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Thursday, June 30, 2016

Ind. Decisions - More on: Federal court upholds e-liquids statute challenge. Two week injunction just issued by 2nd federal judge

Earlier today Judge Barker in Legato Vapors v. Cook ruled in favor of the State of Indiana in a challenge to the e-liquids statute.

Now Judge Young, in Goodcat v. Cook, grants a temporary restraining order:

The court first takes notice of a related case, Legato Vapors LLC v. Cook, No. 1:15-cv-00761-SEB-TAB (S.D. Ind.), recently before the court. In that case, Judge Barker granted summary judgment in favor of the State, concluding that § 7.1-7-1 et seq. did not violate the Dormant Commerce Clause, the Due Process Clause, the Equal Protection Clause, or the Indiana Constitution. See Filing No. 107 at 39, Legato Vapors LLC, No. 1:15-cv-00761-SEB-TAB. Goodcat, however, raises at least two issues that were not before the court in Legato Vapors: (1) whether the effect of the provisions governing the use of a third-party security firm amounts to unconstitutional discrimination against out-of-state manufacturers, in violation of the Dormant Commerce Clause; and (2) whether Section 916 of the Federal Food, Drug, and Cosmetic Act (“FDCA”), codified at 21 U.S.C. § 387p, will preempt the security firm requirements as of August 8, 2016, the effective date for the FDA’s so-called “Deeming Rule.” * * *

The court hereby ENJOINS Defendants from enforcing the statutory deadline, Indiana Code § 7.1-7-4-1(b), as against Goodcat for a period not to exceed FOURTEEN (14) DAYS from the date of this Order. The court further ORDERS the ATC to issue Goodcat a provisional manufacturing permit so that it may continue participating in the Indiana market for e-vapor products without the risk of third-party liability. This Order is set to EXPIRE on July 14, 2016.

To justify such relief, the court makes preliminarily findings based on the extremely limited time frame in which to consider this matter.

Posted by Marcia Oddi on Thursday, June 30, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Judge strikes down Indiana abortion law"; What of other states?

That is the headline to Niki Kelly's story on today's ruling in the Fort Wayne Journal Gazette.

"Indiana's new abortion law halted by judge" is the headline to Stephanie Wang's story in the Indianapolis Star.

Meanwhile, David A. Lieb of the AP has a lengthy survey story on "new laws on abortion set to take effect around the country." It begins:

New laws targeting abortion are set to take effect Friday in about one-fifth of the states, initiating another wave of restrictions just days after the U.S. Supreme Court struck down a Texas measure that led several clinics to close.

Some of the laws limit when and how the procedure can be performed. Others restrict what can be done with tissue from aborted fetuses. Still others seek to block abortion providers from getting government funding.

They are part of a raft of laws that are going on the books around the country with the start of the new fiscal year July 1.

Posted by Marcia Oddi on Thursday, June 30, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - ACLU of Indiana news release on today's decision

Here is the ACLU of Indiana news release on today's decision in the Plaintiffs Planned Parenthood of Indiana and Kentucky cchallenge to Indiana's 2016 anti-abortion legislation:

A federal judge today granted Planned Parenthood's request for a preliminary injunction, blocking key features of an anti-abortion measure scheduled to go into effect July 1. The law would have imposed unprecedented, unconstitutional restrictions on women seeking abortions and their health care providers and was the strictest abortion law in the United States.

The American Civil Liberties Union of Indiana, national ACLU and national Planned Parenthood are representing Planned Parenthood of Indiana and Kentucky in this case.

ACLU of Indiana Legal Director Ken Falk said, "This law attempted to do exactly what Supreme Court precedent said could not be done: invade a woman's privacy rights by preventing her from deciding whether to obtain a pre-viability abortion. We are extremely pleased that Indiana's attempt to violate women's basic rights has been thwarted."

Federal Judge Tanya Walton Pratt enjoined the provisions of the statute that prohibited abortions solely because a woman sought an abortion for certain reasons. The judge also blocked the law's requirement that women be informed of these unconstitutional restrictions, and stopped separate provisions that required fetal tissue to be disposed of in the same manner as human remains.

In her ruling, Judge Pratt said, "The lack of authority supporting the State's position likely stems from the fact that it is contrary to the core legal rights on which a woman's right to choose to terminate her pregnancy prior to viability are predicated."

Indiana House Enrolled Act 1337 was signed into law by Governor Pence on March 24. In April the ACLU of Indiana on behalf of PPINK filed suit against the Indiana State Department of Health, prosecutors of several counties and the state medical licensing board asking the Court to block enforcement of the law, claiming it violated due process and equal protection under the Fourteenth Amendment as well as First Amendment rights of free speech.

"We are heartened that the courts, including the U.S. Supreme Court, are signaling that politicians can no longer hide behind sham rationales to prevent a woman from getting the care she needs. This legislation was never about discrimination. The ACLU stands firmly against discrimination in all forms," said Jane Henegar, ACLU of Indiana executive director. "The ACLU challenged this legislation because it exerts undue political influence into one of the most personal decisions a woman can make, whether and when to continue a pregnancy based upon what is best for herself and her family, a decision protected by the U.S. Constitution."

"This cruel law painted a grim picture for Indiana women with its blatant, unwelcome intrusion into private, independent decision making. HEA 1337 is a violation of the sacred doctor and patient relationship," said Betty Cockrum, President and CEO of PPINK. "Today's decision shows Gov. Mike Pence that he cannot force his religious ideology on Hoosiers. It is further compelling recognition by the courts that legislation interfering with women's reproductive rights will not be tolerated."

Posted by Marcia Oddi on Thursday, June 30, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - (No longer) Waiting for federal district court ruling on abortion challenge ...

Judge Pratt has granted the preliminary injunction. Here is the 31-page opinion. From the opinion:

For the reasons that follow, PPINK is entitled to an injunction as to all of the challenged provisions. PPINK is likely to succeed on the merits of its challenge to the anti-discrimination provisions because they directly contravene the principle established in Roe v. Wade, 410 U.S. 113 (1973), that a state may not prohibit a woman from making the ultimate decision to have an abortion prior to fetal viability. Similarly, the information dissemination provision is likely unconstitutional as it requires abortion providers to convey almost certainly false information to their patients. In addition, PPINK faces irreparable harm of a significantly greater magnitude if these provisions are not enjoined than that faced by the State from an injunction.

PPINK’s challenges to the fetal tissue disposition provisions present a much closer call and present difficult legal questions about which there are few clear answers. In the end, however, the Court concludes that the State’s asserted interest in treating fetal remains with the dignity of human remains is not legitimate given that the law does not recognize a fetus as a person. Therefore, PPINK has a strong likelihood of success on its substantive due process challenge to these provisions as well. Because the balance of harms also favors PPINK regarding this claim, PPINK has demonstrated that the Court should enjoin the fetal tissue disposition provisions pending resolution of this litigation.

Earlier today: HEA 1337, the 2016 abortion law provisions, will go into effect tomorrow, July 1, unless enjoined before them. The challenge is in federal Judge Tanya Walton Pratt's court. Background here.

Posted by Marcia Oddi on Thursday, June 30, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Federal district court rules today in complex rights of same-sex couples dispute

Updating these two earlier ILB posts:

Ind. Courts - Both SSM birth certificate cases now assigned to Judge Pratt

The Allen/Phillipa-Stackman SSM birth certificate case has been reassigned today to federal Judge Tanya Walton-Pratt who has the other (Henderson) case. For background, see this ILB post from Dec. 8th....
Posted in The Indiana Law Blog on December 14, 2015 05:48 PM

Ind. Courts - "Same-sex couples sue state over birth certificates" [Updated]

From a long, front-page story today in the Indianapolis Star, reported by Stephanie Wang. Some quotes:Along with another Central Indiana couple, the Phillips-Stackmans filed a lawsuit Monday in the U.S. Southern District of Indiana in Indianapolis against the state and...
Posted in The Indiana Law Blog on December 8, 2015 09:04 AM

Judge Pratt this morning has issued this 32-page ruling in Henderson v. Adams. It begins:
The disputes in this matter surround complex legal issues following the United States Supreme Court’s mandate that legally married same-sex couples in the United States are entitled to the same privileges and benefits as legally married heterosexual couples. The Plaintiffs in this case are female, same-sex married couples and their children whose birth certificates list only the birth mother as a parent with no second parent. The Plaintiffs seek injunctive relief to list both the birth mother and her same-sex spouse on their children’s birth certificates and to have their children recognized as children born in wedlock. They also seek declaratory judgment that Indiana Code §§ 31-9-2-15, 31-9-2-16, and 31-14-7-1 violate the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Defendants assert that Plaintiffs’ claims must fail because the challenged statutes impinge no fundamental rights and in any event are narrowly tailored to vindicate compelling state interests.

Posted by Marcia Oddi on Thursday, June 30, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 23 NFP memorandum decision(s))

For publication opinions today (4):

In State of Indiana v. Megan J. Cassady , an 18-page, 2-1 opinion reversing the trial court’s grant of Megan Cassady’s motion to suppress evidence following a traffic stop and dog sniff [more coming]

In Eduardo Cruz-Salazar v. State of Indiana , a 13-page opinion, Judge Najam writes:

Eduardo Cruz-Salazar appeals his conviction for possession of cocaine, as a Class A misdemeanor, following a bench trial. He presents two issues for our review, which we consolidate and restate as whether the trial court abused its discretion when it admitted into evidence the cocaine a police officer found on his person after his arrest for public intoxication. We affirm.
In Charles Robinson v. State of Indiana, an 18-page, 2-1 opinion, Judge Barnes writes:
We conclude the record establishes that Robinson was not entitled to severance of the charges as a matter of right, but rather that the charged offenses were “connected together or constituting parts of a single scheme or plan.” See I.C. § 35-34-1-9(a)(2). On two separate occasions less than a month apart, Robinson went to the same Walmart in Shelbyville and stole or attempted to steal parts from a home security camera system box, after opening the box within the store. These two thefts had a common victim, modus operandi, and motive. Additionally, proof regarding both thefts was necessary in order for the State to establish the corrupt business influence charge; it would have been impossible to prove that charge without evidence related to both thefts. Thus, Robinson was not entitled to severance as a matter of right, and denial of that motion was within the trial court’s discretion. * * *

We now turn to the question of whether Robinson’s commission of theft on two separate dates is sufficient to support his corrupt business influence conviction. * * *

Here, Robinson twice shoplifted or attempted to shoplift similar items from the same Walmart store. Beyond that, there is no evidence of any kind of ongoing criminal enterprise. There is no evidence of Robinson having acquired any property through “racketeering activity” other than the items he stole or attempted to steal from Walmart. There is no evidence of extensive planning or increasing sophistication of Robinson’s crimes. There is no evidence he enlisted any accomplices to work with him; the record does not contain any evidence that Hall was aware of Robinson’s criminal actions, and she denied having any knowledge of them. Robinson was not any kind of criminal mastermind, nor did he work for one. The crimes were isolated and sporadic.

We simply do not believe the commission of two acts of shoplifting of this type is the kind of activity our legislature meant to be covered by our RICO statute. * * *

The trial court properly denied Robinson’s severance motion. There is insufficient evidence to support his conviction for Level 5 felony corrupt business influence, but we remand for imposition of judgments of conviction and sentence for two counts of Level 6 felony theft. Reversed and remanded.

Robb, J., concurs.
Altice, J., concurs and dissents with separate opinion. [which begins at p. 16] ... I must part ways with the majority’s conclusion that the State presented insufficient evidence to support Robinson’s corrupt business influence conviction. I do not take issue with the majority’s observation that the commission of any two predicate offenses will not necessarily support a RICO conviction. My disagreement is with the majority’s conclusion that the specific facts of this case cannot support such a conviction.

In Keyaunna Hurley v. State of Indiana, a 9-page opinion, Judge Bradford writes:
Hurley consented to a chemical breath test after she failed certain field sobriety tests. During administration of the certified breath test, Hurley failed to provide a sufficient sample. Based on his interactions with and observations of Hurley, the officer administering the test was of the opinion that the insufficient sample was the result of a lack of cooperation by Hurley. As a result, she was deemed to have refused the test. The officer subsequently obtained a warrant for and completed a blood draw.

Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged Hurley with two Class A misdemeanors and alleged that Hurley had committed a traffic infraction. Hurley requested review of the determination that she had refused the chemical breath test (the “refusal determination”). Following a hearing, the trial court upheld the refusal determination. Hurley now appeals from the denial of her verified petition for judicial finding of no refusal, claiming that the evidence was insufficient to sustain the trial court’s determination that she refused a breath test. We affirm. * * *

Given that the record establishes that Trooper Graves believed that the “Insufficient Sample” message was the result of a failure to cooperate by Hurley, we conclude that Trooper Graves’s decision to record that Hurley refused the test fell within the statutory parameters set forth in Section 2-4-2(b)(5) of Title 260 of the Indiana Administrative Code. * * *

Hurley claims that the evidence is insufficient to sustain the refusal determination because she agreed to take the test, she submitted to the test, she cooperated with Trooper Graves’s instructions, and she was never told by Trooper Graves that she was not blowing hard enough or needed to blow harder. Hurley’s claim in this regard, however, is effectively an invitation for this court to reweigh the evidence, which we will not do.

NFP civil decisions today (7):

Tricia Wallerstedt v. Christopher Wallerstedt (mem. dec.)

In the Matter of the Paternity of: L.M.E. Gregory A. Edwards v. Toni Kelly (mem. dec.)

Pinnacle Properties Development Group, LLC v. Raul Sanchez (mem. dec.)

ArcelorMittal USA, LLC Pension Plan v. Jackie L. Hickey (mem. dec.)

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

In re the Termination of the Parent-Child Relationship of M.W. and L.W., minor children, and their Mother, W.W. v. The Indiana Department of Child Services (mem. dec.)

Company v. Review Board of the Indiana Department of Workforce Development and C.H. (mem. dec.)

NFP criminal decisions today (16):

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

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

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

Jerry L. Ward v. State of Indiana (mem. dec.)

James F. Gibbons, Jr. v. State of Indiana (mem. dec.)

Charles R. Ellis v. State of Indiana (mem. dec.)

Artie Thomas v. State of Indiana (mem. dec.)

Russell E. Shreve v. State of Indiana (mem. dec.)

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

Samantha Cooper v. State of Indiana (mem. dec.)

Roger Lopez-Rivera v. State of Indiana (mem. dec.)

Adrian P. Crisostomo v. State of Indiana (mem. dec.)

Christopher J. Moberg v. State of Indiana (mem. dec.)

Jeffery A. Sarver v. State of Indiana (mem. dec.)

Jerome D. Seward v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Thursday, June 30, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Federal court upholds e-liquids statute challenge

Here is today's ruling by Judge Sarah Evans Barker in Legato Vapors v. Cook.

Eric Berman of WIBC tweets:

#vaping ruling from Sarah Evans Barker is 1 of 2 challenges to IN e-liquids regulations. 2nd case still pending before Judge Richard Young.

Posted by Marcia Oddi on Thursday, June 30, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - General Assembly life-time health insurance plan comes back to bite

Niki Kelly of the Fort Wayne Journal Gazette has had stories yesterday and today on the lifetime healthcare plan for legislators and certain LSA staff that John Gregg helped put into place at the turn of this century.

Some quotes from yesterday's story:

Democratic House Speaker John Gregg was on his way out the door when he signed a two-page letter instituting a controversial lifetime health care benefit for retired lawmakers that he is still taking advantage of today.

He announced he was not seeking re-election in February 2002. A few months later, he and GOP Senate President Pro Tem Robert Garton quietly implemented the perk that later cost Garton his seat in the Senate.

Gregg – now running for governor against Gov. Mike Pence – and his wife receive benefits from the plan. Previously, his ex-wife and sons did as well. * * *

Lifetime health care for retired lawmakers came into being after legislative leaders inserted provisions in four bills in 2001 and 2002 – when Gregg was house speaker.

The last piece of legislation would have created a special fund to pay for the perk, but Gov. Frank O’Bannon vetoed the legislation amid budget cuts. A veto override failed and the benefit has been paid through general fund dollars since.

The law allowed lawmakers who retire with at least six years and one day of service to lock in for life the employee percentage of contribution for monthly health insurance premiums they had been paying at retirement.

Depending on which plan lawmakers select, premiums can range from very little to up to 25 percent of the cost. The benefit also was available to lawmakers’ families and legislative employees.

Other state employees must pay 100 percent of all health insurance costs after they leave state government to stay in the insurance pool. * * *

After the perk became sensitive politically, Republican leaders got rid of it. GOP House Speaker Brian Bosma ended the bonus in January 2006 for anyone elected that November, which led to a spate of resignations as lawmakers wanted to keep the lucrative benefit in place.

Garton, though, stuck by the program and was defeated in the May primary largely because of the benefit.

Fort Wayne Sen. David Long emerged as the new Senate president pro tem in November 2006 and immediately ended the state-subsidized health care.

From today's story:
Democratic gubernatorial candidate John Gregg might have to answer politically, but he isn’t the only former state legislator benefiting from a sweetheart health care benefit he helped create.

Twenty-nine former House and Senate members – or their spouses – are receiving state-subsidized benefits.

And it has cost taxpayers $6 million since the program’s inception.

The former legislators on the lifetime retiree insurance program include a state judge, prestigious law partners, a former mayor, two former House speakers and at least one person working as a state employee now.

The story lists the current "29 former Indiana lawmakers or their spouses who are on the lifetime retiree health insurance program."

Posted by Marcia Oddi on Thursday, June 30, 2016
Posted to Indiana Government | Legislative Benefits

Ind. Decisions - "Dashcam Video Refutes Traffic Cop Testimony"

That is the headline to this post at TheNewspaper.com ("Driving politics"). The subhead: "Federal judge tosses traffic stop evidence because dashcam video disproved police testimony." The post begins:

In traffic cases, the law enforcement officer's version of events is usually accepted as the most accurate account. Except in rare cases, this is enough to convict any motorist. One of those rare exceptions took place in an Indiana courtroom earlier this month as US District Court Judge Jane Magnus-Stinson reviewed dashcam video and believed the motorist's version of events over the "illogical" and "inconsistent" account given by a Hancock County sheriff's deputy.

Deputy Nicholas E. Ernstes was running a speed trap from the median of Interstate 70 on the overcast and rainy morning of November 18, 2015. From about a mile away, he spotted a black Mitsubishi sedan with New York license plates traveling at 58 MPH in the far right lane. The limit is 70 MPH.

"The vehicle also caught my attention because it did not have its headlights activated while driving in the rain in violation of Indiana Code 9-21-7-2," Deputy Ernstes testified in an affidavit.

The must-read post includes a copy of the opinion.

Posted by Marcia Oddi on Thursday, June 30, 2016
Posted to Ind Fed D.Ct. Decisions

Indiana Courts - E-filing mandatory starting tomorrow in appellate courts and Hamilton County

E-filing becomes mandatory starting tomorrow, July 1st, in the appellate courts (Supreme, COA, and Tax) and in Hamilton County. You might want to use the weekend to bush up!

Here is the calendar of when e-filing will become mandatory in your county.

Use the Indiana Court's resource page for more information, and find the related ILB posts here.

Posted by Marcia Oddi on Thursday, June 30, 2016
Posted to E-filing

Wednesday, June 29, 2016

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

For publication opinions today (2):

In Anonymous M.D. and Anonymous Hospital v. Kenneth Lockridge, on behalf of Lily Lockridge, Rose Lockridge, and Kenneth Lockridge, Jr., Minors, and Commissioner of Indiana Dept. of Insurance , a 13-page opinion, Judge Baker writes:

Traci Leach died from lung cancer after a radiologist failed to diagnose a tumor on a CT scan. After Leach’s death, multiple medical malpractice claims were filed, including a claim filed by three of her young children. The trial court dismissed all of the claims except for the children’s because the claims were untimely filed. But it found that because the children were under the age of six at the time of the alleged negligence and under the age of eight at the time of the filing of the complaint, their claims were not time-barred. Given the plain language of the statutes at issue, we find that the trial court did not err by finding that the children’s claims were not time-barred.

Anonymous M.D. (the Doctor) and Anonymous Hospital (the Hospital) (collectively, the Appellants) bring this interlocutory appeal of the trial court’s order partially denying their summary judgment motion. The Appellants argue that the two-year statute of limitations applies to the claims of Traci’s children and that the trial court erred by denying summary judgment on those claims. * * *

We acknowledge the wisdom of the Ellenwine holding but find that it does not apply to child claimants who fall under the tolling provision. The General Assembly has carved out an explicit exception to the two-year statute of limitations for children in a limited and specific age range. We have already held that those children may be either direct or derivative claimants. It would render the tolling provision meaningless as to children who are derivative claimants to say that they are nonetheless bound by the two-year limitations period governing all other claims. It is well established that we may not interpret one provision of a statute in a way that renders other provisions of the statute meaningless. E.g., Henderson v. Coutee, 829 N.E.2d 1028, 1030 (Ind. Ct. App. 2005). Given that our legislature has decided to treat children under the age of eight in a special way for the purpose of the medical malpractice limitations period and has not limited the special treatment to direct claimants, we find that the tolling provision must apply whether the children are derivative or direct claimants. Consequently, the trial court did not err by determining that the Children in this case were not time-barred because of the two-year statute of limitations period governing the underlying claim from which their claim derives.

The judgment of the trial court is affirmed and remanded for further proceedings.

In Deante Dalton v. State of Indiana , a 16-page opinion, Judge Bradford writes:
On September 14, 2014, Appellant-Defendant Deante Dalton, along with two accomplices, participated in a violent home invasion which resulted in the death of one of those accomplices, Dretarrius Rodgers. As a result of his participation in the home invasion and Rodgers’s death, Dalton was subsequently charged with felony murder. Following a jury trial, Dalton was found guilty as charged.

On appeal, Dalton contends that the evidence is insufficient to sustain his felony murder conviction. For its part, Appellee-Plaintiff the State of Indiana (the “State”) argues that the evidence is sufficient to sustain Dalton’s conviction. * * *

In light of the evidence most favorable to Dalton’s conviction, we conclude that the State presented sufficient evidence to prove that Dalton’s actions, both as a principal and as an accomplice, were a mediate or immediate cause of Rodgers’s death. We therefore affirm the judgment of the trial court.

NFP civil decisions today (4):

Ervin R. Hall v. Richard Brown, in his capacity as Superintendent of Wabash Valley Correctional Facility (mem. dec.)

Philip H. Chamberlain v. State of Indiana, Connie Lawson, and Chris Naylor (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: S.L. and J.L. (Minor Children), and A.D. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of D.G., J.G., and H.G. (Minor Children) and Je.G. (Mother); Je.G. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (6):

Douglas R. Cutter v. State of Indiana (mem. dec.)

Rodney D. Lloyd v. State of Indiana (mem. dec.)

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

Sandra M. Bowers v. State of Indiana (mem. dec.)

Edward Brookins v. State of Indiana (mem. dec.)

Todd A. Brown v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, June 29, 2016
Posted to Ind. App.Ct. Decisions

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

In Jack Brown v. Kevin Smith, Mayor of Anderson (SD Ind., Prratt), a 12-page opinion, Judge Williams writes:

During his lengthy tenure at the City of Anderson Transit System (CATS), Plaintiff Jack Brown developed diabetes and became unable to maintain his commercial driver’s license (CDL). For nearly a decade, this development proved irrelevant—at least from an employment standpoint. However, several years after being promoted to a position that required a CDL, Brown was fired. He sued the City of Anderson and others, alleging that his termination amounted to disability discrimination since possession of a CDL was not an essential function of his job. After the City unsuccessfully moved for summary judgment, a jury sided with Brown and awarded him damages.

The City raises several arguments on appeal. Principally, it contends that the district court should have ruled as a matter of law that possession of a CDL was an essential job function. Alternatively, the City claims that the district court erred in instructing the jury about the essential‐function inquiry, and in concluding that Brown adequately mitigated his damages. We disagree. The essential‐function issue is a factual question that was properly put before the jury, and the district court’s jury instructions on this issue were consistent with federal regulations and our precedent. We also conclude that Brown reasonably attempted to mitigate his damages by starting his own trailer‐hauling business, despite the fact that the business ultimately failed. So we affirm the district court’s judgment.

Posted by Marcia Oddi on Wednesday, June 29, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Laws - New takes taking effect July 1 include several being challenged

Brian Slodysko of the AP has a story today highlighting several of the new Indiana laws taking effect July 1.

Abortion. The most notable is HEA 1337, the abortion law, which will go into effect July 1 unless enjoined before them - the matter is pending in federal court here.

Vaping regulations. The new vaping law has been strongly criticized by the Indianapolis Star.

Police body cameras. Indiana prosecutors "say the Rules of Professional Conduct restrict them from releasing the recordings" under the new police body camera law, according to an Indiana Lawyer story today.

Here is a summary of all the 2016 enrolled acts, including their effective dates.

Posted by Marcia Oddi on Wednesday, June 29, 2016
Posted to Indiana Law

Courts - "How an Ohio judge’s ruling threatens journalists’ ability to cover the court system"

From the Columbia Journalism Review, a long, June 27th commentary by Jonathan Peters that begins:

An attorney has a civil case that’s about to go to trial. He contacts a friend of his, the editor of a local publication, to encourage coverage of the case. The attorney shares public court records and information about the court schedule. The case is newsworthy, and on the eve of trial the editor’s publication runs a story that outlines the claims of the attorney’s clients.

And for this … the attorney deserves to be sanctioned for frivolous conduct?

That’s how one Ohio judge sees it, although plenty of people, it should go without saying, disagree. An appeal is underway, and a coalition of civil liberties and media groups, including the Ohio Newspaper Association, the Ohio Association of Broadcasters, and the Ohio Coalition for Open Government, has filed an amicus brief arguing that the judge used the wrong standard to impose the sanctions. The First Amendment Lawyers Association has filed a separate brief arguing that the sanctions were unconstitutional. And—full disclosure that I’m hardly a neutral commentator here—I’m the lead author of a third brief, for the ACLU of Ohio, arguing that the sanctions could restrict the rights of attorneys to communicate with the press.

The lengthy must-read article has many valuable links.

Posted by Marcia Oddi on Wednesday, June 29, 2016
Posted to Courts in general

Tuesday, June 28, 2016

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

For publication opinions today (4):

In Elaine Chenore v. Robert Plantz, a 6-page opinion, Judge Bailey writes:

Elaine Chenore (“Chenore”) appeals, following the deemed denial of a motion to correct error challenging the dismissal of her attorney malpractice action against Robert Plantz (“Plantz”). She presents the sole issue of whether the trial court improperly dismissed the claim pursuant to Indiana Trial Rule 12(B)(6). We reverse. * * *

Chenore’s complaint asserted facts in avoidance of the statute of limitation. To the extent that Plantz has argued that Chenore should have discovered her harm earlier, this presents a factual dispute not apparent on the face of Chenore’s complaint. “A complaint is sufficient and should not be dismissed so long as it states any set of allegations, no matter how unartfully pleaded, upon which the plaintiff could be granted relief.” Graves v. Kovacs, 990 N.E.2d 972, 976 (Ind. Ct. App. 2013).

Accordingly, we agree with Chenore that her complaint was improperly dismissed pursuant to Trial Rule 12(B)(6).

In Jeffrey B. Morgan and Wendi S. Morgan v. Andrew White and Holly White , a 14-page opinion, Judge Brown writes:
Jeffrey B. Morgan and Wendi S. Morgan (collectively, the “Morgans”) appeal the trial court’s findings of fact, conclusions and judgment in favor of Andrew White and Holly White (collectively, the “Whites”) on the Whites’ counterclaim for adverse possession and quiet title. The Morgans raise one issue which we revise and restate as whether the court’s judgment is clearly erroneous. We affirm.
In Rachel Staggs v. Corena Buxbaum , a 21-page opinion, Judge Brown writes:
Rachel Staggs appeals the trial court’s order awarding treble damages, actual costs, and attorney fees pursuant to the Crime Victim Relief Act (“CVRA”) in favor of Corena Buxbaum. Staggs raises two issues which we revise and restate as:
I. Whether the trial court applied the wrong standard in awarding exemplary damages under the CVRA; and
II. Whether the court’s award of exemplary damages is clearly erroneous.
We affirm.
In Timothy J. Jimerson v. State of Indiana , a 13-page opinion, Judge Bailey writes:
Timothy Jimerson (“Jimerson”) appeals his conviction for Voluntary Manslaughter, a Class A felony. He presents the sole issue of whether the trial court abused its discretion in restricting the testimony of an expert witness. We affirm. * * *

The case law appears to present three categories of expert testimony regarding false or coerced confessions: a general description of techniques and goals; highlighting of practices used in a particular interview; and the impact of techniques on a particular confession. The parties agree that general testimony is permissible and that allowing testimony on the latter category would invade the province of the jury. They disagree, in light of the relevant precedent, as to admissibility of evidence falling within the second category. * * *

Together with extensive background testimony from Dr. Leo, the jury was provided with Jimerson’s statement in audio, video, and written form. Moreover, Jimerson testified and explained his subjective view, that is, he had said certain things he later recanted because he was “very scared.” (Tr. at 1163.) He testified that he had been led into scenarios, told that his DNA was all over Spicer’s body and house, and encouraged to demonstrate that he was not a monster. As such, the jury had been given adequate information to apply its common knowledge and experience. Where a jury is able to apply concepts without further assistance, highlighting individual exchanges or vouching for the truth or falsity of particular evidence is invasive.

Jimerson has not demonstrated that the trial court abused its discretion in the restriction of expert testimony.

NFP civil decisions today (3):

Nicholaus Griesemer and Alexander Griesemer, Minor Children, By Next Friend, Pamela Griesemer v. Brian Griesemer (mem. dec.)

In the Matter of: J.L. and L.L., Children in Need of Services, Q.L. v. The Indiana Department of Child Services (mem. dec.)

Connie Duty, Coleen Grayson, and Frank Riffert v. The Estate of Hazel A. Geiselman, et al. (mem. dec.)

NFP criminal decisions today (1):

Stacy Robey v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, June 28, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In Steven Clippinger v. State of Indiana, an 11-page, 5-0 opinion, Justice Massa writes:

Steven Clippinger murdered his brother and sister-in-law and was sentenced to two terms of life imprisonment without parole, with an additional term of twenty years for his conviction as a serious violent felon in possession of a firearm, all to be served consecutively. Clippinger appeals the sentence only, claiming that the trial court was without statutory authorization to impose consecutive life sentences, and that the trial court’s sentencing order in this case was inadequate. We agree with Clippinger’s second contention, but find the sentence imposed was proper, and thus exercise our appellate prerogative to sentence Clippinger to two consecutive terms of life imprisonment without parole, and affirm the additional consecutive term of twenty years imprisonment for the firearm possession conviction.


In the Matter of Charles P. White is a 4-page, 4-0 (J.Massa not participating) per curiam attorney discipline ruling:

We find that Respondent, Charles P. White, engaged in attorney misconduct. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least two years without automatic reinstatement. * * *

In the current case, Respondent and the Commission propose that Respondent receive a suspension from the practice of law for a period of at least two years, without automatic reinstatement. Viewed by itself, this would be at the low end of the discipline we have imposed in similar cases. We note, however, that Respondent already has been under interim suspension in this matter for over four years, and in conjunction with the parties’ proposed final discipline Respondent will have served over six years of suspension before he becomes eligible to petition for reinstatement. Moreover, a petition for reinstatement would be granted only if he is able to prove by clear and convincing evidence his fitness to resume the practice of law, a burden that likely will be particularly steep given the seriousness of Respondent’s misconduct. See Gutman, 599 N.E.2d at 608. With these considerations in mind, the Court approves and orders the agreed discipline.

Conclusion. The Court concludes that by virtue of his felony convictions for perjury, voting outside a precinct of residence, and theft, Respondent has violated Indiana Professional Conduct Rules 8.4(b) and 8.4(c). Respondent already is under an order of interim suspension in this case and a separate suspension order for continuing legal education noncompliance. For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than two years, without automatic reinstatement, beginning on the date of this opinion. At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays all applicable fees and costs, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). The costs of this proceeding are assessed against Respondent.

Posted by Marcia Oddi on Tuesday, June 28, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Apparently no Indiana appellate decisions today [Updated]

Nothing posted today to Supreme, Court of Appeals, or Tax Court lists.

[Updated] Wrong, opinions have just been posted. Court has tweeted there were technical problems. Summaries coming soon.

Posted by Marcia Oddi on Tuesday, June 28, 2016
Posted to Indiana Decisions

Ind. Decisions - SCOTUS denies cert to Wisconsin appeal of 7th Circuit ruling striking Wis. abortion restrictions

From the end of an April 17th Milwaukee Journal-Sentinel story, headed "Major Wisconsin cases could hang in balance at short-handed Supreme Court,"reported by Patrick Marley:

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

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

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

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

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

It is also possible the U.S. Supreme Court would send the Texas case back to lower courts for further proceedings.

ILB: As it turns out, the SCOTUS did neither of those things, but instead yesterday struck the Texas provisions. As a result, as reported today by Jason Stein of the Journal Sentinel:
Handing down its second major abortion action in as many days, the U.S. Supreme Court refused Tuesday to rescue a Wisconsin law restricting abortion clinics and doctors in the state, leaving in place lower court rulings that had struck it down.

Tuesday's simple order follows a lengthy decision striking Monday down similar restrictions on abortion providers in Texas that was considered the high court's most significant ruling on the procedure in a generation.

The court, acting on the last day of a term in which it became short-handed after the death of Justice Antonin Scalia, ruled 5-3 that the Texas law's restrictions go beyond the type permitted under the court's 1992 ruling in Planned Parenthood v. Casey.

Wisconsin passed similar though less extensive limits on abortion in 2013 only to see them struck down by a trial court in Madison and by the 7th Circuit U.S. Court of Appeals. Justice Stephen Breyer directly cited the lawsuit over Wisconsin's law and those in other states in his majority opinion in the Texas decision Monday. * * *

University of Richmond law professor Carl Tobias said late Monday that it would have been nearly impossible for Wisconsin to win its appeal of 7th Circuit decision in light of Monday's decision. For that to happen, two Supreme Court had justices would have to change the positions taken in the Texas case — an unlikely scenario.

"It seems like there is no clear or good path. I expect SCOTUS will just 'dismiss' in light of today's opinion," Tobias said, correctly predicting Tuesday's outcome.

And SCOTUSblog's Lyle Denniston writes this morning, in a post headed "Court to hear major new controversies — next Term":
Following Monday’s ruling striking down a Texas law requiring that doctors who perform abortions must obtain admitting privileges at a hospital near their clinics as part of its decision in Whole Woman’s Health v. Hellerstedt, the Justices simply denied review on Tuesday of two other cases by states seeking to defend similar laws: a Mississippi case, Currier v. Jackson Women’s Health Organization, and a Wisconsin case, Schimel v. Planned Parenthood.

Posted by Marcia Oddi on Tuesday, June 28, 2016
Posted to Courts in general | Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decided one Indiana case yesterday

In Panther Brands, LLC v. Indy Racing League, LLC (SD Ind., Pratt), a 7-page opinion, Chief Judge Wood writes:

This case arises from the world of auto racing and the sponsorships that go along with it, but it is in the wrong court. Panther Brands is a marketing and brand management company. In 2013, Panther signed a contract with IndyCar, which authorizes the Indy Racing League car series, to purchase various marketing benefits to provide to its team sponsor. The benefits included access to coveted space in the “Fan Village” at IndyCar racing events, an area where sponsors set up displays to attract fans. The Army National Guard (“the Guard”) had been Panther’s team sponsor from 2008 to 2013. After it signed the 2013 contract, Panther learned that another team, Rahal Letterman Lanigan Racing (“RLL Racing”), intended to provide the Guard with Fan Village space as a sponsorship benefit.

Believing that RLL Racing had conspired with IndyCar and a bid management agency called Docupak to persuade the Guard to sponsor RLL Racing instead of Panther, Panther brought suit in state court against RLL Racing, Docupak, IndyCar, and active‐duty Guard member John Metzler, who acted as the liaison between the Guard and Panther. The defendants removed the case to federal court, where the United States was substituted as a party for Metzler, see 28 U.S.C. § 2679(d); Panther then filed an amended complaint that did not name either Metzler or the United States. The district court dismissed the complaint against RLL Racing, IndyCar, and Docupak pursuant to Federal Rule of Civil Procedure 12(b)(6), and found the United States’s motion to dismiss for lack of jurisdiction moot. Because the basis for federal jurisdiction disappeared when Panther amended its complaint, we vacate the district court’s decision and remand for dismissal for lack of jurisdiction. * * *

After the United States (standing in for Metzler) was eliminated as a party as a result of Panther’s amendment of the complaint, the basis for federal jurisdiction disappeared. This is so even accepting that Westfall Act removal was appropriate initially.

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

Ind. Law - Two good stories on the impact of yesterday's SCOTUS abortion decision on Indiana

"Legal experts: Supreme Court abortion ruling unlikely to have immediate impact on Indiana," a long, very good, $$ story by Megan Banta of the Bloomington Herald-Times. Some quotes [ILB emphasis]:

In a 5-3 ruling, the Supreme Court has struck down Texas’s restrictions, saying the laws impose an undue burden on a woman’s right to obtain an abortion. The Texas law, passed in 2013, requires that abortion providers have admitting privileges at a nearby hospital and that abortion facilities comply with the requirements for ambulatory surgical centers. The plaintiffs in the case are clinics, including Whole Woman’s Health, and doctors providing abortion services.

It’s one of the many so-called TRAP laws — targeted regulation of abortion providers — that states, including Indiana, have passed in the wake of both the 1973 Roe v. Wade and the 1992 Planned Parenthood v. Casey decisions by the U.S. Supreme Court.

Currently, Indiana law requires physicians who perform abortions to have admitting privileges, in writing, at a hospital located in the county where abortions are provided or in an adjacent county, or to have entered into a written agreement with a physician who has those privileges. A new law, which currently is being challenged in federal court, would require any written agreement to be renewed annually and would require the Indiana State Department of Health to submit copies of admitting privileges and written agreements between physicians to other hospitals in the county and contiguous counties where abortions are performed.

While the Supreme Court decision doesn’t invalidate Indiana’s law — it only directly affects the law in Texas despite being a national ruling — it will have an effect on the way a court would rule on any future challenge to that law and other laws that specifically regulate abortion clinics and providers, said Dawn Johnsen, the Walter W. Foskett Professor of law at Indiana University’s Maurer School of Law.

Johnsen said the high court’s decision means that lower courts, when applying the new precedent set in Whole Woman’s Health v. Hellerstedt, can’t just defer to a state that says it enacted a law for the purposes of promoting women’s health. Now, courts must give a meaningful, close review to see whether that claim is true — whether a law actually benefits women who might seek an abortion, or whether it simply serves as an obstacle.

That’s a change in the “undue burden” standard in Planned Parenthood v. Casey, in which the court said laws impose such a burden if they are enacted with the purpose of placing “a substantial obstacle in the path” of a woman seeking an abortion.

“It should serve to have courts invalidate all laws that are like the Texas restrictions — that truly serve no health purpose,” Johnsen said. “That will cover a lot of restrictions, but not all restrictions.” * * *

Johnsen said it’s a reality that the fight will continue, even though the ruling is “great progress when we’re talking about TRAP laws — those enacted under the guise of protecting women’s health.”

The fear, she said, is that those who have been trying to overturn Roe v. Wade — which affirmed the basic right to an abortion, but with limits — have been creative in coming up with ways to erect obstacles and will come up with new forms of restrictions.

She pointed specifically to laws in which legislators say they’re trying to inform women’s decisions and require clinics to hand out pamphlets with specific information and have women wait a defined amount of time between receiving that information and actually receiving abortion care. Those laws aren’t directly affected by this decision, she said.

One fight playing out at the state level is a suit filed in April by the American Civil Liberties Union of Indiana and PPINK claiming an abortion restriction signed into law by Gov. Mike Pence is unconstitutional.

The lawsuit — filed in U.S. District Court in the state’s Southern District against the Indiana State Department of Health, prosecutors in Monroe County and three other counties and members of the state’s medical licensing board —also asked the court to block enforcement of the law, which is set to go into effect Friday and bans abortions sought because of genetic abnormalities and mandates an aborted fetus be buried or cremated.

The restriction would make Indiana’s abortion laws among the most severe in the nation, and the ACLU of Indiana and PPINK claim it violates due process and equal protection under the Fourteenth Amendment as well as free speech rights as provided under the First Amendment. * * *

U.S. District Court Judge Tanya Walton Pratt is set to rule in that case by the end of the day Thursday.

Here is more on the current Indiana lawsuit, from WFHB, Bloomington, quoting Ken Falk, legal director for the Indiana ACLU:
The ACLU is currently involved in a lawsuit challenging House Bill 1337, a package of new abortion restrictions signed into law earlier this year. The Indiana law, while conceptually similar to the Texas bill, has several differences. Indiana is attempting to add new requirements concerning the disposal of fetal tissue, as well as requiring abortion-seekers to obtain an ultrasound and receive state-designed brochures. The state argues these information campaigns are important for “informed consent”. One crucial similarity is that HR 1337 also requires doctors at abortion clinics to have admitting privileges – the very same requirement just struck down in Texas.

Falk explained how the Indiana law differs, saying “Well they are not identical provisions on the books in Indiana; but what the Texas case tells us is that if restrictions are imposed specifically on abortion clinics and not other clinics, then they have to be examined very closely to determine if they really are designed to protect the life and health of the mother or if they are instead designed to throw a roadblock on the right to obtain an abortion. And Indiana, like many states, has attempted to impose new and more onerous regulations, and obviously, that has be filtered through the lens of this new case.”

The Indiana ACLU is not challenging HB 1337 on the undue burden standard, as was the case in Texas. Instead, they are arguing that the law doesn’t even meet the basic rational basis standard. That precedent says that, at the bare minimum, the government must show a rational reason for passing laws that may infringe on constitutional rights. In short, the ACLU says the law just doesn’t make any sense.

Falk explained the grounds for the ACLU’s lawsuit: “Well, we obviously challenged those. We didn’t challenge on the grounds that they were’undue burden;’ we challenged on the case that they are were not rational. One of the things that the case today focused on is what the State’s rationale- what is the justification for any restriction. And we argue that there really is no justification for the restrictions in the law concerning the disposal of fetal and embryonic tissue.”

The Indiana law is scheduled to take effect July 1st, but the ACLU is expecting a district court decision on whether to issue an injunction blocking the law before then. From there, the Supreme Court’s ruling is likely to be invoked when the district court begins hearing arguments. The ruling fell along traditional party lines in the Court, with justices Roberts, Alito, and Thomas opposing the liberal-leaning majority.

See this June 15th ILB post for more on the challenge to the Indiana law, HEA 1337, set to take effect July 1.

Posted by Marcia Oddi on Tuesday, June 28, 2016
Posted to Courts in general | Indiana Law

Ind. Decisions - "Appeals court overturns Kokomo man's jail sentence"

Carson Gerber reports in the Kokomo Tribune about the June 24th NFP Court of Appeals opinion in Troy Liggin v. State of Indiana (mem. dec.):

A Kokomo man will not have to serve more than three years in jail after the Indiana Court of Appeals ruled Howard Superior Court Judge William Menges wrongfully revoked his suspended sentence for violating the terms of his probation. * * *

The court ordered Menges to reverse Liggin’s termination from the re-entry program, along with the revocation of his probation that was based on his termination, and remanded the case for further proceedings consistent with their ruling.

This is the fourth time since March 2015 the Indiana Court of Appeals has overturned rulings and sentencings issued by Menges.

Since that time, the appeals court has ruled he issued an excessive prison sentence on a drug-related charge, overreached his authority when he overturned a plea agreement that he had already accepted, and wrongly sentenced a man to 20 years in prison after he failed to complete the county’s drug court program.

The Tribune story is followed by links to stories on the earlier rulings.

Posted by Marcia Oddi on Tuesday, June 28, 2016
Posted to Ind. App.Ct. Decisions

Monday, June 27, 2016

Ind. Decisions - "Cedar Lake firing defiled spirit of open records laws "

Supplementing this ILB post from last Tuesday, headed "'Court: Cedar Lake unjustifiably fired employee'; and Why is this NFP?" the NWI Times, which published the original story, this weekend had an editorial headed "Cedar Lake firing defiled spirit of open records laws." Some quotes:

The reasoning behind Cedar Lake's termination of Hoekstra's employment should be enough to boil the blood of any citizen who believes taxpayer-funded records maintained by government should be freely available to the public.

Court records indicate Hoekstra received an informal request from Eric Wolverton, an engineer working on a municipal project, for minutes from a town meeting he was unable to attend.

Minutes recorded by government workers during public meetings are clearly open records under Indiana's public access laws. Truly open cities and towns post such minutes on municipal websites, making them available without need for access requests. This practice costs nothing and provides a public service.

Hoekstra, knowing Wolverton's request was for public records, emailed him a copy of the requested minutes. In other words, she complied with the law.

But Cedar Lake officials fired Hoekstra, claiming she should have required Wolverton to fill out a town form formally requesting the information.

The appeals court ruled against the town for doing so, ordering that unemployment benefits be paid to Hoekstra. * * *

The spirit of public records laws doesn't require that residents fill out special forms in requesting public documents. Under the law, public officials also have no right to ask why members of the public want such information, or what they intend to use it for. * * *

An untenable reality remains, in spite of the appeals court ruling. Civil lawsuits filed by citizens often are the only recourse of residents who seek clearly public information that is denied by Hoosier public officials.

Complaints can be made to the Indiana Public Access Counselor, but that counselor only can issue non-binding legal opinions.

It's time for the Indiana Legislature to consider fines and other penalties for public officials and agencies that stonewall citizens who seek information and documents to which they’re clearly entitled under the law. * * *

Now we need some teeth in the law to discourage cases like this from ever getting to the point where employees are fired for providing information, or citizens are sent away empty-handed.

ILB: Actually, while not exactly addressing the Ceder Lake issue, the General Assembly in 2012 did amend the public records law to included provisions permitting a court to impose a civil penalty for certain failures to comply. See also this earlier post from the 2012 session.

The ILB is not aware that any public official has been penalized under the 2012 amendments, or that the possibility has been mentioned in a PAC or court ruling.

Posted by Marcia Oddi on Monday, June 27, 2016
Posted to Ind. App.Ct. Decisions

Courts - "Opinion analysis: Abortion rights reemerge strongly"

Lyle Denniston's long analysis, at SCOTUSblog, of the Whole Woman's Health decision today begins:

Putting the right to abortion back on the same constitutional footing the Supreme Court laid down nearly a quarter-century ago, a divided Supreme Court on Monday swept away new forms of state restrictions on the way clinics can function. Together with recent refusals by the Court to allow states to narrow the scope of the abortion right itself, the new ruling in Whole Woman’s Health Clinic v. Hellerstedt thwarted a wave of new laws against women’s choice to end pregnancy.

Posted by Marcia Oddi on Monday, June 27, 2016
Posted to Courts in general

Still more on "Porter Co. Prosecutor faced with contempt in dispute with judge"

Updating these two posts from earlier this month:

The ILB has now received a copy of Respondent, Porter Superior Court Judge David Chidester's brief in State of Indiana, Ex Rel. Brian Gensel v. Porter Superior Court 4, et al.

Here is the docket in the action. Here are:

Posted by Marcia Oddi on Monday, June 27, 2016
Posted to Indiana Courts

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

For publication opinions today (2):

In BC Osaka, Inc. and City Inn, Inc. v. Kainan Investment Groups, Inc. , a 12-page opinion, Judge Mathias writes:

Angelica Magallanes (“Magallanes”) sustained personal injuries when she tripped and fell on a rod protruding from a cement bumper in the BC Osaka restaurant parking lot. Magallanes filed a complaint against BC Osaka, Inc.2 and City Inn, Inc. (collectively “Tenant”) and Kainan Investment Groups, Inc. (“Landlord”). Landlord filed a cross-claim against Tenant and a motion for summary judgment, arguing that it was not liable to Magallanes based on the indemnity clause of the commercial lease agreement (“the Lease”). The trial court granted Landlord’s motion. Tenant now appeals and argues that the trial court erred in granting Landlord’s motion for summary judgment.

We reverse and remand for proceedings consistent with this opinion. * * *

Conclusion. Because the Lease’s indemnification provision did not state in clear and unequivocal terms that Tenant would indemnify Landlord for Landlord’s own negligence, we cannot conclude that the clause is applicable here. Further, Landlord reserved specific rights to possess and control parking areas in the Lease. For all of these reasons, a genuine issue of material fact exists whether Landlord is liable to Magallanes for her injuries. The trial court erred by granting Landlord’s motion for summary judgment and ordering Tenant to indemnify, hold harmless, and provide a legal defense to Landlord. We therefore reverse and remand with instructions for the trial court to hold a jury trial on the matter.

In Employer v. Review Board of the Indiana Department of Workforce Development and Employee , an 18-page opinion, Judge Brown writes:
M.F. (“Employer”) appeals a decision of the Review Board of the Indiana Department of Workforce Development (the “Board”) in favor of C.G. (“Claimant”) with respect to Claimant’s claim for unemployment benefits. Employer raises one issue which we restate as whether the Board erred in concluding that Claimant was not discharged from her employment for just cause. We reverse. * * *

The issue is whether the Board erred in concluding that Claimant was not discharged from her employment for just cause. Employer maintains that the Board’s decision is unreasonable and contrary to law because the evidence established that Claimant repeatedly failed to perform her job responsibilities properly and follow Employer’s instructions, had been informed about the importance of entering accurate patient demographic and insurance information and prepping patient charges on a number of occasions, and was given multiple chances to correct her deficiencies. Employer further argues that, even if the manager did not explicitly inform Claimant that her job was in jeopardy, explicit notice is not required where, despite repeated correction, an employee demonstrates a pattern of substandard work performance. Employer also argues that a reasonable person would not conclude that Claimant’s repeated mistakes, errors, refusal to follow instructions, and inability to perform her job duties should be overlooked or ignored because Employer occasionally thanked her for her services. * * *

Based upon the record, we conclude Claimant was discharged for just cause. See Recker, 958 N.E.2d at 1140-1142.

Conclusion. For the foregoing reasons, we reverse the decision of the Board that Claimant was not discharged for just cause.

NFP civil decisions today (1):

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

NFP criminal decisions today (4):

Trevon Drakkar Walker v. State of Indiana (mem. dec.)

Jeremiah A. Henley v. State of Indiana (mem. dec.)

Gurpreet Singh v. State of Indiana (mem. dec.)

Michael L. Spencer v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, June 27, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending June 24, 2016

Here is the Clerk's transfer list for the week ending Friday, June 24, 2016. It is two pages (and 23 cases) long.

Four transfers were granted last week:

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

Posted by Marcia Oddi on Monday, June 27, 2016
Posted to Indiana Transfer Lists

Courts - SCOTUS reverses 5th Circuit decision upholding Texas abortion prohibitions [Updated at 2:14 PM]

The opinion in Whole Women's Health, via the SCOTUSblog case page.

Mauree Groppe tweets:

IN was among the states which filed an amicus brief backing the TX laws.
How Appealing has collected links to some stories on the opinion - NYT, WAPO, LA Times.

[Updated at 2:14 PM]
Here now is a story in the Indianapolis Star, reported by Shari Rudavsky and Maureen Groppe, headed "What Supremes abortion ruling means for Indiana."

Posted by Marcia Oddi on Monday, June 27, 2016
Posted to Courts in general

Ind. Gov't. - More on "Indiana vape law shuts dozens of e-liquid makers out of industry"

Updating this ILB post from June 22nd, the IBJ this weekend had an editorial headed "Absurd vaping law needs do-over," that began:

Imagine the Indiana General Assembly told carmakers across the world that they had until the end of the year to get licensed to do business in Indiana—and if they didn’t, they were out. Forever. It would be illegal not just to manufacture their vehicles in the state but for dealers to sell their cars anywhere in Indiana anytime in the future.

New manufacturers would be out of luck, too. If a company didn’t exist before Dec. 31, it could never, ever sell cars in Indiana.

And, oh, to get licensed, manufacturers would all have to buy their doors from one designated company—a company that didn’t have enough doors to go around.

Sound far-fetched? Outlandish? Absolutely. But it’s what lawmakers have done to the e-liquid industry in Indiana.

More:
The Legislature started with a worthy goal. When the vaping industry emerged, it faced no real regulation. Retailers could sell the products to kids, there was no requirement that e-liquid makers list their ingredients, and no one was testing the liquids to make sure they were safe. Common-sense regulations were certainly in order.

But lawmakers went far beyond common sense. They created a system that essentially made one private firm—a company with no obligation to provide information to the public—the gatekeeper for e-liquid sales in Indiana.

That might not seem like a big deal. We aren’t actually talking about cars, an industry that affects almost everyone. A small minority of Hoosiers vape, although the numbers appear to be growing.

But the state’s action should concern every business owner in Indiana and every consumer who wants competition in the marketplace. Pence should find a way to postpone the law’s implementation and the General Assembly should rewrite the legislation to ensure it’s fair to all—consumers and business owners alike.

Posted by Marcia Oddi on Monday, June 27, 2016
Posted to Indiana Government

Ind. Law - Still more on impact of SCOTUS blood draw consent decision in Indiana

The ILB has just received this helpful note:

Marcia,

Long time reader of the blog, extremely happy you were able to continue on!

I am the Traffic Safety Resource Prosecutor for Indiana, and I am with the Indiana Prosecuting Attorneys Council. Obviously the Birchfield v. North Dakota case has been on the top of my watch list for a while, I just wanted to clarify the situation, as AP originally reported Indiana as a state that would be affected by this decision.

The Supreme Court held that:

  1. A breath test for alcohol is a lawful warrantless search incident to arrest.

  2. A blood test for alcohol is a significant bodily intrusion and cannot be taken incident to arrest. Absent consent, a warrant must be obtained.

  3. Because a breath test can be lawfully required incident to arrest, a state may criminalize a refusal to submit to a breath test.

  4. Because a blood test requires a warrant, a state cannot criminalize a refusal to submit to a blood test.

  5. Implied consent laws that impose civil or administrative penalties for refusing to submit to a breath or blood test remain valid. This is what the court said on page 41:

    "Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g., McNeely, supra, at ___ (plurality opinion) (slip op., at 18); Neville, supra, at 560. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them."

I read your update regarding 9-30-6-6(g), which allows for a warrantless blood draw if the officer certifies in writing that the driver was involved in a serious bodily injury or fatal crash and the officer has probable cause to believe they are intoxicated. However, this statute was invalidated by Missouri v. McNeely in 2013. That case held that a warrantless blood draw, minus a showing of exigency, was not allowed (the State had argued that since intoxicants are being metabolized by the system, that created an exigent circumstance; the court disagreed that that fact by itself was enough to bypass the warrant requirement and was looking for more of a showing on why a warrant could not be obtained). 9-30-6-6(g) recognized the metabolization aspect, hence its passage. However, it requires no further exigency showing, and is therefore clearly in violation of the ruling in McNeely.

While Birchfield would clearly effect 9-30-6-6(g), officers and prosecutors have already adjusted to the warrant requirements laid down by McNeely for the past 3 years.

In Indiana, when an officer has probable cause to believe someone is intoxicated, they shall read them the implied consent warning. Motorists must submit to any and all tests offered by the officer in order to avoid the license suspension. If a person refuses a blood test, a warrant must be obtained. This has been the law in Indiana since 2013 (when McNeely invalidated 9-30-6-6(g)). A person who refused the breath test is usually taken for a blood draw upon the issuing of a warrant, as a breath sample cannot be compelled.

I hope this helps, please let me know if you have any questions/comments/concerns,

Chris Daniels
Traffic Safety Resource Prosecutor
Indiana Prosecuting Attorneys Council

Posted by Marcia Oddi on Monday, June 27, 2016
Posted to Indiana Law

Ind. Courts - "Tax Court Under Scrutiny"

Updating this ILB post from May 24th, Bill Waltz reports in the Indiana Chamber Blog on June 24th - some quotes:

In April 2016, the [ Ad Hoc Tax Court Advisory] task force issued its findings and recommendations along with a report compiled by the National Center for State Courts (NCSC), which was contracted to assist the task force. These materials are now getting some attention and are definitely worthy of examination. The nine-member task force was chaired by Court of Appeals Judge James S. Kirsch. The members include a variety of experienced tax practitioners as well as the general counsel for the Department of Revenue and chief deputy for the Office of Attorney General. Tax Court Judge Martha B. Wentworth also participated as an “ex officio” liaison and attended meetings by invitation from the chair.

The NCSC researched the Court’s caseload, staffing and timeliness. It also interviewed stakeholders and conducted a survey seeking opinions on these subjects and on the perceived timeliness, fairness and demeanor of the Court. And it looked into case management, internal procedures and administrative practices. The statistical results, observations and recommendations are all set out in the report. The survey results evidence a contrast in opinions between the government responses and taxpayer responses regarding the quality of service provided by the Tax Court.

In short, it seems that the government representatives are significantly less satisfied with the Court. Not unrelated to their disgruntlement, it was noted in the preface to the findings that the Department of Revenue and attorney general members of the task force sought recommendations to review the very structure of the Court, recommending review of the de novo hearing process and the lack of automatic appeal rights. However, the majority of the group and the chair found these matters “outside the purview of the task force’s directive.”

Posted by Marcia Oddi on Monday, June 27, 2016
Posted to Ind. Tax Ct. Decisions | Indiana Courts

Ind. Law - More on impact of SCOTUS blood draw consent decision in Indiana

After the ILB posted quotes from the original AP reporting on the SCOTUS decision Thursday in Birchfield v North Dakota, I immediately heard from Morgan County Chief Deputy Prosecutor Robert Cline that: "There are no criminal penalties in Indiana for refusal." The Indianapolis Star, which had published the AP story, added a correction:

Editor's Note: An earlier version of this story incorrectly stated that Indiana motorists face criminal penalties if they refuse a blood test when under suspicion of drinking and driving. In addition, police and prosecutors in Indiana say authorities already secure a search warrant if a driver refuses to consent to a blood draw, meaning this ruling will not likely impact Indiana.
A story on Porter County policies, quoted Friday, included:
While the other states have additional criminal penalties for refusing a chemical test, [Porter County Prosecutor Brian] Gensel said, Indiana does not, but does impose additional license suspensions through the Bureau of Motor Vehicles.
This weekend the ILB heard from criminal defense attorney Cara Wieneke on another aspect of the ruling:
I've been reading the articles on the SCOTUS case on needing a warrant for a blood draw. I also noticed on the blog that several attorneys are saying this will have NO impact on Indiana.

I have to disagree. While it won't have a huge impact, what about IC 9-30-6-6(g)? In my opinion, it basically invalidates that statute. The statute gives police officers the right to use reasonable force, if necessary, to force a person to submit to a blood draw based solely on probable cause of intoxication. Surely the SCOTUS case has changed the constitutionality of that statute.

ILB: Here is IC chapter 9-30-6: Implied Consent; Administrative and Evidentiary Matters. Sec. 6 is headed: "Chemical tests on bodily substances; disclosure of results; no privilege or liability; results admissible; limitation; test by law enforcement officer."

Readers may recall that this oft-amended section was the focus of much interest as a result of the Bisard case. See, for example, this Jan. 11, 2013 post, and this one from Nov. 10, 2010.

Posted by Marcia Oddi on Monday, June 27, 2016
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 6/27/16):

Thursday, June 30

Next week's oral arguments before the Supreme Court (week of 7/4/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/27/16):

Tuesday, June 28

Wednesday, June 29

Next week's oral arguments before the Court of Appeals (week of 7/4/16):

Wednesday, July 6

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, June 27, 2016
Posted to Upcoming Oral Arguments

Friday, June 24, 2016

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

In John Otrompke v. Bradley Skolnik, State Bd. Law Examiners (ND Ind., Miller), a 3-page opinion, Judge Posner concludes:

Otrompke’s baleful Illinois experience makes it imperative that he apply to the Indiana bar authorities for admission before challenging the legality of the state’s rules for admission. At present he has no standing to maintain a suit such as this because he can’t show harm. The judgment of the district court is therefore AFFIRMED.

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

Ind. Law - "Porter County complies with DUI warrants"

Updating this ILB post from yesterday which quoted from a later revised and corrected AP story, Amy Lavalley reports today in the Gary Post-Tribune - some quotes:

Porter County officials said a U.S. Supreme Court ruling that requires police to get a search warrant before taking blood from drivers suspected of drunken driving will have no impact here because they do that anyway.

The ruling, issued Thursday, said police must get warrants for the blood alcohol tests, but not breath tests, because the court considers those less intrusive.

"I always thought you needed a court order" for a blood test, said Porter County Sheriff David Reynolds. "We can take a breath test. That hasn't changed."

The Supreme Court upheld warrantless breath tests for people suspected of driving while intoxicated, Porter County Prosecutor Brian Gensel said in an email.

"Under current Indiana statutes, a police officer 'shall' offer a chemical test to anyone involved in a serious injury or death accident. If exigent circumstances exist, a blood test can be done involuntarily," he said. "Those are rare. Almost always, police get a search warrant for the blood test."

Drivers in all 50 states can have their licenses revoked for refusing drunken driving tests. The court's ruling affects laws in 11 states, including Indiana, which impose additional penalties for such refusals.

While the other states have additional criminal penalties for refusing a chemical test, Gensel said, Indiana does not, but does impose additional license suspensions through the Bureau of Motor Vehicles.

Posted by Marcia Oddi on Friday, June 24, 2016
Posted to Indiana Law

Ind. Decisions - Tax Court posts one ruling today, filed late yesterday

In RDM Sales and Service, Inc. v. Indiana Department of State Revenue, a 20-page opinion, Judge Wentworth writes:

RDM Sales and Service, Inc. has appealed the Indiana Department of State Revenue’s assessments of Indiana sales tax, interest, and penalties for the 2006, 2007, and 2008 tax years (“years at issue”). The matter is currently before the Court on the Department’s motion for summary judgment in which it claims that all of RDM’s vending machine sales and cafeteria sales are subject to sales tax and negligence penalties. The Department’s motion is granted in part and denied in part. * * *

For the above-stated reasons, the Court GRANTS summary judgment in favor of the Department and against RDM as to 1) the imposition of sales tax on bottled water and fruit juice sold from vending machines; 2) the imposition of sales tax on heated food and food for immediate consumption that RDM sold in its two cafeterias; and 3) the propriety of the penalties imposed against RDM. The Court GRANTS summary judgment in favor of RDM and against the Department, however, as to the imposition of sales tax on bottled water and fruit juice dispensed from vending machines free of charge or at a discounted rate to exempt customers. The Court also finds there are genuine issues of material fact that cannot be resolved on summary judgment regarding 1) whether and by whom eating utensils were provided with the sale of bakery items; and 2) whether RDM sold two or more food ingredients as a single item that it merely cut, repackaged, or pasteurized, or whether it sold raw animal foods that required cooking by the consumer to prevent food borne illness. Accordingly, the Court will direct the parties regarding the issues remaining for trial under separate cover.

Posted by Marcia Oddi on Friday, June 24, 2016
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

In Re the Matter of Da.H. and Dy.H.: K.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Angela Harris v. Eric Harris (mem. dec.)

NFP criminal decisions today (7):

Willis G. Heck v. State of Indiana (mem. dec.)

Calvin Wayne Howard, Jr. v. State of Indiana (mem. dec.)

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

Troy Liggin v. State of Indiana (mem. dec.)

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

Arturo Martinez, Jr. v. State of Indiana (mem. dec.)

Bradley Smith v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, June 24, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Panel looks at progress of criminal justice system overhaul"

That is the heading to this story by Zach Osowski of the Evansville Courier & Press about the meeting Tuesday of a:

... group of experts from Indiana's judicial and legal system know they have their work cut out for them as they try to change the nature of the state's criminal justice system.

On Tuesday, those experts from all over the state came to Indianapolis to see how their pilot counties are progressing with a new evidence-based approach to punishment and incarceration as well as mull what the state's goals should be moving forward. * * *

The point of the evidence-based system, David said, is realizing one size doesn't fit all when it comes to criminal justice and lots of ideas on how to make that idea work in Indiana were tossed around. Citations for minor offenses instead of arrests, no bail for low-risk offenders and more pretrial diversion options were some of many things the group looked at on Tuesday.

Posted by Marcia Oddi on Friday, June 24, 2016
Posted to Indiana Government

Courts - "Crown Point native hears first cases at Supreme Court"

Dan Carden reports in the NWI Times about yesterday's oral arguments before the Indiana Supreme Court. Some quotes:

Justice Geoffrey Slaughter ... took his seat Thursday on the five-member high court for the first oral arguments since being sworn-in June 13 as Indiana's 109th justice.

The Crown Point native, who successfully argued a case to the Supreme Court as an attorney just three months ago, waited less than three minutes before exercising his judicial prerogative to interrupt and question Noblesville attorney Eric Benner.

Slaughter asked Benner to clarify whether his client was supposed to provide certain documents in a divorce proceeding, as Benner initially claimed, or merely make them available for inspection.

Benner conceded the latter actually was the trial court's order before continuing with his argument. * * *

Slaughter's questions to attorneys in the three cases tended to focus on clarifying specific, narrow points of law and legal procedure.

He was not confrontational.

Though at one point Justice Mark Massa seemed to help an attorney who appeared to be struggling to answer a Slaughter query about whether a court issuing a protective order is the same as an injunction, or just similar in nature to injunctive relief.

It's not known whether Slaughter will write the court's decision for any of the three cases heard Thursday, or even whether there will be opinions to write, since the high court has not yet agreed to transfer jurisdiction from the Court of Appeals in any of them.

Those decisions, like most of the case-reviewing and opinion-writing work of Indiana's Supreme Court justices, are made behind closed doors.

Oral arguments are the most public part of the appellate judicial process, but not necessarily the most important, several former high court justices have said.

Posted by Marcia Oddi on Friday, June 24, 2016
Posted to Indiana Courts | Vacancy on Supreme Court - 2016

Thursday, June 23, 2016

Ind. Decisions - "Judge dismisses battery case, calls prosecutor's office 'negligent'"

That is the headline to Rebecca S. Green's long June 21st story in the Fort Wayne Journal Gazette. [ILB Update: The story was apparently updated, the link is now to the June 22 version] A few quotes:

Allen Superior Court Judge Fran Gull dismissed a felony battery case Tuesday after finding that the Allen County Prosecutor's Office acted with gross negligence. * * *

The Public Defenders Office assigned Michelle Kraus to represent him, and the case was scheduled to go to trial Tuesday morning.

But it never got that far. Before the jury got to hear it, Gull granted Kraus' motion to dismiss the case, citing ongoing issues with getting necessary information from the prosecutor's office while the case was being readied for trial.

Specifically, Kraus had been asking for more than two months about the potential of a video from the in-car police camera that might have shown what happened during the arrest. After being told repeatedly there was no video, the information changed late last week. But it was not until mid-morning Monday, Kraus finally obtained a working copy of the video.

It was not the first time Kraus alleged difficulties in obtaining discovery materials from the state of Indiana, via the office of Allen County Prosecutor Karen Richards.

Prosecutors are required to give the defense attorneys access to all the information they have in connection to a criminal case in a process called "discovery."

According to court documents, prosecutors were late or failed to turn over key pieces of information to her in three prior cases, all involving murder charges. * * *

In her handwritten order, Gull lambasted prosecutors for their conduct, and noted the presence of Richards, Chief Deputy Prosecutor Michael McAlexander for the hearing.

"Court finds the state grossly negligent in the performance of its duties by way of a pattern of discovery violations and grants the motion to dismiss," she wrote.

Richards said in an interview Tuesday afternoon that the problem in this case was one of technology.

"We missed one," she admitted. The problem, she said, is that there is now so much digital material compiled as part of a case, that the prosecutor's office might not even be aware of what all they have, or what is available to them.

There is no one place in the computer system where all the information, or a list of all the information is kept, she said.

"I don't think the court really understands how difficult technology has made finding things for discovery purposes," Richards said. "I don't think it's anywhere close to negligence on our part."

There was already a discussion with Fort Wayne Police command staff Tuesday to try to stave off similar problems in the future, Richards said.

Kraus said if the situation has become so complex, then make it simple.

"Pick up a phone and ask a question. 'Is there an in-car video?'," she said. "It was a simple question that needed to be asked, after I asked the question in March."

Posted by Marcia Oddi on Thursday, June 23, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, reversing Conour Firm funds distribution decision

In AFC 2006 Corp., v. Mark C. Ladendorf, Attorney At Law, P.C., And Timothy F. Devereux (SD Ind., Pratt), a 12-page opinion, Judge Easterbrook writes:

Attorney William F. Conour stole more than $4.5 million from clients’ trust funds, was convicted of fraud, and is serving ten years in prison. Shortly before these crimes came to light, attorney Timothy Deve reux left Conour Law Firm, LLC, and took 21 clients with him to Mark Ladendorf’s law firm. These clients ultimately produced attorneys’ fees aggregating some $2 million. This appeal presents a three-­corner fight about who gets how much of that money. The contestants are Devereux and the Ladendorf Firm (collectively the Lawyers), several persons from whom Conour stole (collectively the Victims), and ACF 2006 (the Lender), whose parent corporation Advocate Capi tal, Inc., made a loan to the Conour Firm to finance the legal work and out-­‐‑of-­‐‑pocket expenses that a contingent-­fee law firm must bear while suits are in progress.

There are two principal questions. First, how much of the $2 million goes to the Conour Firm for the services it per formed before Devereux left? Second, how are the funds to which the Conour Firm is entitled to be divided between the Victims and the Lender? * * *

The norm that victims of a lawyer’s breach of trust have a remedy notwithstanding the later grant of a security interest to a commercial lender is one of long standing and is reflect-­‐‑ ed in Indiana by §30-­4-­3-­22(c)(2). Section 23-­1.5-­2-­7 tells us that the use of the corporate form to hold assets of a legal practice does not change that norm. It follows that the Victims have priority over the Lender in the funds that the Conour Firm is entitled to receive from the Lawyers.

The judgment of the district court is reversed, and the case is remanded for the entry of judgment consistent with this opinion.

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

Courts - "SCOTUS limits Indiana DUI tests" [Revised]

So reports Sam Hananel of the AP in a long story about the decision today in Birchfield v North Dakota. The story includes:

WASHINGTON - The Supreme Court on Thursday placed new limits on laws in Indiana and several other states that make it a crime for motorists suspected of drunken driving to refuse alcohol tests.

The justices ruled that police must obtain a search warrant before requiring drivers to take blood alcohol tests, but not breath tests, which the court considers less intrusive.

The ruling came in three cases in which drivers challenged so-called implied consent laws in Minnesota and North Dakota as violating the Constitution’s ban on unreasonable searches and seizures. State supreme courts in each state had upheld the laws.

Drivers in all 50 states can have their licenses revoked for refusing drunken driving tests. The court’s ruling affects laws in eleven states that impose additional criminal penalties for such refusals. * * *

Other states that criminalize a driver’s refusal to take alcohol blood or breath tests include Indiana, Alaska, Florida, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia.

[Revised at 3:03 pm] The Indianapolis Star, which published the AP story, has now appended this note to the beginning of the story:
Editor's Note: An earlier version of this story incorrectly stated that Indiana motorists face criminal penalties if they refuse a blood test when under suspicion of drinking and driving. In addition, police and prosecutors in Indiana say authorities already secure a search warrant if a driver refuses to consent to a blood draw, meaning this ruling will not likely impact Indiana.
Plus the Star has revised the original content of the story with respect to Indiana to read:
Other states that criminalize a driver’s refusal to take alcohol blood or breath tests include Alaska, Florida, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia, according to the Associated Press. In Indiana, a driver who refuses faces suspension of driving privileges, which is considered a civil penalty, said Chris Daniels, Traffic Safety Resource Prosecutor for the Indiana Prosecuting Attorneys Council.

Daniels also noted that police in Indiana have secured search warrants for blood draws since 2013, when another U.S. Supreme Court ruling addressed the issue.

"So in Indiana, this is not going to change how we do things at all," Daniels said.

Posted by Marcia Oddi on Thursday, June 23, 2016
Posted to Courts in general

Ind. Decisions - "7th Circuit decision favors women's health group over Citilink"

Yesterday's 7th Circuit opinion in Women's Health Link, Incorp. v. Fort Wayne Public Transportation (ILB summary here) is the subject of this story today by Rebecca S. Green in the Fort Wayne Journal Gazette. Some quotes:

An advertisement by a local woman's health group opposed to abortion rights can be displayed inside Fort Wayne's Citilink buses.

That is according to a ruling Wednesday by the U.S. Seventh Circuit Court of Appeals. The ruling overturns a January order by U.S. District Judge Robert L. Miller that found Citilink was within its rights to prohibit a series of advertisements that Fort Wayne Women's Health Link wanted to put on the city's buses.

"(Citilink's) refusal to allow Health Link's ad to be displayed is an unjustifiable, because arbitrary and discriminatory, restriction of free speech," wrote Judge Richard Posner in the opinion.

Filed two years ago by the Alliance Defending Freedom on behalf of Women's Health Link, the lawsuit accused the Fort Wayne Public Transportation Corporation of violating the constitutional rights of the organization by denying it permission to buy a series of small ads to run inside the buses. * * *

Citilink's policy allows public service announcements, but it can reject an ad if it contains false or misleading information or if it "advocates opinions or positions on political, religious, or moral issues," according to court documents.

The woman who submitted the advertisement on behalf of Women's Health Link was on the organization's board of directors and also was communications manager for Allen County Right to Life, according to court documents.

Women's Health Link and Allen County Right to Life share email addresses and a physical address.

According to its official website, "Women's Health Link is a free referral resource in Fort Wayne, Indiana, for women seeking physical, emotional, spiritual or mental health care."

Posner wrote that while it is now known Women's Health Link is pro-life, that is not revealed in the ad, and nothing in Citilink's policies "suggest a concern about what may lie behind an innocuous ad."

The higher court noted that the United Way is permitted to advertise, as are other organizations that urge vaccinations, health care, voting, and other issues.

"What is important is not what other advertisers are permitted to do but that Citilink's ad censorship policy is limited to ad content," Posner wrote. "The content of Health Link's proposed ad lacks the faintest suggestion of a political, religious, or moral aim or agenda." * * *

"Citilink's refusal to post the ad was groundless discrimination against constitutionally protected speech," Posner wrote.

It was unclear Wednesday evening if city attorneys intended to appeal the Seventh Circuit ruling to the U.S. Supreme Court.

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

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (2):

In Duane Harmon v. Gary Fisher , a 10-page opinion, Sr. Judge Garrard writes:

Duane Harmon appeals from the trial court’s judgment in a small claims action brought by him alleging false representation made on a real estate sales disclosure form about the condition of certain real estate sold to him by Gary Fisher. Finding that the judgment is not clearly erroneous, we affirm. * * *

Here, the record reflects that Fisher had never lived in the house and held the reasonable belief that the house was on the city sewer system. He was not in possession of knowledge, which Harmon did not possess, such that he enjoyed a position of superiority over him. Indeed, the record reflects that both Harmon and Fisher were surprised to learn that the property located in the middle of the community was connected to a septic system. Thus, the record fails to disclose the necessary element of duty owed to Harmon. Consequently, Harmon’s claim, even if adequately preserved, fails.

In Trondo L. Humphrey v. State of Indiana , an 18-page opinion, Judge May writes:
Trondo L. Humphrey appeals the denial of his petition for post-conviction relief. As his trial counsel’s assistance was ineffective and his petition is not barred by laches, we reverse and remand. * * *

Humphrey did not seek post-conviction relief until fifteen years after his direct appeal was decided. The post-conviction court determined his petition was not barred by laches, and that was not clearly erroneous. * * *

[T]he post-conviction court, after having considered the State’s arguments and evidence, concluded the State had not met its burden to demonstrate prejudice as a result of Humphrey’s delay. We cannot say that judgment is clearly erroneous. See Armstrong, 747 N.E.2d at 1120 (for laches to apply, the State must prove both unreasonable delay and prejudice from the delay). As we cannot find clear error, Humphrey’s petition for post-conviction relief is not barred by laches. * * *

Humphrey’s counsel was deficient for not asking that the jury be correctly instructed that Brooks’ unsworn statement could be considered only for impeachment, for not objecting to the trial court’s incorrect instruction, for not tendering a correct instruction, and for erroneously telling the jury in closing argument that the statement could be used in deciding whether Humphrey was guilty. * * *

As Humphrey’s counsel’s performance was deficient and the deficiencies prejudiced Humphrey, we reverse the denial of Humphrey’s petition for post-conviction relief and remand for a new trial.

NFP civil decisions today (5):

Pinnacle Properties Development Group, LLC v. Alexandra Gales (mem. dec.)

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

J.S. v. W.K. (mem. dec.)

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

Jessica Skidmore-Chisholm v. Review Board of the Indiana Department of Workforce Development (mem. dec.)

NFP criminal decisions today (8):

Percilla A. Aguilar v. State of Indiana (mem. dec.)

Coby Crowe v. State of Indiana (mem. dec.)

Christopher M. Castillo v. State of Indiana (mem. dec.)

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

Kelvin Underwood v. State of Indiana (mem. dec.)

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

Vincent C. Jones v. State of Indiana (mem. dec.)

Kiaget Davis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, June 23, 2016
Posted to Ind. App.Ct. Decisions

Courts - SCOTUS announces major rulings today

One is a 4-4 opinion, as the Reuters headline indicates: Supreme Court, split 4-4, blocks Obama immigration plan." The story begins:

The U.S. Supreme Court on Thursday dealt President Barack Obama a harsh defeat, splitting 4-4 over his plan to spare millions of immigrants in the country illegally from deportation and give them work permits, leaving intact a lower-court ruling blocking the plan.
The opinion is U.S. v. Texas. Here is the one-line ruling.

The big opinion is Fisher v. U of Texas, upholding the challenged U of Texas affirmative action program 4-3. J.Kagan recused. Richard Wolf of USA TODAY has a long story. Here is the opinion.

Sam Hananel of the AP reports on the third major opinion:

The Supreme Court on Thursday placed new limits on state laws that make it a crime for motorists suspected of drunken driving to refuse alcohol tests.

The justices ruled that police must obtain a search warrant before requiring drivers to take blood alcohol tests, but not breath tests, which the court considers less intrusive.

The ruling came in three cases in which drivers challenged so-called implied consent laws in Minnesota and North Dakota as violating the Constitution's ban on unreasonable searches and seizures. State supreme courts in each state had upheld the laws. * * *

In all three cases before the high court, the challengers argued that warrantless searches should be allowed only in "extraordinary circumstances." They said routine drunk driving stops count as ordinary law enforcement functions where traditional privacy rights should apply.

Justices Sonia Sotomayor and Ruth Bader Ginsburg said they would have gone further and required search warrants for both breath and blood alcohol tests. Justice Clarence Thomas dissented, saying he would have found both tests constitutional.

The opinion is Birchfield v North Dakota.

Posted by Marcia Oddi on Thursday, June 23, 2016
Posted to Courts in general

Ind. Gov't. - Bad news for chickens in Columbus!

Updating this ILB post from June 20th, headed "Urban chicken coops could soon find foothold in Region," Columbus Indiana seems to be headed in the other direction. Olivia Covington reports in the Columbus Republic headed "City votes to ban chickens within Columbus city limits":

Chickens within the Columbus city limits could soon be forced to fly the coop if members of the Columbus City Council stand firm in a decision to prohibit farm animals from being kept as pets.

In a 5-2 vote on Tuesday, council members gave initial approval to an amendment to the city’s animal care ordinance that would designate chickens as farm animals. The amendment also would prevent residents living within city limits from keeping farm animals as pets.

The vote came after testimony from several people in the audience of the Cal Brand meeting room — where the council meeting was moved in anticipation of a large crowd gathered to discuss the animal care ordinance. Many said they have been keeping chickens on their properties within the city limits for years without any issues.

See this very long list of earlier ILB posts on "urban chickens."

Posted by Marcia Oddi on Thursday, June 23, 2016
Posted to Indiana Government

Wednesday, June 22, 2016

Ind. Decisions - 7th Circuit decides two Indiana cases today, including reversal of Ft.Wayne Citilink denial of ads by Women's Health Link on its buses

In Women's Health Link, Incorp. v. Fort Wayne Public Transportation (ND Ind., Miller), a 9-page opinion, Judge Posner writes:

The defendant, colloquially referred to as “Citilink,” is a municipal corporation that provides bus service in Fort Wayne, Indiana, and also has regulatory authority over advertisements both inside the buses and on the buses’ exterior. The plaintiff is a nonprofit corporation (which we’ll call Health Link for the sake of brevity) that provides health care for women in Fort Wayne. It wanted to post the following advertisement in Citilink’s buses: [photo]

Citilink refused to allow the ad to be posted. It forbids public service ads that “express or advocate opinions or positions upon political, religious, or moral issues.” Although the proposed ad did not express or advocate any such opinion or position, Citilink discovered that Health Link, although it provides a variety of uncontroversial health services, mainly in the form of referrals to providers of health care, is pro‐life and so suggests (though not in the ad) that women with unplanned or crisis pregnancies consider health care and related services that provide alternatives to abortion, such as adoption counseling. Since abortion is generally regarded as a moral issue, Citilink concluded that Health Link’s proposed ad was ineligible to appear in or on Citilink buses, even though the ad itself—as any reader of this opinion can see—contains not the faintest reference to abortion or its alternatives. * * *

Once a government entity has created a facility (the ad spaces in and on its buses, in this case) for communicative activity, it “must respect the lawful boundaries it has itself set.” Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 829 (1995). Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech. Cf. Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).

The judgment in favor of Citilink is reversed with instructions to enter judgment for the plaintiff enjoining Citilink’s refusing to post the plaintiff’s proposed ad in its buses.

In Nancy Thomas v. Carolyn Colvin (ND Ind., Springmann, a 16-page, per curiam opinion, the panel writes:
Nancy Thomas applied for Supplemental Security Income in 2010 when she was 55 years old. An ad-ministrative law judge identified her medically determinable impairments as degenerative changes in her back and left shoulder, Graves’ disease, and dysthymic disorder (a form of chronic depression). But the ALJ concluded that these im-pairments do not impose more than minimal limitations on Thomas’s ability to work and denied her application. Thom-as disputes the ALJ’s omission of fibromyalgia from the list of impairments and contends that his conclusion about the severity of her physical impairments is not supported by substantial evidence. (She does not discuss the ALJ’s conclu-sion that she does not have a severe mental impairment.) We agree with both of Thomas’s contentions and remand the case for further proceedings.

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

Ind. Courts - The Roll of Attorneys, and the former Clerk of the Appellate Courts

On June 3rd the ILB posted "Court posts 21-page annual list of attorneys who have failed to comply with certain requirements," linking to this year's "Order of Suspension of Certain Attorneys for Failure to Pay Attorney Registration Fees, Failure to Comply with Continuing Legal Education Requirements, and/or Failure to Submit IOLTA Certifications."

A few days later, Indiana Legislative Insight wrote about this year's list:

More than 25 years ago, we were first to publicly report on the list, and you may be surprised to see at least one of the names from our first report show up on this current list. The 2016 suspension list includes a former Indiana attorney general, a former state director for a presidential candidate, a former U.S. Attorney, a former state legislator from a neighboring state, a general counsel for a state-supported university, and a former president of the city council from one of the state’s three largest cities.
Which brings up a couple of caveats: And speaking of the Clerk of the Appellate Courts (see this ILB post from March 17th), this week's Indiana Legislative Insight has this good news:
Kevin Smith joins Church Church Hittle + Antrim of Noblesville as a partner after more than a decade as the first non-elective clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court, as well as service as the Supreme Court Administrator.

Posted by Marcia Oddi on Wednesday, June 22, 2016
Posted to Indiana Courts

Courts - "NM Supreme Court restricts judges’ use of social media. Did it go too far?"

That is the heading to an interesting post yesterday on the New Mexico Appellate Law Blog, written by Emil I. Kiehne (who is, BTW, a Notre Dame grad). Here is a copy of the 38-page opinion in New Mexico v. Thomas.

[More]
Thanks to How Appealing, here as another story that has turned up, just as I was posting. From the Santa Fe New Mexican, Andrew Oxford reports, under the heading: "State Supreme Court warns judges to be careful on social media." The long story begins:

Leaving a friend request on Facebook unanswered can be awkward, even for judges, but posting too much information can be especially tricky for members of the judiciary.

In a decision issued Monday, the New Mexico Supreme Court cautioned judges to think carefully about what they share and who they “friend” online, citing a series of cases around the country where social media drama spilled into the courtroom.

The decision in State v. Truett Thomas reverses an Albuquerque man’s convictions for murder and kidnapping because of the admission of Skype testimony that the court said denied the man his constitutional right to confront an adverse witness. The case was remanded for a new trial on the murder charge.

But Facebook posts about the case by a judge who presided over Thomas’ trial spurred Chief Justice Charles W. Daniels to devote several pages of a 38-page decision to social media ethics and etiquette.

Posted by Marcia Oddi on Wednesday, June 22, 2016
Posted to Courts in general

Ind. Decisions - Supreme Court decides one today

In Dannie Carl Pattison v. State of Indiana, a 12-page, 5-0 opinion (including, for the first time, new Justice Slaughter), Justice Massa writes:

At Dannie Pattison’s trial for operating a vehicle with an alcohol concentration equivalent of 0.08 or more, his jury was instructed to presume his ACE at the time of the offense based on a chemical test conducted within three of hours of his being stopped by police. Tracking the language of Indiana Code section 9-30-6-15(b), the instruction told the jury it “shall presume,” yet also stated, “the presumption is rebuttable.” We are asked to decide whether that instruction improperly relieved the State of its burden to prove each element beyond a reasonable doubt, amounting to fundamental error. Finding no error in the trial court’s instruction, we affirm Pattison’s conviction. * * *

Because the presumption is rebuttable, a defendant is free to present evidence in his defense. For instance, he could show he consumed alcohol after driving. Chilcutt, 544 N.E.2d at 858. Or, he could posit another theory, as Pattison did here, that the test results were due to his inhaler use, a supposition his jury heard and rejected. Thus, whereas the mandatory rebuttable presumption of Francis merged two elements of the crime by allowing the defendant’s actus reus to serve as proof of the requisite mens rea, here the State must still show the defendant’s ACE (indeed, through rigid testing requirements) but is merely relieved of the need to re-litigate the ACE’s extrapolation across time for every such case of operating a vehicle with an ACE over 0.08. Instead, it is the defendant who bears the burden of coming forward with facts—generally already in his possession—that amount to an affirmative defense.

Considering the scientific context of the statute creating the presumption, we maintain that our “legislature has fashioned an inspection and certification scheme to insure the reliability of test results, thereby protecting the rights of the accused, while at the same time streamlining the trial process.” Platt, 589 N.E.2d at 230; see also State v. Greenwood, 115 S.W.3d 527, 532 (Tenn. Crim. App. 2003) (“The legislature obviously knew a blood alcohol test could not be conducted while the defendant was driving. We do not believe it intended to place upon the state the impossible burden of extrapolation in order to prove DUI.”). We decline to find this reasonable approach destroys a defendant’s right to due process.1

Conclusion. Because Instruction 6 did not shift the State’s burden of proof, we see no error, let alone error so fundamental as to preclude a fair trial. We thus affirm.

Posted by Marcia Oddi on Wednesday, June 22, 2016
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In In Re: the Adoption of S.O., A.O., and N.O., P.P. v. A.O., a 13-page opinion, Judge Baker writes:

P.P. (Biological Mother) appeals the judgment of the trial court, which granted an adoption petition over her objection. In an attempt to hasten the adoption process, the trial court dispensed with the statutorily required criminal background check, and did not consolidate a pending paternity action with the adoption proceeding. Reminded of the maxim, “Wisely and slow; they stumble that run fast,” we reverse and remand with instructions to correct these errors. * * *

We must pause our analysis to note a glaring deficiency in the instant case: we can find no mention in the record of any involvement of any licensed child placing agency or any Department of Child Services (DCS) office. Our General Assembly has required that every adoption case—whether done by stepparent, blood relative, or a nonrelative—involve either a licensed child placing agency or DCS. In general, every petitioner must have such an agency complete the period of supervision along with a report. I.C. § 31-19-8-1. Although the supervisory period and report can be waived for stepparents or grandparents, I.C. § 31-19-8-5(c), exercising that waiver then obligates the court to order an agency to conduct a criminal history check and complete a report. I.C. § 31-19-8-5(d). In sum, the absence of any child placing agency or DCS in this case means an error has occurred.

In Ricky E. Arion v. State of Indiana, a 14-page opinion, Judge Baker writes:
Ricky Arion appeals the trial court’s denial of his motion for discharge. Arion was serving a prison sentence for unrelated convictions when he was served with a warrant informing him of the present charges. He requested a speedy trial on multiple occasions, but the State made no attempt to try him for well over a year. The State now contends that because one of its officers failed to return the warrant to the trial court after serving it upon Arion, it was absolved of its responsibility to bring Arion to trial in a timely fashion in accordance with Indiana Criminal Rule 4. The State’s position is contrary to both the text and the purpose of the rule, which places an “imperative duty upon the state and its officers, the trial courts and prosecuting attorneys.” Zehrlaut v. State, 230 Ind. 175, 183-84, 102 N.E.2d 203, 207 (1951). Because we find that the delay in bringing Arion to trial was unjustifiable and that it exceeded the length of time allowable under Indiana Criminal Rules 4(B) and 4(C), we reverse and remand with instructions to dismiss the charges. * * *

We acknowledge that this case presents a factual scenario with which we have apparently not dealt before. Accordingly, we think it wise to confine our holding to the facts presented by this case and avoid making unnecessarily broad pronouncements. That being said, here we are certain that the clock began ticking for purposes of Rules 4(B) and 4(C) at the very least by January 27, 2014—that being the date that Arion filed his motion to reconsider that included a copy of the warrant and was properly filed in the trial court and served upon the State—as after that date the trial court and the State should have been aware that Arion was being held on the charges and was requesting a speedy trial. Well over a year passed from that time, during which Arion caused no delay, but was not brought to trial, until the time at which he filed a motion for discharge on July 10, 2015. Consequently, the trial court erred in denying that motion.

NFP civil decisions today (0):

NFP criminal decisions today (1):

Tracy Hertel v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, June 22, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Clark County e-filing moves forward"

From the Clark County News & Tribune, this long June 20th story from Aprile Rickert. Some quotes:

JEFFERSONVILLE — The Clark County government offices that have been working through the transition of implementing e-filing have until Sept. 1 to move online.

At the start of this year, Clark County became the second of Indiana’s 92 counties to get on board with the system, something Clark County Clerk Susan Popp said had been an important step for several reasons.

“It became critical to jump in there early for financial support from the state and the fact that Clark County wanted to take the lead on e-filing,” she said.

All the counties will eventually be mandated to use the system but the timelines are staggered. Right now Clark County is one of 11 with the Sept. 1 deadline, with 13 more counties following later in the year.

“Because we are second out of 92, we are on a timeline that any subsequent filings by attorneys have to be e-filed by Sept 1., so that is a very aggressive timeline,” she said. “We started this on Jan 19 and Sept. 1, any subsequent filings have to be e-filed. Let’s say someone has filed a case, if an attorney wants to bring in additionally to that case weather they’re on either side of that case, they have to go through the e-file system.” * * *

Jeremy Mull, Clark County prosecutor, said he can see more of the value of the system in a few months when the bugs are worked out, but right now it’s causing more work for his office and staff.

“In the long-term, I think it’s going to be positive,” he said. “I will say that the transitioning is a very time-intensive, labor-intensive thing.”

He said in addition to extra upfront costs associated with integrating a new system, there is the time spent training and correcting issues, plus the fact that some process are multiplied right now.

“We haven’t transitioned completely over to e-filing yet so for example my office is e-filing some documents but we have to, for different reasons, print out paper copies of some of those same documents to walk them downstairs, so it’s almost like double work to get some of this stuff filed at present,” he said. “That should change in the next few weeks and months.

“I think in the long term it’s going to be a very beneficial thing for our office and for the taxpayers.”

Attorney Larry Wilder said he has been a little hesitant to jump right in with the system, but said it will be a benefit when it’s implemented.

“I think it’s a good thing, we have been doing it in federal court for years now,” he said. “In federal courts you have only one way you can file and that’s through the e-system and I think it’s a good thing that people can get online and look at things.”

Clark County Circuit Court No. 1 Judge Andrew Adams said he’s already found the new system beneficial to him, his clerks and the people involved in many of the cases he presides over, as far as expedience.

He said he uses the system about 85 to 90 percent of the time, but admitted his cases are a little different because he handles mainly civil issues.

But he can access new parts of older cases and work more quickly than before.

If a lawsuit was filed a year ago, there could have been a motion for summary judgment, a response, a reply to that response, and “all of those will be at my fingertips out there on the bench,” he said. There is a touchscreen computer right there.

“When I’m looking at an order or a motion that’s proposed, I can pull the case up and look at the motions and the replies that were filed and then rule on it all from my computer, not having to get the physical file and review those,” he said.

He said before the process could take much longer.

“If a motion was submitted, it would take a day or two in the clerk’s office, a day or two to be brought up to the court in a stack, someone would have to go through that stack to separate it, to go to the different courts ... it was usually about a seven-to-10-day turnaround on a lot of motions.”

ILB: The reaction in Clark County seems to be more positive than reflected in this Hancock Co. story from June 15th.

Posted by Marcia Oddi on Wednesday, June 22, 2016
Posted to E-filing

Law - "They want their public documents. They’re not taking no for an answer"

Margaret Sullivan, new Media Columnist for the Washington Post, reports today on the Freedom of Information Act and its use by journalists, then continues:

Adding to the excitement is some good news on FOIA: President Obama has said he’ll sign a bill approved in Congress last week that makes significant improvements to the act. This is a big deal, 10 years in the making.

The reform clears away some of the obstacles to releasing information, codifying a “presumption of openness,” rather than the norm, which often seems to be a presumption of just saying no.

Posted by Marcia Oddi on Wednesday, June 22, 2016
Posted to General Law Related

Ind. Gov't. - "State education department opts for secrecy"

The blog School Matters: K-12 education in Indiana had this post June 21st from Steve Hinnefeld, a former Bloomington Herald-Times reporter. Some quotes:

The Indiana Department of Education still refuses to disclose data used to determine A-F grades for schools in 2014-15, despite receiving a letter from Indiana Public Access Counselor Luke Britt that says the data should be made public.

I’ve requested the information twice, arguing it should be disclosed under the Access to Public Records Act. And the department has rejected my request twice, insisting the data falls under an exception for records that are speculative or expressions of opinion and are used for decision-making.

But I’m not asking for anything deliberative. I’m asking for numbers – the scores on a 4-point scale that were used to establish what grades schools would receive. * * *

Britt said the data should be made public, but his opinions don’t have the force of law. They merely provide guidance that agencies should follow. Only a judge, responding to a lawsuit, could order the records to be disclosed. So that’s where things stand.

It’s important to note, however, that the law says deliberative material may be kept secret at the discretion of the public agency. So even if Bauder were correct that the numbers I requested amount to opinions or speculation, the department could release them. It’s simply choosing not to.

Posted by Marcia Oddi on Wednesday, June 22, 2016
Posted to Indiana Government

Ind. Gov't. - "Utility commission job sits open as cases stack up"

That is the headline to this story by John Russell in this week's $$ issue of the IBJ. A few quotes:

Yet for more than two months, one of the five seats on the agency has remained empty as the workload piles up. The state has not even put out a call for interested candidates.

That’s despite a law that requires a bipartisan committee to review applications and submit names of three candidates to the governor within 40 days of the vacancy. That deadline passed nearly three weeks ago. * * *

The agency has a full agenda, with petitions worth hundreds of millions of dollars hanging in the balance for grid upgrades, efficiency programs, environmental improvements for power plants and other issues. Indianapolis Power & Light Co., for example, just filed a case asking permission to pass along $100 million in costs for pollution controls on its Petersburg coal-fired power plant.

“I can’t imagine how four commissioners can manage the caseload,” said Jodi Perras, Indiana representative for the Sierra Club’s Beyond Coal Campaign. * * *

The current vacancy occurred in April when Carolene R. Mays resigned after Gov. Mike Pence appointed her executive director of the White River State Park Development Commission, an organization that operates 250 acres of state property on the east and west sides of the White River downtown.

Mays had served on the IURC since 2010. She was previously publisher of the Indianapolis Recorder newspaper and the Indiana Minority Business magazine.

The delay in filling the vacancy is caused, at least in part, by the fact that the nominating committee that screens candidates does not have a chair. The previous chairwoman, Gwen Horth, resigned last year after Pence named her chairwoman of the Indiana Parole Board. * * *

[Even after the nominating commission has a chair, not anyone can apply for the IURC vacancy...] But not just anyone can apply. Under state law, no more than three of the five commissioners can belong to one political party. Today, three of the four current commissioners are Republicans: Carol Stephan, Angela Weber and Jim Huston, all of whom were appointed by Pence in 2014.

The only Democrat is David Ziegner, a lawyer appointed in 1990 by Gov. Evan Bayh.

That means the current vacancy must be filled by a Democrat. It also means the longer the seat remains unfilled, the longer the Republicans have a 3-to-1 sway on the commission. * * *

“There needs to be a balance of perspective and viewpoints on the commission,” said Perras of the Sierra Club. “This vacancy needs to be filled by a good candidate as soon as possible.”

Posted by Marcia Oddi on Wednesday, June 22, 2016
Posted to Indiana Government

Ind. Gov't. - "Indiana vape law shuts dozens of e-liquid makers out of industry"

Tony Cook and Sara Salinas of the Indianapolis Star reported this complex story on June 19th. The lengthy report begins:

When Indiana passed new regulations for the liquid used in a smoking alternative known as vaping, Brett McCullough spent more than $70,000 to make sure his company, Hoosier E-Cig Inc., would comply with the law.

Now, he’s out of luck.

He says that’s because his company and dozens of e-liquid producers are being shut out of Indiana by a controversial state law that effectively makes a small security firm in Lafayette the vaping industry’s gatekeeper.

The impact, however, would extend well beyond producers. Retailers who must now find new sources for their product say the few producers who have been approved are charging much more. Ultimately, it is consumers who will have to pay higher prices, they say.

At issue are new regulations [sic. - "laws"] passed by state lawmakers in 2015 and revised earlier this year. The rules [sic. - "laws"] require any company that wants to produce e-liquid for sale in Indiana to be certified by a security firm by June 30.

The catch: So far only one security firm in the entire country qualifies to perform the work under the law – Lafayette-based Mulhaupt’s Inc. At this point, the company has approved only six producers, shutting out many existing competitors.

[More] Convenience Store Decisions has this June 21st story.

Posted by Marcia Oddi on Wednesday, June 22, 2016
Posted to Indiana Government

Law - "The next ‘Citizens United’ is coming" - via Indiana's own Jim Bopp

Carrie Levine of the Center for Public Integrity writes today in a lengthy story - some quotes:

Most Americans last heard from conservative lawyer James Bopp six years ago when he crafted a case, Citizens United v. Federal Election Commission, that won the Supreme Court’s favor and helped uncork a torrent of cash — some of it secret — that continues pouring into elections.

But Bopp is back. The Terre Haute, Indiana-based attorney, who was literally laughed at by a judge when he made his first arguments in Citizens United, is now the lead lawyer in the most prominent of a series of lawsuits attempting to further destroy political contribution limits. The case, brought by the Republican Party of Louisiana, addresses restrictions on how state and local political parties use “soft money” contributions to influence federal elections. * * *

Bopp says he won’t rest until there are as few election rules as possible since he believes that too many rules lead to more opportunities to game the political system. “When you say, ‘Congress shall make no law,’ I know that’s kind of a shocking statement, but it’s a pretty definitive statement,” he said, referring to the First Amendment and its application to political speech. “There shouldn’t be any laws as opposed to thousands of pages of laws and regulations that you have now in the federal system.”

Posted by Marcia Oddi on Wednesday, June 22, 2016
Posted to General Law Related

Tuesday, June 21, 2016

Ind. Decisions - "Court: Cedar Lake unjustifiably fired employee"; and Why is this NFP?

Yesterday's 9-page Court of Appeals, Not-for-Publication opinion in Town of Cedar Lake v. Review Board of the Indiana Department of Workforce Development, and Nicole Hoekstra (mem. dec.) is the subject of a story today by Dan Carden in the NWI Times. Some quotes:

A former Cedar Lake town employee who was discharged for releasing public records in response to a citizen's informal request is entitled to receive unemployment benefits, the Indiana Court of Appeals has ruled.

In its 3-0 decision, the appeals court determined that Cedar Lake did not have just cause to terminate the employment of administrative assistant and special events coordinator Nicole Hoekstra for violating a town policy prohibiting "disclosure of confidential town information to outsiders without proper authorization."

According to court records, Hoekstra emailed the minutes of a public meeting concerning an engineering project to Eric Wolverton, one of the engineers working on the project, after Wolverton was unable to attend the meeting and requested the minutes.

Cedar Lake acknowledged to the court that the minutes are a public record, but insisted that Hoekstra should have required Wolverton file an official Access to Public Records request prior to receiving the documents.

Really. More from the story:
The appellate panel incorporated the findings of a Department of Workforce Development administrative law judge into its ruling to conclude that Cedar Lake had no policy in force prohibiting employees from providing public information to the public.

Moreover, the court found, the town failed to use its progressive employee disciplinary procedure prior to discharging Hoekstra, and didn't even inform Hoekstra that her work, which had earned her two promotions in three years, was considered unsatisfactory.

The court said, as a result, Hoekstra was not properly terminated for cause and is entitled to receive unemployment compensation.

ILB: And the ILB's question is, why did the Court of Appeals panel designate the opinion as "not for publication"? One of the bases for making a ruling "for publication" and citable is found at Indiana Appellate Rule 65(A)(3):
A Court of Appeals opinion shall be published in the official reporter and be citable if the case: * * * (3) involves a legal or factual issue of unique interest or substantial public importance.

Posted by Marcia Oddi on Tuesday, June 21, 2016
Posted to Ind. App.Ct. Decisions | Why is this NFP?

Ind. Decisions - IBM files its response to the State of Indiana's Verified Petition for Writ of Mandamus & Writ of Prohibition

Updating this ILB post from May 25th, which detailed filings with both the Marion County Superior Court, and with the Indiana Supreme Court since the May 6th Order Upon Remand Regarding States Damages issued by Judge David J. Dreyer, Marion Superior Court 10, and which included the Supreme Court's May 24th order requiring:

Any briefs opposing issuance of the writ or any supplemental records must be filed with the Clerk of the Supreme Court, Court of Appeals, and Tax Court, on or before June 14, 2016.
The ILB has now obtained a copy of the 19-page, June 14, 2016 Preliminary Response of IBM, filed with the Supreme Court in Opposition to State of Indiana's Verified Petition for Writ of Mandamus & Writ of Prohibition.

Access here the Appellate Clerk's Docket for the action, State of Indiana Acting On Behalf of The Indiana Family Social Services Administration v. Marion Superior Court, et al.

Posted by Marcia Oddi on Tuesday, June 21, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "State Senate panel conducting hearings on immigration has daunting task"

Zach Osowski, Evansville Courier & Press, had a good story last week (here via the Indiana Economic Digest) that began:

INDIANAPOLIS - An Indiana Senate Committee charged with studying the impact of illegal immigration heard Wednesday just how confusing and difficult the current immigration system in America is.

And there might not be much Indiana lawmakers can do to fix the problem, even if they wanted to tackle the astronomical cost of doing so.

Immigration Attorney Angela Adams testified before the committee about just how big an impact deporting illegals from Indiana would bring. She said the state would lose $2.8 billion in economic activity if all undocumented workers were removed. In addition, she said illegal immigrants pay between $89 and $109 million a year in taxes.

Members of the U.S. and Indiana Chambers of Commerce also testified before the committee, which focused on the current problems businesses face when it comes to immigration and what can be done. Because the federal government ultimately decides immigration policy, Jon Baselice, with the U.S. Chamber, warned that Indiana's ability to do anything about illegal immigration might be limited.

"Our current immigration system is outdated. It's a sub-optimal system that has contributed to the large number of undocumented immigrants," Baselice said. "But real change needs to come from Washington D.C." Baselice said perhaps the most important thing Indiana lawmakers could do would be to keep pressure on their Washington counterparts to make changes.

For background, see this ILB post from April 19th.

Posted by Marcia Oddi on Tuesday, June 21, 2016
Posted to Indiana Government

Courts - "SCOTUS Says Police May Use Evidence Found After Illegal Stops"

The SCOTUS is nearing the end of its term. After yesterday's five decisions, only eight cases remain. The most controversial opinion issued yesterday was Utah v. Strieff. Here are some quotes from Adam Liptak's long story on the ruling in the NY Times:

WASHINGTON — The Supreme Court on Monday ruled that evidence found by police officers after illegal stops may be used in court if the officers conducted their searches after learning that the defendants had outstanding arrest warrants.

Justice Clarence Thomas, writing for the majority in the 5-to-3 decision, said such searches do not violate the Fourth Amendment when the warrant is valid and unconnected to the conduct that prompted the stop.

Justice Thomas’s opinion drew a fiery dissent from Justice Sonia Sotomayor, who said that “it is no secret that people of color are disproportionate victims of this type of scrutiny.”

“This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time,” she wrote. “It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” * * *

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. joined the majority opinion.

In a dissent that cited W.E.B. Du Bois, James Baldwin and Ta-Nehisi Coates, Justice Sotomayor said the court had vastly expanded police power.

“The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” she wrote. “Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong.” * * *

Justice Ruth Bader Ginsburg joined most of Justice Sotomayor’s dissent, along with all of a separate dissent from Justice Elena Kagan. But Justice Sotomayor reserved her most personal reflection for a part of her dissent in which she wrote only for herself, setting out in detail the dangers and indignities that often accompany police stops.

“For generations,” she wrote, “black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

“We must not pretend that the countless people who are routinely targeted by police are ‘isolated,’ ” she wrote. “They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”

Justin Driver, a law professor at the University of Chicago, said Justice Sotomayor’s dissent was remarkable. It was, he said, “the strongest indication we have yet that the Black Lives Matter movement has made a difference at the Supreme Court — at least with one justice.”

From Robert Barnes' story in the Washington Post:
The Supreme Court ruled Monday that courts need not suppress evidence of a crime even if the arresting police officer used unlawful tactics to obtain it. The decision prompted fierce dissents from three of the court’s liberals. * * *

Justice Stephen G. Breyer joined the court’s conservatives in the majority.

But Breyer’s fellow liberal justices Sonia Sotomayor and Elena Kagan each wrote blistering dissents, and each was joined by Justice Ruth Bader Ginsburg. * * *

Kagan said Fackrell’s actions were “far from a Barney Fife-type mishap,” referring to the incompetent deputy on “The Andy Griffith Show.” She and Sotomayor noted that there are millions of outstanding warrants for Americans on minor charges that could be used as justification for seizures.

Both justices referred to a Justice Department report that showed that in the town of Ferguson, Mo., which has a population of 21,000, 16,000 people had outstanding warrants against them.

Posted by Marcia Oddi on Tuesday, June 21, 2016
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (1):

In In the Termination of the Parent-Child Relationship of N.C. (Minor Child) and A.C. (Father) v. The Indiana Department of Child Services, a 12-page opinion, Judge Mathias writes:

A.C. (“Father”) appeals the involuntary termination of his parental rights to his minor son N.C. (“Child”). Father presents one issue, which we restate as whether the American with Disabilities Act (“ADA”) applies in termination proceedings. We affirm. * * *

Father argues that because he is deaf and has cognitive and mental health problems that DCS was required to provide him accommodations under the ADA. He specifically contends that DCS’s failure to accommodate his disability is a defense in this termination proceeding.

Although Father makes this argument on appeal, after review of the record, we cannot agree that he raised this issue before the trial court. Father concedes that he did not specifically mention the ADA issue during the termination hearing, but rather argues that Father’s counsel repeatedly raised the failure of DCS to accommodate his disability.

However, the record is devoid of such statements that Father alleges in his brief. Indiana Appellate Rule 46(A)(8)(a) provides:

The argument must contain the contentions of the appellant on the issues present, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on.
A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record. York v. Frederic, 947 N.E.2d 969, 979 (Ind. Ct. App. 2011), trans. denied. Further, a party may not raise an issue for the first time on appeal. See In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001). Therefore, the issue is waived for failure to develop an argument supported by cogent reasoning and because it was raised for the first time on appeal.

[The court goes through several additional arguments, and concludes]

For all of these reasons, we conclude that Father waived the issue of whether the ADA applies in a termination of parental rights proceeding. Waiver notwithstanding, Father’s discrimination claim cannot serve as a basis to attack the trial court’s termination order.

NFP civil decisions today (4):

In re the Termination of the Parent-Child Relationship of N.C., a minor child, and his Father, C.C. v. The Indiana Department of Child Services (mem. dec.)

Ed Mitchell v. Keith Smith and Mt. Zion Cemetery (mem. dec.)

Alan L. Stephens, M.D., and Summit Plastic Surgery Center v. Jamie Fazio (mem. dec.)

Nidia Martinez, et al., on Behalf of Herself and Others Similarly Situated v. Stratus Franchising, LLC, et al. (mem. dec.)

NFP criminal decisions today (3):

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

Richard Vance Hastings v. State of Indiana (mem. dec.)

Jesse N. Cole v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, June 21, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Order Clarifying Appellate Rule Amendments Effective July 1, 2016"

From the order, filed yesterday afternoon, Chief Justice Rush writes:

Effective July 1, 2016, the Rules of Appellate Procedure governing the preparation and filing of materials for cases on appeal will change. Questions have arisen concerning the application of the amended rules to cases that straddle the effective date of the amendment, that is, those cases where the Notice of Appeal is filed prior to July 1, 2016, and filings in those cases occurring on or after July 1, 2016. These questions are resolved as follows:
  1. A Clerk or Court Reporter shall prepare the Clerk’s Record, Transcript, and any other materials filed with the Court on Appeal based upon the rule in effect at the time the Notice of Appeal was filed.
  2. Attorneys shall prepare their briefs, appendices, and other materials filed with the Court on Appeal based upon the rule in effect at the time those items are filed with the Court on Appeal.

Posted by Marcia Oddi on Tuesday, June 21, 2016
Posted to E-filing

Ind. Gov't. - "Our Opinion: Yes, prisoners in Indiana need good health care"

That is the heading to a lengthy June 17th editorial in the South Bend Tribune. The editorial draws on data from a series by reporter Virginia Black, which ran in the SBT last week (and earlier). Here is a page that links to some of the stories, but others I've located are not listed ...

Some quotes from the editorial:

But when Gov. Mitch Daniels in 2005 decided to turn prison health care over to a private company — as part of a larger push to privatize state services — was it the right move? As Black’s stories revealed, there are legitimate concerns about how well inmates are being served by the company, Corizon Health, and how well the state is monitoring the level of care.

Complaints spiked in Indiana 2015, while officials in other states have accused Corizon of cutting corners to save money. Then there are the human stories: the Centerville man who died in prison after just 37 days even though prison officials knew of his health struggles, including the need for a tracheostomy tube; the Huntington woman who died coughing up blood while handcuffed and shackled in an ambulance; the Knightstown man whose cancer went undiagnosed for nearly two years.

There are key areas where Indiana can take a harder look at its medical care, and both short-term and longer-term steps it can take:

• Oversight. The hundreds of complaints that are filed by inmates about health care are reviewed primarily by one person — the Department of Correction’s ombudsman. She can choose to take a deeper dive on complaints or dismiss them. What recourse does an inmate have with the state if the decision is to pass? Virtually none.

Meanwhile, the chief medical officer for the DOC, Dr. Michael Mitcheff, is responsible for working with Corizon in overseeing its health care. His previous job? Working at Corizon, as a regional medical director. Mitcheff and the company insist the level of care is reviewed carefully. But lawyers and former Corizon doctors level accusations of pressure to rein in costs.

Michigan has tried to build at least one level of oversight. It also contracts with Corizon, but it hires another outside company to help monitor Corizon, including reviewing reports and audit findings.

• Prescription medicines. State officials provided two different and varying sets of figures on the amount of drugs prescribed to inmates each month. They couldn’t explain the discrepancy. And each set showed odd patterns. Need we point out that drugs are supposed to be prescribed based on need?

• Transparency. Reports that Corizon is supposed to file with the state, including information on staffing shortage and inmate deaths, are not made public. The state cites confidentiality of medical records as the blanket reason. It’s too thick a blanket; there are ways to release information while protecting the identity of patients or victims. Also, while the state releases lists of prisons and their scores during inspections, it does not include details about the inspectors or what they may have found to be deficient.

• Review all options. Indiana’s latest contract with Corizon is due to expire at the end of this year. Many states, such as Florida, Tennessee and Maryland, have walked away from Corizon in recent years. Indiana should thoroughly review its contact, its relationship with the company and the level of care before deciding to renew. At this point, after over a decade, it’s worth asking whether Indiana has made the best choice.

• Listen to the judges. A group of federal judges in southern Indiana is so worried about prisoners who aren’t getting proper legal representation with medical cases that they’re pushing to set up a system to recruit attorneys and experts who can help. One judge cited the “urgent and ever-increasing need” to get legal help for poor plaintiffs. Unfortunately, judges in the federal court’s northern district, which includes South Bend, are “not doing anything along those lines,” a spokesman said. They should pay closer attention, and consider following the lead of their counterparts.

The bottom line is prison inmates have a right to quality health care, and the state has an obligation to provide it, as difficult as the task may be. It’s time for Indiana to make sure it’s meeting that obligation.

Posted by Marcia Oddi on Tuesday, June 21, 2016
Posted to Indiana Government

Ind. Gov't. - More on "Wind farms whipping up opposition across rural Indiana"

Following up on this ILB post from June 9th, Travis Weik, New Castle Courier-Times reporter (here as republished in Indiana Economic Digest) reports under the headline: "Henry County Area Plan Commission denies request for 2 meteorological towers." Some quotes:

NEW CASTLE — The Henry County Planning Commission denied two requests from Apex Clean Energy to build towers in the southern part of the county to gather wind data. The meteorological towers, commonly called met towers, would have been placed in Spiceland and Dudley townships.

“We are disappointed,” said Brenna Gunderson, Apex senior development manager for the Flat Rock Wind project.

Gunderson told the planning commission that met towers are very important factors in the process of constructing a wind farm. Without collecting data in the area, Apex cannot determine whether or not the sites would be able to support industrial wind turbines as part of the larger Flat Rock Wind farm. * * *

Sharon Mullen presented numbers from the 2010 census to the commission that compared Henry County population density to Tipton County, home to many active wind turbines. According to the data, Henry County is home to more than three times the number of people in Tipton County. Mullen also gave the commission members photos she had of broken turbines.

“Henry County is just too populated,” Mullen said. “When I look at these pictures, and I see broken blades and them so close to homes, I’m just praying that this met tower don’t go up or turbines come into our county.”

Christy Coffey, from Fall Creek Township, brought up that the Henry County Commissioners wanted a committee to review the current ordinances regarding wind turbines and meteorological towers.

“Why add new towers to something that you may possibly change soon?” Coffey asked.

Henry County resident Patsy Conyers suggested that Apex was trying to install the met towers under the current building code to avoid future regulations. Henry County Zoning Administrator Darrin Jacobs explained that the CAU requests were submitted following the May meeting of the planning commission, weeks before the county commissioners asked for a review of the ordinances.

Opponents of wind farms and turbines in Henry County spent an hour telling the planning commission why they should deny the Spiceland Township met tower. No one spoke in favor of the project.

Posted by Marcia Oddi on Tuesday, June 21, 2016
Posted to Indiana Government

Monday, June 20, 2016

Ind. Gov't. - "Urban chicken coops could soon find foothold in Region"

That is the headline of this long story by Rob Earnshaw of the NWI Times this weekend that begins:

VALPARAISO — Jennifer Murtoff, who bills herself as the Midwest's only chicken consultant, was happy to hear Valparaiso will consider allowing more city residents to own backyard chickens.

Chesterton recently passed a similar ordinance and other Region cities and towns already allow urban chickens.

The Valparaiso City Council will vote on the ordinance at its next meeting at 7 p.m. June 27 at City Hall. If adopted, residents could have up to four chickens that must be kept securely enclosed on the owner's property at all times. The ordinance has several other requirements, including that a chicken coop, or enclosed structure, to shelter the chickens must be provided.

It follows on this April 21, 2016 ILB post, headed "Valpo family may lose their backyard chickens after complaint," one of this very long list of earlier ILB posts on "urban chickens."

Posted by Marcia Oddi on Monday, June 20, 2016
Posted to Indiana Government

Env. - "Concerns raised over Indiana plan to adopt coal ash rules"

That is the headline to this AP story by Rick Callahan, here as published in the Miami Herald. The long story begins

INDIANAPOLIS

Environmental groups are raising concerns about Indiana's plan to adopt new federal standards for the ponds and landfills where utilities store vast amounts of coal ash waste produced by coal-fired power plants.

The tighter regulations from the U.S. Environmental Protection Agency took effect in October, and Indiana is planning to incorporate those provisions into its solid waste rules.

Indiana is home to at least 74 coal ash ponds and 14 landfills containing the gritty waste that's the legacy of its long reliance on burning coal to generate electricity. That ash contains arsenic, chromium, lead and other heavy metals that can threaten groundwater.

The Indiana Department of Environmental Management is taking public comments through June 30 on its draft plan for adopting the new rules, including requirements for preventing the impoundments from contaminating groundwater.

The state agency held a public hearing Thursday in Indianapolis during which several environmental groups raised concerns about the plan, which the EPA must approve.

Jodi Perras, the Indiana representative for the Sierra Club's Beyond Coal Campaign, said she and other activists were stunned that IDEM's proposal does not include a requirement that utilities post on their websites inspection reports and other documents on their coal ash sites.

Perras said that provision in the EPA's coal ash rules is intended to ensure "trust, transparency and honesty" about coal ash impoundments and that online access is important to residents near coal ash ponds worried about possible groundwater contamination.

ILB: "Coal ash" is a topic about which the ILB has many earlier posts.

Posted by Marcia Oddi on Monday, June 20, 2016
Posted to Environment

Ind. Decisions - 7th Circuit posts two Indiana opinions decided Friday

In U.S. v. Bloch (ND Ind. Miller), a 23-page opinion, Judge Kanne writes:

Defendant John W. Bloch III has had three sentencing hearings in four years. He now seeks a fourth. Bloch argues he is entitled to such relief because the district court committed error in imposing the length and conditions of supervised release.

The third time happens to be a charm in this instance though, as Bloch is not entitled to another sentencing hearing. The district court not only adequately explained its justi-fication for imposing a term of supervised release, it also adopted a “best practice” suggested by this court for provid-ing adequate notice to defendants of proposed conditions of supervised release and justification for the same. Therefore, we affirm the district court’s sentence.

In Bell v. Lantz (SD Ind., Pratt), an 11-page opinion, Judge Rovner writes:
This appeal concerns an award of attorney’s fees by the district court to Charles Lantz, who was the defendant in a suit brought by Richard Bell under the Copyright Act, 17 U.S.C. § 501 et seq., which was later voluntarily dismissed. Bell does not challenge the court’s decision to award fees, but contests the amount of fees awarded.

The original copyright infringement action was filed by Bell, a practicing attorney and professional photographer, against forty-seven defendants including Lantz. Bell had taken a photograph of the Indianapolis skyline (the “Indianapolis Photo”), and alleged that each of the defendants violated the Copyright Act in publishing his photograph on their websites. Lantz filed an answer denying all allegations of copyright infringement of the Indianapolis Photo. Through responses to interrogatories, Bell confirmed that Lantz had not infringed his copyright, and the district court granted Bell’s motion to voluntarily dismiss his copyright infringement claim with prejudice.

In light of that dismissal with prejudice, Lantz filed a motion as the prevailing party for costs and attorney’s fees under 17 U.S.C. § 505 of the Copyright Act. * * *

The evidence in the record therefore provides little support for the $410 figure. The district court never properly analyzed that evidence, however, because it appeared to be unaware of the sealed exhibits produced by Bell. As we have discussed above, that evidence deals a significant, and quite likely fatal, blow to Lantz’s argument that he is entitled to an attorney’s fee of $410 per hour as opposed to $250 per hour, and therefore a remand is required.

Accordingly, the award of attorney’s fees is VACATED and the case REMANDED for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Monday, June 20, 2016
Posted to Ind. (7th Cir.) 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 (1):

Town of Cedar Lake v. Review Board of the Indiana Department of Workforce Development, and Nicole Hoekstra (mem. dec.)

NFP criminal decisions today (2):

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

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

Posted by Marcia Oddi on Monday, June 20, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending June 17, 2016

Here is the Clerk's transfer list for the week ending Friday, June 17, 2016. It is one page (and 9 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, June 20, 2016
Posted to Indiana Transfer Lists

Ind. Courts - Four "commercial court" cases already have been docketed in Judge Welch's Marion Superior Court

This weekend, This Week on Inside INdiana Business included a segment on the commercial court pilot project, featuring Loretta Rush, Indiana Supreme Court Chief Justice and Kevin Brinegar, President, Indiana Chamber of Commerce.

The new commercial court pilot project went into effect June 1. Chief Justice Rush mentioned during the interview that four cases already had been docketed in Judge Heather Welch's Marion Superior Court. (Here is a graphic showing the six judges and court locations).

The ILB tried to find them. But as far as I can tell, there is no way to find, or follow, the commercial courts' dockets (or the list of cases docketed in any court) via mycase.IN.gov, or any other resource.

The IndyGov Marion Superior Court page gives no indication of a separate commercial courts docket. It says only: "The Civil Division handles general civil cases, juvenile cases, probate and environmental cases and domestic relations matters."

Posted by Marcia Oddi on Monday, June 20, 2016
Posted to Ind. Commercial Courts

Ind. Gov't. - "East Chicago House candidate survives residency challenge"

Dan Carden reported last week in the NWI Times:

INDIANAPOLIS — Earl Harris Jr. will remain a candidate on the November general election ballot seeking to represent portions of East Chicago and Gary in the Indiana House.

On Wednesday, the Indiana Election Commission rejected an eligibility challenge that claimed Harris is not a legitimate resident of House District 2. It was filed by Rosa Maria Rodriguez, who was runner-up to Harris in the May Democratic primary.

The outcome wasn't even close to uncertain as the two Republican and two Democratic election commissioners easily agreed, following an hour of testimony, that Harris met the state's legal standard for candidate residency.

Specifically, Harris expressed intent to live at his mother's East Chicago home beginning in March 2015, and took action to carry out that intent, such as living in the house, moving property into the house and changing his voter registration, bank records, insurance and other official documents to reflect his new address.

"There's nothing before us, I think no valid evidence, that gives question as to what he has stated his intent was," said Commissioner Suzannah Wilson Overholt, a Democrat.

Rodriguez argued that Harris should be removed from the ballot because Harris owns an Indianapolis house for which he received a 2015 homestead property tax credit, which only is available for a person's primary dwelling.

"How is it that Earl Harris now lives ... in East Chicago and still takes a homestead credit for his true residence in Indianapolis?" Rodriguez said. "Voter fraud? Tax code violation? Or both?"

Guided by attorney Scott Chinn, Harris explained that he moved from Indianapolis to East Chicago to live with his mother, state Rep. Donna Harris, following the March 23, 2015, death of his father, longtime state Rep. Earl Harris Sr.

Harris said he simply forgot about telling the Marion County auditor to remove the homestead credit while grieving his father's death, and later amid moving, helping with his mother's health issues, relocating his video production business and campaigning for state representative.

"With everything that was going on ... it slipped through the cracks," Harris said.

Harris testified that he recently contacted the county auditor to take off the homestead credit and take care of any unpaid taxes, since he intends East Chicago to be his permanent residence.

Posted by Marcia Oddi on Monday, June 20, 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 6/20/16):

Thursday, June 23 [[Note: This will be Justice Slaughter's first opportunity to hear oral arguments. He was sworn in on June 13th.]

Next week's oral arguments before the Supreme Court (week of 6/27/16):

Thursday, June 23

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/20/16):

Next week's oral arguments before the Court of Appeals (week of 6/27/16):

Tuesday, June 28

Wednesday, June 29

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, June 20, 2016
Posted to Upcoming Oral Arguments

Sunday, June 19, 2016

Law - More on "An Expensive Law Degree, and No Place to Use It"

What started as the NYT "Dealbook" article by Norm Scheiber the ILB linked to on Friday has now morphed into a story that begins on the front page of the Sunday Business section of the New York Times, and continues to one and a half full inside pages. In the print version, it is captioned "The Law School Bust: On an Indiana campus, law students trapped in debt, dejected professors and scant jobs. Many schools are struggling."

Don't miss reading today's NYT article in full! A few quotes:

Currently the NYT lists 1291 reader comments to this article. Here is one:
I am a lawyer in practice for 25 years. Make no mistake, the American Bar Association created this mess. The ABA has certified too many law schools and has placed ridiculous standards on these school thus driving up tuition to back-braking levels. Now law schools are admitting unqualified students to keep their numbers up. It is scary to observe many of these recent graduates. They are poorly read, lack critical thinking skills and are loosely educated. You better believe there are dozens-yes dozens of law schools that need to close.
Here is another:
This has been an on-going story that I've been reading about for almost a decade now so I am hard pressed to feel sorry for these people. The idea is fatuous that if "I could just pass the bar then I'd get a job." I work in a company that has 3 paralegals; when one of them left a year ago we had 160 resumes for the position and over half of them were from law school grads looking for a foot in the door.

People thinking about going to law school need to realize that this market has hit its saturation point and the waters aren't going to recede for years and years to come. Lawyers are taught to think strategically, so maybe it's time for them to think about Plan B.

Posted by Marcia Oddi on Sunday, June 19, 2016
Posted to General Law Related

Friday, June 17, 2016

Ind. Gov't. - "Indiana lags in minority representation"

Christin Nance Lazerus has a long story today in the Gary Post-Tribune that begins:

As Indiana's population gets more diverse, minority political representation is lagging.

Blacks make up more than 9 percent of Indiana's population, yet hold 8 percent of the seats in the Legislature and just one of the state's 11 congressional seats, according to an Associated Press analysis. Hispanics make up almost 7 percent of the state's population, but less than 1 percent of the Legislature. The state's nine-member congressional delegation includes one African-American, but no Latinos, the analysis shows.

Much of the minority populations are concentrated in urban areas like Lake County and Indianapolis, so local officeholders tend to be more diverse there. * * *

There are no blacks currently elected to prominent statewide office, but that could change soon. Elkhart County Prosecutor Curtis Hill became the first black candidate for Republican statewide office, when he captured the nomination for Attorney General at last weekend's state GOP convention. Gary Mayor Karen Freeman-Wilson, a Democrat, is a former Indiana Attorney General.

Brown said the Democrats should do better.

"I don't know why the (statewide) ticket couldn't have been more balanced," Brown said. "I think state party and national Democratic Party leaders take African-Americans for granted. We're one of their staunchest supporters, so we don't have to do as much for them. That has got to change on the state and national level."

Karen Freeman-Wilson was appointed to the Indiana Attorney General post in February 2000. She ran for election to the post that same year, but she was defeated by Republican Steve Carter, a Lowell native.

Freeman-Wilson said she doesn't think her identity as a black female hampered her since Pam Carter — "a great friend and mentor" — had previously been elected to the post in 1993 when Democrat Evan Bayh was governor. * * *

Northwest Indiana is home to a large Hispanic population — particularly in East Chicago, where four city council members and five school board members are Hispanic.

Rep. Christina Hale, an Indianapolis Democrat, is currently only Latina in the statehouse. Hale, who is of Cuban heritage, is the running mate of Democratic gubernatorial nominee John Gregg, who is a former Speaker of the House. If elected, she would become lieutenant governor.

Posted by Marcia Oddi on Friday, June 17, 2016
Posted to Indiana Government

Ind. Gov't. - "IDEM initiates pollution tests around Kokomo Opalescent Glass"

Updating an ILB post from May 31st headed "'EPA accuses Kokomo Opalescent Glass of violating air pollution permit' Historic Indiana company made glass for Tiffany," Carson Gerber of the Kokomo Tribune reported on June 15th - some quotes:

The Indiana Department of Environmental Management has begun conducting tests around Kokomo Opalescent Glass to determine if the art-glass manufacturer is emitting hazardous amounts of potentially toxic materials.

IDEM completed soil tests around the facility last month to determine whether the company was emitting dangerous amounts of pollutants as part of a national investigation by the Environmental Protection Agency into art-glass facilities around the country.

The EPA started the investigation in February after a glass factory in Oregon was found to be releasing dangerous amounts of toxic metals.

That investigation led the EPA to investigate KOG, which is the nation's oldest manufacturer of opalescent glass. The EPA determined KOG was violating the Clean Air Act by failing to obtain a federal permit that regulates glass manufacturers.

The EPA alleged the violation had resulted in the company emitting elevated amounts of metals into the air.

IDEM ended up taking samples from nine different locations at or near KOG to test for elevated amounts of potentially toxic metals such as arsenic, barium, cadmium, chromium, lead, mercury, selenium and silver.

The tests revealed slightly elevated levels of arsenic at five locations, including at two houses located directly west of the facility on the 1300 block of South Union Street.

The arsenic levels there were slightly above the residential soil direct contact levels set by the EPA, which are conservative calculations of how clean a site should be to be appropriate for residential use.

However, Barry Sneed, a public information officer with IDEM, noted arsenic is a naturally occurring element in Indiana soil, and many areas of the state have levels above those set by the EPA.

He said the arsenic levels around KOG do not pose a health hazard to residents. * * *

Besides arsenic, no other metals were discovered above the limits set by the EPA.

IDEM now plans to set up air monitoring equipment around the facility to further test for elevated pollution levels. * * *

Sneed said the end game for all the testing is to help the EPA and IDEM determine if emissions from the KOG plant may be a threat to human health or the environment.

He said the soil testing so far indicates that the facility is not a threat.

Elliott said the company is now working with the EPA “to identify potential steps that will confirm our facility is not emitting impermissible levels of pollutants.”

Those steps were discussed during a meeting on May 16 between KOG officials and the EPA set to address the agency’s allegations that the company should be required to obtain a federal Title V permit, which would increase the amount of oversight and air-pollution regulations the company has to follow.

“At the meeting, we were able to bring new information to the agency’s attention regarding the way KOG’s processes and unique equipment design dramatically minimize undesirable emissions, and how these facts impact the applicability of relevant federal regulations,” Elliott said.

In a letter sent to the EPA before the conference, KOG said that it uses 12 individual, insulated pot furnaces that don’t release any materials through its stacks during the glass-making process.

The company also argued it should not be required to obtain a federal permit because it does not operate a continuously operated furnace, which would make it subject to federal regulations.

“As a leader in the United States’ colored glass manufacturing industry, KOG’s continued compliance with those requirements applicable to its operations is of the utmost importance, and the company hopes to work with the agency to address these allegations,” the letter states.

Posted by Marcia Oddi on Friday, June 17, 2016
Posted to Environment | Indiana Government | Indiana economic development

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

For publication opinions today (1):

In Richard C. Gallops and Patricia A. Gallops v. Shambaugh Kast Beck & Williams, LLP, a 10-page opinion, Sr. Judge Sharpnack writes:

Richard C. Gallops and Patricia A. Gallops seek to appeal an agreed judgment claiming error in interlocutory orders entered by the trial court prior to the parties submitting the agreed judgment to the trial court who consented to it. Because Indiana has long held that no appeal can be taken from an agreed judgment, we dismiss this appeal. * * *

Although there are several issues presented in this appeal, we sua sponte raised an issue that is dispositive of this appeal; namely can a party appeal from an agreed judgment? After conducting our own research and considering the additional briefing of the issue by the parties, we conclude that long standing precedent answers that question in the negative. * * *

In the present case, there is nothing explicit in the agreed judgment concerning an appeal of any issues after entry of the agreed judgment. Indeed, the only language referring to the effect of the entry of the agreed judgment is that it would be entered on the trial court’s docket “as a final judgment” and that the “judgment will have the same effect as if the case had proceeded to trial, as it is presently postured, a verdict had been arrived at by a jury on all presently pending claims, and the Court had then entered judgment in favor of Shambaugh Kast.” Appellants’ App. p. 10. Furthermore, there is no evidence that the trial court intended for the agreed judgment to be appealable. Finally, unlike the panel in Bemenderfer, we decline to accept appellate review, and instead follow our Supreme Court’s precedent that agreed judgments are not appealable.

NFP civil decisions today (1):

In the Termination of the Parent-Child Relationship of: G.K., S.K., & J.V. (Minor Children) and R.v. (Mother) & J.S. (Father) v. Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (4):

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

Trayshaun J. Pernell v. State of Indiana (mem. dec.)

Larry Shawn Martin v. State of Indiana (mem. dec.)

Jayme Michelle Dollens v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, June 17, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Winfield D. Ong nomination to SD Ind. approved by Senate Judiciary

From a news release issued yesterday:

WASHINGTON, DC – Senators Dan Coats (R-Ind.) and Joe Donnelly (D-Ind.) today praised the Senate Judiciary Committee’s vote to approve Winfield D. Ong to fill the vacancy on the U.S. District Court for the Southern District of Indiana. Ong’s nomination will now be sent to the full Senate for consideration.

“I applaud the committee’s vote to approve the nomination of Winfield Ong,” said Coats. “Given the ongoing judicial emergency in the Southern District of Indiana, this vacancy needs to be filled. Winfield Ong’s qualifications and outstanding record of public service make him the right person for this important position.”

“I am pleased the Senate Judiciary Committee moved Winfield Ong’s nomination forward to the full Senate,” said Donnelly. “He is an excellent nominee and has demonstrated he has the experience, ability, and temperament necessary to serve Hoosiers well on the federal bench. I urge the Senate to hold a confirmation vote on Winfield Ong as soon as possible.”

Ong, a native of Evansville and resident of Indianapolis, graduated from DePauw University and has spent most of his career working in Indiana. Ong currently serves as Chief of the Criminal Division for the U.S. Attorney’s Office in the Southern District of Indiana.

Posted by Marcia Oddi on Friday, June 17, 2016
Posted to Indiana Courts

Law - "An Expensive Law Degree, and No Place to Use It"

Although Valparaiso University Law School is featured in this long Dealbook article by Norm Scheiber in the NY Times today, it is a must read for all. A sample:

Nationally, the proportion of recent graduates who find work as a lawyer is down 10 percentage points since its peak of the last decade, according to the most recent data. And though the upper end of the profession finally shows some signs of recovering, the middle and lower ranks remain depressed, especially in slower-growth regions like the Rust Belt.

As of this April, fewer than 70 percent of Valparaiso law school graduates from the previous spring were employed and fewer than half were in jobs that required a law license. Only three out of 131 graduates worked in large firms, which tend to pay more generous salaries.

“People are not being helped by going to these schools,” Kyle McEntee, executive director of the advocacy group Law School Transparency, said of Valparaiso and other low-tier law schools. “The debt is really high, bar passage rates are horrendous, employment is horrendous.”

Even as employment prospects have dimmed, however, law school student debt has ballooned, rising from about $95,000 among borrowers at the average school in 2010 to about $112,000 in 2014, according to Mr. McEntee’s group. * * *

Yet in financial terms, there is almost no way for Mr. Acosta [John Acosta, Valpo grad featured in the story] to climb out of the crater he dug for himself in law school, when he borrowed over $200,000. The government will eventually forgive the loan — in 25 years — if he’s unable to repay it, as is likely on his small-town lawyer’s salary. But the Internal Revenue Service will treat the forgiven amount as income, leaving him what could easily be a $70,000 tax bill on the eve of retirement, and possibly much higher.

Mr. Acosta is just one of tens of thousands of recent law school graduates caught up in a broad transformation of the legal profession. While demand for other white-collar jobs has rebounded since the recession, law firms and corporations are finding that they can make do with far fewer full-time lawyers than before.

Posted by Marcia Oddi on Friday, June 17, 2016
Posted to General Law Related

Ind. Courts - Judge Mary Willis named Court's first Chief Administrative Officer (CAO)

From news just released by the Court:

After a national search, the Indiana Supreme Court has named Henry Circuit Court 1 Judge Mary Willis as its first Chief Administrative Officer (CAO). Chief Justice Loretta H. Rush said, “Mary is a tremendous leader with legal and administrative skills who will be a great asset to the Supreme Court.”

Willis will begin work in July. The Supreme Court will appoint a temporary judge to hear cases in Henry County. Division of State Court Administration Executive Director Lilia Judson is serving as Interim CAO. She will retire in September after facilitating a smooth transition to Willis.

Willis was elected judge in Henry County in 2003. She is a graduate of Ball State and the Indiana University McKinney School of Law. She is President of the Indiana Judges Association, a member of the Court’s Strategic Planning Committee, and the Indiana Judicial Conference Board of Directors.

In February, the Court announced an internal restructuring plan which created an Office of Judicial Administration (OJA). The goal is to enhance communication, clarify staff responsibilities, document institutional knowledge, plan for personnel succession, and continue to move the judiciary forward. In addition to Willis, the OJA includes 200 employees led by directors in the following departments:

· Boards and Commissions: Terry Harrell, Bradley Skolnik, Michael Witte

· Clerk: Greg Pachmayr

· Communication, Education, and Outreach: Kathryn Dolan

· Fiscal: Aaron Hood

· Judicial Center and Court Administration: Jane Seigel

· Personnel Management and Operations: Brenda Rodeheffer

· Supreme Court Services: Jason Bennett

· Trial and Appellate Court Technology: Mary DePrez and Robert Rath

Posted by Marcia Oddi on Friday, June 17, 2016
Posted to Indiana Courts

Ind. Gov't. - Franklin Co. Auditor refuses access to public documents

So reports John Estridge, Editor of the Brookville American-Democrat, in this June 15th story. The long story begins:

“They have everything they need to do their job.”

That was the response from Franklin County Auditor Steve Brack over the fact his office does not provide all of the information to each and every department head and elected official that should be open and made available to them and all of the public.

Franklin County Treasurer Veronica Voelker has not been able to see the county's payroll for almost one year, and department heads and elected officials cannot see the county's complete budget. Brack cut off public access to the documents in August of 2015.

Brack is currently charged with two counts of felony Theft and is under Indiana State Police investigation for possibly altering a public document, which is also a felony.

Brack was questioned at the end of the Franklin County Commissioners Monday, June 13 meeting, during the public portion of the meeting. In previous meetings, two of the commissioners, Tom Wilson and Tom Linkel, have asked Brack why Voelker cannot see the payroll. Voelker signs the checks for the county's payroll.

Brack went so far as to ask the question at a state auditor's conference if the treasurer had the authority to see the county's payroll. It was reported the answer to the question was less than kind. Brack also asked the same question to the Indiana State Board of Accounts.

Indiana Public Access Counselor's Office also stated the county's payroll is a public document and is open to anyone to view.

In earlier meetings, Brack blamed the LOW software company for the fact Voelker could not see the payroll.

Posted by Marcia Oddi on Friday, June 17, 2016
Posted to Indiana Government

Thursday, June 16, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (3):

In Town of Reynolds v. Board of Commissioners of White County and Certain Identified Landowners Remonstrating Against Ordinance No. 2014-09-02EX-2, a 13-page opinion, Judge Bradford writes:

In January of 2015, Appellant-Defendant the Town of Reynolds (the “Town”) adopted an annexation ordinance through which it sought to annex two parcels of land. The Town, however, failed to include certain contiguous county roads in the annexation ordinance as required by statute. Appellee-Plaintiff the Board of Commissioners for White County (the “County”) subsequently filed a lawsuit seeking a declaratory judgment that the Town’s failure to comply with the relevant statute rendered the annexation ordinance void.

After determining that the Town’s failure to comply with the relevant statute did in fact render the annexation ordinance void, the trial court rendered a declaratory judgment in favor of the County. The Town appeals from this judgment. We affirm.

In William R. Dixon v. Indiana Department of Correction, an 11-page opinion involving a pro se appellant, Judge Brown writes:
William R. Dixon appeals the trial court’s grant of summary judgment in favor of the Indiana Department of Correction (“DOC”). He raises four issues which we consolidate and restate as whether the trial court properly granted summary judgment to the DOC. We affirm. * * *

Dixon argues that his classification as a sex offender is ex post facto punishment which he states alters his “punishment phase, restrictions, and registration requirements, which includes length of time, SOMM program, where one could live and work” and that he will experience “a new social stigma which will weight [sic] heavier on Dixon’s mental anguish than it would as being seen by society or his peers as an ex-violent offender, rather than being seen as SO/ZSO.” Appellant’s Brief at 9. He asserts that his claim is ripe for review in that he is “being harmed presently by mental anguish, defamation of character, and a possible physical harm within a prison setting.” Id. at 16.

In Byron Etter v. State of Indiana , a 13-page opinion, Judge Barnes writes:
The restated issue is whether the special judge properly denied Etter’s motion to dismiss because the trial court did not “goad” Etter into moving for a mistrial. * * *

Our review of the record, including the audio recording of the trial, reveals that, although the trial court was frustrated with defense counsel and made inappropriate comments, there is no evidence she intended to goad Etter into requesting a mistrial. Although we do not condone the trial court’s comments, we cannot say they were so damaging to Etter as to necessitate a mistrial.

NFP civil decisions today (5):

Brian J. Bauermeister v. Sandra J. Churchman and The Courier-Journal, Inc. (mem. dec.)

Richard Hoffman v. Rhonda Hoffman (mem. dec.)

John D. May v. Erik C. Allen, et al. (mem. dec.)

In the Matter of: K.M., I.M., H.M., & G.M. (Minor Children): C.K. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

Segun Rasaki v. Union Savings Bank (mem. dec.)

NFP criminal decisions today (4):

Isaiah Samelton v. State of Indiana (mem. dec.)

Lucas R. Carter v. State of Indiana (mem. dec.)

Edward G. Shell v. State of Indiana (mem. dec.)

David Wayne Singer v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, June 16, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisons - Supreme Court decides one today

[This is the first opinion upon which the Court's newest justice has voted.]

In Thomas L. Hale v. State of Indiana, an 8-page, 5-0 opinion, Justice Massa writes:

Thomas Hale appeals his conviction for dealing in methamphetamine, on the sole grounds that the trial court abused its discretion in failing to grant him, at public expense, depositions of two State’s witnesses. We find that our prior precedent compels us to agree with Hale and reverse his conviction, but take this opportunity to provide guidance as to how trial courts should address such motions in the future. * * *

Given these competing concerns, we believe that when the trial court denies an indigent defendant’s motion to conduct a deposition at public expense, the court should issue factual findings addressing each part of the Dillard/Crawford test. The trial judge is ultimately in the best position to consider the sincerity of the parties’ arguments regarding the three-part test, as well as the overall costs associated with the proposed depositions, and potential alternatives that may better promote pre-trial efficiency of the case. But without the benefit of knowing the trial court’s rationale, our appellate courts are forced to presume that “exculpatory or mitigating evidence would have surfaced from the depositions sought.” Murphy, 265 Ind. at 121, 352 N.E.2d at 483. Specific findings by the trial court, however, should resolve that ambiguity going forward.

Posted by Marcia Oddi on Thursday, June 16, 2016
Posted to Ind. Sup.Ct. Decisions

Wednesday, June 15, 2016

Ind. Courts - "Ex-lawyer requests new judge in his theft case"

Mike Emery's report today in the Richmond Pal-Item begins:

A former Wayne County attorney charged with theft and conversion has requested a new judge to oversee his case after the previously assigned judge rejected a plea agreement.

Defense attorney Nathaniel Connor filed an application for a change of judge Tuesday on behalf of E. Thomas Kemp, 49, of Greens Fork, who is charged with 10 Class D felony counts of theft and nine Class A misdemeanor counts of conversion.

The most recent earlier ILB post on the E. Thomas Kemp case was on May 24th.

Posted by Marcia Oddi on Wednesday, June 15, 2016
Posted to Indiana Courts

Ind. Courts - Still more on "LaPorte prosecutors sued for alleged eavesdropping"

Updating this ILB post from June 10th, which included these quotes from a Michigan City News Dispatch story:

WINAMAC, Ind. — John Brennan Larkin has been released of the voluntary manslaughter charge he faced in the 2012 shooting of his wife; and cannot be charged again with any crime stemming from her death. * * *

During an emergency hearing called by Judge Patrick Blankenship in Pulaski Superior Court Thursday, the judge granted two defense motions to dismiss the case — one based on the state's failure to put Larkin in front of a jury in a timely fashion, and the other based on the state's supposed use of information that was acquired unlawfully.

Today the News Dispatch has a lengthy related story, written by Kelley Smith, headed "Judge's order elaborates on Larkin dismissal." Just a few quotes:
During an emergency hearing on Thursday, Judge Patrick Blankenship of Pulaski Superior Court — who recently was appointed special judge in the 3 1/2-year-old case — released Larkin of the voluntary manslaughter charge he faced based on two defense motions: one alleging law enforcement officers repeatedly violated Larkin’s Sixth Amendment rights throughout the investigation into his wife’s death; and one claiming the state violated their agreement to place Larkin in front of a jury within 90 days of it having returned from the Indiana Court of Appeals. * * *

According to Blankenship, “… the State continually violated the 6th Amendment, not just once, by initially recording it, but multiple times. Every time they made a copy of that conversation is a separate and individual violation. … Every time they disseminated the transcript containing that twelve-minute portion was a separate violation of the Defendant’s 6th Amendment rights.”

A few weeks after Larkin’s arrest, Bullis is recorded telling Long Beach Police Officer Tobias Babcock to attempt to convince Michigan City Police Sgt. Darren Kaplan to change his testimony regarding evidence that may have proved helpful to Larkin’s defense. Kaplan reportedly had had a conversation with Larkin’s wife approximately six months prior to her death; and Bullis had learned about its significance during the improper interrogation on the night of Larkin’s arrest.

And in another alleged constitutional violation, the state is accused of tampering with and damaging the door to the safe that once housed the gun used to kill Larkin’s wife. It was determined during a hearing in 2014 that the only people who could have done so were Michigan City Police Detective Matt Barr or then-Chief Deputy Prosecutor Neary. Barr testified that he did not tamper with the safe door; and Neary was prohibited from testifying because he was trying the case on behalf of the state at the time. (Stanley Levco was appointed special prosecutor in the case in 2015.)

Blankenship says he consulted the Indiana Supreme Court ruling stemming from the 2014 murder case of State v. Brian Taylor for guidance in his decision. [ILB: see also this March 31, 2016 post.]

In Taylor’s case, which is still pending in a La Porte County court, Neary and several Michigan City Police officers are accused of illegally eavesdropping on a privileged conversation between Taylor and his defense attorney shortly after his arrest. The supreme court upheld the Indiana Court of Appeals’ reversal of former Judge Kathleen Lang’s blanket order that all officers who have invoked their Fifth Amendment right to silence in that case be prohibited from testifying. They ordered the presiding judge, which is now Judge Thomas Alevizos, to re-interview all officers and determine which pieces of evidence are tainted and which are admissible.

In other words, the Indiana Supreme Court determined in Taylor’s case that it is not the defendant’s burden to prove whether a Sixth Amendment violation has caused harm to his or her case.

Today's lengthy story concludes:
In his order, the judge accuses the state of putting Larkin “in a position of number one, having to go to trial with a judge who should have recused himself, should never have accepted it, which was Judge Alevizos, who knew he had a problem with the case. Number two, the Defendant is charged with the fact that no judge in La Porte County wanted to get within a ten foot pole of this case… It should not be a choice between a speedy trial and a fair trial. He is entitled to both, not one or the other. He is entitled to have both, and as the Court sees it, the only reason this case got to this point was because we had a prosecuting attorney in Mr. Neary and his staff, and we had a law enforcement agency in Long Beach Law Enforcement Agency, that did everything in their power to intentionally violate this Defendant’s constitutional rights and civil rights, and make it as difficult as possible for him to obtain a speedy trial.”

Posted by Marcia Oddi on Wednesday, June 15, 2016
Posted to Ind. Trial Ct. Decisions | Indiana Courts

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 17 NFP memorandum decision(s))

For publication opinions today (1):

In Northeastern Rural Electric Membership Corporation v. Wabash Valley Power Association, Inc., an 18-page opinion, Judge Barnes writes:

Northeastern Rural Electric Membership Corporation (“Northeastern”) appeals the trial court’s grant of summary judgment to Wabash Valley Power Association (“Wabash”). We affirm.

Northeastern raises two issues, which we consolidate and restate as whether the trial court properly granted summary judgment to Wabash on its statute of limitations defense. * * *

Having concluded that Northeastern’s breach of contract claim accrued in 2004 and that the doctrines of equitable estoppel and fraudulent concealment are inapplicable, we conclude that Northeastern’s 2012 complaint was filed long after the four-year statute of limitations expired. Consequently, the trial court properly granted Wabash’s motion for summary judgment.

NFP civil decisions today (7):

In the Matter of the Paternity of A.I., Sandrella Windham, a.k.a. Samantha Kelley v. Kenneth Ivy (mem. dec.)

Jolena K. Plaut, Known Heir and Personal Representative of the Estate of Beulah Jane Enderle, a/k/a Beulah Jane Hunt, Deceased v. Wells Fargo Bank, N.A. (mem. dec.)

Timothy E. Strowmatt v. Indiana Department of Correction, et al (mem. dec.)

Vassil Marinov v. UMR Cobra (mem. dec.)

Jerry Paucak and Bernadette Paucak v. Daniel M. Paucak (mem. dec.)

Donnis Goodman v. Haan Crafts, LLC (mem. dec.)

Steven E. Webb v. Marla R. Webb (mem. dec.)

NFP criminal decisions today (10):

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

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

Keith Sculfield v. State of Indiana (mem. dec.)

Patrick Tremell Lucas v. State of Indiana (mem. dec.)

Yosef Abraham v. State of Indiana (mem. dec.)

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

Actora Bankhead v. State of Indiana (mem. dec.)

Christopher Shane Melton v. State of Indiana (mem. dec.)

Jeremy Arthur v. State of Indiana (mem. dec.)

Bobbi Jo Carter v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, June 15, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts Indiana case decided Tuesday

In USA v. Cameron Patterson (ND Ind., Springmann), a 16-page opinion, Judge Bauer wrtes:

Miranda warnings have taken a foothold in American culture largely via crime drama television and film. Defendant-appellant, Cameron E. Patterson, argues Federal Bureau of Investigation agents violated his Fifth Amendment right against self-incrimination when they failed to give him Miranda warnings prior to interviewing him. The sole issue is whether Patterson was “in custody” when he made his incriminating statements, thereby implicating the Fifth Amendment and necessitating Miranda warnings. We find Patterson was not in custody for purposes of Miranda, and therefore affirm the district court’s order denying the motion to suppress his statements. * * *

Considering the totality of the circumstances, from the beginning of the encounter in the driveway to the end of the interrogation when Patterson walked out of the FBI office, Patterson was not in custody for purposes of Miranda. AFFIRM

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

Ind. Courts - "Judge to rule within 2 weeks on request to block Indiana abortion law" SCOTUS also expected to rule

That is the headline of this Indianapolis Star story this morning by Stephanie Wang. (Warning: Annoying, unbidden music blares out, at least on my computer.) Some quotes:

In federal court Tuesday morning, attorneys argued over how women should be allowed to decide to abort a pregnancy — and whether certain reasons for having an abortion should be outlawed.

It's an unprecedented legal debate over the state's new abortion restrictions, known as House Enrolled Act 1337, which would make it illegal for women to seek abortions solely because a fetus has been diagnosed with a potential disability such as Down syndrome.

The statute has been challenged by Planned Parenthood of Indiana and Kentucky in partnership with the American Civil Liberties Union of Indiana, which have asked the courts to stop the law from going into effect July 1. After hearing arguments Tuesday, U.S. District Judge Tanya Walton Pratt said she would rule within two weeks on the request for an injunction.

The state defended the law, framing it as prohibiting discrimination based on disability. Women can still seek first-trimester abortions when they don't want to have a child, said Indiana Solicitor General Thomas Fisher. The new abortion restrictions, he argued, would instead prevent women from saying, "I want to have a baby. I just don't want to have this baby."

Fisher acknowledged that the law might not be used often, since women likely have many reasons for seeking an abortion. They would violate the law only if the fetal disability diagnosis was the only reason behind their decision.

But ACLU of Indiana legal director Ken Falk countered, "You cannot discriminate against a fetus."

"What we're talking about is the right to privacy, the right a woman has to make this very personal decision," Falk said.

At question is whether the new law falls within the bounds of landmark abortion cases, Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992, which protected the rights of women to choose an abortion before a fetus is viable outside the womb.

The state argued that technological advances in prenatal testing have changed the context of the abortion debate, creating new scenarios that didn't exist during previous cases. Fisher said an increase in the availability of less risky pregnancy screenings opens the opportunity for discrimination.

Fisher also said that society has come to better understand the dangers of discrimination and the importance of protecting against it.

See also this ILB post from yesterday.

The SCOTUS is expected to rule this month on a challenge to the Texas law. Lawrence Hurley of Reuters had this story yesterday, headed "Abortion providers, opponents brace for U.S. high court decision." A quote:

The Supreme Court is due to rule by the end of June on whether the Texas law, which imposes strict regulations on abortion doctors and clinic facilities, violates a woman's constitutional right to end her pregnancy as set out in the landmark 1973 Roe v. Wade ruling. The court has not issued a major abortion-related ruling since 2007.

The law requires abortion doctors to have "admitting privileges," a type of formal affiliation, at a hospital within 30 miles (48 km) of the clinic. That provision has been implemented. A second provision, not yet in effect, requires clinics to have costly hospital-grade facilities including extensive standards for such attributes as corridor width, room size, floor tiles and the swinging motion of doors.

Supporters of the law, passed by a Republican-led legislature and signed by a Republican governor in 2013, say it was enacted to protect women's health.

Abortion rights advocates say it imposes medically unnecessary regulations intended to shut clinics and has dramatically reduced access to abortion in Texas, the second-most-populous U.S. state with about 27 million people.

Getting a clear-cut ruling is complicated by the fact that the court is down to eight justices, split evenly with four conservatives and four liberals, following the February death of conservative Antonin Scalia.

One possibility is a 4-4 split that would affirm a lower court's decision upholding the law but would not set a national legal precedent that could guide other states eager to pass similar statutes.

Because it is unlikely one of the court's liberals would join the four conservatives, there is almost no chance of a broad ruling upholding the law and giving other states a green light to enact similar measures. Numerous Republican-governed states have considered measures that would restrict abortion availability.

See also this Jan. 7, 2015 ILB post, headed ACLU: "VICTORY! Judge Enters Final Ruling for PPINK Health Center in Lafayette."

Posted by Marcia Oddi on Wednesday, June 15, 2016
Posted to Indiana Courts

Ind. Law - "Gay men barred from giving blood for Orlando victims (or otherwise)"

Maureen Hayden, CNHI News Service, has this long story today - some quotes:

In 1983, at the height of the AIDS crisis, the U.S. Food and Drug Administration barred blood donations from any man who has had sex with another man — even once — since 1977.

The FDA formally lifted the ban 10 days ago, reducing the moratorium to a year’s celibacy. The new policy has yet to take effect in Indiana and most states, and it likely won’t until mid-August, due the complexity of rolling out new rules.

The situation has proved frustrating for healthy gay men in committed, monogamous relationships who say the rules for heterosexuals aren’t nearly as tough.

“Giving blood is one of the few things you can do that makes you feel like you’re really doing something,” said Scott Schoettes, an attorney with Lambda Legal, an advocacy group that calls the FDA's policies unnecessarily discriminatory.

Schoettes and others — including advocates with the American Medical Association and the American Association of Blood Banks — have called for the FDA to move away from a ban based solely on sexual orientation.

Instead, they said, the government should restrict donations based on behavior, such as those placed on intravenous drug-users or overseas travelers exposed to the Zika virus. * * *

The FDA said Tuesday it has no current plans to loosen the new requirement that gay men remain celibate for one year before being allowed to donate blood.

But Dr. Peter Marks, director of the FDA's Center for Biologics Evaluation and Research, left open the door for more change when issuing the one-year moratorium last December.

“We will continue to actively conduct research in this area and further revise our policies as new data emerge," he said.

Dr. Dan Waxman, medical director of the Indiana Blood Bank, said that may happen with improvement in testing for HIV and other blood-borne diseases.

When Waxman began his career in transfusion medicine 30 years ago, tests to detect HIV antibodies in the blood system took six months. Someone with the virus that causes AIDS could give blood without knowing they were infected.

The FDA's rules, aimed at stopping the transmission of HIV in the nation’s blood supply, appeared to work. HIV transmission rates from blood transfusion fell from 1 in 2,500 cases to 1 in 1.47 million, according to the FDA.

But its ban remained in place long after HIV rates dropped among gay men and started growing in the heterosexual population.

Diagnostic tests have improved, as well. HIV can now be detected in the blood within six to nine days, Waxman said.

LGBT advocates note that heterosexual blood donors are not held to the same standards.

Those who have unprotected sex with multiple partners may still give blood, and they generally aren't required to wait before doing so.

Posted by Marcia Oddi on Wednesday, June 15, 2016
Posted to Indiana Law

Ind. Courts - "E-filing system leads to hires" in Hancock County

Reporters Samm Quinn and Caitlin VanOverberghe have this story today in the Greenfield Daily Reporter that begins on a less-than-enthusiastic note ... Some quotes:

Taxpayers will foot the bill for two additional county employees to handle a state-mandated electronic filing system originally touted as a measure to save both time and paper.

Hancock County is preparing to hire one full-time and one part-time employee in the prosecutor’s office to help navigate the change in the court record system, which aims to make court records easily accessible to Hoosiers.

Hancock County Clerk Marcia Moore also is expected to approach the council about funding an extra position in her office to accommodate the change.

The process of switching to electronic filing — paper records are currently dropped off at the county clerk’s office — launches in July and is expected to add steps to the process of submitting court records.

Prosecutor Brent Eaton said all charging documents must be computer-generated once the switch goes into effect. His employees will have to scan reports submitted by police officers, navigate a state computer program to assign charges to a defendant and send the information digitally to the clerk without any hiccups — all before hearings begin at 8:30 each morning.

Eaton said he needs more hands to ensure the switch goes smoothly, and he approached the Hancock County Council recently to plead for money to hire new staffers and to purchase a dozen new scanners needed to properly file court documents by July.

And it ends in a similar vein:
County officials said state-mandated efforts, like e-filing, can be frustrating for leaders at the local level. While such initiatives penned with good intentions, they sometimes have negative ramifications for taxpayers, Commissioner Brad Armstrong said.

“They do things because they believe it will be more efficient, but it always ends up being costly,” he said.

Posted by Marcia Oddi on Wednesday, June 15, 2016
Posted to E-filing | Indiana Courts

Ind. Courts - "Renovations almost complete at St. Joseph County Courthouse"

Kristin Bien, WSBT22 reporter, as a good video-only story on the four new courtrooms created from the old jail adjoining the St. Joseph Co. courthouse. Worth watching.

Posted by Marcia Oddi on Wednesday, June 15, 2016
Posted to Indiana Courts

Tuesday, June 14, 2016

Ind. Courts - More on: Hearing on challenge to Indiana's newest abortion restrictions is this morning in federal court

Updating this morning's post, Rick Callahan of the AP now has a report on the argument this morning. Some quotes:

A federal judge weighing whether to block a new Indiana law banning abortions sought because of a fetus' genetic abnormalities sounded skeptical of the measure during a Tuesday hearing, saying it seemed likely to infringe on some women's right to an abortion. * * *

The law would ban abortions sought due to fetal genetic abnormalities, such as Down syndrome, or because of the race, sex or ancestry of a fetus. If upheld, Indiana would join North Dakota as the only two states to ban abortions sought due to genetic fetal abnormalities.

U.S. District Court Judge Tanya Walton Pratt said during Tuesday's hearing on the injunction request that it appeared clear the new law would invade the privacy of some women by preventing them from getting an abortion.

"How can it be described as anything but a prohibition on the right to an abortion?" Pratt asked Indiana Solicitor General Thomas Fisher during the hour-long hearing.

Fisher said the new law is a response to DNA testing advances that permit fetuses to be screened for genetic defects or to determine their sex. He said the state has an interest in "preventing discrimination" against fetuses slated for abortion based on such test results. * * *

The American Civil Liberties Union of Indiana joined Planned Parenthood in challenging the new law. Its legal director, Ken Falk, is representing Planned Parenthood in the case. * * *

If the law takes effect, Falk said women seeking an abortion because test results show their fetus may have a genetic defect, or women who don't want to have a child due to their own genetic predisposition to a serious illness would not be able to get one in Indiana. * * *

Indiana's law would also require that aborted fetuses be disposed of through burial or cremation. Planned Parenthood is also challenging the fetal disposal provision, as is Indiana University in a separate lawsuit which argues that it would prevent its scientists from acquiring fetal tissue for scientific research and sharing it with other institutions.

Posted by Marcia Oddi on Tuesday, June 14, 2016
Posted to Indiana Courts

Ind. Decisions - 7th Circuit withdraws opinion as "improvidently issued"

Yesterday the 7th Circuit issued a 10-page opinion in the case of USA v. Destry Marcotte (SD Ill.), written by District Judge Blakely (of the Northern District of Illinois, sitting by designation) - some quotes:

Five of our sister courts have held that 18 U.S.C. §3147, through §3C1.3 of the Sentencing Guidelines, can enhance a sentence for the crime of failing to appear under 18 U.S.C. §3146. United States v. Duong, 665 F.3d 364 (1st Cir. 2012); United States v. Fitzgerald, 435 F.3d 484 (4th Cir. 2006); United States v. Dison, 573 F.3d 204 (5th Cir. 2009); United States v. Benson, 134 F.3d 787 (6th Cir. 1998); and United States v. Rosas, 615 F.3d 1058 (9th Cir. 2010). Two others have reached the same conclusion, albeit in unpublished decisions. United States v. Gause, 536 Fed. Appx. 234 (3d Cir. 2013) (unpublished); United States v. Clemendor, 237 Fed. Appx. 473 (11th Cir. 2007) (unpublished). None has reached a different conclusion. Against this consensus, Appellant Destry J. Marcotte seeks to chart new territory in the Seventh Circuit on an issue of first impression here. We decline that invitation and AFFIRM the district court’s sentence. * * *

Today we become the sixth Court of Appeals to hold that 18 U.S.C. §3147, through §3C1.3 of the Sentencing Guide-lines, can enhance a sentence for the crime of failing to ap-pear under 18 U.S.C. §3146. Accordingly, the district court’s sentence is AFFIRMED.

Today via a per curiam order:
IT IS ORDERED that the opinion and judgment dated June 13, 2016 are VACATED as improvidently issued.

Posted by Marcia Oddi on Tuesday, June 14, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Gregory Schafer v. Kathryne Borchert d/b/a Southlake Realty , a 10-page opinion, Judge Altice writes:

In 1988, Kathryne Borchert d/b/a Southlake Realty (Borchert) purchased three undeveloped real estate lots at a tax sale. She filed the instant action in 1991 to quiet title to the real estate based on the tax sale and the subsequently issued tax deeds. Gregory Schafer answered and filed a counterclaim, in which he sought to set aside the tax deeds. After two unsuccessful motions for summary judgment, one filed by each party in 1992, and a failed mediation in 1994, the case stagnated for over twenty years with Borchert continuing to pay real estate taxes on the subject properties. Following a brief bench trial on June 24, 2015, the trial court entered judgment in favor of Borchert, awarding her fee simple ownership of the properties. In relevant part, the trial court found that although the notice of tax sale was sent one day late, the notice substantially complied with the statutory requirements. On appeal, Schafer argues that the trial court improperly relied upon the substantial compliance doctrine. We affirm. * * *

On May 6, 1993, the case was continued generally. The parties entered into a court-ordered mediation in 1994 that failed. Over the next twenty plus years, a series of pretrial conferences and status hearings were held and/or continued and over twenty bench trials were set and then rescheduled. During this period of stagnation, Borchert passed away in August 2007 and her son Richard Borchert took over as personal representative of her estate. * * *

Properly applying Trial Rule 6(A) to the statute at hand establishes as a matter of law that the notice mailed on September 12, 1988, was timely. Accordingly, it was not necessary for the trial court to reach the issue of substantial compliance in order to grant judgment in favor of Borchert. As his appellate argument – as well as his argument below – hinges on an incorrect application of the law in determining the timeliness of notice, Schafer has failed to establish that Borchert was not entitled to judgment.

NFP civil decisions today (2):

L.G. and D.D. v. The Indiana Department of Child Services (mem. dec.)

Julie D. Himes v. Todd A. Himes (mem. dec.)

NFP criminal decisions today (3):

Miguel I. Sanchez v. State of Indiana (mem. dec.)

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

Robert D. Gibson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, June 14, 2016
Posted to Ind. App.Ct. Decisions

Ind. Courts - Hearing on challenge to Indiana's newest abortion restrictions is this morning in federal court

Updating this ILB post from yesterday, Stephanie Wang of the Indianapolis Star reports today:

Planned Parenthood is seeking a preliminary injunction to stop the law, which is slated to go into effect July 1, while its legal case is pending.

Judge Tanya Walton Pratt will hear the case at 9 a.m. today in the U.S. District Court for the Southern District of Indiana in Indianapolis.

The law is HEA 1337. The omlaint and the State's response are linked in this earlier ILB post.

Posted by Marcia Oddi on Tuesday, June 14, 2016
Posted to Indiana Courts

Monday, June 13, 2016

Ind. Courts - Commercial Courts Handbook and Sample Docs Now Available

Adding to the ILB's collected information on the new Indiana commercial courts project, which is operational as of June 1st, now newly available online are:

Posted by Marcia Oddi on Monday, June 13, 2016
Posted to Ind. Commercial Courts

Ind. Law - Indiana's Uniform Fiduciary Access to Digital Assets Act takes effect July 1st

Here is SEA 253, about which the ILB last posted on February 29, 2016:

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

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

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

There were no changes in the House either and SB 253 was enacted into law. Here is the digest:
Enacts the Revised Uniform Fiduciary Access to Digital Assets Act of the National Conference of Commissioners on Uniform State Laws.

Defines "digital asset" as an electronic record in which an individual has a right or interest. Defines "custodian" as a person that carries, maintains, processes, receives, or stores a digital asset. Defines "user" as a person for whom a custodian carries, maintains, processes, receives, or stores the digital asset. Defines "fiduciary" as an attorney in fact, guardian, personal representative, or trustee of a user.

Authorizes a user to use an online tool to direct the custodian to disclose or not to disclose some or all of the user's digital assets. Provides that if an online tool allows the user to modify or delete a direction at all times, a user's direction to the custodian through use of the online tool concerning disclosure overrides a contrary direction by the user in a will, trust, power of attorney, or other record, but otherwise the user, in a will, trust, power of attorney, or other record, may allow or prohibit disclosure to a fiduciary of some or all of the user's digital assets.

Requires a custodian, under certain circumstances, to disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user, or a catalogue of electronic communications sent or received by the user.

Requires a custodian, under certain circumstances, to disclose to an attorney in fact the content of the electronic communications of the user, or a catalogue of electronic communications sent or received by the user, if the user, through a power of attorney, conferred upon the attorney in fact authority over the content of electronic communications sent or received by the user.

Requires a custodian, under certain circumstances, to disclose to a trustee the content of an electronic communication sent or received by a user and carried, maintained, processed, received, or stored by the custodian in the account of the trust, or to disclose to the trustee a catalogue of electronic communications sent or received by a user and stored, carried, or maintained by the custodian in the account of the trust.

Provides that a court may grant a guardian access to the digital assets of the protected person and that, under certain circumstances, a custodian is required to disclose to a guardian a catalogue of electronic communications sent or received by the protected person. Authorizes a fiduciary of a user to request that a custodian terminate the user's account.

Provides that, if the conditions for compliance are met, a custodian must comply with a request from a fiduciary to disclose digital assets or terminate an account within 60 days, and if the custodian fails to comply with the request, the fiduciary may apply for a court order directing compliance. Provides that the legal duties imposed on a fiduciary charged with managing tangible property also apply to a fiduciary charged with managing digital assets.

Amends the law on unsupervised administration of a decedent's estate to provide that a distributee has the same rights as a personal representative to access the digital assets of the decedent. Makes conforming amendments. Provides that a custodian is immune from liability for an act done or omission made in good faith in compliance with the Revised Uniform Fiduciary Access to Digital Assets Act.

Posted by Marcia Oddi on Monday, June 13, 2016
Posted to Indiana Law

Ind. Gov't. - "Tax assessment plan for [Michigan] big box stores plods ahead"

The two most recent ILB posts on the big box/dark box issue:

But the headline today from an AP story in the Detroit News, headed "Tax assessment plan for big box stores plods ahead," strikes a less enthusiastic note about Michigan. Michael Gerstein's story begins:
Lansing — A plan to prevent big box stores from paying less in property taxes may be gaining steam in the Legislature after the House approved the measure, which supporters say will lead to fairer tax evaluations.

Supporters say the measure is supposed to ensure property taxes are assessed more equitably for large retail stores like Lowe’s or Target. It passed the House by a wide margin despite opposition from big business interests such as the Michigan Chamber of Commerce and the Michigan Retailers Association.

Opponents say the legislation would complicate the tax appeal process, increase the cost of appeals and violate a state constitutional requirement that property be valued uniformly.

Posted by Marcia Oddi on Monday, June 13, 2016
Posted to Indiana Government

Environment - More on: The Kankakee, "Indiana's drainage ditch and Illinois' river"

The ILB has had a number of posts on the Indiana/Illinois controversy over IDEM issuance of a water quality certification permit for Singleton Stone Quarry.

On June 8th, Joseph Dits of the South Bend Tribune reported in a long column titled: "Kankakee River gains national status and extra attention: Paddlers might see more use, access and care." It began:

The Kankakee River gained status over the weekend as a National Water Trail. The National Park Service and the Department of Interior conferred the status on the historic ditch that paddlers can access near Crumstown, following a straight, channelized line of water as it widens, then wiggles naturally as it crosses into Illinois. (see more here)

We know its peculiar past, once part of a nearly million-acre marsh that teamed with wildlife. Paddlers know that, even though it was dredged in Indiana a century ago, the river still boasts fish, birds and wild shores.

Now the federal status will draw extra attention to its 133 miles in two states. Eventually that could mean more access and better care for the Kankakee, says Dan Plath, president of the Northwest Indiana Paddling Association, which started work eight years ago to map and mark the river and garner support, pulling in dozens of letters of support from cities, parks, industry, historical societies, conservation groups and others.

See also this story from the June 7th Chesterton Tribune.

For an update on the status of the Singleton Quarry, see this Jan. 19, 2016 story from the Kankakee Valley Daily Journal, headed "State [of Illinois] drops suit over Singleton Ditch quarry."

Posted by Marcia Oddi on Monday, June 13, 2016
Posted to Environment

Ind. Courts - More on: State files response in ACLU/PPIK challenge to abortion law

Updating this ILB post from June 2nd, which links to both the complaint and the State's response, Rick Callahan of the AP reported Sunday in a comprehensive story that begins [ILB emphasis]:

A federal judge will hold a hearing this week to consider a bid to block Indiana's new abortion law from taking effect on July 1. The law, which conservative Republican Gov. Mike Pence signed off on in March, includes a provision banning abortions sought because of a fetus' genetic abnormalities. Here is a look at the law's provisions and the arguments that are likely to come up during the hearing Tuesday. * * *

Indiana University law professor Dawn Johnsen said the law would threaten the "frank, comprehensive discussions" women considering abortions need to have with their doctors.

"This law places a terrible chilling effect on those conversations by saying certain aspects of the decision are going to be controlled by the government," she said, calling that "a terrible specter." * * *

The case is before U.S. District Court Judge Tanya Walton Pratt, who in 2011 ruled against an Indiana law that would have prohibited entities that perform abortions from obtaining state funding.

Johnsen said she expects Pratt to find the new abortion law unconstitutional. She said the Indiana case, unlike some that challenged abortion laws in other states, won't require the court "to engage in any kind of novel analysis" of issues related to women's right to an abortion.

"It should be very straightforward case, a very easy case," she said.

Posted by Marcia Oddi on Monday, June 13, 2016
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending June 10, 2016

Here is the Clerk's transfer list for the week ending Friday, June 10, 2016. It is one page (and 3 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, June 13, 2016
Posted to Indiana Transfer Lists

Ind. Gov't. - "Indiana GOP nominates Curtis Hill for attorney general at convention"

Updating this ILB post from June 10th, here is weekend coverage:

Posted by Marcia Oddi on Monday, June 13, 2016
Posted to Indiana Government

Courts - "SCOTUS environmental term went from 'sleepy' to stunning"

Robin Bravender, Greenwire E&E reporter, summed up this term's SCOTUS environmental impact in a long article on June 10th that began:

A Supreme Court term that started off as lackluster for environmental law enthusiasts has turned out to be one for the history books.

But unlike some other years when a series of sweeping rulings set new precedent in environmental law, the events that triggered the most shock waves and headlines this term weren't opinions.

Rather, they were the death of one of the high court's most dominant voices on environmental and administrative law, and an unprecedented move to block a landmark climate regulation while legal challenges were still pending in a lower court.

To be sure, the court did weigh in on some important energy and environmental cases this term * * *

Still, this term may be best remembered for one roller coaster of a week in February. On a Tuesday, the justices took the astonishing step of halting U.S. EPA's Clean Power Plan. By Saturday, Justice Antonin Scalia -- a pivotal vote on that and other environmental issues before the court -- was found dead.

"The fact is ... there were two stunning things that happened within Tuesday to Saturday," said environmental attorney and Harvard Law School professor Richard Lazarus. "Each one was a huge surprise."

Posted by Marcia Oddi on Monday, June 13, 2016
Posted to Courts in general | Environment

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 6/13/16):

Next week's oral arguments before the Supreme Court (week of 6/20/16):

[Note: This will be Justice Slaughter's first opportunity to hear oral arguments. He is to be sworn in today, June. 13th.]

Thursday, June 23

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/13/16):

Tuesday, June 14

Wednesday, June 15

Thursday, June 16

Next week's oral arguments before the Court of Appeals (week of 6/20/16):

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 Monday, June 13, 2016
Posted to Upcoming Oral Arguments

Friday, June 10, 2016

Ind. Courts - More on "Porter Co. Prosecutor faced with contempt in dispute with judge"

Updating this ILB post from yesterday, Kevin Nevers of the Chesterton Tribune has a good story on the dispute; it begins:

The Indiana Supreme Court has been asked to intervene in a flap between Porter Superior Court Judge David Chidester and Prosecuting Attorney Brian Gensel.
The dispute is State of Indiana, ex rel. Brian Gensel v. Porter Superior Court 4, et al. Here is the docket.

Here is the 12-page brief filed June 2 by AG Zoelller on behalf of Prosceutor Gensel:

Brian Gensel, Prosecuting Attorney for the 67th Judicial Circuit, by counsel Attorney General Gregory F. Zoeller, and his deputies Stephen R. Creason and Jesse R. Drum, respectfully petitions this Court for Writs of Prohibition and Mandamus directed to Porter Superior Court 4 and the Honorable David Chidester, as Judge thereof. The writ should prohibit Respondents from issuing and enforcing orders in OVWI cases that direct Relator to ex parte file with the court police reports, which, under this Court’s clearly established precedent, are confidential, privileged attorney work product materials. It should also direct Respondent Court to retract its related 0rdérs, including the rules to show cause why the Relator and his deputies should not be held in contempt.
From the Order issued by the Supreme Court on June 6th:
The Relator, by counsel, has filed a verified petition for a writ of mandamus and prohibition, seeking relief under the rules governing original actions.

Any briefs opposing issuance of the writ or any supplemental records must be filed directly with the Clerk of the Supreme Court on or before June 27, 2016. Any supplemental record must be submitted in the same format required for the record under Original Action Rule 3(C) and (J). Once briefing is completed, the Court will take the matter under advisement.

Posted by Marcia Oddi on Friday, June 10, 2016
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides one Indiana case today [Updated twice]

In Matthew Claussen v. Michael Pence (ND Ind., Simon), a 12-page opinion, Judge Flaum writes:

Plaintiffs are civil servants who hold elected office in the municipality that employs them. They challenge a recently‐enacted Indiana law prohibiting persons from simultaneously holding elected office and being employed as civil servants in the same unit of government. Plaintiffs contend that the law violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The district court granted defendants’ motion to dismiss, and for the reasons that follow, we affirm.

In 2012, the Indiana General Assembly enacted Indiana Code § 3‐5‐9‐5 (the “Indiana Law” or the “Law”), which provides, in relevant part, that “an individual is considered to have resigned as a government employee when the individual assumes an elected office of the unit that employs the individual.” The Law became effective on January 1, 2013, but a grandfather clause allowed then‐current officeholders to complete their terms before becoming subject to it. See Ind. Code § 3‐5‐9‐7. * * *

[A. First Amendment] In sum, because the Indiana Law imposes a small burden on plaintiffs’ First Amendment rights, and any burden is outweighed by Indiana’s compelling interest in avoiding corruption by public officeholders and the appearance of the same, the district court did not err in dismissing plaintiffs’ First Amendment challenge.

[B. Fourteenth Amendment] * * * The Indiana Law surely passes muster under rational basis review. There is a clear, rational relationship between preventing actual and perceived corruption and Indiana’s treatment of municipal employees. Although government contractors who hold elected office could use their voting power to enrich themselves at the expense of the public, Indiana subjects government contractors to extensive disclosure requirements, which reduces the risk of self‐dealing. And even if the risk of self‐dealing were identical for contractors and employees, Indiana is not required to address all manifestations of public corruption at once. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 316 (1993) (holding that the State “must be allowed leeway to approach a perceived problem incrementally”); Clements, 457 U.S. at 969 (“The Equal Protection Clause allows the State to regulate one step at a time, addressing itself to the phase of the problem which seems most acute.” (citation and internal quotation marks omitted)). Thus, the district court properly dismissed plaintiffs’ claim under the Equal Protection Clause.

ILB: For background, see this ILB post from Dec. 15, 2015, headed "Elected officials take fight against nepotism law to state court," written after, as the NWI Times reported, "U.S. District Chief Judge Philip Simon earlier this month dismissed the politicians' lawsuit from Hammond federal court but declined to rule on their state claims."

[Updated at 5:33 PM] A news release issued this afternoon by AG Zoeller explains:

The Attorney General’s Office continues to defend the anti-conflict-of-interest statute from a separate legal challenge filed by the same plaintiffs that is currently pending in Lake County Superior Court. That case is scheduled for oral argument June 28. How the 7th Circuit’s ruling might impact the Lake County court case still is being reviewed.
[Updated June 12th] Dan Carden of the NWI Times reported on the ruling this weekend in a story headed "Fed appeals court affirms Indiana's double-dipping ban ."

Posted by Marcia Oddi on Friday, June 10, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Timothy A. Williamson v. U.S. Bank National Association, a 15-page opinion, Judge Pyle writes:

Timothy A. Williamson (“Williamson”) appeals the trial court’s grant of summary judgment in favor of U.S. Bank National Association (“U.S. Bank”) on its mortgage foreclosure complaint. He also appeals the trial court’s denial of his motion to strike U.S. Bank’s summary judgment reply and second designation of evidence. He argues that the trial court abused its discretion when it denied his motion to strike because U.S. Bank’s reply and second designation of evidence were untimely. As for the trial court’s grant of summary judgment on U.S. Bank’s mortgage foreclosure complaint, Williamson asserts that there was a mistake of fact when he and U.S. Bank executed the underlying loan agreement and, accordingly, the trial court should have reformed or rescinded the agreement. Alternatively, he argues that the trial court erred in granting summary judgment on the mortgage foreclosure because the bank breached the mortgage agreement first and therefore could not recover under contractual principles.

Because we conclude that: (1) the trial court did not abuse its discretion in denying Williamson’s motion to strike because it was untimely; (2) the trial court did not err in granting summary judgment, we affirm the trial court’s decision.

NFP civil decisions today (2):

Daniel Dumoulin, II v. Daniel Dumoulin, Sr., and Joan Dumoulin (mem. dec.)

In the Mater of: A.G., N.G., and S.G., Children in Need of Services, C.G. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (8):

In Myles K. Martin, Jr. v. State of Indiana (rehearing), a 3-page decision which the caption labels "MEMORANDUM DECISION ON REHEARING," Judge Najam writes:

Myles K. Martin, Jr. petitions for rehearing following our memorandum decision in which we affirmed his convictions. See Martin v. State, No. 82A01-1507-CR-966 (Ind. Ct. App. Mar. 17, 2016). We grant Martin’s petition to address the following issue: whether the trial court violated the prohibition against double jeopardy under the Fifth Amendment to the United States Constitution when the court entered its judgment of conviction against Martin for both resisting law enforcement, as a Class D felony, and resisting law enforcement, as a Class A misdemeanor. We agree with Martin that the entry of the judgment of conviction on both of those offenses violated double jeopardy principles. Accordingly, we grant Martin’s petition for rehearing and reverse his conviction for resisting law enforcement, as a Class A misdemeanor, and we remand with instructions that the trial court vacate that conviction and its related sentence. In all other respects, we affirm our original memorandum decision. * * *

As we recently explained, when a defendant flees from law enforcement by a vehicle and then exits that vehicle to continue fleeing by foot, the defendant has committed one continuous act of resisting law enforcement. Lewis v. State, 43 N.E.3d 689, 691 (Ind. Ct. App. 2015) (following Arthur v. State, 824 N.E.2d 383, 387 (Ind. Ct. App. 2005), trans. denied). Martin’s facts are substantively identical to those in Lewis and Arthur. Accordingly, we grant Martin’s petition for rehearing to clarify our original memorandum decision and correct this constitutional error. We reverse Martin’s conviction for resisting law enforcement, as a Class A misdemeanor, and we remand with instructions that the trial court vacate that conviction and its related sentence.

Tyron R.E. White v. State of Indiana (mem. dec.)

Keon D. Jones v. State of Indiana (mem. dec.)

Randy Ebrecht v. State of Indiana (mem. dec.)

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

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

Johnny Edmonds v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Friday, June 10, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Republicans pick AG candidate on Saturday

Tim Vandenack of The Elkhart Truth has this long story today, headed: Curtis Hill's attorney general campaign reaches tipping point Saturday | Elkhart County's four-term prosecutor has campaigned hard, now he'll find out if party leaders back his bid for Indiana attorney general." Some quotes:

If picked on Saturday and victorious against Democratic attorney general hopeful Lorenzo Arredondo in the Nov. 8 election, [Curtis] Hill would be the first statewide elected official from Elkhart County that McDowell can point to dating to at least to the late 1970s. * * *

The other Republicans running for attorney general are Indiana Sen. Randy Head, Assistant Attorney General Abby Kuzma and Steve Carter, who served two terms as attorney general in the 2000s. Incumbent Greg Zoeller, a Republican, is not seeking re-election to the seat. * * *

In seeking out support from delegates, who are elected by GOP voters in each county, Hill said he has focused his message on his opposition to unauthorized federal meddling in state matters, among other things. He singled out the U.S. Environment Protection Agency as a potential offender and, more generally, certain federal initiatives lacking the stamp of approval from Congress. * * *

The Indiana Democratic Party holds its state convention on June 17 and 18 in Indianapolis.

Posted by Marcia Oddi on Friday, June 10, 2016
Posted to Indiana Government

Ind. Courts - More on "LaPorte prosecutors sued for alleged eavesdropping"

That was the heading to this Dec. 15, 2014 ILB post.

In a September 30, 2015 opinion, John Larkin v. State of Indiana, a Court of Appeals panel ruled:

Although the issues involve a question of great public importance, i.e., improper interference with an attorney-client relationship by at least one deputy prosecutor, the circumstances here are unusual enough that they are not likely to recur or continue to evade review. Larkin’s request to disqualify the entire LaPorte County Prosecutor’s Office is moot. Consequently, we dismiss the appeal of the trial court’s denial of Larkin’s motion to disqualify the Prosecutor’s Office and appoint a special prosecutor.
A long, long story today in the Michigan City News Dispatch, reported by Kelley Smith, is headed "Manslaughter charge against Larkin dismissed." Just a few quotes:

WINAMAC, Ind. — John Brennan Larkin has been released of the voluntary manslaughter charge he faced in the 2012 shooting of his wife; and cannot be charged again with any crime stemming from her death.

Class A felony voluntary manslaughter carries a potential penalty of 20-50 years behind bars and up to $10,000 in fines; but in the words of defense attorney Michael Ettinger: "John's bond is being returned. The case is over. He is a free man."

During an emergency hearing called by Judge Patrick Blankenship in Pulaski Superior Court Thursday, the judge granted two defense motions to dismiss the case — one based on the state's failure to put Larkin in front of a jury in a timely fashion, and the other based on the state's supposed use of information that was acquired unlawfully.

From the beginning of the now 3.5-year-old case, Larkin's defense attorneys have alleged prosecutorial and police misconduct and cited multiple violations of Larkin's constitutional rights. * * *

The civil suit John Larkin filed in 2014 will resume now that the criminal charge against him is no longer pending.

Larkin is suing Bullis, Babcock, McClintock, Kaplan, Szilagyi, Neary, the Town of Long Beach, the City of Michigan City, the County of La Porte, and the La Porte County Prosecutor's Office.

The seven counts listed in the civil suit include false arrest, violation of due process, conspiracy to commit due process violation, three statutory indemnification claims, and a Monell custom and policy claim.

Posted by Marcia Oddi on Friday, June 10, 2016
Posted to Indiana Courts

Thursday, June 09, 2016

Ind. Decisions - 7th Circuit affirms Jared Fogle's above-guidelines sentence

In USA v. Jared S. Fogle (SD Ind., Pratt), a 9-page opinion, Judge Flaum writes:

In August 2015, Jared Fogle pled guilty to two counts of conviction for offenses involving the distribution and receipt of child pornography, as well as travel to engage in illicit sexual conduct with a minor. The district court imposed an above-guidelines sentence of 188 months in prison on each count, to be served concurrently. Fogle appeals his sentence, alleging that the district court committed procedural and substantive errors. Because the district court did not err in imposing an above-guidelines sen-tence, we affirm. * * *

In light of the district court’s sound exercise of discretion under the disturbing facts of this case, we uphold the above-guidelines sentence as substantively reasonable.

Posted by Marcia Oddi on Thursday, June 09, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Porter Co. Prosecutor faced with contempt in dispute with judge"

Bob Kasarda of the NWI Times has posted this story this afternoon. Some quotes, but read the whole story:

VALPARAISO — The Indiana Supreme Court has been called in to settle a dispute heated enough that Porter Superior Court Judge David Chidester had scheduled a contempt hearing for Porter County Prosecutor Brian Gensel and three members of his staff.

The dispute centers on Chidester ordering prosecutors in April to file photocopies of the arresting officers' narratives in three drunken driving-related cases, according to court documents.

Chidester argues in his response that the information will allow him to make more fully informed decisions if defendants later seek to terminate their refusals to take a chemical test at the time of their arrest.

Prosecutors, arguing the police reports are "confidential, privileged attorney work product materials," made an unsuccessful attempt to challenge Chidester's order. * * *

The issue is now pending before the Indiana Supreme Court, and the Indiana Attorney General's Office has stepped in to represent the prosecutors.

Chidester, who declined to comment on the pending matter, said in a court document that in almost every case with a refusal of a chemical test, the defendant later seeks to terminate it to avoid the subsequent drivers license suspension.

In addition to facing the limitations of a heavy caseload, Chidester said prosecutors defending a chemical test refusal have not informed the court of a "multitude of important factors" found in the police narrative.

Having the police narratives in the file, as has been done in neighboring LaPorte County for more than 40 years, would assist in the fact-finding mission, Chidester said. If a defendant does not seek relief from refusing a chemical test, the police narrative will remain unread in the confidential portion of the file.

"The Court's ultimate goal is to protect the lives of the citizens of Porter County from those already convicted of operating a vehicle intoxicated," Chidester wrote. "The truth-gathering process would be enhanced by having all evidence at the Court's disposal."

Posted by Marcia Oddi on Thursday, June 09, 2016
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil decisions today (1):

A.C.B. v. D.E. (mem. dec.)

NFP criminal decisions today (3):

Edwin Guzman v. State of Indiana (mem. dec.)

Matthew McKinnon v. State of Indiana (mem. dec.)

Robert Ramon White v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, June 09, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Wind farms whipping up opposition across rural Indiana"

The ILB has a long list of entries on wind turbines. The most recent, from the April 22nd Anderson Herald Bulletin, was headed "Wind farm neighbors concerned over property values." Today a syndicated story by Maureen Hayden / CNHI State Reporter (here in the Glasgow Ky. Daily Times), is headed "Wind farms whipping up opposition across rural Indiana." Some quotes from the lengthy story:

INDIANAPOLIS – Towering turbines that sprouted from the ground in Northern Indiana were heralded by some as a green energy cash crop that paid leases to landowners and, by extension, property taxes to local governments.

But as industrial wind energy tries to blow into other parts of the state, it’s running into resistance from communities that fear those turbines will overrun the landscape.

Private developers are in an aggressive push to double the number of Indiana’s wind farms. But they must contend with neighbors, lawsuits and the fickle support of elected officials who once welcomed them and are now changing their minds.

Fears of noise, adverse health effects and worries that home values will plummet as the the giant turbines go up are driving the concerns of opponents.

Residents who live in cozy homes in rural Rush County say they their unobstructed views of bucolic farmland will be permanently marred by a proposed development of 65 wind turbines. The bladed turbines will reach 600 feet into the sky, about three times higher than the tallest building in the county, the courthouse.

“Have you ever heard anyone say, ‘I want to build my house next to wind farm?'” said Hank Campbell, an avid foe of the project.

In recent months, Campbell and other wind-farm opponents have convinced commissioners in the county east of Indianapolis to back off a decade-old agreement that opened the door to such developments.

And, in late May, a state court judge upheld local zoning limits that keep the turbines from encroaching within a half-mile of a neighbor’s property.

The ruling came over the vehement objections of APEX Clean Energy, which said such limits will essentially kill its wind farm development. The company has until late June to appeal the ruling and has yet to announce what it will do.

A similar fight is unfolding in neighboring Fayette County, where residents have hauled county commissioners and a different developer into court to stop a wind farm from being planted there.

Opposition is also mounting in rural Henry County, east of Indianapolis, where three wind-farm developers propose up to 300 turbines. * * *

When wind farms were first planted in Indiana in 2008 – in prairie-flat, sparsely populated rural counties in the northern part of the state – the turbines were heralded as an economic boon to landowners and county coffers.

Supported by federal tax incentives designed to move the nation away from the polluting fossil fuels of coal and oil, the wind farms were promoted as a green source of energy in the heartland of America.

Property owners make an average of $5,000 a year per turbine from wind farm leases, which in turn generate more property taxes for cash-strapped schools and communities.

There are now 1,035 turbines spread across a dozen farms, covering tens of thousands of acres in the northern half of the state.

Together they generate 1,893 megawatts of power – producing more than three average-size coal plants –making Indiana 12th among the states in wind generation capacity.

Posted by Marcia Oddi on Thursday, June 09, 2016
Posted to Indiana Government

Law - "Oklahoma Uses New Device To Seize Money Used During The Commission Of A Crime"

The ILB has had many posts about civil asset forfeiture in Indiana. A reader has sent me this story from News 9 in Oklahoma City that begins:

You may have heard of civil asset forfeiture.

That's where police can seize your property and cash without first proving you committed a crime; without a warrant and without arresting you, as long as they suspect that your property is somehow tied to a crime.

Now, the Oklahoma Highway Patrol has a device that also allows them to seize money in your bank account or on prepaid cards.

It's called an ERAD, or Electronic Recovery and Access to Data machine, and state police began using 16 of them last month.

Here's how it works. If a trooper suspects you may have money tied to some type of crime, the highway patrol can scan any cards you have and seize the money.

"We're gonna look for different factors in the way that you're acting,” Oklahoma Highway Patrol Lt. John Vincent said. “We're gonna look for if there's a difference in your story. If there's someway that we can prove that you're falsifying information to us about your business."

Later in the story:
"If you can prove can prove that you have a legitimate reason to have that money it will be given back to you. And we've done that in the past," Vincent said about any money seized. * * *

News 9 obtained a copy of the contract with the state.

It shows the state is paying ERAD Group Inc., $5,000 for the software and scanners, then 7.7 percent of all the cash the highway patrol seizes.

Posted by Marcia Oddi on Thursday, June 09, 2016
Posted to General Law Related

Law - "California law criminalizes use of Assembly video for political purposes" What about Indiana?

Eugene Volokh of The Volokh Conspiracy wrote a post with that heading on May 27th. Volokh quotes the Calif. law and continues:

I’m pleased to report that Bradley Benbrook and Steve Duvernay of the Benbrook Law Group and I have just filed a challenge to this statute, on behalf of (among others) the Firearms Policy Coalition. The coalition wants to produce, among other things, a video opposing a November 2016 ballot initiative (the so-called “Safety for All Act of 2016″); the video would include “Assembly television footage of past and current bill committee hearings, floor discussion, debates, and votes as well as footage from a May 3, 2016 joint Senate and Assembly Public Safety Committee hearing on the Initiative.” But that use would be a crime under § 9026.5; indeed, another one of our clients, former Assembly member and current congressional candidate Tim Donnelly, had been threatened with punishment in 2014, “when he used video footage of a hearing in which he participated.” The long post contains much interesting discussion, including:
The Assembly carries on the legislative business on behalf of the citizens of California and it creates video footage that captures those proceedings. California cannot restrict its citizens from sharing that footage with fellow citizens in furtherance of their fundamental speech rights.

The video footage is simply a recording of the events taking place in the legislature. For more than a century, the primary record of those proceedings was produced in written form – a transcript of a floor debate, for example. It is inconceivable in the U.S. constitutional system that a citizen could ever have been prevented from copying and disseminating those transcripts to his or her fellow citizens in connection with a message critical – or supportive – of what was recorded in those proceedings. Yet that is exactly what section 9026.5 purports to do to the modern equivalent of those transcripts.

Today Volokh has a new post, headed "Is criminal law banning political use of California Assembly video justified by ‘copyright infringement concerns’?" It contains the Calif. Attorney General's response to Volokh's argument, and Volokh's comments thereon. The post concludes: "The hearing on the preliminary injunction is scheduled for this afternoon."

What About Indiana?

The Indiana General Assembly video archive contains this notice:

No part of the audio or video coverage provided may be used for a commercial purpose intended to result in a profit or other tangible benefit to any person without the permission of the Legislative Council. Except as provided in IC 2-5-1.1, audio or video coverage does not constitute legislative history or an expression of the legislative intent, purpose, or meaning of an act enacted or a resolution adopted by the General Assembly.
In IC 2-5-1.1 the Indiana General Assembly asserts tight control over the uses of its vido and audio coverage:

Posted by Marcia Oddi on Thursday, June 09, 2016
Posted to General Law Related

Wednesday, June 08, 2016

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

In Anastazia Schmid v. Steve McCauley , a 4-page opinion in a prisoner appeal, Judge Easterbrook concludes:

Decisions about equitable tolling under §2244(d) are reviewed deferentially on appeal, whether the district court finds tolling warranted or unwarranted. See Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010); Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008). We have not applied that deferential standard here, however, because the district court did not gather the evidence needed for decision. Nor did the court consider whether a hearing is necessary. Once counsel has had a chance to present the best arguments from Schmid’s perspective, the district court should apply the approach of decisions such as Estremera, 724 F.3d at 775–76; Davis v. Humphreys, 747 F.3d 497 (7th Cir. 2014); and Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013), to determine whether a hearing is in order. VACATED AND REMANDED

Posted by Marcia Oddi on Wednesday, June 08, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In City of Lawrence Utilities Service Board, City of Lawrence, Indiana, and Dean Jessup, Individually and in His Official Capacity v. Carlton E. Curry, a 17-page, 2-1 opinion, Judge Baker writes:

An Indiana statute clearly provides that a utility service board may terminate a superintendent for cause after providing an opportunity for a hearing. The question with which we are confronted is whether this is the exclusive manner in which a utility superintendent may be terminated. We find that it is not.

The City of Lawrence (the City), the City of Lawrence Utilities Services Board (the USB), and Mayor Dean Jessup (collectively, the Government) appeal the trial court’s order, which granted summary judgment in favor of Carlton Curry on Curry’s wrongful discharge claim and denied the Government’s summary judgment motion on Curry’s claim for intentional interference with employment relationship. Curry cross-appeals, arguing that the trial court erroneously granted summary judgment in favor of the Government on his claim under the Wage Payment Statute.

We find as follows: (1) the mayor had authority to terminate Curry’s employment; (2) as such, Curry has no right to prevail on an intentional interference with employment relationship claim; and (3) Curry is not entitled to recover under the Wage Payment Statute. We reverse the judgment of the trial court with respect to the wrongful discharge and intentional interference with employment relationship claims and remand with instructions to enter summary judgment in the Government’s favor on those two counts. We affirm the trial court’s order with respect to the Wage Payment Statute count. * * *

May, J., concurs, and
Brown, J., concurs in part and dissents in part with separate opinion. [that begins, at p. 15] concur with the majority’s handling of Curry’s cross-appeal issue regarding his claim under the Wage Payment Statute, but I respectfully dissent from the majority’s conclusions to reverse the trial court’s decision to grant summary judgment in favor of Curry regarding his wrongful discharge claim and to deny the Government’s summary judgment claim on Curry’s intentional interference with employment relationship claim.

In In the Matter of J.B. and L.B.: J.J. (Mother) v. The Indiana Department of Child Services , a 7-page opinion, Chief Judge Vaidik writes:
J.J. (Mother) and G.B. (Father) shared custody of their children pursuant to a paternity court’s custody order. When Mother, high on methamphetamine, got into a car accident with the children, the Indiana Department of Child Services placed the children with Father and filed a petition alleging that the children were in need of services. After Mother and Father admitted that the children were CHINS, the juvenile court entered an order that modified custody of the children pursuant to the custody-modification statutes—giving Father full custody and Mother supervised parenting time—and discharged the parties.

While the juvenile court could enter a dispositional decree that removed the children from Mother and authorized DCS to place them with Father, as soon as the court discharged the parties, it lost jurisdiction. At this point, jurisdiction reverted to the paternity court, where the paternity court’s joint custody order controlled. We therefore reverse and remand.

NFP civil decisions today (2):

Robert Middleton v. Paula Pyatte (mem. dec.)

Thomas Moriarty, as Personal Representative of the Estate of Donna Davis, Deceased v. West Morgan, LLC (mem. dec.)

NFP criminal decisions today (3):

Byung Soo Kim v. State of Indiana (mem. dec.)

Tristan Crayton v. State of Indiana (mem. dec.)

Shaquille Q. Delaney v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, June 08, 2016
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Public access to recordings of court proceedings

Some interesting quotes from a June 2, 2016 PAC opinion: Re: Informal Inquiry 16-INF-14; Complaint against Johnson County Superior Court."

You seek a determination as to what accommodations must be provided under the APRA to requestors of public records. You previously attempted to obtain records from the Court, seeking to obtain recordings of proceedings and were informed the only way to obtain recordings is to pay $4.50 per page for a transcript. You amended your request, seeking a digital copy of the proceedings.

On March 22, 2016 the Court responded to your request, stating it could not provide you with copies because Code of Judicial Conduct Rule 2.17 prevented the tape from being broadcast. Instead, Judge Cynthia Emkes informed you that you would be provided accommodations to listen to the record and make notes. However, you could not bring electronic devices because of Rule 2.17. * * *

This entire issue began with the Court’s original denial under Code of Judicial Conduct Rule 2.17. A close reading of this rule indicate it prevents the simultaneous broadcasting of court proceedings to avoid the possibility of prejudice. Because the proceeding has concluded, Rule 2.17 should not be a bar to releasing an audio recording or allowing an individual to use their laptop to make a recording. Courts regularly release audio recordings throughout the state after the proceedings have concluded. Rule 2.17 is a bar on the real-time transmission of court proceedings.

ILB: Here is Rule 2.17.

Posted by Marcia Oddi on Wednesday, June 08, 2016
Posted to Indiana Courts | Indiana Government

Ind. Courts - Editorial: New courts could be good business for state

From an editorial today in the South Bend Tribune:

For the next three years, six judges in the state will take part in a pilot program that could ultimately free courts from the burden of complicated, messy business cases, allowing them to resolve other cases, such as child custody disputes, more quickly.

The Indiana Commercial Court Pilot Program, started at the request of the state’s Supreme Court, will enable business-related court cases to be fast tracked. Judges in Elkhart, Lake, Allen, Marion, Vanderburgh and Floyd counties will participate. Right now, 22 other states. including Michigan, Ohio and Illinois have created similar special courts.

Business lawsuits often are some of the most time consuming. They’re often personal, with stakeholders from family businesses pitted against one another over trade secrets, contracts or noncompete agreements and can drag on for months, if not years, clogging already overworked courts.

Specialized courts appear to be working in other states. For example, in the eight months after the business court opened in Kent County (Grand Rapids), Mich., on March 1, 2012, 28 of 112 cases were closed without going to trial. And it took, on average, only 104 days to close those cases. * * *

Everyone understands how courts today are overwhelmed. Diverting a good chunk of the calendar into a special court dedicated to ruling only on those cases could lessen backlogs. At the very least, giving commercial courts a try in Indiana is a good idea and could prove well worth it in the end.

Posted by Marcia Oddi on Wednesday, June 08, 2016
Posted to Ind. Commercial Courts

Ind. Gov't. - "Rogers Group (Americus) quarry mired in legal wranglings"

Updating a long list of earlier ILB posts involving a proposed quarry near Americus, in Tippecanoe County, the most recent on April 20, 2015, headed ""Lawsuit over Americus quarry continues"," followed by a March 28, 2016 Court of Appeals opinion, Ron Wilkins reports today in the Lafayette Journal & Courier:

Rogers Group's proposed limestone quarry in northeastern Tippecanoe County received a principled legal victory in March, but practically, the project remains mired in courtroom wranglings.

The Court of Appeals of Indiana ruled March 28 that the Tippecanoe County Board of Commissioners exceeded its authority when it adopted an ordinance in July 2014 that banned mining or quarry operations if more than 100 homes were within a two-mile radius of the operation. The ordinance made it impossible for any mining in the county. * * *

Rogers Group, which is headquartered in Nashville, Tenn., sued the county in 2015, and Tippecanoe Superior 1 Judge Randy Williams upheld the commissioners' actions, as well as the county zoning rule that states that mining or quarry operations in a flood plain must receive a special exception.

The appeals court, however, ruled that the commissioners' ordinance was actually a zoning ordinance. The court overturned Williams' ruling and the ordinance because the specific procedure for adopting a zoning ordinance was not followed, according to the court's decision.

Rogers Group also challenged the need for a special exception from the Tippecanoe County Board of Zoning Appeals before it can mine limestone from the 524-acre site northeast of Americus. The site sets north of Old Indiana 25 and the Wabash River and lies in what is currently a farm field that covers the old Wabash and Erie Canal in that area.

The appeals court ruled the county could require Rogers Group to get the special exception, according to the decision.

Without that exception, Rogers Group's quarry appears to be blocked.

Rogers Group filed for a motion for rehearing at the court of appeals, Tippecanoe County Attorney Doug Masson said. However, the appeals court denied the motion on May 26, Masson said.

This gives the Rogers Group 30 days to file for the case to be transferred to the Indiana Supreme Court, Masson said.

Because the 30-day deadline falls on a weekend, Rogers Group has until June 27 to petition for the transfer.

Posted by Marcia Oddi on Wednesday, June 08, 2016
Posted to Ind. App.Ct. Decisions | Indiana Government

Tuesday, June 07, 2016

Ind. Decisions - More on "Showgirl club dealt new court loss"

Updating this post from Jan. 6, 2016 (with links to the opinion), quoting a story from the Kendallville KPC News that began:

ANGOLA — A request by Showgirl owners to rehear an appeal to the U.S. Court of Appeals for the Seventh Circuit was denied by the court on Tuesday.
Today the $$ KPC News has this snippet:
ANGOLA — A four-year high-profile federal lawsuit between Showgirl founders owners and Angola has ended.

On Thursday, attorneys for Showgirl owners Alva and Sandra Butler and their corporate entity, BBL Inc., Fort Wayne, received approval of its motion to dismiss the case against Angola that had been waged in federal courts, alleging the city denied the company’s First and 14th Amendment rights. The motion was made with prejudice, meaning the case cannot be brought back before court.

Posted by Marcia Oddi on Tuesday, June 07, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Tax Court issues one ruling today, confirming a property tax assessment

In Kathryn Gillette v. Brown County Assessor, a 6-page opinion, Judge Wentworth writes:

Kathryn Gillette challenges the final determination of the Indiana Board of Tax Review that valued her real property at $592,000 for the 2009 tax year. Upon review, the Court affirms the Indiana Board’s final determination.

Posted by Marcia Oddi on Tuesday, June 07, 2016
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (1):

In Otter Creek Trading Company, Inc., and Daniel Pohle v. PCM Enviro PTY, LTD, a 23-page opinion, Judge Bradford writes:

Appellant-Defendant Otter Creek Trading Company is operated by Appellant-Defendant Daniel Pohle (collectively, “Defendants”) and manufactures and sells lead smelters. Appellee-Plaintiff PCM Enviro PTY, LTD (“PCM”), is an Australian company owned and operated by Craig Mitchell and his brother Paul that recycles lead shot collected from shooting clubs. In 2014, Craig, in his capacity as operator of PCM, arranged to purchase a smelter from Otter Creek and paid for it in full. Defendants, however, did not ship the smelter or another part (purchased separately and called a Broekema belt) that Defendants had offered to ship along with the smelter and which the defendant Pohle had retrieved from a shipping company in Edinburgh, Indiana.

PCM sued Defendants for breach of contract and for conversion of the Broekema belt. Pohle, pro se, filed a letter with the trial court, alleging that Defendants had no signed contract with PCM and that he had never driven to Minnesota to collect the Broekema belt. After the trial court advised Defendants to secure legal representation, they did for a time but filed no further response to PCM’s complaint. Eventually, the trial court entered default judgment against Defendants and held a hearing on damages. After the hearing, the trial court ordered a total of approximately $147,000.00 in damages, which included the price of the smelter, lost profits, the value of the Broekema belt, and punitive damages for conversion. Defendants appeal, contending that the trial court erred in entering default judgment, in denying their motions to correct error and for relief from judgment, and in calculating damages. Finding no error, we affirm.

NFP civil decisions today (0):

NFP criminal decisions today (2):

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

Randall L. Grigsby v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, June 07, 2016
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from April 20th, Ed Bierschenk of the NWI Times had a recent story headed "Three candidates vie to be new Hammond City Court Judge." A few quotes:

The court handles both criminal and civil cases, including local traffic and ordinance violations as well as evictions and collections.

Harkin was assisted by two court referees, Gerald P. Kray, who handled criminal cases, and Nathan Foster, who handled civil cases. Shortlly before his death, Harkin had appointed Kray to serve as special judge for the court. * * *

Following Harkin's death, the Indiana Supreme Court on April 26 appointed Kray to serve as temporary judge until a new judge is appointed by Gov. Mike Pence. In addition to performing the duties of judge of the court, during his stay in office Kray is entitled to the same compensation as Harkin received. According to a Times story last year, Harkin was the fourth highest paid city court judge in the state in 2014 with an annual salary of $80,377. The governor's office sought applications earlier this month for a permanent replacement, the deadline for which was May 27.

What's next. The three people who have an interest in becoming the next judge are Nathan Foster, Amy Jorgensen and Diana Gonzalez, according to Pence's office, which did not have a timeline for when the appointment may be made.

Foster currently is the civil referee at the court, but also has served as a criminal referee there. He has served in that position for the past 11 years. Gonzalez is a Hammond attorney who previously ran for the office of city judge. Jorgensen is an attorney and St. John Republican chairwoman.

Posted by Marcia Oddi on Tuesday, June 07, 2016
Posted to Indiana Courts

Vacancy on Supreme Court 2016 - Slaughter to join Supreme Court June 13th

From the Supreme Court:

Attorney Geoffrey G. Slaughter will be sworn in as an Indiana Supreme Court Justice on Monday, June 13 in a brief, private ceremony. Chief Justice Loretta H. Rush will administer the oath of office, which will allow Justice Slaughter to begin deciding cases and handling administrative matters with his colleagues. Oral arguments are scheduled for June 23--it will be the first arguments Justice Slaughter hears from the bench.

Justice Slaughter's ceremonial state investiture, where Governor Mike Pence will administer the oath of office publicly, will take place August 11 in the Supreme Court Courtroom at 1:00 p.m.

ILB: In an earlier post, Slaughter was reported as saying he "hopes to be sworn in between June 1 and July 1;" June 13th is about at mid-point of those dates.

Posted by Marcia Oddi on Tuesday, June 07, 2016
Posted to Vacancy on Supreme Court - 2016

Ind. Decisions - "Trademark lawsuit over LARP archery gets thrown out of court"

"Jordan Gwyther can't be sued in Indiana, a state he's never been to" is the sub-head to this story yesterday in ArsTechnica, reported by Joe Mullin. Some quotes from the long story:

A patent and trademark lawsuit over foam arrows used in live-action role playing, or LARPing, has been thrown out because the Indiana federal judge overseeing the case ruled that he lacked jurisdiction. For defendant Jordan Gwyther, who owns the community website Larping.org and sells foam arrows as a side business, it's a victory, although a narrow one.

Global Archery, an Indiana company that licenses its own foam arrows for archery games, sued Gwyther back in October. Global Archery founder John Jackson said that the foam-tipped arrows sold by Gwyther violated a patent he owns, and that Gwyther's marketing on search engines infringes his trademark rights. * * *

US District Judge Joseph Van Bokkelen [two weeks ago] issued a 7-page opinion (PDF) finding that Gwyther's ties to the state of Indiana were so minimal that his court didn't have jurisdiction over the case. * * *

In asking for the case to be dismissed, Gwyther filed an affidavit explaining to the judge that his business was run from his home in Seattle. Gwyther has no employees or operations in Indiana, has never even been to the state, and he sold only "a handful of products" to Indiana residents.

In their response brief, Global Archery noted that the "handful" of products added up to $9,000 in sales. More importantly, Global Archery lawyers said that Gwyther had waived his right to bring up the whole jurisdiction issue because he didn't do it at the right time.

Judge Van Bokkelen didn't see it that way. Gwyther raised personal jurisdiction as a defense in his Answer, and he raised it again later in a court-ordered report on the case's progress. "Defendant was not testing the Court to see which way the wind blew," wrote Van Bokkelen. The jurisdiction issue was not only a valid one, but it was one that Global Archery scarcely contested, beyond the argument about a possible waiver.

Posted by Marcia Oddi on Tuesday, June 07, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "LaPorte, Lake criticize state as toll road sells 10 percent"

Updating this ILB post from March 16, 2015, which was headed "Lake, LaPorte County consortium says state was hostile to Indiana Toll Road bid," the Gary Post-Tribune had a long story yesterday afternoon, reported by Carrie Napoleon, that began:

News that the foreign investor who purchased the lease for the Indiana Toll Road recently sold a 10 percent share of the concession to another entity has local officials again questioning why the state did not accept their 2015 bid for the roadway.

The California Public Employees Retirement fund announced on May 4 the purchase of a 10 percent share of the Indiana Toll Road Concession Co. LLC from IFM Investors in what fund managers described as their first investment into U.S. transportation.

Shaw Friedman, attorney for the LaPorte County Commissioners, said the sale took place less than a year after the Indiana Finance Authority approved the offer by IFM Investors for the purchase of the 157-mile toll road that runs through northern Indiana from the Ohio state line to the Illinois state line.

"It raises the question why the Pence Administration did not seriously attempt taking these assets back," Friedman said.

Posted by Marcia Oddi on Tuesday, June 07, 2016
Posted to Indiana Government

Ind. Courts - "Evansville case a first for computer DNA analysis in Indiana trial courts"

That is the headline to this story today by Mark Wilson of the Evansville Courier & Press. Some quotes from the long story:

Prosecutors called on a DNA analysis technique never before admitted for use in an Indiana courtroom to help convict an Evansville man of possessing crack cocaine in his jail cell.

Despite the DNA testimony, however, prosecutors were unable to prove Dugniqio Deshay Forest guilty of a more serious charge of dealing cocaine.

"This evidence was crucial in securing a conviction" of Forest, a Vanderburgh County Sheriff's Office press release touted Monday.

Deputy Prosecutor Javier Lugo said Judge Richard D'Amour's ruling allowing the DNA computer analysis testimony was the first time an Indiana judge had ruled it scientifically reliable enough to be admitted in court. The DNA analysis was not enough, however, to overcome the presence of multiple other people's DNA on the evidence, although Forest's cell mate was excluded. [ILB emphasis] * * *

Lugo said Dr. Mark Perlin charged a flat rate $500 an hour, plus other fees, to analyze evidence in the case and testify. He said the prosecutor's office has not received a final bill.

Perlin's Pittsburgh-based CyberGentics Inc. uses its patented TrueAllele software to perform computer analysis of DNA samples — a process that can be used to separate and identify DNA of multiple people on an item.

ILB: This technique is not without controversy, see, eg, this post from April 13th at the EvidenceProfBlog, headed "Should Defendants Get Access to TrueAllele's Source Code?"

Posted by Marcia Oddi on Tuesday, June 07, 2016
Posted to Ind. Trial Ct. Decisions

Monday, June 06, 2016

Ind. Decisions - Successful pro se plaintiff in Carmel traffic ticket suit files in federal court

The ILB has had a number of entries on the Dec. 11, 2015 Court of Appeals opinion in Jason J. Maraman v. City of Carmel, Indiana, where a pro se appellant suceeded in his argument that the Carmel city ordinance under which he (Maraman) was ticketed was void.

In April of this year, the Supreme Court declined transfer.

In this post from Jan. 12, 2016, the ILB quotes an IBJ story headed "Carmel faces federal class action lawsuit over traffic law," and includes a copy of the federal complaint. The last part of this IndyStar story from Jan. 14th also talks of the federal class action lawsuit, filed by attorney Ed Bielski.

So it was with interest that the ILB this weekend came upon a pro se action filed June 6th in federal court by the same pro se plaintiff who won the similar case in state court. Here is a copy of the 6-page complaint.

Posted by Marcia Oddi on Monday, June 06, 2016
Posted to Indiana Courts

Ind. Decisions - No decisions so far today

No decisions posted so far today from any of the Indiana appellate or federal courts.

Posted by Marcia Oddi on Monday, June 06, 2016
Posted to Indiana Courts

Courts - "Waiting for next president, confirmations of federal trial judges stall"

Spencer S. Hsu of the Washington Post has this lengthy story today.

Posted by Marcia Oddi on Monday, June 06, 2016
Posted to Courts in general

Ind. Decisions - Transfer list for week ending June 3, 2016

Here is the Clerk's transfer list for the week ending Friday, June 3, 2016. It is one page (and 8 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, June 06, 2016
Posted to Indiana Transfer Lists

Ind. Courts - Appellate motions available online July 1

Updating previous ILB e-filing posts, including this one from June 3rd, in addition to appellate briefs (which became available online on April 1), as of July 1, appellate motions such as motions for extension of time to file brief, for oral argument, to withdraw appearance, also will be available. See details here.

Posted by Marcia Oddi on Monday, June 06, 2016
Posted to E-filing

Ind. Decisions - "Wis. Supreme Court to Rule on Predictive Algorithms Used in Sentencing"

The $$ story by Joe Palazzolo in the June 5th Wall St. Journal is subheaded: "Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments." The story begins:

Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin.

The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing. The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments. * * *

Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs.

From the end of the story:
“A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington [the state's lawyer] acknowledged, describing it as “one of many factors a court can consider at sentencing.”

Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”

The Sentencing Law Blog has more from the story.

ILB:
The Indiana Supreme Court issued two opinions relating to the "results of an LSI-R or SASSI assessment" on the same day in 2010, June 9th.

Posted by Marcia Oddi on Monday, June 06, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Law - More on: Can we arrest the train conductor?

An ILB post from July 8, 2007 begins:

Can we arrest the train conductor?

I heard that a lot when growing up in Chesterton. Chesterton has a park known as Railroad Park that is bordered on the south by the main street, and on the north by many sets of surface-grade railroad tracks -- seemingly all the trains that went east and west in NW Indiana in the 1950s crossed through Chesterton at this point, constantly.

Sunday mornings were particularly bad, you could never count on getting to church before services began (which delighted many of us kids) or, if you did make it to church, getting home in time for Sunday dinner (served at noon). Long, long freight trains crossed endlessly. We would count the cars into the hundreds, and just as one ended another would come along from the other direction. Or the first one would slow to a crawl and then start backing up, switching cars onto a siding. The Chesterton Tribune always had letters to the editor demanding to know what could be done.

I just this morning saw a tweet from @IndyStarChelsea:
Waiting on a train to pass West Street for a good 20 mins now. Happy Monday, friends!
So this weekend there was a story by Phil Wieland in the NWI Times, headed "St. John chief works to unclog crossings." Some quotes from the long story:
ST. JOHN — During his first week as St. John police chief, James Kveton was introduced to a Region malady: blocked railroad crossings.

Kveton said he was stuck waiting for trains at the Patterson Street crossing of the CSX Railroad and soon received complaints from residents of a similar problem at 81st Avenue. The trains frequently blocked the crossings for 30 to 45 minutes while delivering lumber to Schilling's home improvement center.

Problems with railroads were nothing new to Kveton, who said, while a member of the Elmhurst, Illinois, Police Department in 1994 ***

"We did write tickets to the railroad all the time when they blocked the crossings for more than 10 minutes," he said. "Then the court ruled that, because railroads travel through so many communities, it would be impossible for them to maintain a knowledge of the laws of each one. Therefore, it should be a federal responsibility."

Kveton said he understood it to be a U.S. Supreme Court ruling. When he began looking into the rail crossing issue in Indiana, he discovered it was an Illinois court ruling. He began working with the Federal Railroad Administration and CSX to try to come up with a solution to blocked crossings at Patterson and 81st, either by changing the order the cars are aligned on the trains or by delivering the material at night when there is less traffic.

While working on a solution to avoid issuing a lot of tickets, Kveton discovered both crossings are outside the town's boundaries, and he would have to get the Lake County Sheriff's Department help to ticket the trains. He said he's confident that can be worked out, but another issue has arisen.

"I found a law in Indiana that regulates the blocking of crossings for more than 10 minutes. When I called the railroad to let them know of the Indiana law and that we would have to start enforcing it, the railroad said there is a court case that, if the blockage is related to commerce, there is an exemption. I'm researching that now."

Posted by Marcia Oddi on Monday, June 06, 2016
Posted to Indiana Law

Ind. Law - What happens when a congregation decides to leave the church but continues to claim ownership of church buildings and property

That is the topic of a June 4th story by Cheryl Brumbaugh-Cayford in the Church of the Brethren Newsline. Some quotes from the long story:

A lengthy court case over church property in Los Angeles, Calif., is finally drawing to a close. This was one of two cases in recent years that have involved the Church of the Brethren denomination in local and district struggles over ownership of church buildings and property. In each case, a congregation decided to leave the Church of the Brethren but continued to claim ownership of church buildings and property, in contradiction to denominational polity.

According to denominational polity, church buildings, property, and assets owned by congregations are held in trust for the denomination, and administered by the district. Polity indicates the district and denomination retain ownership of the property if a whole congregation votes to leave the denomination. If a congregation votes to leave the denomination but there remains a group loyal to the Church of the Brethren, polity says the loyal group has rights to the property and assets of the congregation. The relevant polity is in the Church of the Brethren Manual of Organization and Polity at www.brethren.org/ac/ppg .

The two cases are not the only recent disputes over church property, but are the ones in which the denomination has been directly involved in court. * * *

[The most current case concerned Central Korean Evangelical Church (CKEC) in Los Angeles]

The Indiana Court of Appeals ruled against South Central Indiana District in a dispute over ownership of a church building and property in Roann, Ind. The court issued the opinion on Nov. 17, 2014, rejecting the district and denomination’s appeal with regard to the dispute with Walk By Faith Community Church in Roann.

There was a change of the law in Indiana in 2012, that had the effect of shifting the case into the area of real estate law, and out of the realm of ecclesiastical polity. The denomination had supported the district in an appeal of a lower court ruling, in an attempt to defend polity.

The Indiana case began as a dispute within the congregation. After a break-away group won a majority vote to leave the Church of the Brethren in 2012, a minority of members who voted to remain in the denomination continued to meet and identify as Roann Church of the Brethren. The case came to court as a dispute between the break-away group and the district, and the denomination was not directly involved until after a circuit court issued a ruling in favor of the break-away group.

Some lessons

Differing outcomes in California and Indiana point to the benefit of each congregation having documents in place stating explicitly, rather than implicitly, that property and assets are held in an irrevocable trust for the Church of the Brethren denomination and the district. The cases also highlight the importance of congregations closely monitoring activities of their own leaders and curtailing activities that seem intent on disassociating congregations from the denomination or district.

The cases also highlight society’s shifting attitudes to church denominations and congregational life. The best way to mitigate property disputes--in addition to having correct and legally binding language in church documents--may be for district and denominational leaders to be proactive in building good relationships with each congregation.

Posted by Marcia Oddi on Monday, June 06, 2016
Posted to Indiana Law

Ind. Decisions - "He sold a $40 printer. Then he was sued in Indiana for $30,000"

That is the headline to this must-read story in today's Indianapolis Star, reported by Kristine Guerra, about the Court of Appeals' May 23rd opinion in Douglas Costello and Profit Search, Inc. v. Gersh Zavodnik (ILB case summary here).

As it is "must-read" the ILB will simply add some additional info. About half-way through the story is this:

In 2010, Zavodnik sent Costello, who also was representing himself in the lawsuit, paperwork asking him to admit that he was liable for more than $30,000 for breach of contract, fraud and conversion. The trial court dismissed the case, along with 26 others filed by Zavodnik, who appealed all of those dismissals, court records state.

The Indiana Court of Appeals in March 2012 revived the lawsuit against Costello and sent the case back to the trial court, where it remained stagnant for another nine months until a hearing was scheduled later that year.

The ILB looked for the 2012 COA opinion. It was a March 1, 2012 NFP decision, Gersh Zavodnik v. Katrin Gehrt and Imperator Bulldogs Kennel, et al., with a caption 9-pages long. Last month's COA opinion describes what happened with the current case in 2012:
This is the second time this particular case has been before us. The first time, it had been dismissed, along with twenty-six other cases Zavodnik had filed, pursuant to Indiana Trial Rule 41(E), which provides for dismissal when a plaintiff fails to diligently prosecute the case or comply with court rules. Zavodnik v. Gehrt, No. 49A02–1105–CT–393, slip op. at 10-11 (Ind. Ct. App. Mar. 1, 2012) (memorandum decision). We affirmed the dismissal of most of the cases but reversed the dismissal of this case because there was no indication in the record that the trial court had held the formal hearing required by Rule 41(E). Id. at 21-22.
Last month's COA opinion (also a "must-read") points to a Sept. 30, 2014 Supreme Court opinion, a denial of transfer in a case titled Gersh Zavodnik v. Irene Harper (ILB summary here), where the Supreme Court set out for the lower courts detailed"guidance on options available to sanction and otherwise restrict the abusive and burdensome litigation tactics practiced by Mr. Zavodnik and a small number of other litigants in this state."

A story the next day in the Indianapolis Star, by Tim Evans, summarized here in the ILB, gave background on the "frequent filer" who is the plaintiff in the lawsuit.

Posted by Marcia Oddi on Monday, June 06, 2016
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 6/13/16):

Webcasts of Supreme Court oral arguments are available here.


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

Next week's oral arguments before the Court of Appeals (week of 6/13/16):

Tuesday, June 14

Wednesday, June 15

Thursday, June 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 Monday, June 06, 2016
Posted to Upcoming Oral Arguments

Friday, June 03, 2016

Ind. Courts - Court posts 21-page annual list of attorneys who have failed to comply with certain requirements

Here are are some earlier similar posts from past years.

The heading to the 21-page order is ORDER OF SUSPENSION OF CERTAIN ATTORNEYS FOR FAILURE TO PAY ATTORNEY REGISTRATION FEES, FAILURE TO COMPLY WITH CONTINUING LEGAL EDUCATION REQUIREMENTS, and/or FAILURE TO SUBMIT IOLTA CERTIFICATION. From the introduction:

The Clerk of the Court has notified this Court that certain attorneys have failed either to pay the annual registration fee required for them to be licensed to practice law in Indiana or to file an exemption affidavit as contemplated by Indiana Admission and Discipline Rule 2, and/or have failed to make the IOLTA certification required by Indiana Admission and Discipline Rule 2(f). In addition, the Indiana Commission for Continuing Legal Education has notified the Court that certain attorneys have failed to comply with the continuing legal education requirements of Admission and Discipline Rule 29, sections 3 or 10. * * *

Although the suspension is effective as of the date of this order for purposes of the reinstatement procedures that must be followed and/or any reinstatement fees that must be paid for reinstatement, the Court directs that the proscription against the actual practice of law will go into effect at 12:01 a.m. Eastern Daylight Savings Time on Friday, July 1, 2015. The delay from the date of this order to the suspension date is for the sole purpose of allowing time for copies of this order to be sent, received, and acted upon by the suspended attorneys.

The list is arranged by county, and it is searchable.

Posted by Marcia Oddi on Friday, June 03, 2016
Posted to Indiana Courts

Ind. Decisions - Tax Court issues two rulings today in income tax dispute

In John and Sylvia Von Ermannsdorff v. Indiana Department of State Revenue, a 10-page opinion, Judge Wentworth writes:

John and Sylvia von Erdmannsdorff challenge the Indiana Department of State Revenue’s assessments of adjusted gross income tax (AGIT) for the 2000 through 2009 tax years (“years at issue”). The matter is currently before the Court on the Department’s Motion for Summary Judgment and the von Erdmannsdorffs’ Counter-Motion for Partial Summary Judgment. The Court consolidates and restates the issues as follows:

I) Whether the von Erdmannsdorffs rebutted the presumption of correctness afforded to the Department’s best information available (BIA) assessments; and if so,
II) Whether the Department erred in calculating the von Erdmannsdorffs’ Indiana adjusted gross income by combining the gross receipts but failing to account for the additional business expense deductions.

Upon review, the Court finds in favor of the von Erdmannsdorffs.

In John and Sylvia Von Erdmannsdorff v. Indiana Department of State Revenue (mem. dec.), a 6-page, NFP opinion, Judge Wentworth writes:
John and Sylvia von Erdmannsdorff have moved to strike certain statements anddesignated evidence that support the Indiana Department of State Revenue’s motion for summary judgment. More specifically, the von Erdmannsdorffs claim that two depositions as well as the statements and designated evidence regarding their income tax returns, their inventory records, and BizStats are not admissible. The Court, having held a hearing thereon and being duly advised, grants the von Erdmannsdorffs’ motions in part and denies them in part. * * *

For the above-stated reasons, the Court GRANTS the von Erdmannsdorffs’ motions to strike with respect to the Department’s statements and designated evidence regarding the von Erdmannsdorffs’ purported failure to file income tax returns for dates before the years at issue. The Court, however, DENIES the von Erdmannsdorffs’ motions to strike with respect to the depositions, the statements regarding the inventory records, and the statements regarding BizStats.

Posted by Marcia Oddi on Friday, June 03, 2016
Posted to Ind. Tax Ct. Decisions

Courts - More on: Indiana native, now federal judge in Calif., overseeing Trump University case

Alan Rappeport of the NY Times has now posted a lengthy story on Judge Curiel, supplementing the stories quoted in this earlier ILB post today.

Posted by Marcia Oddi on Friday, June 03, 2016
Posted to Courts in general

Law - "Legal Aid With a Digital Twist"

Interesting, lengthy opinion piece June 1st in the New York Times, written by Tina Rosenberg, about the development and use of software to facilitate legal aid. It looks like opportunities for service continue to exist.

Posted by Marcia Oddi on Friday, June 03, 2016
Posted to General Law Related

Ind. Gov't. - Big box/dark box issue solved?

Updating a long list of earlier ILB "big box/dark box" posts, according to an editorial today in the Fort Wayne Journal Gazette, the problem in Indiana has been solved.

The headline to the article is "'Their fair share' Big-box store ruling will benefit all taxpayers." However, the piece is not about a ruling, but about legislation passed in the 2016 session. Some quotes:

There’s a ray of light in the “dark store” property tax assessment saga. New assessment guidelines mean big-box retailers no longer can point to vacant or abandoned stores as a sales comparison for determining the value of their properties. When they pay a fair and equitable share of taxes, all taxpayers will benefit.

The relief comes from a provision in House Enrolled Act 1290 requiring new guidelines for assessing big-box stores. Following the lead of businesses in other states, big-box retailers increasingly are appealing tax assessments based on the argument that their businesses should be assessed as if they were vacant – hence, “dark stores” – because the buildings – not the value of their sales operations – create the properties’ value.

The new law should clear up confusion created by the General Assembly’s first, well-intended fix in 2015.

“Market segmentation is simply narrowing the scope of comparables that can be used during the appeals process,” explained Allen County Assessor Stacey O’Day. “The (Department of Local Government Finance) is supposed to set examples of what the market segments will be. It will break down sales comparisons to different markets, so an auto assembly plant will be compared to another auto assembly plant, for example. A big-box store will be compared to another operating store, not to a vacated building.”

Here is HEA 1290 from 2016. Here is the relevant description from the digest of the omnibus bill:
Repeals provisions enacted in 2015 concerning the assessment of: (1) certain limited market or special purpose property; and (2) commercial nonincome producing real property. Provides that in addition to the factors under current law, the DLGF shall also provide for the classification of improvements on the basis of market segmentation.
Here is the final text of HEA 1290. The relevant language is at pp. 29-31. SECTION 13 amends IC 6-1.1-31-6, retroactively to Jan. 1, 2016. The wording references in the editorial is at subsection (f) on p. 31:
(f) Subject to this article, true tax value shall be determined under the rules of the department of local government finance. The department's rules may include examples to illustrate true tax value.
The ILB does not know if the new rules are yet available. The ILB also does not know how the new legislation and rules would impact appeals currently pending, including two for which the Indiana Tax Court has heard oral argument earlier this year (see the last line of this earlier post).

Posted by Marcia Oddi on Friday, June 03, 2016
Posted to Indiana Government

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

For publication opinions today (0):

NFP civil decisions today (2):

In the Matter of J.M. and P.M. (Minor Children), Children in Need of Services, and V.M. (Father) v. The Indiana Department of Child Services (mem. dec.)

Jeremy D. Brooks v. Katherene Gardner (mem. dec.)

NFP criminal decisions today (2):

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

Shahid Iqbal v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, June 03, 2016
Posted to Ind. App.Ct. Decisions

Courts - Indiana native, now federal judge in Calif., overseeing Trump University case [Updated]

Maureen Groppe, of the Star Washington Bureau, reports today in a story headed "Judge's brother calls Trump's 'Mexican' comments offensive." The story begins:

WASHINGTON — The federal judge and native Hoosier accused by Donald Trump of being a “hater” and biased against Trump because of his Mexican heritage is constrained in how he can respond.

But his brother isn’t.

“I find some of the wording that (Trump) is using offensive,” said Raul Curiel, of Hammond, the brother of U.S. District Judge Gonzalo P. Curiel. “I don’t take him seriously, but apparently there’s enough people that take him seriously that it’s kind of like a scary situation.”

Trump went after Judge Curiel in February, accusing him of “tremendous hostility” to Trump in presiding over class-action lawsuits against his now-inactive real estate school, Trump University. The presumptive GOP presidential nominee said Curiel’s hostility “has to do with perhaps the fact that I’m very, very strong on the border.”

In a tirade about the case during a campaign rally in San Diego last week, Trump said Curiel “happens to be, we believe, Mexican,” and should be ashamed of himself.

"What Judge Curiel is doing is a total disgrace," Trump said.

More from the long story:
Gonzalo Curiel went to Indiana University to study music, and he plays several instruments. But unsure of whether he could make a living as a musician, he followed his older brother, Antonio, to law school.

Curiel worked in a private practice in Dyer, Ind., before being lured to California by the warm weather in 1986.

He spent 17 years as a federal prosecutor, winning convictions against the Arellano Felix drug cartel, a multibillion-dollar drug-trafficking ring responsible for more than 100 killings in the United States and Mexico.

ILB: BTW, Judge Curiel is a member of the Indiana bar.

[Updated at 12:07 PM]
"East Chicago native at the center of Donald Trump controversy" is the headline to this story by Elvia Malagon (including a photo of the judge), posted this morning by the NWI Times. Some quotes:
East Chicago native Gregory Vega, who is best friends with Curiel, said Trump's remarks won't intimidate Curiel. Both graduated in 1971 from Bishop Noll Institute.

"He grew up in the Harbor, he had a credible threat on his life by a Tijuana cartel, do you really think that being called names is going to frighten him?" Vega said. "The answer is no, of course not."

Curiel's brother, Raul Curiel, said Gonzalo Curiel was the youngest of four children who were all born in St. Catherine Hospital in East Chicago.

His parents were natives of Mascota, Mexico, a small town near Puerto Vallarta. His father came to the U.S. through the Bracero Program and followed a cousin to East Chicago after hearing about better jobs in the steel mills.

Raul Curiel said his father was a legal resident when his mother joined him in the U.S. She later became a naturalized U.S. citizen.

He recalled the family growing up in East Chicago's Harbor section among neighbors who were Serbian, Greek, Polish, Puerto Rican and African-American.

"We never had animosity toward other ethnic groups, because we lived with them," Raul Curiel said. * * *

Gonzalo Curiel graduated in 1979 from the Indiana University Maurer School of Law. He worked as a private attorney in Dyer before moving to California to work as an assistant U.S. attorney in San Diego and Los Angeles. * * *

Kenneth Turchi, assistant dean for finance and administration at the Maurer School of Law, said Curiel has maintained ties to the school.

He returned to campus in April after he was selected for the Academy of Law Alumni Fellows, which Turchi said is the highest honor the school gives to its alumni.

Curiel was the commencement speaker in 2014 for the school. He co-founded a scholarship in memory of his brother, Antonio Curiel, who also graduated from the law school.

Check the story for much more.

Posted by Marcia Oddi on Friday, June 03, 2016
Posted to Courts in general

Ind. Courts - Message from Chief Justice Rush about new court technology advances

Chief Justice Loretta Rush sent out this message to Indiana attorneys this morning:

Indiana Lawyers,

There are a number of exciting court technology advancements to report. More detailed information is online. Briefly, I turn your attention to three points.

First, as announced earlier this year, on July 1, 2016 attorneys will be required to electronically file all subsequent pleadings including briefs, motions, appendices, petitions for rehearing, transfer, and review in all appellate courts. As well, e-filing will be required in subsequent pleadings in all case types that are eligible for e-filing in Hamilton County.

Second, I encourage you to visit courts.in.gov/efile to review the project timeline. It notes when specific counties will begin voluntary e-filing and when e-filing will be required in those counties. The timeline will be regularly updated. There is training and support information online, including an e-filing user guide. We expect statewide e-filing by the end of 2018.

Third, please be aware that certain documents you file with the appellate courts may be available online. You are required to consider Administrative Rule 9 (court record confidentiality rules) prior to filing by paper or electronically. Recently the Court authorized free online access to appellate briefs. On July 1, the Court will make appellate motions available online at mycase.in.gov and appellate case search.

This is an exciting time to be an Indiana attorney. We are transforming the way we handle cases and providing greater transparency to the courts. Already, the courts have received about 60,000 filings through the electronic system. Thank you for being our partner as we modernize the judicial branch.

Thank You,

Loretta H. Rush
Chief Justice of Indiana

Posted by Marcia Oddi on Friday, June 03, 2016
Posted to E-filing | Indiana Courts

Thursday, June 02, 2016

Ind. Decisions - Supreme Court decides one today, re interpretation of relocation of auto dealerships statute

In Andy Mohr West d/b/a Andy Mohr Toyota, Butler Motors, Inc. d/b/a Butler Toyota, and TW Toy, Inc. d/b/a Tom Wood Toyota v. Office of the Ind. Secretary of State, Auto Dealer Services Div., et al., a 10-page, 4-0 opinion, Justice Massa writes:

Three central Indiana Toyota dealerships protested the relocation of a fourth Toyota dealership. The Auto Dealer Services Division dismissed their action for lack of standing—affirmed by the trial court—concluding the dealerships were outside the “relevant market area,” as defined by the Indiana Dealer Services Act, Ind. Code § 9-32-2-20 (Supp. 2015). We are asked to decide whether the Division’s interpretation of that statutory definition was reasonable. Finding it was, we affirm. * * *

In short, we are faced with two imperfect constructions of an inartfully drafted statute.[4] Considering these circumstances, we find the Division’s interpretation—which gives meaning to the words and structure of the Statute and furthers its underlying purpose—to be imminently reasonable. The Statute reflects a legislative determination that relocating more than six miles away from another dealership in a densely populated area will not have such a negative effect on the market to allow incumbent dealers to stifle competition through the protest procedure. Of course, if the legislature meant something different, it is free to more precisely reflect its intention by revising the Statute.
________________
[4] Indeed, the term “new motor vehicle dealer” can confuse the first-time reader of the Statute. “New” refers to the type of cars sold, not the nascent nature of a “new” dealership.

Posted by Marcia Oddi on Thursday, June 02, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - State files response in ACLU/PPIK challenge to abortion law

Federal Judge Tanya Walter-Pratt earlier set June 14th for a hearing on HEA 1337, which is being challenged by Indiana ACLU and Planned Parenthood. Here is the 12-page complaint, filed April 7th.

Yesterday, per a news release from Attorney General Zoeller:

On Wednesday in U.S. District Court for the Southern District of Indiana, the state defendants filed their memorandum in opposition to the plaintiffs’ motion for preliminary injunction.

The State’s memorandum asks the U.S. District Court to deny the plaintiffs’ motion for preliminary injunction and allow the statute to take effect as scheduled on July 1. The memorandum argues that the plaintiffs are unlikely to succeed on the merits of their challenge to HEA 1337 because the provisions of the law they challenge – including the regulation of how medical facilities dispose of fetal remains and the prohibition against discriminatory abortions based solely on race, sex and disability – do not violate the United States Constitution. * * *

The State’s brief was drafted by Indiana Solicitor General Thomas M. Fisher and his colleagues. Please see this excerpt from the brief on page 1:

(HEA 1337) is a response to recent technological advances that permit pregnant women to screen their fetuses for various physical characteristics during the first trimester. In short, the General Assembly is concerned that these new technologies will be used to discriminate based on race, sex, disability, and other characteristics, and with HEA 1337 it has adapted traditional anti-discrimination law to the abortion context in order to address that concern.
Also, please see this excerpt:
The new laws governing disposition of fetal remains merely modify existing regulations and implicate no specially protected rights. The Court should uphold them as a legitimate means of ensuring human remains are treated with dignity and respect.
Here is the State of Indiana's response filed June 1st, Defendants’ Memorandum In Opposition To Plaintiffs’ Motion For Preliminary Injunction.

Posted by Marcia Oddi on Thursday, June 02, 2016
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (1):

In Scott Charles Kuhn v. Midfirst Bank (mem. dec.), a 5-page opinion in a case with a pro se appellant, Judge Robb writes in footnote 1:

Throughout this litigation, Kuhn has referred to subject matter jurisdiction, standing, and the real party in interest rule as interchangeable concepts, see Fish v. 2444 Acquisitions, LLC, 46 N.E.3d 1261, 1265 (Ind. Ct. App. 2015) (distinguishing subject matter jurisdiction, standing, and the real party in interest rule), trans. denied, but the brunt of his argument on appeal seems to address the issue of subject matter jurisdiction. To the extent Kuhn challenges MidFirst’s standing or real party in interest status, we conclude these issues are waived because Kuhn failed to present coherent argument with respect to either. See Ind. Appellate Rule 46(A)(8)(a) (requiring each contention in the appellant’s brief be supported by cogent reasoning and citations to relevant authority); see also Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d 486, 487 (Ind. Ct. App. 2003) (stating the reviewing court need not address arguments that are too poorly developed to be understood).

NFP criminal decisions today (1):

Tahj R. Thomas v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, June 02, 2016
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from May 27th, which quoted the Muncie Star-Press, the Fort Wayne Journal Gazette has an editorial today headed "Government oversight a worthwhile expense." A sample:

Where the State Board of Accounts once audited cities and counties annually and school corporations every other year, it now audits financial records every four years unless warning signs point to problems. The procedural change comes from a revision in state law.

“The statute on frequency of audits changed last year from annual or biannual to a risk-based approach,” Todd Caldwell, director of audit services for the SBOA, told the Star Press of Muncie.

Most public finance officials are law-abiding and meticulous in their adherence to accounting standards – meaning an audit once each four years is adequate. But where those entrusted with public dollars are untrustworthy, ill-prepared or careless, the results can be costly.

What Indiana Attorney General Greg Zoeller described as “among the most egregious public corruption situations” is a case involving Warsaw Community Schools, where the former maintenance director was arrested last July, accused of accepting kickbacks of more than $115,000 over a six-year period. The school board fired Gregory Schroeder in 2014 after the alleged kickbacks came to light. A special audit by the State Board of Accounts followed and found the school district spent nearly $800,000 on kitchen drain products alone between 2005 and 2014 – an expense that reasonably would have totaled about $40,000. In all, the state is seeking nearly $1 million in restitution, along with court costs and attorney fees.

The Warsaw case was uncovered when the state was still conducting regular audits – how long might the excessive spending have gone unnoticed under the SBOA’s new procedures?

Posted by Marcia Oddi on Thursday, June 02, 2016
Posted to Indiana Government

Environment - More on "High water causing headaches on Lake Michigan"

This May 24th ILB post quoted a story about the Chicago shoreline. Today, here is a story from the Milwaukee Journal-Sentinel, reported by Lee Bergquist, headed "Rising Lake Michigan waters threaten shoreline homes." It begins:

Mount Pleasant — Rising water levels are eating away at the Lake Michigan shoreline, with conditions most severe this spring in a neighborhood of Racine County where homes are in danger of toppling into the lake.

A combination of rain, wave action and a 4-foot-plus jump in lake levels since early 2013 is gobbling up the coastline and bringing a few houses precariously close to the edge of the bluff.

This lengthy, illustrated May 17, 2016 story from Alexis Meyers of the Chicago Tribune is headed "Beaches shrinking as Lake Michigan rises to near-record level." A sample:
Lake Michigan could be about 1 foot shy of the 1986 record high by the end of the summer. It has currently risen 4 feet since January 2013, when it hit a record low.

Posted by Marcia Oddi on Thursday, June 02, 2016
Posted to Environment

Ind. Gov't. - More on: WTHR13 investigates IDEM's voluntary remediation program (VRP)

Updating this ILB post from yesterday, last evening Sandra Chapman, WTHR Investigative Reporter, aired a follow-up story, headed "13 Investigates report 'Dangerous Exposure' gets results." A few quotes from the long story:

As part of the voluntary program, companies agree to clean up their messes and in exchange, they get protection from lawsuits, but 13 Investigates found communities put at risk by leaching chemicals while the companies who promised to clean them up didn't hold up their end of the bargain.

Worse yet, in some cases, IDEM didn't take any enforcement action for decades. * * *

Ten years after enrolling into the State's voluntary cleanup program, Acraline was terminated for "[failing] to substantially comply with the terms" of the remediation.

"You would think the State would be a little more forceful. If it's a potential danger, you need to clean it up," Lacy told 13 Investigates.

One year after Acraline [in Tipton] was terminated from the Voluntary Remediation Program, its insurers actually came to a settlement and agreed to clean up the contamination before it reached the city's municipal water well. But for 3 years, nothing happened - until 13 Investigates started asking questions.

"Your call made us aware, brought our attention to the matter," said Tipton Mayor Don Havens. Havens said he had no idea the cleanup work had not been completed. He looked for a certification, but could find none.

Frank DeVeau, the company's attorney, told 13 Investigates a confidential insurance settlement lapsed because "the insurers could not find a bank" that would control the cleanup. The banks, he said, did not want to assume liability "for all costs."

But just one week after 13 Investigates spoke with DeVeau, the parties reached a new agreement. DeVeau reported the "remediation would start" as early as June.

"We're pleased to hear that any remediation that might be required to satisfy IDEM is, in fact, going to take place," said Mayor Havens. * * *

As for the old Coke Plant site in Indianapolis, Citizens says it's awaiting comments from IDEM on its final remediation steps for the gas supply area. Citizens says it plans to remove excessive coal tar from the creek next summer, but only on its site.

IDEM is expected to sit down and talk about the lagging cleanups with 13 Investigates next week.

ILB: This is not the first time Indiana's voluntary cleanup program has been questioned. A long July 8, 2007 ILB post begins:
Dan Stockman of the Fort Wayne Journal Gazette has a lengthy report today on the failings of Indiana's voluntary cleanup program.

Posted by Marcia Oddi on Thursday, June 02, 2016
Posted to Environment | Indiana Government

Wednesday, June 01, 2016

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

In Hubert Walker v. Trailer Transit, Inc. (SD Ind., Pratt), a 5-page opinion, Judge Easterbrook writes:

Trailer Transit relies on in dependent truckers, which following the parties’ convention we call the Drivers (though they also provide the rigs that carry the cargo). Trailer Transit contracts with shippers for the movement of cargo, then contracts with Drivers to pro vide transportation. It promises Drivers 71% of the gross revenues, with exclusions. * * *

In this suit a class of about 1,000 Drivers contends that Trail-­‐‑ er Transit made a profit on its “special services” and owes 71% of that profit to the Drivers. The district court held oth-­‐‑ erwise. 1 F. Supp. 3d 879 (S.D. Ind. 2014); 2015 U.S. Dist. LEXIS 20250 (S.D. Ind. Feb. 19, 2015). * * *

The whole of the Drivers’ position is that they are entitled to a slice of any net profit on special services, and the contract provides no support for that.

Hubert Walker, the representative plaintiff, furnished services to Trailer Transit for seven years. He must have found the remuneration satisfactory. Only in retrospect did he look for more, filing this suit about two years after haul-­‐‑ ing his last load. The judiciary does not rewrite contracts af-­‐‑ ter the fact to favor one side. Walker and the other Drivers might have insisted on receiving some part of the profit from special services (and then perhaps Trailer Transit would have offered less than 71% of the gross), but that’s not what this contract says. AFFIRMED

Posted by Marcia Oddi on Wednesday, June 01, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (1):

Marvin Hester v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, June 01, 2016
Posted to Ind. App.Ct. Decisions

Indiana Decisions - Supreme Court decides one today

In David P. Allen v. Kimberly W. Allen, a 7-page, 4-0 opinion, Justice David writes:

This case presents the question of whether a trial court may order that divorced parents be obligated to pay the graduate or professional school expenses of their adult children pursuant to the Indiana child support statutes. While the statutory provision at issue provides for payment of “postsecondary” educational expenses, the term postsecondary is undefined. Today we hold that the term “postsecondary,” as used in the provision permitting an award for postsecondary educational expenses, does not include graduate or professional school expenses. * * *

We hold that the term “postsecondary,” as used in Ind. Code § 31-16-6-2, does not include graduate or professional school expenses, particularly in light of other action by the Legislature that limits parents’ financial obligations to their adult children, and the fact that an interpretation including graduate and professional school expenses would make Indiana an outlier on this issue without a clear expression by the Legislature that it intends that result. We therefore reverse the trial court’s order that Father pay the costs of his daughter, Hunter’s, dental school.

Posted by Marcia Oddi on Wednesday, June 01, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Yet 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, June 3rd.

Here is the agenda
. The main topic of discussion will be case financial information.

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. (minutes)

At its April 8th meeting, the group discussed the posting of appellate motions and other pleadings. (minutes)

At its May 6th meeting, the group discussed the posting of trial court orders and judgments.

No action has yet been taken by the Supreme Court on the topics discussed at the April and May meetings...

The next meeting is planned for July 29th.

Posted by Marcia Oddi on Wednesday, June 01, 2016
Posted to E-filing | Indiana Courts

Courts - SCOTUS "makes it easier for landowners to challenge environmental decisions" [Updated]

Yesterday the SCOTUS decided United States Army Corps of Engineers v. Hawkes Co. Inc. (SCOTUSblog case page here), holding (per SCOTUSblog):

An approved jurisdictional determination by the United States Army Corps of Engineers definitively stating the presence or absence of waters of the United States on a particular property is a final agency action judicially reviewable under the Administrative Procedure Act.
The heading to this post is from Robert Barnes story' in the Washington Post. It begins:
The Supreme Court on Tuesday made it easier for landowners to challenge the decision of federal regulators that the use of property is restricted by the Clean Water Act.

The justices ruled unanimously that property owners could file suit against the U.S. Army Corps of Engineers over the agency’s determination that their land contains “waters of the United States” covered by the Clean Water Act, which provides criminal and civil liabilities for violations.

Politico has a long story by Annie Snider headed "Supreme Court ruling means more Clean Water Act lawsuits are likely."

Other stories are linked in this SCOTUSblog "Afternoon roundup."

[Updated at 2:24 PM]
Here is a very long opinion analysis, just posted on SCOTUSblog by Miriam Seifter.

Posted by Marcia Oddi on Wednesday, June 01, 2016
Posted to Courts in general

Ind. Gov't. - Can county clerk charge $1.00/page for court documents?

On May 25th, Indiana public access counselor Luke Britt issued Informal Inquiry 16-INF-12; Copy fees for court records. It concludes:

The true exception I take with this circumstance is the Clerk is charging the $1.00 per page for documents of which the Clerk is not the intended custodian. By its admission, the Court itself prepared the Court calendars, the sign-in sheet and the bailiff’s notes and “delivered to the Clerk.” This totaled 188 of the 334 pages for which you were charged.

The Clerk of Courts is a Constitutional administrative office. See Indiana Constitution Article 6. Although it is inextricably intertwined with the judiciary, it is not a judicial office, but rather a separately elected position. The Clerk is the official custodian of the Court’s judicial docket and other records germane to the Clerk’s official duties under Indiana Code § 32-33, but it is not the custodian of the Court’s administrative or operational public records. Funneling documents through the Clerk does not increase their value from the $.10 per page cap in the APRA to $1.00 a page. Had you sought the documents directly from the Court or its staff, it could only charge you $.10 per copy. Therefore, it is my Opinion the documents prepared by Court staff which would not be a Clerk’s public records but for your request, should only carry a copy fee of $.10 per page.

ILB: I'm not sure I understand this. IC 33-37 deals with "Court Fees." IC 33-37-5 deals with "Collection of Additional Fees."

Apparently, according to this opinion, the county clerk can charge $1.00/page for documents it prepares, but can only charge $0.10/page for documents the county court itself prepared and delivered to the clerk: "the sign-in sheet and the bailiff’s notes.” But at the State level, paper copies of appellate documents cost $1.00/page at the state clerk of the courts office.

Posted by Marcia Oddi on Wednesday, June 01, 2016
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - WTHR13 investigates IDEM's voluntary remediation program (VRP)

Sandra Chapman, WTHR Investigative Reporter, first aired this long story during the late evening news on May 23rd. Here are just few sample quotes:

INDIANAPOLIS (WTHR) — Across Indiana for years, 13 Investigates found neighborhoods at risk of contamination, both underground and in the air.

Hundreds of companies tied to toxic sites have promised to clean it up, and in exchange the State protects them from lawsuits. But a three month long WTHR investigation found major gaps, allowing the danger to spread and leaving families at risk. It's all happening under a state program. * * *

What's disturbing is both companies were part of the State's VRP. Genuine Parts still is.

But Aimco, the company that owned the site of the dry cleaner, was removed from the program last June, nearly a decade after joining the program. An environmental law judge determined the company was terminated for failing to take appropriate action.

IDEM claimed Aimco “failed to timely and adequately investigate the nature and extent of the investigation at the site,” and failed to conduct more testing and sampling, required by the State. IDEM also claims Aimco made the problem worse by injecting unapproved chemicals into the ground.

An Aimco spokeswoman said the company was surprised by IDEM's actions and had believed progress was being made just days before the termination. * * *

13 Investigates found dozens of sites languishing sometimes for 10 to 15 years.

Since 2000, 353 companies have participated in the VRP.

62 of them, or one in six companies, were terminated or threatened with termination for failing to clean up as promised.

In many of those cases it took IDEM nearly a decade to take action.

"That's a fundamental flaw in the program," explained Dick Van Frank, an environmentalist and retired scientist from Eli Lilly and Company.

Van Frank has been watching the workings of the VRP for years and said he isn't a bit surprised at company's hiding within the program.

"It's a way to avoid taking responsibility," added Van Frank.

Posted by Marcia Oddi on Wednesday, June 01, 2016
Posted to Environment | Indiana Government