred to Marion County on March 14, 2012. * * *

[Negligence] Johnson’s duty was to the Bank and as a matter of law cannot—because of the contradictory interests at issue—have extended to BSA. And because Johnson had no duty of care toward BSA, BSA had no basis upon which to rely on Johnson’s opinion. * * *

[Fraud] Nevertheless, BSA insists that it was defrauded, advancing an upside-down theory of fraud. Rather than fraud resulting from action taken in reliance upon representations already made, BSA suggests that the purportedly fraudulent representation may come after reliance—in this case, entering into the sales agreement—has already occurred. We thus decline to adopt the approach BSA suggests. * * *

[Slander of title] Here, BSA has not made an allegation that Johnson impugned BSA’s claim of title to the real estate. Further, the undisputed facts show that Johnson concluded that the real estate had a value different from that which BSA sought to obtain in a sale. This is not, however, the same as making a statement concerning the very fact of BSA’s ownership; it is the fact of ownership that the tort of slander of title protects, not the monetary value per se of the ownership interest. We accordingly find no error in the trial court’s conclusions concerning BSA’s claim of slander of title.

Conclusion. The trial court did not err when it granted summary judgment to Johnson on BSA’s claims for negligence, fraud, and slander of title.

NFP civil decisions today (1):

In the matter of Se.G. and So.G.: R.N. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (1):

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

Posted by Marcia Oddi on Monday, May 16, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Oral argument set before Tax Court in first big-box/dark box appeal

"Tax court to consider local CVS assessments" is the headline to this story today by Ernest Rollins of the $$ Bloomington Herald-Times.

This is not the first big box/dark box appeal to be heard by the Tax Court. That occurred Jan 15th, in the Kohl's Howard County appeal - details here.

A few quotes from today's H-T story:

The Indiana Tax Court will hear oral arguments on Thursday concerning Monroe County’s appeal of an Indiana Board of Tax Review decision regarding tax assessments of a Bloomington CVS store.

Last year, the nationwide pharmacy chain’s store on North College Avenue appealed county assessments from 2009 to 2013 and won. If that ruling is upheld, it could mean the county has to pay a refund projected to be more than $150,000.

The decision was the first of three, so far, with CVS stores on West Third Street near College Mall in Bloomington and on Ind. 46 in Ellettsville also filing appeals. County Assessor Judy Sharp said all the CVS stores in the county are appealing assessments except the new store on Kirkwood Avenue. * * *

Sharp said in the College Avenue store case before the court, “dark box” data was used as part of the appraisal process for the CVS store site. Ross said “dark box” is a term for vacant properties whose inventory has been removed after the business has shut down.

See more on the upcoming argument here.

Posted by Marcia Oddi on Monday, May 16, 2016
Posted to Ind. Adm. Bd. Decisions | Ind. Tax Ct. Decisions | Indiana Courts

Ind. Gov't. - "Why Historic Preservation Districts Should Be a Thing of the Past"

CityLab, part of the Atlantic Monthly group, published an article by Kriston Capps on Jan. 29th that is sure to be controversial. A sample from the long article:

Certain buildings tend to be ideal candidates, categorically, for historic preservation. They are our churches, museums, theaters, libraries, and other civic and cultural buildings (parks and landscapes, too)—things that define a community. Historic preservation guarantees that these resources survive calamities like economic downturns, irresponsible stewards, and passing fads, as well as the biting passage of time.

Houses, on the other hand, are often poor candidates for historic preservation. This may be a bitter pill to swallow for people who love residential architecture (as I do). Historic homes and neighborhoods can be immensely significant, culturally and architecturally. But houses belong to owners, and in the U.S., the tried-and-true way to build wealth is to acquire real estate. Historic homes, typically gorgeous single-family homes, are often powerful assets.

So when local- and state-government bodies grant preservation status to historic districts—sometimes entire neighborhoods—they do not always simply protect culture, architecture, and history. Sometimes they also shore up wealth, status, and power.

The Republican Party is waging a fierce campaign against historic preservation in the Midwest. On Tuesday, conservative lawmakers in Michigan proposed an amendment to the state’s 1970 Local Historic Districts Act, the law that provides for establishing historic districts. The amendment would make it more difficult to form historic districts and add a “sunset” clause that would cause historic designation to lapse every 10 years, among other changes.

Historic preservation authorities are apoplectic. “Local historic districts are the only way for communities to manage and protect their historic assets, and 78 communities to date have chosen to enact ordinances to protect their historic assets at the local level, under current state law,” reads a summary statement from the Michigan Historic Preservation Network.

Michigan lawmakers may have picked up the idea from Wisconsin, where Republican legislators proposed a bill in December that would prevent municipalities from designating a property as historic over the consent of its owner. The bill drew significant pushback from across the state, prompting GOP lawmakers to soften its language earlier this month. The purported purpose of the act is to expand property rights in Wisconsin.

There are currently 173 comments.

Posted by Marcia Oddi on Monday, May 16, 2016
Posted to Indiana Government

Ind. Gov't. - "Volatile malpractice fees frustrate doctors, hospitals"

John Russell of the IBJ has a long, deep story in this week's issue on the Indiana Patient’s Compensation Fund. A sample:

Indiana has paid a total of $2.4 billion in medical malpractice awards since the fund was created in 1975, including more than $100 million a year every year since 2008.

And that could rise. A law that takes effect in July 2017 will raise the cap on malpractice awards from $1.25 million to $1.65 million—the first increase in nearly two decades. [ILB: more about the new law]

The fund, administered by the Indiana Department of Insurance, is still solvent, with a balance of more than $118 million as of Jan. 1. But the balance has dipped as low as $4.3 million in 2003, and has surged as high as $189 million in 2009.

And while the state continues to write big checks to malpractice victims and families, the fees paid by hospitals and physicians haven’t kept up. The fund has rung up annual losses in 10 of the last 18 years.

When the balance dips, the Insurance Department tries to replenish the fund by raising rates. Last year, after another double-digit increase in fees, the fund scored a small surplus of $4.9 million, following losses in four of the previous five years.

The fund acts as pooled risk, providing insurance protection to health care providers and compensation to patients in cases of medical negligence. Under the system, doctors and hospitals, through their insurance companies, are responsible for paying for the first $250,000 of any award. The state fund pays any excess, up to $1 million.

The unusual combination of caps and a statewide pool helps keep liability low for doctors and hospitals. In turn, that keeps their malpractice insurance rates low.

A sidebar explains how the fund works.

Posted by Marcia Oddi on Monday, May 16, 2016
Posted to Indiana Government

Ind. Gov't. - "St. Joseph Co. candidate nominated by two parties for one seat"

Jeff Parrott reported this weekend in the South Bend Tribune in a long story that includes:

[Gerald] Arthus, of Mishawaka, has been nominated by two different political parties for the Nov. 8 general election ballot, and he wants to challenge a state law requiring him to pick a party by July 15.

In the May 3 Primary Election, Arthus narrowly won the Republican nomination for the Indiana Senate District 10 seat, edging St. Joseph County GOP chair Roy Saenz by just 59 votes. Ten days earlier, the Indiana Libertarian Party had also nominated Arthus for the office at its convention.

But Brad King, Republican co-director of the Indiana Election Division, said Indiana statute allows a candidate to appear on the ballot as only one party’s nominee, and he must choose that party by July 15. If he fails to do so, he will be required to run only as a Republican because that nomination came from a popular vote, King said.

King said he couldn’t comment further specifically about Arthus’ case because Arthus has threatened litigation. But speaking generally, King said courts have repeatedly upheld the constitutionality of so-called “anti-fusion” laws, which exist in the vast majority of states.

In January 1997, the U.S. Court of Appeals’ 7th Circuit in Chicago affirmed Indiana’s law in Stewart v. Taylor, King noted. In that case, Robbin Stewart had won the Republican primary for a Center Township board seat in Marion County, six days after the Libertarian Party had nominated him for the same seat.

There is much more in the story.

Posted by Marcia Oddi on Monday, May 16, 2016
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 5/23/16):

Thursday, May 26

Webcasts of Supreme Court oral arguments are available here.


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

Next week's oral arguments before the Court of Appeals (week of 5/23/16):

Monday, May 23 ILB: The ILB has had a number of posts relating to the Purvi Patel appeal of her feticide and child neglect conviction. Here is the appellant's brief in Patel v. State, filed Oct. 2, 2015, and here is the brief of the appellee, the State of Indiana, filed Dec. 9th. Access the docket here, at least 29 organizations and individuals are listed as "Friend of the Court."

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

Past Court of Appeals oral arguments which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, May 16, 2016
Posted to Upcoming Oral Arguments

Friday, May 13, 2016

Ind. Decisions - "Homeowner prevails in Dyer vinyl siding spat"

The NFP, 3-opinion decision the ILB highlighted earlier today ("Why is this NFP"), Castlewood Property Owners Association, Inc. v. Leticia Guerra-Danko (mem. dec.), is the subject this evening of a story in the NWI Times by Doug Ross Dan Carden. A sample:

The association claimed Guerra-Danko's use of vinyl siding violated an informal prohibition on the product in the subdivision, as well as a protective covenant aimed at preserving neighboring property values that requires preapproval of exterior home alterations.

Judge John Baker said since the vinyl siding ban was not in writing and the association presented no evidence Guerra-Danko's siding is aesthetically problematic or likely to economically harm her neighbors, the association's order to remove it was unreasonable under state law.

Judge Melissa May concurred with Baker's ruling in favor of Guerra-Danko, but she said the case is simpler than Baker made it out to be since the covenant, which is a contract, is silent on the use of vinyl siding.

Posted by Marcia Oddi on Friday, May 13, 2016
Posted to Ind. App.Ct. Decisions | Why is this NFP?

Ind. Decisions - "Storing babies' blood samples pits privacy versus science"

The April 19th Court of Appeals ruling in A.B.Doe v. State Health Commissioner (ILB summary here), which was the subject of a long April 22nd story by Deborah Hamilton in CharismaNews ("Breaking News. Spiritual Perspective"), headed "Court Ruling Strikes a Blow Against the Protection of Baby DNA," is today featured in another story, this one by Rick Callahan of the AP. A few quotes from his long, comprehensive report:

Ellie is among some 4 million newborns in the United States who will have blood drawn this year to screen them for serious inherited diseases such as sickle cell anemia, which can cause organ damage, and the metabolic disease phenylketonuria, or PKU, which can lead to mental disabilities. * * *

But what happens to the dried blood samples on those cards after the testing that's mandatory in all 50 states is completed has sparked legal battles in some states. Minnesota and Texas have destroyed some 6.4 million samples following lawsuits. And in Indiana, the parents of a 9-year-old suburban Indianapolis girl are seeking the same for up to 2.5 million samples collected over two decades and stored in 600 boxes at a state warehouse.

"Her parents' main concern is that down the road who knows what could happen with these samples?" said Jonathan Little, an attorney for parents of the girl, identified in court documents only as A.B. Doe.

The case poses a dilemma: How can society balance the right to privacy with the needs of science and medical research?

The Indiana lawsuit was dismissed by a trial court last year and in April by the Indiana Court of Appeals. Both courts found the girl was in no imminent danger of suffering harm from the state holding onto her sample. Her attorneys plan to appeal to the Indiana Supreme Court next week.

In an era of increasingly sophisticated genetic analysis, some privacy advocates fear insurance companies could access blood samples and charge higher premiums for people found to have a genetic predisposition to diseases such as Alzheimer's. * * *

Attorneys for Indiana say the 2.5 million blood samples at the heart of the pending lawsuit won't be used for medical research, but argue the state has an interest in holding onto them, such as for evidence in missing persons or medical malpractice cases.

Posted by Marcia Oddi on Friday, May 13, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Hog farm discussion draws crowd at Miami County Plan Commission meeting"

Following on the ILB post from earlier today, "White County CAFO Rule Would Join Patchwork Of Regulations," Indiana Economic Digest has reprinted two stories on the impact of hog farms in Miami County.

The first story, from the Peru Tribune, reported by Dan Herda, begins on an entirely different note than the White County story:

The Miami County Plan Commission’s Wednesday meeting was relocated to Circuit Court after more than 100 people showed up to speak to the Board about their positions on either changing the ordinances related to hog barns or keeping them the same.

Circuit Court’s seats were filled row to row, as was the area behind the seating from the back row to the doors, with dozens of people also in the left and right aisles standing wall to wall.

Board Attorney Pat Roberts spoke to the large gathering several times during the meeting, saying “we have it looks like more than 100 people here” and also said the argument residents had regarding the idea that the hog farms are contaminating the water should be taken up with Indiana Department of Environmental Management.

“I am not saying you are right or wrong, but you have to address it to them to get the enforcement of their own rules, regulations, statutes,” Roberts said.

Roberts said the Board of Commissioners and Plan Commission cannot get involved with an argument with the state and suggested that concerned parties should sign their names on a petition and send it to IDEM.

“I suspect that a lot of people feel like they are in danger by some complaint that has been made, but it is not on the agenda tonight,” Roberts said. “We can’t start something here unless it is proposed. For all of you here, you can always come back and bring it before these folks, but not tonight. In all fairness, with all of you folks here, somebody has told somebody something and I don’t know why everybody came tonight because it was not on the agenda.”

Roberts further said that the Commission cannot change county ordinances or regulations on hog barns because of a complaint by one or more residents. He added that some people in the crowd had attended to make sure that hog farming does not change.

“I assume some of you are here to make sure that hog farming stays the way it has always been and the gentleman over here is saying that it is a nuisance to him,” Roberts said.

The second, very long story, by Carson Gerber of the Kokomo Tribune, is headed "Miami County grower worries new hog barns will hurt his produce business."

Posted by Marcia Oddi on Friday, May 13, 2016
Posted to Environment | Indiana Government

Ind. Gov't. - "Big-box property tax assessment appeals could cost Merrillville millions"

The ILB has a long list of earlier posts on the big box/dark box property tax assessment issue.

From the NWI Times, a story by Charles F. Haber, here reprinted by the Indiana Econimc Digest, that begins:

MERRILLVILLE — Town officials have learned how devastating pending property tax assessment appeals could be if they are successful.

Bob Swintz, a town financial adviser, created a report looking at four of the largest big-box appeals being sought in town.

Big-box stores are basing appeals on the value of vacant stores. Swintz told town officials Meijer, Menards, Lowe's, and Costco all have pending appeals for their locations in Merrillville. Each of the appeals is in various stages and some go back several years.

If those appeals are successful and the assessed values of those properties drop by 35 percent, Merrillville would owe refunds of $1.3 million to Meijer, $747,000 to Menards, $1.06 million to Lowe's and $103,000 to Costco. Swintz said those amounts don't include interest.

It's unknown at this time if the appeals will be approved or how much the assessed values of the properties would decrease. The amounts associated with the 35 percent reductions are currently being viewed as worst case scenarios, town officials said.

Posted by Marcia Oddi on Friday, May 13, 2016
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (1):

In David Simons v. State of Indiana, a 4-page opinion, Judge Pyle concludes:

Here, as in Hines, Simons has not alleged that he was prejudiced or harmed by the trial court’s failure to advise him of his earliest release date and maximum possible release date. Although the trial court did not make the advisement as set forth in INDIANA CODE § 35-38-1-1(b), such failure was harmless error. See, e.g., Hines, 856 N.E.2d at 1284-85. Nonetheless, when a statute uses the word “shall” it is considered “mandatory language creating a statutory right to a particular outcome after certain conditions are met.” Taylor v. State, 7 N.E.3d. 362, 365 (Ind. Ct. App. 2014). As a result, such an advisement is statutorily required when a sentence is pronounced by Indiana’s trial courts. Each case is different, and the facts of another case might not lead to the same harmless error result. But here, we affirm Simons’ sentence.
NFP civil decisions today (3):

Jenny R. (Willison) Eggerling v. Anthony Willison (mem. dec.)

Joan Dumoulin v. Daniel Dumoulin, Sr., and Daniel Dumoulin, II (mem. dec.)

Castlewood Property Owners Association, Inc. v. Leticia Guerra-Danko (mem. dec.) is a 16-page, 2-1, 3-opinion decision re "a homeowner in the Castlewood subdivision who added siding to her home before obtaining approval from the Architectural Review Committee (ARC) and refused to remove it after the ARC refused to approve the siding." It has been added to the ILB's "Why is this NFP?" category.

NFP criminal decisions today (6):

Robert A. Murphy v. State of Indiana (mem. dec.)

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

Michael Wayne Wise, Sr. v. State of Indiana (mem. dec.)

Wayne E. Mitchell v. State of Indiana (mem. dec.)

James M. Lierl v. State of Indiana (mem. dec.)

Andre Thomas v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, May 13, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "White County CAFO Rule Would Join Patchwork Of Regulations"

Annie Ropeik and Nick Janzen have the long WBAA Purdue NPR story, posted yesterday. It presents outstanding coverage of this issue. Read or listen (4:26); here are a few quotes:

White County is on its way to passing the state's first rule for protecting a waterway from big livestock farms. It's designed to shield the Tippecanoe River Basin and its residents from pollution and farm odors.

The path to creating the rule shows just how complex big agriculture issues can be in Indiana. * * *

It makes a lot of financial sense for a farmer to consolidate with CAFOs. But they have their downsides for surrounding residents -- potential side effects like the bacteria and flies Neumann was worried about, plus the smell of 4,000 hogs or 200,000 broiler chickens.

That's why Neumann and his neighbors set out to fight the CAFO off. But they didn’t have a lot of legal ground to stand on. The farmer proposing the CAFO was Greg Rice, another Monticello resident, who wanted to build on his family's own land. * * *

“It would’ve been a very good way for us to go," he says. "Not only were we gonna get some income from the pigs themselves, but we were gonna have the manure value.”

That means instead of having to buy fertilizer for his crops, Rice could have spread the manure from the pigs he wanted to raise onto his fields.

But neighbors pushed back on the plan, setting off an eight-month battle before the area planning commission. * * *

Residents argued for a big distance between CAFOs and the lakes, and county officials wound up agreeing. They're expecting to finalize a mile and a half buffer zone rule by July -- denying Greg Rice's CAFO in the process. * * *

"That's something that other areas need to really start paying attention to and focusing on," Woods says. "Because the stuff that goes in that water goes downstream."

Flowing from the Ohio and then Wabash Rivers, the Tippecanoe runs through eight counties with more than 300 CAFOs and 4 million farm animals between them. But they all have really different regulations, and no one else's rules directly protect the river.

So even if White County does prevent runoff, other sources can still put it into their water.

Posted by Marcia Oddi on Friday, May 13, 2016
Posted to Environment | Indiana Government

Ind. Courts - Chief Judge Young, SD Indiana, proposes mandatory pro bono rule today

Here is the just posted page on the Southern District of Indiana web site, presenting "Proposed Local Rule 87 - Representation of Indigent Litigants."

Here the the 6-page Rule and Comments. The drafter's notes begin:

Proposed Rule 87 is introduced for consideration and comment out of necessity.

The Southern District of Indiana has an especially high volume of pro se and prisoner litigants. Over half of the district’s civil case load is initiated pro se, and over half of the pro se cases are brought by prisoners. This requires the court to frequently recruit counsel to represent pro se litigants pursuant to 28 U.S.C. § 1915(e)(1).

In recent years, the Seventh Circuit has increasingly emphasized that § 1915(e)(1) requires district courts to recruit counsel for pro se litigants in a significant proportion of pro se cases, especially in complex cases brought by prisoners. See, e.g., Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015); Henderson v. Ghosh, 755 F.3d 559 (7th Cir. 2014). Moreover, the Seventh Circuit has stated that “courts should strive to implement programs to help locate pro bono assistance for indigent litigants,” Perez v. Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015), and noted that the “mandatory nature” of the Northern District of Illinois’s program makes it superior to strictly voluntary programs, Dewitt v. Corizon, Inc., 760 F.3d 654, 659 (7th Cir. 2014).

The proposal ends:
Comments concerning the proposed rule amendment are welcome. Comments must be submitted in via email or in writing on or before June 12, 2016.
The main page also indicates there is a FAQ, but the link currently does not work.

Posted by Marcia Oddi on Friday, May 13, 2016
Posted to Indiana Courts

Ind. Courts - "Special court gives veterans a second chance"

Veterans courts run by Lake Superior Judge Julie Cantrell and Porter Superior Court Judge Julia Jent are featured in a story this week by Elvia Malagon of the NWI Times.

Posted by Marcia Oddi on Friday, May 13, 2016
Posted to Indiana Courts

Thursday, May 12, 2016

Why is this NFP? - Casino slip and fall reversal today

Today's Court of Appeals reversal in Cheryll Lee v. Blue Chip Casino LLC (mem. dec.) (ILB summary here, 5th case) has been added to the ILB's "Why is this NFP?" category.

Posted by Marcia Oddi on Thursday, May 12, 2016
Posted to Why is this NFP?

Ind. Gov't. - "Spring Grove Town Board Member Claims Colleagues' Seats Have Been Vacated" [Updated]

Kicks96 Richmond has the brief item, reported by Jeff Lane. A sample:

Board member Ben Lukacek claims that the town’s other four board members failed to file their oaths of office and, according to Indiana law, it vacates their seats on the board. This week, according to Lukacek, the board held a vote to decide if they had violated any law. They found themselves not guilty.
[Updated 5/13/16] A story today from Kick96 reports:
Attorney Andrew Sickmann said in a written statement that the board members were all holdovers, so no oaths of office were necessary. Sickmann added that the issue was reviewed by the clerk of courts of Wayne County.

Posted by Marcia Oddi on Thursday, May 12, 2016
Posted to Indiana Government

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

For publication opinions today (4):

In In the Matter of F.S., T.W., M.F., and B.F. (Minor Children) v. Ind. Dept. of Child Services for Crawford County , a 32-page opinion, Judge Robb writes:

B.S. (“Mother”) appeals the trial court’s order, based on authority granted by Indiana Code section 31-33-8-7, compelling her to allow the Crawford County Department of Child Services (“DCS”) to interview two of her children. She contends the statute is unconstitutional as applied to her because it allowed the trial court to compel the interviews based solely on the uncorroborated accusations of an undisclosed informant, violating her substantive and procedural due process rights. Concluding the statute as applied in this case violated Mother’s right to raise her family free from undue interference by the State, we reverse. * * *

The statutes on which DCS based its request to control Mother’s conduct by compelling her to submit the Children to interviews by DCS require DCS to show some evidence suggesting abuse or neglect before the trial court may issue such an order. No such evidence was presented to the trial court in this case, and the order issued pursuant to Indiana Code section 31-33-8-7 is reversed.

In Philip D. Kyle v. State of Indiana , a 13-page opinion, Judge Pyle writes:
Philip D. Kyle (“Kyle”) appeals his two convictions for Class C felony child molesting. On appeal, he argues that the trial court abused its discretion when it: (1) admitted an audiotape of phone conversations he had with the victim’s mother from jail; and (2) allowed the victim’s mother to testify that she was convicted of assisting a criminal as a result of trying to convince the victim to change his story. He asserts that the phone conversations were inadmissible under Indiana Evidence Rule 404(b) and that the testimony was inadmissible under Evidence Rule 704(b). However, we conclude that the trial court did not abuse its discretion because the phone calls and the victim’s mother’s testimony concerned conduct inseparable from Kyle’s offense, and their highly probative nature outweighed the risk of unfair prejudice to Kyle.
In Mary Osborne v. State of Indiana, a 20-page, 2-1 opinion, Judge Riley writes:
Appellant-Defendant, Mary Osborne, appeals the trial court’s denial of her motion to suppress. We reverse and remand.

Osborne raises one issue on interlocutory appeal, which we restate as follows: Whether the warrantless seizure of Osborne violated the Fourth Amendment to the United States Constitution or Article 1, Section 11 of the Indiana Constitution. * * *

The trial court noted that “[o]ne exception [to the warrant requirement] is the noncriminal, noninvestigative community caretaking function, which is used with caution in order to ensure that it is not used as a pretext for a criminal investigation.” The trial court concluded that “Officer Arnold stopped [Osborne’s] vehicle as part of his ‘community caretaking’ function”; therefore, the warrantless seizure did not run afoul of either the federal Constitution or the Indiana Constitution. * * *

The community caretaking function “is a narrow exception to the privacy protections of the Fourth Amendment.” Killebrew, 976 N.E.2d at 782. In Indiana, it has been applied as an exception to the warrant requirement only in cases where the police must conduct an inventory search because they are impounding a vehicle. * * *

Like the “majority of state courts throughout the country” that have adopted the community caretaking exception, we recognize that law enforcement officers do have community safety and welfare duties beyond their criminal investigatory duties. Smathers, 753 S.E.2d at 384. Accordingly, we find that the community caretaking function exception may be used as a means of establishing the reasonableness of a traffic stop under the Fourth Amendment. We further find that the three-pronged test utilized by Wisconsin “provides a flexible framework within which officers can safely perform their duties in the public’s interest while still protecting individuals from unreasonable government intrusions.” Id. at 386. We now apply this test to the specific facts of Osborne’s case. * * *

Based on the foregoing, we conclude that the community caretaking function of police officers may apply to justify a traffic stop where the officer does not otherwise observe a traffic violation or have a reasonable suspicion that criminal activity is afoot. However, based on the facts of this case, we conclude that the exercise of Officer Arnold’s community caretaking function was not reasonable and, therefore, violated Osborne’s Fourth Amendment rights. Reversed and remanded.

Pyle, J. concurs
Kirsch, J. dissents without separate opinion

In Brandon T. Black v. State of Indiana, a 26-page opinion, Judge Brown writes:
Brandon T. Black appeals the denial of his petition for post-conviction relief. Black raises two issues which we consolidate and restate as whether the post-conviction court erred in denying his petition for relief. We affirm.
NFP civil decisions today (3):

In Cheryll Lee v. Blue Chip Casino LLC (mem. dec.), an 8-page opinion, Judge Bradford writes:

Appellant-Plaintiff Cheryll Lee slipped and fell as she was entering Appellee-Defendant Blue Chip Casino’s establishment. Lee brought suit claiming that Blue Chip was negligent for maintaining an unreasonably dangerous premises and failing to warn her that the area in front of the entrance was slick and dangerous. The trial court awarded summary judgment in favor of Blue Chip finding that the area on which Lee slipped was not unreasonably dangerous because it was outdoors and wet due to rainwater, and that any potential hazard was open and obvious. We reverse. * * *

Determining whether Blue Chip’s entryway posed an unreasonable risk, and whether that risk was open and obvious, are factual questions left to the trier-of-fact. We again note that summary judgment is generally disfavored as an alternative to trial, particularly in fact-sensitive negligence cases. See Simon Prop. Grp., L.P. v. Acton Enterprises, Inc., 827 N.E.2d 1235, 1240 (Ind. Ct. App. 2005); see also Harradon, 913 N.E.2d at 300. Because there is a genuine issue of material fact regarding whether Blue Chip breached its duty of care, we find that the trial court’s award of summary judgment was inappropriate.

Richard Hermida v. Cynthia Hermida (mem. dec.)

Luis Rivera v. American Fibertech (mem. dec.)

NFP criminal decisions today (1):

Thomas Dullen v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, May 12, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Senate Judiciary Committee sets Winfield D. Ong hearing

The Senate Judiciary Committee, per this agenda for May 18th, has scheduled a hearing for Winfield D. Ong, nominated by President Obama to be United States District Judge for the Southern District of Indiana.

Although Wisconsin attorney Donald Karl Schott, nominated to be United States Circuit Judge for the Seventh Circuit, is also on the agenda (see Milwaukee Journal-Sentinel story), Myra Selby, former Indiana Supreme Court nominated by Obama to serve on the U.S. 7th Circuit Court of Appeals (filling the Tinder vacancy), is not yet scheduled.

Posted by Marcia Oddi on Thursday, May 12, 2016
Posted to Indiana Courts

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

In Jamie Becker v. Zachary Effriechs (SD Ind., Hussman, Jr., MagJ), a 16-page opinion, Judge Manion writes:

Jamie Becker sued Evansville, Indi-ana police officer Zachary Elfreich under 42 U.S.C. § 1983, al-leging Officer Elfreich used excessive force in arresting him in violation of his Fourth Amendment rights. Becker claimed Of-ficer Elfreich used excessive force because, after Becker had surrendered, Officer Elfreich pulled him down three steps and placed his knee on his back while allowing a police dog to continue to bite him. Officer Elfreich moved for summary judgment, arguing he was entitled to qualified immunity be-cause his conduct did not constitute excessive force or, alter-natively, that it did not violate clearly established constitu-tional law. The district court denied Officer Elfreich’s motion for summary judgment. Officer Elfreich appeals, interlocuto-rily, arguing that he is entitled to qualified immunity. We con-clude that based on the record, Officer Elfreich has not estab-lished that he is entitled to qualified immunity. We affirm and remand for further proceedings consistent with this opinion. * * *

When Evansville police attempted to arrest Jamie Becker, Officer Elfreich released his police dog under the belief that Becker was hiding in the house. However, two seconds later, Officer Elfreich discovered Becker had been descending the stairs to surrender with his hands above his head. Nonethe-less, Officer Elfreich continued to allow the police dog to bite Becker, while pulling him down three steps and placing his knee on his back and handcuffing him. And Becker suffered serious bodily injury as a result of the dog bite. While it is un-clear from the record whether Axel presented a substantial risk of serious risk bodily harm (and thus deadly force), the force was clearly at the more severe end of the force spectrum. A jury could reasonably find such force was excessive. Fur-ther, because it was clearly established at the time of Becker’s arrest that no more than minimal force was permissible to ar-rest a non-resisting, or passively resisting, suspect, Officer Elfreich was not entitled to qualified immunity on this record. For these and the forgoing reasons, we AFFIRM and REMAND for further proceedings consistent with this opin-ion.

Posted by Marcia Oddi on Thursday, May 12, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Man who drove off shuttered Cline Avenue Bridge files lawsuit"

Recall the April 6, 2015 post, "Car drives off the ramp to the demolished Cline Avenue bridge in East Chicago"?

Today Elvia Malagon reports in the NWI Times:

EAST CHICAGO — A man who drove off the Cline Avenue Bridge filed a civil lawsuit in Lake Superior Court alleging officials didn’t place proper signage informing motorists the highway was shuttered, according to court records.

Iftikhar Hussain was driving with his wife, Zohra Hussain, 51, on March 28, 2015, to Indiana from Illinois on Cline Avenue when he realized the road was coming to an end. According to court records, Hussain tried to brake, but he was unable to stop his 2014 Nissan Sentra.

The couple plunged nearly 40 feet to the ground before their car burst into flames. Zohra Hussain, 51, of Chicago, was killed in the crash. Iftikhar Hussain had a fractured spine, eye socket and had burns on his arms, legs and head.

Police at the time said Iftikhar Hussain was following GPS navigation that told him to continue on Cline Avenue Bridge, though it has been closed since 2009. Information about if he was following instructions from a GPS weren’t included in the lawsuit.

The lawsuit names the Indiana Department of Transportation, Figg Bridge Builders, United Bridge Partners, Figg Bridge Engineers, Linda Figg, the state of Indiana and Walsh Construction Co.

Attorney Timothy Schafer on behalf of Iftikhar Hussain alleges officials were careless and negligent in properly placing barricades or concrete barriers that would have prevented drivers from getting on the bridge.

The lawsuit also claims officials did not provide adequate warnings the bridge was closed or about road conditions, according to the lawsuit. It also alleges officials didn’t monitor, supervise and inspect the area to ensure that vehicles couldn’t travel onto the bridge.

The story has several photos of the Cline Avenue bridge.

Posted by Marcia Oddi on Thursday, May 12, 2016
Posted to Indiana Courts

Ind. Gov't. - "Former Lake judge to file for Indiana attorney general"

Dan Carden reports today in the NWI Times:

Former Lake Circuit Judge Lorenzo Arredondo will file paperwork with the state Democratic Party on Thursday to make official his candidacy for Indiana attorney general.

The veteran jurist has been quietly lining up support for his attorney general bid since last August.

He's expected to be unchallenged for the nomination at the June 18 Democratic state convention.

Here is Carden's August 18, 2015 story, headed "Arredondo seeks Indiana attorney general post."

Posted by Marcia Oddi on Thursday, May 12, 2016
Posted to Indiana Government

Wednesday, May 11, 2016

Ind. Decisions - "ACLU of Indiana, Plaintiffs with Disabilities Win Appeal Challenging Changes to Indiana's Medicaid Waiver Program"

Updating yesterday's late-afternoon ILB post, the ACLU of Indiana has now released a statement:

A three-judge panel for the U.S. Court of Appeals for the Seventh Circuit late yesterday sided with the American Civil Liberties Union of Indiana and several plaintiffs with disabilities who challenged a state agency's changes to Indiana's Medicaid Waiver programs, changes that limit the ability of Hoosiers to become active members of their communities and, ultimately, put them at risk of losing their independence and being institutionalized.

The programs, which serve thousands of Hoosiers, offer services that enable people to live in their communities even though their disabling conditions would otherwise require that they be placed in an institution.

"The U.S. Supreme Court long ago recognized the harm that unnecessary segregation causes people with disabilities, and this harm exists whether they are segregated in a formal institution or in the restrictive environment of their own homes," said Gavin M. Rose, ACLU of Indiana senior staff attorney. "Right now, Indiana is not living up to its duties under the Americans with Disabilities Act or to its responsibilities to people in our society who truly need our help." * * *

In its reversal of the district court ruling, the Court held that the State "may not, by invoking the rules of its waiver program, limit qualified persons to only 12 hours in the community each week." It also held that the State may not limit services to an extent whereby people with disabilities are placed at risk of unnecessary institutionalization.

Chief Judge Diane Wood, writing for the three-judge panel that included Judge Michael Stephen Kanne and Judge Ilana Diamond Rovner, said that "Congress intended the ADA to 'provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." The Court also pointed out that Indiana's institutions are able to serve only a small fraction of people enrolled in its waiver programs.

Posted by Marcia Oddi on Wednesday, May 11, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Korie M. Leslie v. Jeremy D. Farmer, a 13-page opinion, Judge Brown writes:

Korie M. Leslie (“Mother”) appeals the trial court’s order granting the request of Jeremy D. Farmer (“Father”) to change the last name of B. (“Child”) to Father’s last name. Mother raises one issue which we revise and restate as whether the court abused its discretion in granting Father’s request. We affirm. * * *

Based upon the factors discussed above and the evidence in the record, we cannot say the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it. Accordingly, the court did not abuse its discretion in granting Father’s request for a name change for Child. See In re Paternity of N.C.G., 994 N.E.2d at 334-336 (noting the trial court had found that the father had been paying child support and exercised regular parenting time and holding that the father’s petition to change his child’s surname should have been granted); C.B., 985 N.E.2d at 347-348 (noting the father filed a petition to establish paternity, paid support, exercised visitation, participated in the life of the child, and shared joint legal custody of the child, and concluding that the father’s surname would connect the child with his noncustodial parent, which is in the child’s best interests).

Conclusion. For the foregoing reasons, we affirm the court’s order granting Father’s petition and ordering that Child’s last name shall be that of Paternal Name.

NFP civil decisions today (0):

NFP criminal decisions today (4):

James "Jamar" Mason v. State of Indiana (mem. dec.)

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

Travis Scott Cunningham v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Wednesday, May 11, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Access the documents in the ESPN public records appeal

The March 15th Court of Appeals opinion in ESPN, Inc., et al. v. University of Notre Dame Security Police Department (ILB summary here) is the subject of a brief story today in the South Bend Tribune, noting that new documents have been filed:

They include a friend of the court brief filed by Indiana Attorney General Greg Zoeller arguing that the Court of Appeals correctly ruled that private university police departments should be considered public agencies that fall under Indiana's Access to Public Records Law. The brief urges the Supreme Court to deny Notre Dame's petition to overturn the Court of Appeals ruling. * * * Notre Dame is appealing the ruling to the Supreme Court.
Because of the Supreme Court's great new e-filing rules that make available online various appellate documents, you can download, via the public case docket:However, you cannot view them online without downloading.

Posted by Marcia Oddi on Wednesday, May 11, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Interesting 1996 ND Ind. decision on makeup of Lake Co. Judicial Nominating Comm.

Back v. Carter, 933 F. Supp. 738, 762 (N.D. Ind. 1996) (In an action challenging a law imposing race and gender quotas on commission membership, the District Court enjoined the application of the race and gender classifications in the selection of judicial nominating commission attorney members)[h/t Prof.Schumm]. From the opinion:

6. From 1973 until July 1995 the JNC consisted of seven members headed by the Chief Justice of the Indiana Supreme Court. The other six members consisted of three attorneys and three nonattorney members, all residents of Lake County. The attorney members were elected by fellow Lake County attorneys. The nonattorney members were appointed by the Governor. According to the law, the appointment of nonattorney members was to reflect the composition of the community. Attorneys could not serve as nonattorney members.

7. In July 1995, an amendment to the law imposed several changes in the operation of the JNC. Those changes include the imposition of race and gender quotas for JNC membership. The amendment requires that at least one of the attorney members and one of the nonattorney members be a minority. It also mandates that two of the attorney members be women, and the two others be men. The same gender restrictions apply to the nonattorney members.

8. The amendment also included other changes in addition to the race and gender quotas. The JNC now consists of nine members, including four attorney and four nonattorney members. The Lake County Commissioners, instead of the Governor, now appoint the nonattorney members. The amendment clarifies that salaried public officials can participate as attorney members of the JNC. The amendment now requires
747
*747 that the JNC consider the effect of racial and gender diversity on the quality of the judiciary when choosing nominees. Also, the amendment changed the manner in which attorney members were elected. Before the amendment, the Lake County attorneys could vote for only one candidate. Now the attorneys can vote for up to four different candidates. In effect, voters can cast up to four votes, but only for different candidates. The four candidates receiving the most votes become members of the JNC if they satisfy the race and gender quotas.

9. To implement these changes, the amendment ordered a new election of attorney members to be held on September 1995. New nonattorney members were appointed also in September 1995.

10. In June 1995, Back received a notification that his term as a member of the JNC would terminate prematurely so that a new election could take place under the new law. This new election forced Back out of the JNC in September 1995, rather than in 1997 as originally expected.

11. The election for the attorney members of the JNC under the new law took place in September 1995. Back ran for one of the positions, but he was not among the candidates receiving the most votes. He placed sixth in the number of votes received.

12. The Lake County Bar Association promoted the enactment of the amendment by the Indiana legislature. The Bar Association supported the amendment to the law as a response to a movement in the Indiana General Assembly which threatened to return to direct elections of judges in Lake County. The main concern of the Bar Association in supporting this legislation was to maintain the current judicial nominating system. * * *

The Court has found that Back has a likelihood of succeeding in showing that the race and gender classifications in the statute are unconstitutional. Unconstitutional legislation is not in the public interest. Milwaukee Cty. Pavers Ass'n, 707 F.Supp. at 1034. Therefore, it would be in the public interest to enjoin the operation of the allegedly unconstitutional provisions. [ILB emphasis]

However, it would not be in the public interest to enjoin other changes implemented by the 1995 amendment, which were legitimate legislative decisions with the aim to improve the operation of the judicial nominating system. Since the Court has concluded the racial and gender classifications as they apply to attorneys are severable from the rest of the amendment, nothing in the public interest supports enjoining the operation of the whole amendment. The public interest will be served best if the Court enjoins the allegedly unconstitutional provisions without affecting the other changes in the statute. In accordance with the analysis above, the Court GRANTS IN PART and DENIES IN PART the relief requested by Back. The Court enjoins the operation of the gender and racial provisions affecting the selection of attorney members. The attorney members currently serving at the JNC should be the four people who received the highest number of votes in the 1995 election without regard to their gender or race. The Court DENIES the request for injunctive relief against the other provisions implemented in 1995. Because the Court finds that the Indiana General Assembly had the power to terminate Back's tenure on the JNC to implement the other provisions of the amendment, the Court will not reinstate Back to the JNC.

Here is the Google Scholar page on how this case has been cited.

Posted by Marcia Oddi on Wednesday, May 11, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Does Indiana need its own Rooney Rule?"

Jay Kenworthy, who blogs at Indiana Explained, posted this excellent long article on May 9th that was the topic of a number of tweets last evening. It definately should be read in full, but here are a couple of quotes to show the gist:

The Rooney Rule states that NFL teams must interview at least one minority candidate for any head coach or general manager opening. You see, not only were minorities not getting hired, they weren’t even being considered for top spots.

Today, Governor Mike Pence selected Geoffrey Slaughter, a white man, as the next Indiana Supreme Court Justice. We’ve known Governor Pence was going to select a white male for a couple of months.

Why? Because he was legally permitted only to consider white males.

With this lack of diversity on our state’s highest court, we need to ask ourselves if it’s time for Indiana to adopt it’s own Rooney Rule. * * *

This year was the first time since 1996 that no women were among the three JNC finalists. There was also an all-male finalist group in 1985, when former Chief Justice Randy Shepard was appointed.

So, you end up with a five-member Supreme Court with only one woman and one African American. There is also only one African American on the Court of Appeals and five women (out of 15). The sole Tax Court judge is a Caucasian female.

If you’re shocked by these proportions, you probably forgot the important note about the lack of diversity on the Judicial Nominating Commission. Presently, all members are white and only two are female. I could not find data on the past make-up of the JNC. * * * [ILB: But see below.]

An Indiana Judicial Rooney Rule work like this: the JNC would be required to include at least one racial minority and one female among the finalists for any Supreme Court, Court of Appeals, or Tax Court vacancy unless there are no such applicants.

With that type of requirement, I guarantee we will never see another year like this, where no minority candidates applied. The opportunity to be considered for such an appointment would be too great to pass up.

The ILB can add some additional data:See also Mary Dieter's May 7th column in the IBJ's Forefront. A quote:
Justice Brent Dickson’s announcement that he would retire April 29 after 30 years set in motion a process to select three candidates from whom Gov. Mike Pence would choose the new justice. Thirty people applied; one withdrew, so 29 interviews ensued. Seven of the applicants were women. No person of color applied.

The Judicial Nominating Commission nominated St. Joseph Superior Court Judge Steven Hostetler, Boone Superior Court Judge Matthew Kincaid, and Indianapolis attorney Geoffrey Slaughter. Three white men.

This column offers no criticism of the nominees. But the Indiana Supreme Court desperately needs to look more like Indiana’s population. In the court’s 200-year history, 108 justices have taken the bench. Two are women. Two are African-American.

The female applicants this year offered impressive credentials and diverse experiences. Three are sitting judges. One was a nurse by day and a law student by night. Another was elected to Phi Beta Kappa at Stanford and graduated cum laude from Harvard Law. They practiced criminal and civil law.

Pence could have alerted his three appointees on the commission that he wanted a diverse panel of nominees. Such influence is hardly unprecedented. In 1994, I reported that Gov. Evan Bayh and his staff quietly worked to influence the commission to ensure Myra Selby, his director of health care policy, was among the nominees. * * *

Diversity matters. It enlightens and inspires, stokes understanding and sparks compromise. It signals that the justice system works for everyone. It reassures that women and minorities have a voice, especially on issues that disproportionately affect them (voter identification, abortion, sex discrimination, pregnancy in the workplace, hate crimes). It ensures that, as justices deliberate behind closed doors, they hear perspectives different from their own.

Posted by Marcia Oddi on Wednesday, May 11, 2016
Posted to Indiana Courts

Tuesday, May 10, 2016

Ind. Decisions - 7th Circuit decides one Indiana case today, re Medicaid waivers for persons with disabilities

In Karla Steimel v. John J. Wernert and Michael Beckem v. Indiana Family and Social Services (SD Ind., Magnus-Stinson), a 27-page opinion, Chief Judge Wood writes:

No one would accuse the Medicaid program of simplicity. Our task in this appeal is to consider whether Indiana has chosen an acceptable way to deliver certain home‐ and community‐based services. It does so through so‐called waiver programs that are operated by state Medicaid agencies. The word “waiver” is used because the default assumption under Medicaid is that these kinds of services will be delivered in institutions. Congress has recognized, however, that many people are better served by and prefer community‐ based care. For these people, it uses waiver programs under which the state (and the federal government) will pick up the tab.

The Indiana Family and Social Services Administration (the Agency) runs three waiver programs relevant to this case: the Aged and Disabled Medicaid Waiver Program (A&D waiver), the Community Integration and Habilitation Medicaid Waiver Program (CIH waiver), and the Family Supports Medicaid Waiver Program (FS waiver). Importantly for our case, the programs vary in how much money each client can receive, what must be demonstrated to qualify for aid, and who is entitled to assistance. Because Indiana has closed most of its institutional facilities, these waiver programs serve the vast majority of people with disabilities in Indiana. The state’s total institutional capacity can accommodate only one quarter of the number of people on the CIH waiver alone. Until 2011, the Agency placed many people with developmental disabilities on the A&D waiver, which has no cap on services. That changed when the Agency decided that it had not been adhering to certain A&D rules. In order to fix its mistakes, it enacted a policy change that rendered many developmentally disabled persons, including the plaintiffs, ineligible for care under the A&D waiver. These people were moved to the FS waiver, under which they may receive services worth no more than $16,545 annually. Developmentally disabled people who were switched from the A&D waiver to the FS waiver may apply for the CIH waiver, which is uncapped. But not everyone qualifies for the CIH waiver, and so this possibility is an empty one for many.

The plaintiffs in the two cases we have consolidated for disposition are developmentally disabled persons who were moved from the A&D waiver to the FS waiver. They argue that their new assignment violates the integration mandate of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., because it deprives them of community interaction and puts them at risk of institutionalization. They also seek class certification.

The district court granted summary judgment to the defendants on the integration‐mandate claims and denied class certification. We conclude that there is a genuine dispute of material fact with respect to the individual claims based on the integration mandate, and so judgment for the defendants to that extent was premature. The district court did not abuse its discretion, however, in declining to certify the class, because the proposed class is too vague. * * *

Our decision today does not require the state of Indiana to adopt any particular solution to make its waiver program compliant with the integration mandate. If plaintiffs prevail on the merits, the district court, in conjunction with the parties, may exercise its equitable powers to craft an appropriate injunction. But the state cannot avoid the integration mandate by painting itself into a corner and then lamenting the view. The state designs, applies for, develops policies regarding, and executes its waiver programs. If those programs in practice allow persons with disabilities to leave their homes only 12 hours each week, cooping them up the rest of the time, or render them at serious risk of institutionalization, then those programs violate the integration mandate unless the state can show that changing them would require a fundamental alteration of its programs for the disabled.

Because the plaintiffs’ claims both fit within and, if caused by the state’s policy, represent violations of the integration mandate, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion. We AFFIRM the district court’s decision not to certify the proposed class. Costs will be taxed against the state.

Posted by Marcia Oddi on Tuesday, May 10, 2016
Posted to Ind. (7th Cir.) Decisions

Indiana Courts - More on "Judge sets hearing on bid to block new Indiana abortion law"

Updating this post from yesterday, the ILB has learned that the June 14th hearing on HEA 1337 before Judge Pratt will be in the nature of an oral argument and will begin at 9:00 am.

The ILB posted the complaint on April 7th.

Posted by Marcia Oddi on Tuesday, May 10, 2016
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (1):

In Michael Pugh v. State of Indiana, a 29-page opinion (filed at 5:38 am), Sr. Judge Sharphack concludes:

For the reasons stated, we conclude that the trial court did not err by admitting evidence obtained as a result of the seizure of Pugh and that there was sufficient evidence to support Pugh’s convictions of rape, attempted criminal deviate conduct, and carjacking as an accomplice. In addition, the single larceny rule is not violated by Pugh’s three robbery convictions, and the continuing crime doctrine does not apply to his convictions of two counts of rape. Finally, we conclude that the trial court did not err in denying Pugh’s motion for a mistrial.
NFP civil decisions today (0):

NFP criminal decisions today (0):

Posted by Marcia Oddi on Tuesday, May 10, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Overcrowding puts Marion County Jail in 'crisis mode'"

Madeline Buckley has the long story in today's Indianapolis Star. The lengthy story begins:

The Marion County Jail has more inmates than beds, an overcrowding problem that officials say will only get worse in the summer when crime tends to spike.

The county's fix so far: Paying other counties to house defendants in their jails, a costly temporary solution that could rack up thousands of dollars if it continues long term.

The jail is in "crisis mode," Marion County Sheriff Col. Louis Dezelan said.

In recent months, the jail would have surpassed maximum capacity had the Marion County Sheriff's Office not moved inmates to Elkhart County and to jails in Kentucky, officials said.

Law enforcement leaders in Marion County and some City-County Council members met Monday afternoon to discuss the problem they say stems from rising violent crime in the city and a state law that diverts low-level offenders from state prisons to county jails. No long-term solutions were proposed, but jail officials say they are searching for a local space to rent for inmate overflow.

Marion County Prosecutor Terry Curry questioned whether the group should talk about an emergency proposal that would allow some inmates to be released early, but the idea was set aside with little discussion.

Re the "state law that diverts low-level offenders from state prisons to county jails" referenced in the quote above, see also this lengthy Feb. 2, 2015 Indianapolis Star story by Kristine Guerra, headed "County jails fear onslaught of addicts, mentally ill from prisons."

Posted by Marcia Oddi on Tuesday, May 10, 2016
Posted to Indiana Government

Ind. Decisions - "Fake lawyer gets 30 days in jail"

Caitlin VanOverberghe's story for the Greenfield Daily Reporter begins:

GREENFIELD — An Indianapolis man will spend 30 days in jail for posing as an attorney and charging a Hancock County resident for legal advice, prosecutors said, despite being disbarred more than two decades ago.

Timothy P. O’Connor pleaded guilty to practicing law without a legal degree — an accolade investigators said was taken from him 25 years ago.

The second half of this Sept. 8, 2015 ILB post quotes from an earlier story by the same reporter.

Posted by Marcia Oddi on Tuesday, May 10, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case yesterday, re an NLRB order

In Polycon Industries, Inc. v. National Labor Relations Board (Petition for Review and Cross-Application for Enforcement of an Order of the NLRB), a 5-page opinion, Judge Posner writes:

Polycon Industries, of Merrillville Indiana (a town in the northwestern corner of the state), is a manufacturer of plastic bottles and containers. Steven A. Johnson, a lawyer in the town, represented Polycon in collective bargaining with a Teamsters local (Teamsters Local Union No. 142) and in the ensuing litigation now before us; Polycon’s brief describes Johnson as “Polycon’s representative.” In a decision reported at 363 N.L.R.B. No. 31 (Oct. 29, 2015), the National Labor Relations Board determined that the company had violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5), which prohibit unfair labor practices in interstate commerce, by re-fusing to sign a collective bargaining agreement after agreeing to its terms. * * *

And so the Board, in the order before us that Polycon challenges, has directed Polycon to sign the agreement and comply with its terms until it expires. The order is so clearly correct that Polycon’s challenge borders on the frivolous. As the Supreme Court said in H.J. Heinz Co. v. NLRB, supra, 311 U.S. at 526, an employer’s “refusal to honor, with his signature, the agreement which he has made with a labor organization, discredits the organization, impairs the bargaining process and tends to frustrate the aim of the statute to secure industrial peace through collective bargaining.”

Attorney Johnson insists that not his but Polycon’s approval of the new language was required before the parties could be deemed to have approved it. But he provides no evidence, his own or Polycon’s, that he hadn’t been authorized to speak for the company when he told the union that the suggested addition was fine. Polycon could have asked for correction of any material mistakes before signing the contract but could not refuse to review and sign it because of the mere possibility that it contained a mistake. The Board’s order is ENFORCED.

Posted by Marcia Oddi on Tuesday, May 10, 2016
Posted to Ind. (7th Cir.) Decisions

Vacancy on Supreme Court 2016 - "Slaughter named new state justice: Replaces 30-year veteran on bench"

That is the headline to Niki Kelly's Fort Wayne Journal Gazette story on Governor Pence's action yesterday naming Indi­anapo­lis civil attorney Geoffrey Slaughter to the state high court. From the story:

“This is a good day for the law in the state of Indiana,” the governor said at the announcement.

Slaughter replaces retired Justice Brent Dickson, who left in April after 30 years on the bench. Pence said he reflected on Dickson’s strengths when making his selection.

“It’s not just his intellect but his character, his disposition, his demeanor and those were the qualities that guided my decision in choosing Geoff Slaughter to be the 109th justice of the Indiana Supreme Court,” Pence said.

Slaughter said he has to wrap up his private law practice at Taft Stettinius & Hollister and hopes to be sworn in between June 1 and July 1.

The NWI Times story by Dan Carden is headed: "Crown Point native appointed to Indiana Supreme Court." Some quotes:
Standing by Pence's side with his head down during the governor's announcement Monday, Slaughter later said in a soft voice that he is “humbled by the prospect of serving as a justice on our state's highest court.”

“I'm not replacing Justice Dickson — nobody could do that — I'm merely succeeding him. But I'll do my best to try to live up to the values of professionalism and civility for which he's so well known,” Slaughter said.

Slaughter described his judicial philosophy as “textualist” and “originalist,” which he said means that he is “somebody who believes that the court's role is to interpret the law, not to make it.” * * *

Slaughter was the 1981 co-valedictorian at Crown Point High School and attended Indiana University in Bloomington where he earned a bachelor’s degree in economics, an MBA and his law degree.

Slaughter clerked for Lake Superior Judge James Letsinger while still in law school. After graduating, he spent two years clerking for a federal judge in South Bend.

He later was an associate at the Chicago law firm of Kirkland and Ellis for five years, then worked as special counsel in the Indiana attorney general’s office from 1995-2001 under three Democratic attorneys general, including now-Gary Mayor Karen Freeman-Wilson.

Slaughter, who was born in Gary, said he grew up in Crown Point with lawyers in his family, but never expected to serve on the highest court in Indiana.

Krisine Guerra's story in the Indianapolis Star is headed: "New Supreme Court justice a 'superb lawyer.'" Some quotes:
[Governor Pence] read a handwritten note from former Chief Justice Randall Shepard, who described Slaughter as a "superb lawyer" and a "bona fide thinker" who has demonstrated a concern for those who cannot afford legal help.

A lifelong Republican who also has served as a board member of the Federalist Society for Law and Public Policy Studies, legal experts say Slaughter's conservative leanings would not affect his job as a new member of what has been an apolitical Supreme Court. * * *

[Joel Schumm, a law professor at the Indiana University Robert H. McKinney School of Law in Indianapolis], who followed the nomination process that resulted in Slaughter's selection, described the new justice as a "superstar" in the legal community.

"He will bring a broad and deep practical understanding of a wide array of legal issues from his three decades of experience in private practice and public service," Schumm said.

Slaughter, a partner at the law firm Taft Stettinius & Hollister LLP, has litigated complex and controversial cases. More recently, he defended state Republicans in a lawsuit filed by nonprofit groups seeking to gain access to emails a lawmaker may have exchanged with utility companies over a controversial solar energy bill. * * *

Slaughter obtained his law degree from the Indiana University Maurer School of Law. He has litigated cases not only in state courts, but also in the Supreme Court of the United States.

As president of the Indiana Bar Foundation, Slaughter works with public and private organizations to coordinate funding of legal services to those who can't afford them. Slaughter's term as the foundation's president ends in June.

Posted by Marcia Oddi on Tuesday, May 10, 2016
Posted to Vacancy on Supreme Court - 2016

Monday, May 09, 2016

Ind. Decisions - More on May 6, 2016 Trial Court Order in State v. IBM Case

Updating this ILB post from late this afternoon, Niki Kelly of the Fort Wayne Journal Gazette is now reporting in a long story:

A Marion County judge on Friday issued a bombshell ruling, refusing to give any damages to the state even though the Indiana Supreme Court found in March that IBM breached its $1.3 billion welfare contract with Indiana.

The case was remanded to Marion County Judge David Dreyer to determine an appropriate amount of compensation. Indiana had claimed $175 million in damages.

"The court largely finds the state fails to prove damages by a reasonable certainty," Dreyer said in his decision. "The evidence is insufficient because of its hearsay and speculative nature."

He added later that many of the costs for which the state sought reimbursement are costs that were the state's responsibility and therefore may not be recovered.

For instance, Dreyer said the state sought $30 million it paid in salaries for new state staff, but the evidence shows the staff -- many of whom were hired before the termination -- were hired for reasons that had nothing to do with IBM.

Dreyer's ruling came without a hearing or briefs filed by the parties, and just hours after the Indiana Supreme Court had certified the case.

Certification essentially closes a case out and sends it back to the lower court to act on the appellate ruling. * * *

The newest ruling is the latest volley in a six-year dispute about whether IBM failed to deliver its part of a deal to privatize Indiana's welfare system.

[Peter] Rusthoven said Dreyer's new decision came before a 10-day period for the state to move for a mandatory judge change.

That motion was filed Friday afternoon and Barnes & Thornburg LLP "will promptly take steps seeking to have the trial court’s ruling set aside," a statement said.

Clint Roswell, spokesman for IBM, said "it's unfortunate that the private attorneys representing the state in the case have decided to prolong this case, all at the great expense of Indiana taxpayers."

The state has paid Barnes & Thornburg more than $11.5 million in the legal battle with IBM.

See the JG story for more.

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Statement on May 6, 2016 Trial Court Order in State v. IBM Case"

Peter Rusthoven, Barnes & Thornburg LLP, who represented the State of Indiana in the recent State of Indiana v. IBM case, issued this news release this afternoon [ILB emphasis]:

INDIANAPOLIS - On Friday, May 6, the Indiana Supreme Court certified its March 22, 2016 decision in which it held that IBM had materially breached its contract to modernize the State’s delivery of welfare services, and remanded the case to the trial court with instructions to calculate the damages IBM owed the State. Certification made the Supreme Court’s decision final, and was required before the trial court or the parties could take any action based on the decision. Also, the State had ten days after certification to move for a mandatory change from the current trial court judge.

The current trial court judge, whose earlier decision in favor of IBM was reversed by the Supreme Court, issued early Friday morning a 24-page order refusing to award any damages to the State. This order was issued without any hearing, briefing, argument or notice to the State, and before the State’s counsel had even been notified by the Supreme Court that its decision had now been certified. The State, through its counsel Barnes & Thornburg LLP, filed Friday afternoon its motion for a mandatory change of judge, and will promptly take steps seeking to have the trial court’s ruling set aside.

Barnes & Thornburg attorney Peter Rusthoven, one of the State’s lawyers in the case, stated: “Respectfully, we believe the trial court’s surprise order Friday morning was mistaken and also exceeded its jurisdiction. We are confident that this latest ruling, like the earlier rulings ordering that Governor Daniels be deposed and then holding that IBM had not materially breached its contract, will not be allowed to stand.”

The ILB has obtained a copy of the 24-page,May 6th Order Upon Remand Regarding States Damages, issued by Judge David J. Dreyer, Marion Superior Court 10.

For background, see this long list of earlier ILB posts on the Indiana FSSA vs. IBM dispute.

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Ind. Trial Ct. Decisions

Vacancy on Supreme Court 2016 - Photos of today's announcement

Here are 10 photos of the event, thanks to the Indiana Supreme Court.

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Governor Pence Names Geoffrey G. Slaughter to Indiana Supreme Court

Here is Governor Pence's news release, along with a photo of Governor Pence, Mr. Slaughter, and his wife Julie Ann:

Indianapolis – Governor Mike Pence today named Geoffrey G. Slaughter as the 109th Justice to the Indiana Supreme Court. Mr. Slaughter will fill the vacancy left by Justice Brent Dickson, who, after 30 years on the bench, retired on April 29. His appointment will be effective on the day of his official swearing-in ceremony, which will be announced at a later date.

“I’m grateful today to announce Geoff Slaughter as the 109th Justice to the Indiana Supreme Court,” said Governor Pence. “Over his nearly 30-year career, Geoff Slaughter has demonstrated a first-rate legal intellect, an unparalleled understanding of constitutional and antitrust law, a remarkable ability to think and write clearly on the most complex issues, and a steadfast commitment to improving the local and legal community. I anticipate his service on Indiana’s highest court will be characterized by a fair and measured hand and a deep appreciation for our Constitution. I’m thankful to Chief Justice Loretta Rush and the Indiana Judicial Nominating Commission for their tireless work and countless hours spent to ensure the individuals brought to my desk bring to the Court the same commitment, intellect, and passion as former Justice Brent Dickson.”

A native of Lake County, Mr. Slaughter is currently a partner in the Indianapolis office of Taft Stettinius & Hollister LLP. There, he has represented clients in various types of cases, including prosecuting antitrust class actions, securities-fraud claims, environmental disputes, state and federal constitutional claims, land-use restrictions, and handling matters on judicial review from administrative decisions. He has argued numerous matters before the state and federal appellate courts.

Before joining Taft Stettinius & Hollister LLP, he served for six years as Special Counsel in the Office of Attorney General of Indiana representing the State in various court actions, was an associate at Kirkland & Ellis in Chicago, and clerked for Chief Judge Allen Sharp, United States District Judge for the Northern District of Indiana. While in private practice, Mr. Slaughter also served as Chairman of the Indiana Public Employees Relations Board.

Mr. Slaughter is a life fellow and currently serves as president of the Indiana Bar Foundation, the charitable arm of the Indiana State Bar Association (ISBA), of which he is also a member. He is also a member of the Seventh Circuit Bar Association and is immediate past chair of the Appellate Practice Section of the Indianapolis Bar Association. For more than 10 years, Mr. Slaughter served as a member of the Northern District of Indiana’s local rules advisory committee.

Since 1996, Mr. Slaughter has volunteered as a judge for “We the People,” a nationally-sponsored program for teaching civics education to high school seniors and junior high students. For more than 15 years, Mr. Slaughter has served as a board member of the Indianapolis chapter of the Federalist Society for Law and Public Policy Studies. He spent five of those years as chapter president. In addition, Mr. Slaughter serves as member of the Nurture Committee with Irvington United Methodist Church, board member with the International Violin Competition of Indianapolis, interim chair of the Board of Governors with Irvington Community School, Inc., member of the Local Leadership Board with the American Lung Association of Indiana, and as an emeritus member of the Board of Visitors with the Indiana University Maurer School of Law. He has previously served as President of the Alumni Board at Indiana University Maurer School of Law.

Mr. Slaughter earned his undergraduate degree from Indiana University – Bloomington, and a joint law/MBA degree from Indiana University’s Maurer School of Law and Kelley School of Business. Mr. Slaughter currently resides in Marion County with his wife Julie Ann Slaughter.

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Vacancy on Supreme Court - 2016

Vacancy on Supreme Court 2016 - Pence appoints Indianapolis attorney Geoffrey Slaughter as next Justice [Updated at 1:26]

Governor Pence has named Geoffrey G. Slaughter - Taft Stettinius & Hollister LLP, Indianapolis, to fill the vacancy on the Indiana Supreme Court left by the retirement last month of Justice Brent Dickson.

For background on Mr. Slaughter, start with this ILB post from March 4, recapping his second interview before the Judicial Nominating Commission, and linking to this first interview, application and photo.

Here is a photo from WRTV 6:

[Updated at 1:26 by ILB] Also in the WRTV photo, to the left of Slaughter and Pence, is attorney Julie Ann Slaughter, about whom Slaughter wrote in his application:

My wife Julie, who is an attorney, recently resigned from the Marion County Public Defender Agency, where she had served for the past ten years, to help care for her elderly parents.

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - A number of disciplinary opinions issued Friday, now posted

There are seven in all. Most notable:

The remaining four cases involve the failure to satifsy costs in lawyer disciplinary cases.

Posted by Marcia Oddi on Monday, May 09, 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 (0):

NFP criminal decisions today (3):

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

Milton R. Robinson v. State of Indiana (mem. dec.)

Willie P. Jackson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 6, 2016

Here is the Clerk's transfer list for the week ending Friday, May 5, 2016. It is two pages (and 24 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Indiana Transfer Lists

Ind. Courts - "Special court will streamline companies' cases"

The Fort Wayne Journal Gazette has an editorial today on the commercial courts pilot project that will begin next month. A quote:

On June 1, commercial courts will begin to accept cases here and in Elkhart, Vanderburgh, Floyd, Lake and Marion counties.

Indiana Supreme Court Justice Steven David expects the pilot program to be a success. Commercial courts won’t focus on tort cases, contract disputes or employment litigation, he told BizVoice, the state chamber’s magazine.

“It’s acquisition, divestiture, allegations of insider trading, sophisticated transactions, trade secrets litigation – those types of things,” David said.

“These are the types of cases where discovery is very important; there are often significant issues related to discovery, motions to dismiss, motions for summary judgments.”

Such proceedings can keep businesses embroiled in court for years. The wait – and the uncertainty – creates huge costs for the companies involved.

“You can take bad news,” Ron Christian, an executive at the energy company Vectren in Evansville, told the publication. “You can take good news; you just can’t take no news.”

“Oftentimes, big, complex cases can get out of hand before they show up for the first time on a judge’s desk,” [Allen Superior Court Judge Craig Bobay] told BizVoice. The answer, he said, is a comprehensive management plan withreasonable deadlines “focusing on wanting to get this case done efficiently and not having it linger for years.”

An added benefit, Bobay told The Journal Gazette last year, is that commercial courts may clear up congestion in other courtrooms.

“These cases can take lot of judicial resources, if they’re handled in the regular courts,” Bobay said.

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Ind. Commercial Courts

Courts - "Conservative Groups Gather Momentum To Change States' Judicial Elections"

That was the title of an arresting story reported by Sam Zeff this morning on NPR's Morning Edition. If you missed it, you may listen to the nearly 4-minute story here. The teaser:

The presidential and Senate races dominate many states' politics. In Kansas, the fight is over whether to retain 4 state Supreme Court justices. It will be a deep-pocket campaign like none before it.

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Courts in general

Ind. Decisions - 7th Circuit panel "split over polygraph test mention"

The May 5th, 2-1, 7th Circuit opinion in U.S. v. Resnick (ILB summary here) was the subject May 6th of a long story in the Chicago Daily Law Bulletin, reported by Patricia Manson, that begins:

An Indiana man accused of sexually abusing a 9-year-old boy was not denied his right against self-incrimination when jurors were told he had refused to take a polygraph exam, a divided federal appeals court ruled.

Splitting 2-1, the 7th U.S. Circuit Court of Appeals this week upheld David A. Resnick’s conviction on federal child-abuse and firearms charges.

Quoting United States v. Scheffer, 523 U.S. 303 (1998), the court’s majority conceded the scientific community “remains extremely polarized about the reliability of polygraph techniques.”

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Law - ILB Legislative Research Shortcuts Updated for 2016

The ILB has preliminarily updated its simplified research ("shortcuts") page, "The Indiana Law Blog's Legislative Research Shortcuts," to reflect the 2016 legislative session's actions.

Here is a list of earlier ILB entries on the Legislative Research Shortcuts page; several include additional useful research information.

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Indiana Law

Indiana Courts - "Judge sets hearing on bid to block new Indiana abortion law"

Updating this ILB post from April 7th, federal Judge Tanya Walton Pratt last week set a June 14th hearing date on HEA 1337, per this Indiana Public Media story and this AP story.

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Overview of Indiana environmental insurance law re the pollution exclusion clause

John P. Fischer, Barnes & Thornburg, has written a succinct overview/introduction, which appeared in the The National Law Review on May 8th. It begins:

In most jurisdictions, determining whether a pollution exclusion in a commercial general liability (CGL) policy precludes coverage for a particular claim can be a thorny issue. Under some historical policies, coverage may depend on factual arguments over whether the pollution was “sudden and accidental” or gradual. Under others containing so-called “absolute” pollution exclusions, coverage may depend on whether or not the claim arises out of “traditional” environmental pollution (for example, cleanup of groundwater in response to a governmental demand vs. toxic tort claims based on workplace exposure).

Indiana has traditionally taken a different approach to the pollution exclusion than most other jurisdictions. Rather than become entangled in factual thickets over whether pollution is sudden or gradual, or arises in a “traditional” environmental context, Indiana courts for two decades have taken an elegantly simple approach: Is the substance at issue included by name in the policy’s definition of “pollutant?” If so, the exclusion applies.

This simple rule was first set forth by the Indiana Supreme Court in American States Ins. Co. v. Kiger, 662 N.E.2d 945 (Ind. 1996). Kiger held that a pollution exclusion was inapplicable to a claim against a gas station for cleanup of a gasoline spill, because “the term ‘pollutant’ does not obviously include gasoline.” Id. at 949.

Posted by Marcia Oddi on Monday, May 09, 2016
Posted to Indiana Law

Ind. Courts - "Successor chosen for Lake Co. public defender office"

Ruth Ann Krause's long Gary Post-Tribune report Friday begins:

Long-time appellate public defender has been chosen to replace chief Lake County public defender David Schneider, who is retiring in the fall after 16 years as chief and four decades in the office.

Marce Gonzalez Jr., who maintains a private practice, recently was named to the position by the five-member public defender board. Gonzalez will assume full-time administrative duties for the office that includes 19 trial attorneys, four appellate attorneys, and 20 to 25 contract attorneys who handle the overflow for trial attorneys involved in death penalty cases.

The office represents about 1,800 indigent clients a year in the four criminal-division courtrooms, Schneider said. The budget is about $2.5 million, of which 40 percent is reimbursed by the state for non-death penalty cases.

Posted by Marcia Oddi on Monday, May 09, 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 5/9/16):

Thurssday, May 12

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

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/9/16):

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

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, May 09, 2016
Posted to Upcoming Oral Arguments

Saturday, May 07, 2016

Ind. Courts - "SHEPARD: New commercial court dockets could boost job growth"

Randall Shepard, former Chief Justice of Indiana, writes in this week's IBJ on the new commercial courts dockets. A sample:

One element of a state’s capacity for gaining ground in national and global marketplaces is whether its legal climate and particularly its courts help advance economic development and the jobs that come with it—or make it more difficult.

Indiana has historically ranked well on this score and we are about to get better. * * *

How well does a state’s court system handle litigation arising from a dispute between business organizations? An example might be litigation between contractors and subcontractors. Or suits between insured corporations and their insurers. Or cases involving suppliers and retailers.

Many such disputes are resolved without trial, inasmuch as the contending parties mostly would like to resolve the case so they can get about the business of doing more business—sometimes doing more business with each other. Getting to agreement can depend on progress in the litigation, as parties tighten their focus on the facts and evaluate their positions.

Their ability to move through the court system is sometimes hampered by the fact that they often are competing for time on a docket with a variety of other lawsuits of a totally different character, like family law, personal injury claims or residential mortgage foreclosures. The techniques a judge might use to conserve court time and lawyer time in these varying fields can be quite different.

See other ILB entries on the commercial court project here.

Posted by Marcia Oddi on Saturday, May 07, 2016
Posted to Ind. Commercial Courts | Indiana Courts

Friday, May 06, 2016

Ind. Decisions - Federal Judge Young grants injunction against county court policy prohibiting certain employees from engaging in any "political activity"

Judge Richard Young of the Southern District today granted a motion for preliminary injunction in the case of Allen v. Bartholomew County Court Services Dept., et al.

Brandon Allen, as a Court Services employee in Bartholomew County, was prohibited by a written policy of Defendants from engaging in “political activity” even though, while technically an employee of the state judiciary, he performed no judicial functions. Allen argued that the policy was unconstitutionally vague and in violation of his First Amendment rights to engage in political activities other than running for or holding elective office.

Judge Young's opinion today holds that the policy, which the State argued was intended to carry out the prohibitions of Canon 4 of the Code of Judicial Conduct, is unconstitutionally vague and overbroad on its face. He did not reach our other arguments, which included that the policy also violated Art. 1, § 9 of the Indiana Constitution and IC § 33-23-12-3.

Posted by Marcia Oddi on Friday, May 06, 2016
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (2):

In Barbara Hill, individually and as guardian of Charles Hill, incapacitated, and as next friend of Alexandra Hill, a minor,et al. v. Erich E. Gephart, City of Indianapolis, et al., a 12-page, 2-1 opinion, Judge Mathias writes:

[The complaint alleged that] Defendants were negligent when a Marion County Sheriff jail transport vehicle driven by Deputy Gephart struck and severely injured Charles. Defendants moved for summary judgment, arguing that Deputy Gephart was not negligent and that Charles was contributorily negligent which was the proximate cause of his own injuries. The trial court granted Defendants’ motion for summary judgment. * * * We reverse and remand for proceedings consistent with this opinion. * * *

When a tort claim is brought against a governmental entity, such as the City of
Indianapolis, the common law defense of contributory negligence remains applicable under Indiana Code section 34-51-2-2. Whitmore v. South Bend Public Transp. Corp., 7 N.E.3d 994, 997 (Ind. Ct. App. 2014). Thus, if a plaintiff is negligent to even a small degree and that negligence proximately contributes to his claimed damages, contributory negligence will operate as a complete bar to his action. Funston v. School Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006). * * *

The rights and duties of pedestrians and motorists to use highways are reciprocal and should be exercised by each so as not to injure the other, and motorist owes pedestrians walking along a highway duty to exercise reasonable care to avoid injury. American Carloading Corp. v. Gary Trust & Sav. Bank, 25 N.E.2d 777, 781 (Ind. 1940). * * *

The Hills argue that Charles’s violation was justifiably reasonable because by remaining on the right side of Fox Hill Drive, Charles and Macey did not have to cross the busy street. This was arguably a safer option for the father-daughter duo because no cross-walk existed. At his deposition, Charles also testified that the left side of the road did not have a sidewalk and in some places no shoulder to walk along because it was blocked by vegetation. Further, the Hills submitted an affidavit from an expert investigator to establish the speed limit and that vegetation was present along Fox Hill Drive. Defendants filed a motion to strike the affidavit as inadmissible, but the court never issued an order on the motion.

Because the purpose of Indiana Code section 9-21-17-14 is to promote safety, it is counterintuitive to bar the Hills’s claim without allowing Charles to explain why he was walking on the right side instead of the left side of the road. It is up to the jury to determine whether that act was reasonable or if Charles contributed to his injuries. For all of these reasons, a genuine issue of material fact exists as to whether Charles was contributorily negligent, and the trial court erred by disposing the Hills’ claim on summary judgment. We therefore reverse and remand with instructions for the trial court to hold a jury trial on the matter. Reversed and remanded for proceedings consistent with this opinion.

Kirsch, J., concurs.
Brown, J., dissents with opinion. [which begins, at p.11]I respectfully dissent from the majority’s conclusion that a genuine issue of material fact exists as to whether Charles was contributorily negligent and its decision to reverse and remand on the trial court’s entry of summary judgment in favor of the Defendants. Charles walked along Fox Hill Drive in a manner which violated Ind. Code § 9-21-17-14, and there is nothing in the designated evidence to demonstrate he “desired to comply with the law,” which is required in order to rebut the presumption of negligence.

In Demetre Brown v. State of Indiana , a 19-page opinion, Judge Barnes writes:
Brown raises four issues, which we restate as:
I. whether the trial court properly admitted testimony from Brown’s former attorney, testimony from other witnesses regarding information obtained from Brown’s former attorney, and physical evidence that Brown’s former attorney provided to the State;
II. whether Brown’s three convictions for robbery and three convictions for carjacking violate the single larceny rule;
III. whether Brown’s convictions for Class A felony robbery and Class A felony burglary violate the prohibition against double jeopardy; and
IV. whether Brown’s 248-year sentence is inappropriate in light of the nature of the offenses and his character. * * *

We conclude that any error in the admission of Barton’s testimony, the laptop, and Brown’s fingerprint on the laptop was harmless. Brown’s single larceny rule argument fails, but based on the prohibition against double jeopardy, we reduce his Class A felony robbery conviction to a Class B felony and adjust his sentence for that conviction from fifty years to twenty years. Additionally, we find that his adjusted 218-year sentence is not inappropriate. We affirm in part and reverse in part.

NFP civil decisions today (4):

Erika Jagger DeHeer v. Ray's Trash Service, Inc. (mem. dec.)

Daniel E. Norris v. The Supervised Estate of Martha A. Norris, Deceased (mem. dec.)

Stephen W. Marvel and Debria Marvel v. Jason Althoff, Erin Althoff and Gene O. Dorsey (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of B.W. (Child) and J.W. (Father); J.W. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (1):

Dennis Talboom v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, May 06, 2016
Posted to Ind. App.Ct. Decisions

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

Here now is a third story on Indiana's recent efforts to keep the Illiana Expressway project alive. (Earlier stories linked here) A few quotes from Andrew Steele's report in the NWI Times:

“The Illinois Department of Transportation has agreed to let INDOT take the lead in protecting the investments both states have made in developing this project, and in keeping the project in hold status,” INDOT spokesman Will Wingfield said in an email Thursday.

The April 25 filing in U.S. District Court for the Northern District of Illinois formalizing the agreement said that work is anticipated to be done by the end of July.

“Only the portions of the environmental documents identified in the U.S. District Court’s recent opinion as needing additional work will be addressed,” Wingfield said.

The agency has estimated reworking the document will cost less than $150,000.

INDOT never hid its willingness to proceed with the Illiana project, even after Illinois Gov. Bruce Rauner gave the bistate project the cold shoulder shortly after assuming office in January 2015.

“Indiana has always been committed to the Illiana Expressway, and is ready to proceed with the project once Illinois is,” Wingfield said.

But that state is not ready.

“The approach in Illinois has not changed,” IDOT spokesman Guy Tridgell said via email Thursday. “We are not pursuing the project.”

Posted by Marcia Oddi on Friday, May 06, 2016
Posted to Courts in general

Ind. Courts - Indiana Chamber magazine features the new commercial courts initiative

The feature story in this month's issue of the Indiana Chamber of Commerce's Biz Voice Magazine is on the new Indiana commercial courts project. Written by Tom Schuman, the long article, titled "Court(ing) Business: Complex Cases to Receive Clear Focus," is well worth reading and is a great addition to the ILB's commercial court resources. The article begins:

When Frank Sullivan, Jr., an Indiana Supreme Court Justice for 19 years and currently a professor at the Indiana University Robert H. McKinney School of Law, speaks about courts, it’s a good idea to pay close attention.

Asked about the importance of the new commercial court pilot project that begins June 1, Sullivan pauses, offering, “States that have the best functioning judicial systems have business or commercial courts of one kind or another. There’s some general consensus around the country that businesses, all other things being equal, are attracted to states that have a well-developed business or commercial court.”

The purpose of the commercial courts (officially outlined by an Indiana Supreme Court order on January 20 of this year; see box on this page) is to achieve fast, consistent and reliable resolution of commercial disputes. In the more than 20 states that have adopted a form of such courts since 1993, those results help bring “confidence and predictability” to the business community.

Posted by Marcia Oddi on Friday, May 06, 2016
Posted to Ind. Commercial Courts | Indiana Courts

Thursday, May 05, 2016

Ind. Decisions - "Lawyer victorious in contesting parking-ticket late fee all the way to the state's appeals court"

Yesterday's Court of Appeals opinion in James K. Gilday v. The City of Indianapolis (ILB summary here) is the subject of a story today by Terry Carter in the ABA Journal. A few quotes:

“As a society that tends to celebrate progress, we hold milestones with a certain reverence. We commemorate the Pilgrims who settled on these shores; we take special note of mankind’s first steps on the moon; and today, we observe that this is the first parking ticket to be successfully appealed to our court,” wrote Judge John G. Baker in an opinion with concurrences by his two co-panelists, judges Melissa S. May and Elaine B. Brown. * * *

“As an issue of first impression, we hold that payment is made on a parking ticket when the payor deposits the payment in the mail,” Judge Baker wrote. “The issue is too important to allow the city to determine for itself when it believes a payment was made: Any delay on the city’s end could result in a 12,400 percent increase in the fine assessed for a parking violation.”

The appeals court reversed and remanded the judgment concerning the $150 late fee, instructing the lower court to enter summary judgment for Gilday on that count.

Posted by Marcia Oddi on Thursday, May 05, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court posts one today, filed May 4th

In Larry G. Jones and Sharon F. Jones v. Jefferson County Assessor, a 6-page opinion, Judge Wentworth writes:

Larry G. and Sharon F. Jones challenge the final determination of the Indiana Board of Tax Review that upheld the assessments of their real property for the 2008 and 2009 tax years (“years at issue”). Upon review, the Court affirms the Indiana Board’s final determination.* * *

Indiana has promulgated a series of guidelines that explain the property valuation process in detail. See REAL PROPERTY ASSESSMENT GUIDELINES FOR 2002--VERSION A (2004 Reprint) (incorporated by reference at 50 I.A.C. 2.3-1-2), Bks. 1 & 2. When, as here, an assessor has assessed real property pursuant to the guidelines, her assessment is presumed accurate. Manual at 5. A taxpayer may rebut that presumption, however, with other market-based evidence (e.g., sales data, appraisals, or actual construction costs) that indicates the assessment is not an accurate reflection of the property’s market value-in-use. See Manual at 5. The Joneses did not provide the Indiana Board with any market-based evidence of their property’s market value-in-use during their administrative hearing. (See Cert. Admin. R. at 63-71.) Consequently, the Court has no market-based evidence to review and finds no basis for reversing the Indiana Board’s final determination.

Posted by Marcia Oddi on Thursday, May 05, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 1 NFP memorandum decision(s))

For publication opinions today (2):

In John Belork v. Robin Latimer, Davis Township Trustee and DMK&H Farms, Inc. (rehearing), a rare 29-page, 2-1 opinion on rehearing, Judge Brown writes:

In our opinion handed down on November 16, 2015, we affirmed the trial court’s entry of judgment on the evidence in favor of Robin Latimer as the Davis Township Trustee and DMK&H Farms, Inc. (“DMK&H” and, together with Latimer, the “Appellees”) with respect to John Belork’s claim under Indiana’s partition fence statutes found at Ind. Code §§ 32-26-9. Belork has petitioned for rehearing, arguing that we did not correctly apply the partition fence statutes. The Indiana Agricultural Law Foundation, Inc., (the “IALF”) filed a Motion for Leave to File Amicus Curiae Brief in Support of Appellant’s Petition for Rehearing together with its amicus curiae brief, and we have granted the IALF’s motion and ordered that its brief be filed. In its brief in response to the petition for rehearing, DMK&H responded to the arguments presented by Belork and the IALF.

We note that this Court has been willing to reexamine its decisions and to grant petitions for rehearing, sometimes to reverse a previous decision. See Safe Auto Ins. Co. v. Farm Bur. Ins. Co., 867 N.E.2d 221, 222-223 (Ind. Ct. App. 2007) (granting a petition for rehearing which argued in part that the initial opinion misapplied certain precedent and noting that amicus curiae had appeared on rehearing in support of the petition’s position), trans. denied; Edwards v. Vermillion Cnty. Hosp., 579 N.E.2d 1347, 1347-1348 (Ind. Ct. App. 1991) (granting a petition for rehearing, vacating the original opinion, and arriving at a different conclusion regarding whether the petitioner was immune from liability under the Indiana Tort Claims Act), trans. denied; McNevin v. McNevin, 447 N.E.2d 611, 612-616 (Ind. Ct. App. 1983) (granting a petition for rehearing, vacating the original opinion, and arriving at a different conclusion regarding whether the petitioner’s tort claim had been extinguished by a dissolution decree). Upon further consideration of the language of the provisions of Ind. Code §§ 32-26-9 set forth below and Belork’s position and arguments, as further developed by the [amicus curiae] IALF, we conclude that granting Belork’s petition is warranted. * * *

For the foregoing reasons, we grant Belork’s petition for rehearing, vacate our opinion of November 16, 2015, reverse the trial court’s order, and remand for further proceedings. Reversed and Remanded.

Altice, J., concurs.
Riley, J., dissents with separate opinion. [that begins, at p. 27] I dissent from the majority’s opinion on rehearing, which vacates our opinion of November 16, 2015, and reverses the trial court’s order. I would deny Belork’s petition for rehearing and reaffirm our earlier opinion in every respect. * * *

The only difference this time is the presence of the amicus curiae, Indiana Agricultural Law Foundation, which aligned itself with Belork’s position. Like here, amicus curiae briefs are often attempts to inject interest-group politics into the appellate process by flaunting the interest of the trade association or other interest group in the outcome of the appeal. From its brief, it is apparent that Indiana Agricultural Law Foundation is not a neutral advisor, but rather is clearly in the driver’s seat in these rehearing proceedings. * * *

I would deny the petition for rehearing as it merely exhausts precious judicial resources that could be expended elsewhere. There are sound reasons for requiring a party to present all known arguments or claims to an appellate court before its decision is rendered. Belork did just that in his appellate brief and there is no reason to revisit our analysis.

In James D. Foutch v. State of Indiana, an 11-page opinion, Judge Riley writes:

Appellant-Defendant, James D. Foutch (Foutch), appeals his sentence following his conviction for reckless homicide, a Class C felony, Ind. Code § 35-42-1-5 (2013); and criminal recklessness inflicting serious bodily injury, a Class D felony, I.C. 35-42-2-2(d)(1) (2013). We affirm.

ISSUE. Foutch raises one issue on appeal, which we restate as follows: Whether Foutch’s sentence is inappropriate in light of the nature of the offense and his character.

NFP civil decisions today (1):

Theodore William Kieffer v. Jennifer Trockman (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Thursday, May 05, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decides Indiana case May 4th by 2-1 vote

In U.S. v. Resnick (ND Ind., Moody), a 25-page, 2-1 opinion, Chief Judge Woods writes:

During the summer of 2008, David Resnick, a long‐haul truck driver, took T.M., the nine‐year‐old son of family friends, on a cross‐country work trip that was supposed to end at Disneyland. They never got there. Instead, they traveled to Washington State and back to Indiana. Over the two‐week trip, Resnick sexually abused T.M. repeatedly. Eventually, T.M. told his parents about Resnick’s conduct and Resnick was charged with a variety of child‐abuse and firearms offenses. After a four‐day trial, a jury convicted Resnick on all four counts.

Resnick challenges his convictions on three bases. He argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that he was guilty of the charge of brandishing a firearm. He also contends that his remaining convictions should be reversed because the district court erred in admitting testimony of a second minor victim and in allowing testimony and argument about Resnick’s refusal to take a polygraph. Ultimately, all of Resnick’s arguments fail. With respect to the references to a polygraph (that never occurred), however, we stress that our result is heavily influenced by the fact that we are reviewing only for plain error. See United States v. Olano, 507 U.S. 725, 732 (1993); FED. R. CRIM. P. 52(b). This evidence, to the extent it is admissible at all, must be used with great caution. Resnick, however, forfeited his objection to this evidence at trial, and because we find no plain error, we affirm. * * *

The evidence at trial was sufficient to sustain Resnick’s brandishing conviction. The district court did not abuse its discretion in admitting K.M.’s testimony, nor did it commit plain error in the timing or content of its instruction limiting that testimony. Finally, the admission of testimony revealing that Resnick refused to submit to a polygraph was not plain error. The judgment of the district court is therefore AFFIRMED.

BAUER, Circuit Judge, dissenting. [begins at p.18]
I would remand this case for retrial. I believe that the district court committed reversible plain error by admitting Resnick’s refusal to submit to a polygraph examination into evidence and allowing the government to comment on this refusal during closing arguments. These actions virtually exclude the possibility of Resnick receiving a fair trial.

Our standard of review—plain error—is a “high bar,” see United States v. Love, 706 F.3d 832, 841 (7th Cir. 2013), but it should not be an impenetrable shield. Here, the introduction of the refusal to take the polygraph and the government’s subsequent comments constituted plain error which polluted the other evidence and compromised the entire trial. It had the effect of replacing the jury as factfinder and convicting Resnick by judicial fiat, not by the evidence presented. Because such actions prejudiced Resnick and seriously called into question the fairness, integrity, or public reputation of his trial, I would remand. * * *

I admire the discussion of the problem by the majority; I disagree with the legal implication. The error was plain, damning, and cannot be overlooked. I would reverse for a new trial that would be conducted without any discussion of the refusal of Resnick to submit to a polygraph examination.

Posted by Marcia Oddi on Thursday, May 05, 2016
Posted to Ind. (7th Cir.) Decisions

Law - "Consumer Agency Moves to Assert Bank Customers’ Right to Sue"

From the NY Times column, Dealbook, a very important story from Jessica Silver-Greenberg and Michael Corkery. It begins [ILB emphasis]:

The nation’s consumer watchdog is unveiling a proposed rule on Thursday that would restore customers’ rights to bring class-action lawsuits against financial firms, giving Americans major new protections and delivering a serious blow to Wall Street that could cost the industry billions of dollars.

The proposed rule, which would apply to bank accounts, credit cards and other types of consumer loans, seems almost certain to take effect, since it does not require congressional approval.

In effect, the move by the Consumer Financial Protection Bureau (CFPB) — the biggest that the agency has made since its inception in 2010 — will unravel a set of audacious legal maneuvers by corporate America that has prevented customers from using the court system to challenge potentially deceitful banking practices.

Honing their plan over decades, credit card companies, banks and other lenders devised a way to use the fine print of their contracts to push consumers out of court and into arbitration, where borrowers must battle powerful companies on their own. Without the ability to pool resources, most people abandon their claims and never make it to arbitration.

The new rules would mean that lenders could not force people to agree to mandatory arbitration clauses that bar class actions when those customers sign up for financial products.
The changes would not apply to existing accounts, though consumers would be free to pay off their old loans and open new accounts that are covered.

There is much to read in the lengthy story.

Some readers may have noticed ominous anti-CFPB TV ads recently, such as this one.

Posted by Marcia Oddi on Thursday, May 05, 2016
Posted to General Law Related

Ind. Gov't. - "Indiana’s Medicaid program will recoup $9.2 million in a settlement with drug manufacturer Wyeth, Inc., and its parent company, Pfizer, Inc."

Moreover, according to the long, informative April 29th news release from AG Zoeller's office on Indiana's participation in the lawsuit:

Counting the federal tax dollars that partially support the state-and-federal Medicaid program, the total amount of recovery allocated for Indiana Medicaid under this settlement in principle is more than $25 million.

Posted by Marcia Oddi on Thursday, May 05, 2016
Posted to Indiana Government

Wednesday, May 04, 2016

Ind. Courts - Now hiring: Law clerks for the new commercial courts

This April 27th ILB post mentioned that the new commercial courts would have law clerks. The ILB has learned that this notice re law clerk openings has just today been posted on the Indiana Courts site:

There are four opportunities for contract judicial law clerk positions in northern Indiana, southern Indiana and Marion County with the newly formed commercial courts of Indiana. This is a contractual position for $61,200 annually rather than employment. Only attorneys admitted to the Indiana Bar and recent graduates scheduled to take the 2016 Bar will be considered.

One clerk will provide services to Marion Superior Court Judge Heather Welch; two will provide services in northern Indiana to Elkhart Superior Court Judge Stephen Bowers, Lake Superior Court Judge John Sedia, and Allen Superior Court Judge Craig Bobay; and the fourth clerk will provide services in southern Indiana to Vanderburgh Superior Court Judge Richard D'Amour and Floyd Superior Court Judge Maria Granger. The contract provides for a monthly payment to each clerk of $5,100 with no additional benefits.

Law school graduates interested in this position should submit a resume or curriculum vitae with a substantial writing sample, transcript and resume to HRCourts@courts.in.gov by May 29, 2016. Please specify whether you are interested in a contract in northern Indiana, southern Indiana or Marion County.

And here is the draft employement contract.

Posted by Marcia Oddi on Wednesday, May 04, 2016
Posted to Ind. Commercial Courts | Indiana Courts

Ind. Courts - "Superior Court, Sheriff Launch Video Arraignment Project"

From an Allen Superior Court news release:

Fort Wayne, Ind. – Allen Superior Court and the Allen County Sheriff’s Department this week will launch a video appearance project that will make the transportation of inmates for court hearings less costly and safer for all involved.

Starting Thursday (May 5, 2016), many Superior Court Criminal Division initial hearings will be held via video connection to the Allen County Jail. Previously, defendants were transported in person from the jail to participate in those hearings. The new video appearance capability, installed in Courtroom 3 of the Allen County Courthouse, will cut the number of prisoners brought to the Courthouse by about 50 percent – equal to 60 inmates a week.

“Initial hearings are often brief, uncomplicated and technical in nature,” said Judge Frances C. Gull, Administrative Judge of the Allen Superior Court Criminal Division. “A defendant in custody needs access to these proceedings, but does not always have to be there in person. Video arraignment gives us a new option that makes the process safer and more efficient.” * * *

Allen County Sheriff David Gladieux paid for the project’s fixed and ongoing costs from the Sheriff’s Commissary Fund. Costs included four new computers and 27-inch monitors that allow the Judge, attorneys and inmates to clearly view the proceeding, as well as modifications to a room at the jail from which inmates will appear via video. Forty-two inch monitors in the courtroom will allow full public access as well. Hardware requirements, such as the minimum size of monitors, are established in Indiana Supreme Court Trial Rule 14.

“Since we spend less on fuel, on vehicles and on personnel, there are certainly savings involved when inmates can appear in court via video,” Gladieux said. “But the real benefit comes in terms of public safety. Keeping inmates in the secure environment of the jail is better for the public, for the inmates and for the personnel who transport them.”

Instead of building a stand-alone video system, video appearances will be done over the Internet via CourtCall, a remote appearance service. CourtCall is already used in Superior Court Civil Division matters to allow attorneys to call into certain hearings. CourtCall is also providing hardware to connect the courtroom and the jail.

CourtCall will charge $400 per month for each of the two locations (the jail and the Courthouse) to manage the service, also paid from the Sheriff’s Commissary Account.

This is the first step in a video appearance capability that the Court may be able to expand in the future, Gull added. The system being set up for initial hearings can utilized for other needs and may expand to other courtrooms as needs arise.

Posted by Marcia Oddi on Wednesday, May 04, 2016
Posted to Indiana Courts

Ind. Courts - "I have a damn good last name"

That is a quote from Bill Dolan's long story today in the NWI Times headed: "Marissa McDermott credits name in gaining voters' verdict." Some quotes:

The 40-year-old wife of Hammond Mayor Thomas McDermott Jr. rode her family's reputation and money to victory over Lake Circuit Court Judge George C. Paras in the upset of the evening for local races. * * *

The circuit court, which presides over thousands of civil disputes ranging from constitutional matters and elections, to domestic law, is the only countywide judicial office that remains in partisan politics, separate from the Lake Superior Court, where merit selection of judges reigns.

Paras stressed his experience on the bench, while Marissa McDermott said she would bring new energy to the court, plagued with a monumental backlog of old cases. * * *

Marissa McDermott will face Gary attorney Douglas M. Grimes, who was unopposed in the Republican primary. If she wins, she would become the first female circuit court judge in the county's history. * * *

She attended the College of Holy Cross in Worcester, Mass., and went to law school at Notre Dame, where she met her future husband. They graduated in May 2000.

Since then she has had a private law practice, specializing in employment law. She also has been public defender in the Lake Superior Court, County Division, for Judge Julie Cantrell's court for several years.

Posted by Marcia Oddi on Wednesday, May 04, 2016
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 6 NFP memorandum decision(s)) [Links corrected]

For publication opinions today (4):

In James K. Gilday v. The City of Indianapolis, a 15-page opinion where the attorney is representing himself, Judge Baker writes:

This case began with a twenty-dollar parking ticket. It proceeded to a $150 default judgment. It ended with the receiver of that ticket, Indianapolis attorney James Gilday, claiming a right to “statutory liquidated damages of not less than $2,500,” plus attorney’s fees, plus punitive damages. Appellant’s App. p. 17. We find that Gilday paid his ticket on time, and that therefore he could not have been required to pay more. In all other respects, we affirm the judgment of the trial court. * * *

The undisputed evidence shows that Gilday paid his fine within seven days; therefore, the City could not add a late fee, hold an administrative hearing regarding his violation, or seek a default judgment against him. Gilday is not correct that he had a legal excuse to park at the meter, or that the City violated the Driver’s Privacy Protection Act. Finally, the trial court was within its discretion to not sanction the City.

We reverse the trial court’s grant of summary judgment regarding the default judgment, and remand with instructions to enter summary judgment in favor of Gilday on this count. In all other respects, the judgment of the trial court is affirmed.

In Scott Schuck v. State of Indiana, an 11-page opinion, Judge Baker writes:
Scott Schuck appeals the trial court’s denial of his motion to correct error in which he argued that his attorney was entitled to reimbursement from public funds for investigatory costs accrued prior to trial. Finding that these investigatory costs were necessary for an adequate defense, but that the calculation of reasonable costs is a decision better made by the trial court, we reverse and remand. * * *

The trial court also expressed a concern that the fees requested were unreasonably high. This is certainly a determination that is within the trial court’s discretion to make. But we do not believe that the process should work like a gameshow, where a request for too much money results in no money being awarded. Rather, if the trial court believes that the funding requested is unreasonably high, the trial court should hold a factfinding hearing to determine the appropriate amount of funding, and then award that amount instead.

That is what should occur in this case. Having found that hiring the investigator was necessary in this case, we believe the trial court should now determine what would be the reasonable cost of such an investigation.

The judgment of the trial court is reversed and remanded with instructions to hold a hearing to determine the amount of public funding that should be awarded.

In David D. Barany v. State of Indiana, a 5-page opinion involving a pro se defendant, Judge May writes:
David D. Barany appeals the trial court’s denial of his request to return the firearm used in the commission of the crime of which he was convicted. We affirm. In 2006, a trial court found Barany guilty of murder and sentenced him to fifty years. During the trial, four weapons were introduced into evidence. On September 10, 2014, Barany asked that a “Bushmaster assault Rifle . . . Beretta handgun . . . [and] .22 Mag North American Arms Block powder revolver,” (App. at 18) (capitalization errors in original), be returned to his mother, Jan Barany.

At a hearing on the matter, the State made an oral motion to destroy the murder weapon, a “Colt Python .357 Magnum Revolver,” (id. at 16), which was not listed in Barany’s motion for return of property. The trial court granted Barany’s motion to return the three weapons he requested, and it granted the State’s oral motion to destroy the Colt Python. * * *

Because the Colt Python was a murder weapon, it was misused for purposes of Ind. Code § 35-47-3-2(b). Thus, the trial court did not err when it denied Barany’s request to release the Colt Python to Jan.

In Reginald Lee Robinson v. State of Indiana, an 18-page opinion with a separate concurring opinion, Judge Brown writes:
Reginald Lee Robinson appeals his convictions for two counts of attempted murder. Robinson raises one issue which we revise and restate as whether there is sufficient evidence to support the jury’s rejection of his insanity defense. We affirm. * * *

[W]hen a defendant claims that an insanity defense should have been successful, the conviction will be set aside only “when the evidence is without conflict and leads only to the conclusion that the defendant was insane when the crime was committed.” Id. (quoting Galloway, 938 N.E.2d at 710 (quoting Thompson, 804 N.E.2d at 1149)).

Robinson contends that the verdicts of guilty but mentally ill are contrary to law and the jury should have found him not responsible by reason of insanity. * * *

Robinson asserted an insanity defense, and the jury found him guilty but mentally ill. The parties do not dispute that Robinson suffered from a mental illness, and the question for purposes of his insanity defense is whether his mental illness prevented him from understanding the wrongfulness of his conduct at the time of the offense. * * *

Based upon the record, we conclude it was possible for the jury to have made a reasonable inference that Robinson, while mentally ill, was able to appreciate the wrongfulness of his conduct at the time of the offense and to reject his insanity defense. * * *

For the foregoing reasons, we affirm Robinson’s convictions for two counts of attempted murder. Affirmed.

Kirsch, J., concurs.
Mathias, J., concurs with separate opinion. [that begins, at p. 15] I concur with my colleagues. However, I write separately to point out yet again the inadequacy of our criminal justice system when confronted with defendants who are mentally ill. Psychiatric examinations of a defendant who likely suffers from serious mental illness should occur shortly after arrest and before any administration of psychotropic medication in jail to more accurately determine whether the defendant could have possibly had the requisite scienter or mens rea at the time of the crime. * * *

Yet, in Indiana, juries are empowered to ignore expert testimony, in favor of the testimony of the lay witnesses. With such a horrendous sequence of events, the jury chose to do so at Robinson’s trial. See Myers v. State, 27 N.E.3d 1069 (Ind. 2015). When faced with acts such as those committed by Robinson, I can understand the jury’s emotion and its desire to protect society by placing a defendant like Robinson behind bars for the rest of his life, rather than considering the logic of a lifetime of treatment in a secure mental health facility. It is a difficult decision for a judge to overturn such a verdict. “Indiana precedent has clearly established that unanimous expert testimony alone is not determinative where there is conflicting lay opinion testimony or demeanor evidence also presented at trial” See id. at 1075. I am therefore constrained to concur.

NFP civil decisions today (3):

In the Matter of the Termination of the Parent-Child Relationship of J.L. & K.L. (Children) and J.L. (Father); J.L. (Father) v. the Indiana Department of Child Services (mem. dec.)

John Lane-El v. State of Indiana, Thor R. Miller, Adam Kegg, et al. (mem. dec.)

In the Matter of: U.E., T.C. and K.C., Children in Need of Services, and R.C. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (3):

Terry Southwood v. State of Indiana (mem. dec.)

Dakevee Wiggins v. State of Indiana (mem. dec.)

Abiodun O. Bratton v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, May 04, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending April 29, 2016

Here is the Clerk's transfer list for the week ending Friday, April 29, 2016. It is one page (and 14 cases) long.

Three transfers were granted last week. All three were granted with opinion and hence have been summarized in earlier ILB posts:

Posted by Marcia Oddi on Wednesday, May 04, 2016
Posted to Indiana Transfer Lists

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

Updating earlier ILB posts on the Advisory Task Force on Remote Access to and Privacy of Electronic Court Records, the group will meet again Friday, May 6th.

Here is the agenda. The main topic of discussion will be the posting of trial court orders and judgments.

Recall that at its April 8th meeting, the group discussed the posting of appellate motions and other pleadings.

At its initial, Feb. 26th meeting, the topic was the posting of appellate briefs - the Supreme Court adopted this recommendation and the briefs have been available since April 1st..

Posted by Marcia Oddi on Wednesday, May 04, 2016
Posted to E-filing | Indiana Courts

Tuesday, May 03, 2016

Ind. Law - "Labor Complaint At Valparaiso Menards Leads To Company-wide Changes re Arbitration Agreements"

From an April 28th WBAA NPR story by Annie Ropeik:

An employee rights complaint by a former Valparaiso Menards clerk led this week to a labor victory for all 45,000 of the home improvement chain's workers across the Midwest.

The issue was over mandatory arbitration, which is legal -- companies can require employees settle complaints out of court, but they have to make sure employees know what rights they're giving up.

Lake County attorney Marissa McDermott says her client, Janet Payne, was fired after bringing a doctor's note to excuse an absence at Menards. The Wisconsin-based company wanted the case thrown out of court, because Payne had signed a document agreeing to arbitration.

But McDermott says that document was really unclear.

"I had never come across an employment agreement that informed the employees so little about what their rights were," she says.

It didn't explain that arbitration meant employees couldn't ask for jury trials or file labor charges, she says, and it didn't make clear that workers wouldn't have to pay an arbiter themselves.

"While I have in other cases consented to arbitration, I thought that this was an agreement that had to be challenged," McDermott says. * * *

On Wednesday, the NLRB announced it had found parts of the arbitration and pay raise rules were illegal. Menards settled the case, and will change its rules to let workers join class-action suits and file complaints with the NLRB. * * *

McDermott says Janet Payne's original case will now be able to proceed in court. She adds it's a major victory when Indiana courts have often favored mandatory arbitration in the past.

ILB: This appears to be a case where the details of the arbitration agreement were very sparse. In Sgouros v. TransUnion, decided by the 7th Circuit on March 25th, the issue was whether Sgouros had agreed to an online arbitration provision. See this ILB post from March 28th, which links to both a summary of the opinion, and an analysis of the opinion by Prof. Noah Feldman, including:
[Judge Diane Wood] noted first that TransUnion hadn’t ensured that Sgouros would see the “critical” contract language at all. “What cinches the case for Sgouros,” she held, was that TransUnion actively misled consumers.

Posted by Marcia Oddi on Tuesday, May 03, 2016
Posted to Administrative Law | Ind. (7th Cir.) Decisions | Indiana Law

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

In Knauf Insulation v. Southern Brands (SD Ind., Barker), a 10-page opinion, Judge Posner writes:

For many years SBI was delinquent in paying Knauf for the insulation it bought. By 2012, when Knauf filed this suit against both SBI and the Dowds (who in 2003 had signed a personal guaranty of their company’s debt to Knauf), SBI owed Knauf more than $3.5 million. Originally filed in an Indiana state court, the suit was removed to federal district court, the parties being of diverse citizenship. Indiana law is agreed to govern the issues presented by the suit. The district judge granted summary judgment in favor of Knauf, and her final judgment awarded it the money owed by SBI plus interest on that debt. * * *

[J.Posner finds Dowds' arguments against its personal guaranty without merit. As for SBI’s counterclaim under the Sherman Act, Posner has an interesting discussion, beginning on p. 6 and running through p. 9, re statutes of limitations and statutes of respose.]

And so the judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Tuesday, May 03, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Old National agrees to $4.75M settlement"

Catching up, here is an April 14th story by Mark Wilson, Evansville Courier & Press, that begins:

Old National Bank has agreed to settle a class action lawsuit alleging it posted certain checking account transactions in a way that increased depositors’ overdraft fees.

Vanderburgh Circuit Court Judge David Kiely on Thursday approved a motion giving preliminary approval to the $4.75 million proposed settlement and determined it was fair — the first part of a two-step approval process.

Members of the class represented in the lawsuit can now be notified of the settlement terms and the June 13 final hearing on its fairness. Class actions allow one or more people to file a lawsuit on behalf of a larger group.

The lawsuit accused the Evansville-based bank with purposefully posting debit card and ATM transactions so as to increase depositors’ overdraft fees.

Attorney Rhett Gonterman, representing Old National Bank, said Thursday that the financial institution was remained adamant that it had committed no wrong doing.

“This case has been pending since 2010 and it’s in the best interest of our shareholders for this to be settled and put to rest rather than incur the cost of continued litigation,” he said.

Posted by Marcia Oddi on Tuesday, May 03, 2016
Posted to Ind. Trial Ct. Decisions

Law- "Florida Says Firm Didn’t Illegally Try to Influence Attorney General"

An April 20th story by Eric Lipton in the NY Times reported:

A former Washington law firm and one of its top partners did not violate Florida’s lobbying laws when appealing to the state attorney general, Pam Bondi, and her staff on behalf of corporate clients, the Florida Commission on Ethics has concluded after a 16-month investigation.

The finding came even though an outside lawyer who assisted in the inquiry concluded that the distinction between lobbying and legal work is a “delicate area” and the lawyer targeted in the complaint, Bernard Nash, would probably have been better off if he had “registered as a lobbyist and then freely advocated for his client.” * * *

The investigation began in January 2015 in response to a series of articles in The New York Times that examined the increasing efforts by a wide range of corporations to influence state attorneys general, whose offices have in recent decades collected billions of dollars in settlements from corporations targeted for legal action.

See also this ILB post from March 6, 2015, quoting a Washington Post story headed "State attorneys general are more and more powerful. Is that a problem?"

Posted by Marcia Oddi on Tuesday, May 03, 2016
Posted to General Law Related

Courts - Style Guide for the SCOTUS

Here is the 266-page SCOTUS' style guide, in PDF form. (h/t Tony Mauro) It also is available in print on Amazon for $25: "The Supreme Court’s Style Guide contains the style preferences of the Supreme Court, used by its Reporter of Decisions when preparing the Court's official opinions and the published United States Reports."

Be sure not to skip the introduction - some quotes:

The Supreme Court of the United States is among the few public institutions that can still inspire some sense of mystery. It is unlike executive and legislative branches, which need popular support to stay in office, and which must therefore engage the public and its insatiable appetite for information. Within the last century, the “political branches” have made themselves more and more available with every advance in technology. Not the Court. * * *

This book is concerned only with the final step of the Court’s decisionmaking - what happens after the decisions are written but before they are released—and it peels the shroud of secrecy back only slightly. but do not be mistaken: what you’re holding is special. and until now, it has been secret.

Posted by Marcia Oddi on Tuesday, May 03, 2016
Posted to Courts in general

Monday, May 02, 2016

Ind. Law - Indianapolis blogger Gary Welsh died this weekend

The IBJ story about his death, headed "Attorney blogger Gary Welsh dies in apparent suicide," concludes:

Jim Klimek, an attorney and friend who worked across the hall from Welsh in the Chamber of Commerce Building on Meridian Street, said that Welsh had been depressed lately, in part because the blog was extremely time consuming but generated little revenue.
Gary's blog, Advance Indiana, had some astonishingly good posts, he would have been a marvelous investigative journalist. Except that, as another blogger wrote yesterday, he seemed to be two persons. The other person saw totally outlandish conspiracies everywhere. From Doug Masson's Blog:
Much of what he wrote struck me as hateful or paranoid, but I could never quite bring myself to remove Advance Indiana from my feed reader because some of what he wrote was insightful and showed energetic investigation. At times, I felt like I was reading posts from two different people. So, in the blogosphere, I kept reading what he wrote, but generally gave him a wide berth. If nothing else, I respect his tenacity and output.
Jennifer Wagner wrote on Facebook:
I was one of his frequent targets since returning from D.C., though we chatted often and shared tips when we both started blogging in the mid-2000s.

Many of his attacks were based on misinformation and half-truths. Just last week, I pulled a school fundraising letter out of a batch being sent to local businesses because I suspected he would see my name and write a scathing blog post about a school choice supporter trying to raise funds for a public school.

But I'd prefer to remember Gary when he was an early and vocal and unwavering champion for the LGBT community, to remember his relentless pursuit of public documents, a lost art among many mainstream reporters who no longer have the time to cull through hundreds of pages of legal jargon.

I too had several early run-ins with Gary and thereafter gave him a wide berth. But I did respect his talents and did, over the years, recommend a number of Advance Indiana posts to ILB readers.

Ironically, one of Gary's last posts referenced the ILB. The March 1, 2016 post was headed "Indiana Law Blog Plans To Go Dark At End Of March." Here is the beginning, which I quote, not because it mentions me, but because it tells something of Gary's recent state of mind with respect to blogging, and with respect to the world:

I'm sorry to hear that Marcia Oddi plans to end her Indiana Law Blog at the end of this month after 13 years of excellent service to the Indiana legal community. As a long-time blogger, I know how much time and dedication she has committed to putting out the greatest online legal source for legal practitioners in Indiana.

It's worth much more to many of us who practice law than that Indiana Lawyer newspaper that multi-millionaire Mickey Maurer sends out to the legal community through some financial arrangement he has with the Indiana State Indianapolis Bar Association we support with our annual dues.

It's very difficult to labor day after day to provide a service to the public and, in turn, receive so little reward for your efforts. Speaking from personal experience, I have a few loyal readers who have made donations to my blog over the years for which I'm very appreciative, but I can attest to the fact that it doesn't come close to compensating you for the value of the time and service you like to believe you're providing. It's particularly upsetting when you see how much people of means in our state and local community dump into these nonprofit organizations of dubious value and political campaigns, but who see no value in supporting the service people like Oddi and myself provide.

I'm sorry that things couldn't have gone better for Gary. RIP, fellow blogger.

Posted by Marcia Oddi on Monday, May 02, 2016
Posted to Indiana Law

Ind. Law - “The Law as a Shield and a Sword – An Advocate’s Perspective”

From the Wabash College News, an April 18th story by Richard Paige begins:

With a career spent defending individual liberties, perhaps it wasn’t surprising that Kenneth Falk, Legal Director of the American Civil Liberties Union of Indiana, described the Bill of Rights as being like poetry during the keynote address Monday at the David W. Peck Lecture and Awards Banquet, the Wabash College Prelaw Society’s annual honors program.

Falk’s lecture, “The Law as a Shield and a Sword – An Advocate’s Perspective” touched on both his advocacy for civil liberties and passion for civility.

“Our society is set up to need lawyers,” said Falk, who received the Senior Peck Medal for Eminence in the Law. “The law is an extremely human endeavor and I provide access to people who have none. The Bill of Rights is free flowing, it’s like poetry. It is a call to action to make sure rights don’t disappear. Every right is precious and must be fought for.”

Falk spent 19 years at the Legal Services Organization of Indiana, serving those unable to pay for needed legal services, and eventually becoming the Director of Litigation. For the last two decades he has served the ACLU in Indiana.

Posted by Marcia Oddi on Monday, May 02, 2016
Posted to Indiana Law

Ind. Decisions - Some history about the availability of Indiana COA not-for-publication opinions

The Question: Recently a reader wrote to me saying he had looked in the Indiana Courts' database of past opinions and could not find a Court of Appeals opinion from 2004, although the Court of Appeals archives appear to go back to 1999.

The Court of Appeals opinion was cited in an April 26th 7th Circuit opinion. Here is the ILB summary of the 7th Circuit opinion. Here is the 7th Circuit reference:

The convictions were affirmed on direct appeal, see Miller v. State, No. 34A02-0307-CR-563 (Ind. App. June 8, 2004).
The Answer: This 2004 opinion was an unpublished (NFP) opinion. Until late in 2006, Court of Appeals opinions designated as Not for Publication were not published, either in print or online! Today, nearly 10 years later, many may be unaware of this.

Although the NFP opinions were full opinions, just as they are today, they were not available except by formally requesting a printed copy ($1.00/page) from the Court of the Appellate Courts. Of course, to do that, you had to be aware the decision existed.

Sometimes, reports from this or that unpublished opinion would appear in the news. This would be because a reporter had taken the opportunity to read though the piles put out on the clerk's counter for the press. Annoyingly to the ILB, often the resultant story would not give the case name!

And what about West? Were the NFPs published by West, either online or in print? I've confirmed my recollection with the Supreme Court librarian - the answer is no, West simply published the weekly disposition table issued by the Court.

So if you try today to locate a NFP case from before August 2006 in the COA's online archive cases, you won't find it. And you won't find it via West. But a copy of the COA opinion, NFP or Published, may be found in the case file in the records of the Clerk of the Appellate Courts.

More: I remember distinctly the day that this changed. It is recorded in this Aug. 23, 2006 ILB post. Some quotes:

It is not news that the Court of Appeals issued 15 NFP opinions today, but these have been posted. * * *

With permission. I am posting a message that I received earlier today in answer to the question "Does this [posting of 15 NFPs] indicate a change in policy, or was it a posting error? The ILB is attempting to find out."

Dear Marcia,

The internet posting of our not-for-profit opinions which you noticed today is the result of a change in policy, not inadvertence. This change comes about after extended study and debate which was prompted to a significant degree by a number of postings in The Indiana Law Blog.

Thank you for both raising the issue and contributing to the debate. If you have any questions, please write or call.

Sincerely,
Jim Kirsch

James S. Kirsch
Chief Judge
Court of Appeals of Indiana

Finally, here is the Supreme Court order, issued August 21, 2006, where the Supreme Court consents to the posting of Court of Appeals not-for-publication memorandum decisions. The vote is interesting:
Sullivan and Boehm, JJ, concur.
Shepard, C.J, Dickson, J, and Rucker, J. concur in result in the interests of comity, notwithstanding their belief that the posting of not-for-publication opinions on the Internet is unwise.

Posted by Marcia Oddi on Monday, May 02, 2016
Posted to Indiana Courts | Indiana Decisions

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

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

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.
For more info, see this ILB post from April 25.

The Supreme Court has two oral arguments set for Thursday, May 5th.

Posted by Marcia Oddi on Monday, May 02, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Courts - Report on Tax Court available today?

As the ILB noted in this post from April 27th:

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.

So perhaps the public can expect to see it today.

Posted by Marcia Oddi on Monday, May 02, 2016
Posted to Indiana Courts

Ind. Courts - Commercial Court Pilot Project, an Update from Judge Bobay

The May issue of Indiana CourtTimes includes a long article by Judge Craig J. Bobay, Allen Superior Court, one of the six pilot project judges, detailing the history and the current status of the project. A sample:

The main goals of commercial courts are to manage factually and/or legally complex commercial litigation as efficiently, competently, and predictably as possible, and to provide consistency in trial court commercial decisions. Another goal is to enable businesses involved in commercial disputes to continue operations with minimal interruption.

Commercial court cases are presided over by judges motivated to become involved, and who handle commercial cases with specific “hands on” case management tools.

Those commercial court case management tools include:

  • Scheduling early case management conferences with parties to streamline issues and determine if early settlement conferences will be productive.
  • Involving the parties and counsel in developing and implementing effective case management plans, including prompt completion of discovery.
  • Jointly anticipating problems before they arise, rather than waiting until counsel present them to the court.
  • Requiring parties to appear for periodic status conferences with joint status reports.
  • Having courts available for hearings on short notice (i.e., within a few days).
  • Employing commercial court masters to assist in resolving discovery disputes and providing other guidance to resolving the conflicts as appropriate for each case.
  • Encouraging parties to consolidate trial on the merits with preliminary injunction evidentiary hearings when applicable.
  • Using electronic filing Orders to facilitate efficient and organized case management and discovery.
See all the ILB posts on the commercial courts project.

Posted by Marcia Oddi on Monday, May 02, 2016
Posted to Ind. Commercial Courts | Indiana Courts

Catch-up: What did you miss over the weekend from the ILB?

From Sunday, May 1, 2016:

From Saturday, April 30, 2016:

Posted by Marcia Oddi on Monday, May 02, 2016
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, May 5

Next week's oral arguments before the Supreme Court (week of 5/9/16):

Thurssday, May 12

Webcasts of Supreme Court oral arguments are available here.


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

Wednesday, May 4

Next week's oral arguments before the Court of Appeals (week of 5/9/16):

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, May 02, 2016
Posted to Upcoming Oral Arguments