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Friday, July 29, 2016

Ind. Decisions - More on: 7th Circuit decides Indiana case re Title VII and sexual orientation discrimination

Updating this ILB post from this morning, the Indianapolis Star has just posted this good story by Madeline Buckley on the ruling. Some quotes:

On Thursday, a panel of judges with the U.S. Court of Appeals for the Seventh Circuit in Chicago upheld a lower court's dismissal of the suit filed by Kimberly Hively, a former part-time Ivy Tech instructor who said the college did not hire her for full-time employment because she is a lesbian.

The ruling highlights a gap in federal civil rights protections in the workplace: Employees are protected from discrimination based on race, sex, religion, color and national origin, but not sexual orientation. In Indiana, a bill that sought to add sexual orientation to the state's civil rights protections failed earlier this year.

While still dismissing the case, the judges criticized the fact that sexual orientation is not included in workplace protections guaranteed under Title VII of the Civil Rights Act of 1964. The judges said that change must come from a ruling from the Supreme Court of the United States, or new legislation from Congress.

"It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love or marry," the opinion reads. * * *

The court's opinion noted an ironic tension with the landmark 2015 Supreme Court decision in the case of Obergefell v. Hodges, which legalized same-sex marriage. That decision did not address workplace discrimination.

"The cases as they stand do, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act," the opinion reads.

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

Ind. Decisions - Court of Appeals issues 7 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (7):

In In re the Paternity of P.B., M.L.B. v. D.L.B., a 16-page opinion, Judge Mathias writes:

M.L.B. (“Father”) appeals the order of the Bartholomew Circuit Court denying his petition to enforce the trial court’s previous parenting time and reunification orders and his petition to hold D.L.B. (“Mother”) in contempt for her failure to cooperate with reunification and parenting time. On appeal, Father claims that the trial court abused its discretion by failing to enforce its previous orders. We reverse and remand.
In Champlain Capital Partners, L.P. v. Elway Company, LLP, Dale K. Elrod, Jeffrey L. Elrod, and Mary Ann Waymire, a 44-page opinion, Judge Bailey concludes:
The trial court did not err when it found that the Elrod Plaintiffs did not breach the Agreement when they did not 1) unilaterally make $3.5 million available as collateral for Safeco’s underwriting of future bonds, or 2) replace Champlain’s funds in the substitute LOC. The trial court erred as a matter of law in several aspects of its construction of various provisions of the Agreement, namely, reimbursement of Safeco draw-downs from the substitute LOC and the sharing of risk as to both payment and performance bonds. The trial court did not err when it found that the Elrod Plaintiffs did not breach the Agreement’s implied covenant of good faith and fair dealing.

Because the trial court’s conduct of the trial was premised upon its misconstruction of the Agreement’s reimbursement provisions, thereby limiting the evidence introduced and the trial court’s consideration of that evidence, we reverse the judgment solely on the question of reimbursement and remand for further proceedings consistent with our holding today.

In State of Indiana v. Dejon Pitchford, a 12-page opinion, Judge Mathias writes:
The State of Indiana appeals the order of the Marion Superior Court granting a motion filed by Dejon Pitchford (“Pitchford”) to suppress evidence discovered as a result of a warrantless strip search of Pitchford in jail. The State claims that the trial court erred in concluding that the search of Pitchford was impermissible under Article 1, Section 11 of the Indiana Constitution. We affirm. * * *

The State argues that the strip search of Pitchford was constitutional and that the trial court therefore erred in granting Pitchford’s motion to suppress. The constitutionality of strip searches in Indiana is controlled by our supreme court’s decision in Edwards v. State, 759 N.E.2d 626 (Ind. 2001). In that case, the court held that routine, warrantless strip searches of misdemeanor arrestees, even when incident to a lawful arrest, are not reasonable under Article 1, Section 11 of the Indiana Constitution or the Fourth Amendment to the United States Constitution. * * *

The State argues that the holding in Edwards has been abrogated by the United States Supreme Court’s more recent decision in Florence v. Board of Chosen Freeholders of Burlington County, 132 S. Ct. 1510 (2012). The Court in Florence held that the Fourth Amendment does not prohibit strip searches of arrested persons before they enter a jail’s general population. Id. at 1523. The Florence majority rejected the contention that persons arrested for minor offenses must be excluded from such strip searches. 132 S. Ct. at 1520-21.

However, the holding of our supreme court in Edwards was based on both the Indiana Constitution and federal Constitution. * * *

The bottom line is that Edwards is controlling, and we are not at liberty to ignore it. Even though the Edwards court’s reliance on the Fourth Amendment has been undermined by the United States Supreme Court’s holding in Florence, its holding still stands for purposes of Article 1, Section 11. The clear holding in Edwards requires that a warrantless strip search of a misdemeanor arrestee be justified by reasonable suspicion, based on the totality of the circumstances, that the arrestee is concealing weapons or contraband. No such suspicion was reported in the present case, nor do we read Edwards as permitting the warrantless strip search of all defendants arrested for violent offenses. Here, Pitchford was arrested for misdemeanor battery, and nothing about the circumstances surrounding his offense or his arrest support a reasonable suspicion that he was concealing weapons or contraband. In short, the State has not established that the trial court’s decision was contrary to law. The order of the trial court granting Pitchford’s motion to suppress the evidence discovered during the strip search is therefore affirmed.

In Jamel Owens v. State of Indiana , an 8-page opinion, Judge Pyle writes:
Jamel Owens (“Owens”) appeals, following a bench trial, his convictions for Level 6 felony criminal recklessness and Level 6 felony battery in the presence of a child.2 Owens argues, and the State concedes, that these convictions violate the Indiana Constitutional prohibition against double jeopardy. The parties, however, disagree on which of the two convictions should be vacated. Here, the trial court sentenced Owens to the same sentence on each conviction, but it also entered a domestic violence determination based on his battery conviction. Because the Level 6 felony criminal recklessness has the less severe penal consequences, we reverse and remand to the trial court to vacate Owens’s Level 6 felony criminal recklessness conviction. We reverse and remand.
In Anthony A. May v. State of Indiana, an 8-page opinion, Chief Judge Vaidik writes:
Indiana Code section 35-50-6-1 provides that when defendants complete their terms of imprisonment, they are released to parole or probation. Here, when Anthony A. May violated his probation, the trial court sentenced him to serve two years of his previously suspended sentence in the Indiana Department of Correction and ordered him to return to probation when he completed his sentence. When May later completed his sentence, the DOC released him to parole instead of probation. Although May complied with the terms of his parole, the probation department filed a petition to revoke his probation because he failed to submit to monthly drug tests (which was a condition of his probation but not his parole). The trial court found that May violated his probation and sentenced him to serve the balance of his previously suspended sentence in the DOC.

Because the trial court ordered May to return to probation when he completed his sentence and May concedes that he was ordered to return to probation, we find that May was, in fact, on probation when he was released from the DOC and therefore violated it by failing to submit to monthly drug tests. But May’s violation does not warrant revocation. Given that defendants are placed on parole or probation, the DOC placed May on parole, and May complied with the terms of his parole, it was reasonable for May not to report to probation before his release from parole. Accordingly, we find that the trial court abused its discretion in revoking May’s probation and sentencing him to serve the balance of his previously suspended sentence in the DOC. We therefore reverse the trial court and remand with instructions for May to return to probation.

In William H. Ellis, Sr. v. State of Indiana, a 7-page opinion with a pro se appellant, Judge Crone writes:
William H. Ellis, Sr., appeals the postconviction court’s denial of his petition for credit time not previously awarded by the Department of Correction (“DOC”). He argues that the postconviction court erred in denying his petition solely on the basis that the award of earned credit time is within the administrative responsibility of the DOC. Because the postconviction court denied Ellis’s petition for credit time without considering whether he had exhausted his administrative remedies, we reverse the denial of his petition and remand for the postconviction court to determine whether Ellis has exhausted his administrative remedies, and if so, to address his petition on the merits.
In Chawknee P. Caruthers v. State of Indiana, a 14-page opinion with a pro se appellant, Judge Crone writes:
Chawknee P. Caruthers appeals the postconviction court’s summary dismissal of his petition for postconviction relief (“PCR”). Caruthers argues that the postconviction court erred when it summarily dismissed his PCR petition for failure to prosecute without first holding a hearing. We agree that pursuant to Indiana Trial Rule 41(E), the trial court was required to hold a hearing before dismissing his petition. Therefore, we reverse the dismissal of Caruthers’s PCR petition and remand for further proceedings.
NFP civil decisions today (3):

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

In the Term. of the Parent-Child Relationship of: A.H. (Child), and, M.L. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

Thomas D. Seal v. Christine Seal (mem. dec.)

NFP criminal decisions today (9):

Lance M. McGee v. State of Indiana (mem. dec.)

Chester Irons v. State of Indiana (mem. dec.)

Andrius Brooks v. State of Indiana (mem. dec.)

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

Deandre Moore v. State of Indiana (mem. dec.)

Brady D. McBride v. State of Indiana (mem. dec.)

Pierre Malone v. State of Indiana (mem. dec.)

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

Frank M. Hancock v. State of Indiana (mem. dec.)

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

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

That was the heading to this March 22nd ILB post, based on a story in the Kokomo Tribune. Although readers agreed that winners should have the right to remain annonymous (eg " I can't imagine the danger I would be in with a multi-million dollar target on my back”), it appeared from the story that winners were required to publicly come forward and appear at a press conference.

But now it seems that many not be so. This morning the AP is reporting "Indiana family claims $536M Mega Millions jackpot, seeks privacy." Some quotes:

An Indiana family claimed the $536 million Mega Millions jackpot Friday but took steps to protect their privacy.

A marketing representative for the family attending the Hoosier Lottery news conference and said the money would to to the Warren LLC, a limited liability corporation.

The family wants to protect their children and their privacy. * * *Hoosier Lottery spokesman Dennis Rosebrough said a “winner’s representative” will attend a news conference Friday about the jackpot. He noted that Indiana law allows the prize to be claimed by a limited liability corporation or legal trust, which could allow the winner to remain anonymous.

The only winning ticket for the jackpot was sold in Cambridge City, a town of about 2,000 residents roughly 50 miles east of Indianapolis. * * *

Rosebrough declined to provide any details about the winner ahead of Friday’s news conference. He said only that a “claimant identity” would be announced.

“That is actually who claims it, that entity,” Rosebrough said. “Not only is it allowed, for big jackpots that’s not an uncommon occurrence.” [ILB emphasis]

In recent years, a handful of big jackpot winners have remained anonymous in Indiana. Those include a 2012 Hoosier Lotto prize worth $34.5 million and a 2008 Powerball jackpot worth $57.6 million. The winners in those cases set up corporations to collect the money.

Good to know!

Posted by Marcia Oddi on Friday, July 29, 2016
Posted to Indiana Government

Ind. Decisions - 7th Circuit yesterday denies rehearing in lie detector case

In U.S. v. Resnick (ND Ind., Moody), a 25-page, 2-1 opinion, Chief Judge Woods concluded: "Finally, the admission of testimony revealing that Resnick refused to submit to a polygraph was not plain error. The judgment of the district court is therefore AFFIRMED."

From Judge Bauer's dissent:

I would remand this case for retrial. I believe that the district court committed reversible plain error by admitting Resnick’s refusal to submit to a polygraph examination into evidence and allowing the government to comment on this refusal during closing arguments. These actions virtually exclude the possibility of Resnick receiving a fair trial.

Our standard of review—plain error—is a “high bar,” see United States v. Love, 706 F.3d 832, 841 (7th Cir. 2013), but it should not be an impenetrable shield. Here, the introduction of the refusal to take the polygraph and the government’s subsequent comments constituted plain error which polluted the other evidence and compromised the entire trial. It had the effect of replacing the jury as factfinder and convicting Resnick by judicial fiat, not by the evidence presented. Because such actions prejudiced Resnick and seriously called into question the fairness, integrity, or public reputation of his trial, I would remand. * * *

I admire the discussion of the problem by the majority; I disagree with the legal implication. The error was plain, damning, and cannot be overlooked. I would reverse for a new trial that would be conducted without any discussion of the refusal of Resnick to submit to a polygraph examination.

Here is a long story on the decision that appeared in the Chicago Daily Law Bulletin on May 6th.

Yesterday, July 28th, the 7th Circuit, en banc, denied rehearing in USA v. Resnick, Chief Judge Wood writing:

On consideration of the petition for rehearing with suggestion for rehearing en banc filed by defendant‐appellant on June 7, 2016, a majority of the judges on the original panel voted to deny rehearing and a majority of the judges in active service voted to deny rehearing en banc. Judge William J. Bauer voted to grant rehearing but did not take part in the vote to rehear en banc. Judges Richard A. Posner, Joel M. Flaum, and Michael S. Kanne voted to grant rehearing en banc. Judges Bauer, Posner, Flaum, and Kanne dissented from the denial of the rehearing and rehearing en banc and filed an opinion.

The petition is therefore DENIED.

Judges Bauer, Posner, Flaum and Kanne issued a 4-page dissent from the denial of rehearing en banc that concludes:
That the polygraph is at the center of this controversy is important. A polygraph is an instrument designed to determine whether the person examined is telling the truth. But polygraphs are not reliable truth‐telling tools, and determining credibility is the jury’s duty. The introduction of and comment on evidence that a suspect refused to take a polygraph test signals to the jury that polygraph evidence is reliable, though it is not, and that the suspect’s refusal to talk evidences consciousness of guilt when courts have consistently held that this is an impermissible inference. It could also signal to the jurors that their own instincts do not matter when determining credibility—that the results of a polygraph test (or the refusal of the defendant or a witness to have taken the test) supersede their common sense—and so they might as well ignore their duty as factfinders. In United States v. Scheffer, supra, 523 U.S. at 313, a plurality of Justices agreed that “by its very nature, polygraph evidence may diminish the jury’s role in making credibility determinations.” The potential for this effect contradicts the government’s assertion that the defendant cannot show that the government’s tactics affected the jury. Rather those tactics infected the trial and rendered it unfair, no matter how “overwhelming” the evidence against the defendant.

Such tactics should not be tolerated. Reversal would send the right signal; this affirmance sends the wrong one. Resnick deserves a new trial.

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

Ind. Decisions - 7th Circuit decides Indiana case re Title VII and sexual orientation discrimination

In Kimberly Hively v. Ivy Tech Community College (ND Ind., Lozano), a 42-page opinion issed July 28th, Judge Rovner writes:

Once again this court is asked to consider whether Title VII of the Civil Rights Act of 1964 protects employees from or offers redress for discrimination based on sexual orientation. This time, however, we do so in the shadow of a criticism from the Equal Employment Opportunity Commission (EEOC) that this court and others have continued to reflexively declare that sexual orientation is not cognizable under Title VII without due analysis or consideration of intervening case law. The EEOC’s criticism has created a groundswell of questions about the rationale for denying sexual orientation claims while allowing nearly indistinguishable gender non‐conformity claims, which courts have long recognized as a form of sex‐based discrimination under Title VII. After a careful analysis of our precedent, however, this court must conclude that Kimberly Hively has failed to state a claim under Title VII for sex discrimination; her claim is solely for sexual orientation discrimination which is beyond the scope of the statute. Consequently, we affirm the decision of the district court. * * *

It may be that the rationale appellate courts, including this one, have used to distinguish between gender non‐conformity discrimination claims and sexual orientation discrimination claims will not hold up under future rigorous analysis. It seems illogical to entertain gender non‐conformity claims under Title VII where the non‐conformity involves style of dress or manner of speaking, but not when the gender non‐conformity involves the sine qua non of gender stereotypes—with whom a person engages in sexual relationships. And we can see no rational reason to entertain sex discrimination claims for those who defy gender norms by looking or acting stereotypically gay or lesbian (even if they are not), but not for those who are openly gay but otherwise comply with gender norms. We allow two women or two men to marry, but allow employers to terminate them for doing so. Perchance, in time, these inconsistencies will come to be seen as defying practical workability and will lead us to reconsider our precedent. Id. See also Obergefell, 135 S. Ct. at 2603 (“in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”)

Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it; many of the federal courts to consider the matter have stated that they do not condone it; and this court undoubtedly does not condone it. [ILB: cites omitted] But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED.

RIPPLE, Circuit Judge, joins the judgment of the court and joins Parts I and IIA of the panel’s opinion.

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

Thursday, July 28, 2016

Courts - Does the First Amendment Protect Political Robocalls? Not in Indiana

Yes, it does, according to this WSJ Law Blog post this afternoon by Jacob Gershman that begins:

Political robocalls may be an irritating feature of modern campaigning, but that doesn’t mean they don’t deserve protection under the First Amendment, a federal judge ruled.

A decision handed down Wednesday in Arkansas federal court struck down a state law passed 35 years ago that banned political robocalls. The statute made it unlawful to offer goods or services for sale “in connection with a political campaign” using an automated phone system for dialing numbers and playing recorded messages.

No, it does not, according to this April 7, 2016 opinion from Judge Lawrence of the SD Indiana, that concludes on p. 12:
The IADMS [Indiana’s Automated Dialing Machine Statute] is content neutral and is a valid time, place, or manner restriction on speech, and, accordingly, it does not violate the First Amendment. Therefore, the Court DENIES the Plaintiff’s motion for summary judgment and GRANTS the Defendants’ motion for summary judgment.

Posted by Marcia Oddi on Thursday, July 28, 2016
Posted to Courts in general | Ind Fed D.Ct. Decisions

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

No transfer list (or information thereon) for the week ending July 22th has yet been posted by the Court.

[Updated August 1, 2016]
Just this morning the Court site has announced that there were no transfer dispositions for the week ending July 22nd.

Posted by Marcia Oddi on Thursday, July 28, 2016
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 10 NFP memorandum decision(s))

For publication opinions today (3):

In Jessica Robertson v. Brian Robertson, a 14-page opinion, Judge Pyle writes:

In this child custody case, Jessica Robertson (“Mother”) argues that the trial court abused its discretion in modifying custody of the parties’ two young children in favor of Brian Robertson (“Father”). On cross-appeal, Father argues that this Court does not have jurisdiction over the matter because Mother failed to timely file her Notice of Appeal. In light of Mother’s attempt to perfect a timely appeal and the constitutional dimensions of the parent-child relationship, we review Mother’s appeal on the merits. Further, because the evidence supports the trial court’s modification of custody in favor of Father, we find no abuse of discretion and affirm.
In In the Matter of: S.K., R.K., M.K., and A.K., Ja.K. (Father) and Je. K. (Mother) v. Ind. Dept. of Child Services , an 11-page opinion, Chief Judge Vaidik writes:
Ja.K. (Father) and Je.K. (Mother) appeal the juvenile court’s decision that their four children are children in need of services (CHINS). The sole issue for our review is whether the evidence supports the juvenile court’s judgment that the children were CHINS pursuant to Indiana Code section 31-34-1-1. Concluding that the evidence does not show the children were endangered by the actions or inactions of Mother or Father, we reverse the CHINS adjudication. * * *

To be a CHINS, a child must be seriously impaired or endangered “as a result of the inability, refusal, or neglect of the child’s parent” to provide necessary care. Ind. Code § 31-34-1-1 (emphasis added). Children cannot become CHINS by the mere happenstance of a family’s economic misfortune; the statute requires an action or failure to act by the parent that leads to serious endangerment of the children as a result of the lack of necessary care. In re S.M., 45 N.E.3d at 1256 (“The mere fact of an unemployed parent does not make a CHINS. The mere fact of a family on food stamps does not make a CHINS. Even the mere fact of a family living in a shelter while seeking stable housing does not make a CHINS.”). In this case, the children were not endangered by the acts or omissions of the parents. In fact, the parents took deliberate actions to avoid placing the children in the endangering condition of homelessness. We therefore conclude that the juvenile court’s determination that the children are CHINS was clearly erroneous. Reversed.

In Anthony J. Wampler v. State of Indiana , a 17-page, 2-1 opinion, Judge Barnes writes:
Anthony J. Wampler appeals his sentence for two counts of Class B felony burglary and his status as an habitual offender. We affirm.

Wampler raises one issue, which we restate as whether his sentence is inappropriate in light of the nature of the offenses and the character of the offender. * * *

We acknowledge Wampler’s mental health problems. However, given the disturbing nature of Wampler’s offenses and his criminal history, we cannot say that his sentence is inappropriate. * * *

Vaidik, C.J., concurs.
Mathias, J., dissents with opinion. [which begins, at p. 8] Because I believe that Wampler’s obvious and serious mental illness should have resulted in his civil commitment, not his incarceration, I respectfully dissent. * * *

[ILB: p. 10 of the opinion is a page from "Wampler’s notebook (that) contains other such deranged, incoherent diagrams demonstrating the depth of his mental health illness."]

Wampler was seriously mentally ill for years before this eerie and bizarre burglary. In all likelihood, he was also so mentally ill at the time of the crime that he could not have formed the requisite scienter so as to be criminally responsible for his behavior. Had his psychiatric examination been directed to his mental health at the time of the crime, rather than to his ability to assist his counsel at trial, he could have been, and should have been, civilly committed to a state mental health institution, rather than charged with a crime. This is a clear case of punishing someone for mental illness rather than having any interest in humanely recognizing the difference between mental illness and criminal behavior. We Hoosiers are better than that, and indeed, I believe that Article 1, Sections 15, 16 and 18 of the Constitution of Indiana expect us to be better than that. * * *

Under these facts and circumstances, I cannot agree that a thirty-three-year sentence is appropriate given the nature of the offense—a minor burglary—and the character of the offender—a man with obvious, serious mental health issues. I therefore respectfully dissent from the majority opinion. Because Wampler challenged only his sentence as inappropriate, I would find it to be so and reverse Wampler’s sentence and remand with instructions to impose the minimum sentence of six years with a ten-year habitual offender enhancement.

NFP civil decisions today (1):

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

NFP criminal decisions today (9):

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

James F. Noel v. State of Indiana (mem. dec.)

Carl G. Johnson, Jr. v. State of Indiana (mem. dec.)

French Tibbs v. State of Indiana (mem. dec.)

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

Daniel L. Riddle v. State of Indiana (mem. dec.)

Lonnie A. Bland v. State of Indiana (mem. dec.)

William Mills, II v. State of Indiana (mem. dec.)

Elgin Fidell v. State of Indiana (mem. dec.)

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

Courts - Depositing less than $10,000 in the bank at once; some hope for those whose assets were seized

Some quotes from a July 1st story in the Washington Post, reported by Rachel Weiner, headed "Maryland dairy farmer fought the Justice Department — and (finally) won." [ILB emphasis added]

Four years after federal agents showed up at his Frederick, Md., farmhouse and told him that they had seized the money in his bank account, dairy farmer Randy Sowers has gotten it all back.

The victory followed political pressure from Congress and legal pressure from the libertarian Institute for Justice on the government to roll back prosecution of the crime of structuring bank deposits to avoid Internal Revenue Service reporting requirements. * * *

When someone puts more than $10,000 in the bank at once, the bank makes a report to the IRS. Putting less than that amount in an account so as to intentionally avoid the scrutiny is a crime. In hundreds of cases, the Justice Department has seized money from the accounts of people accused of structuring.

The thing that is wrong, in the view of Sowers and his supporters, is going after people who are guilty of nothing other than trying to avoid the IRS report. He maintains that a bank teller told him it would be easier for everyone to keep deposits down and avoid the reporting requirement; he says that if anyone should have been prosecuted, it’s the teller. * * *

In October 2014, the IRS changed its policy to say it would pursue seizure of structured assets that came only from criminal activity. In March of last year, the Justice Department announced it would follow suit. [see ILB post from 3/31/15]

By that time, Sowers, hesitant about getting mired in a long court battle, had already agreed to a deal under which the government took 10 percent of the $295,220 he was accused of structuring. After the change in policy last year, he filed a petition to get his money back. * * *

On Wednesday, Sowers and his attorneys got word that the petition had been granted. He’s the first person who settled with the IRS to get his money back. * * *

The lawmakers also questioned what the IRS is doing to help people whose assets were seized; in response, the agency has sent out letters in 700 cases notifying subjects that they can petition the Justice Department for a return of their funds.

This is not the ILB's first post on this issue. See particularly this May 2, 2014 post (particularly the last section quoting a dissent by Judge Sykes in a 7th Circuit opinion by Judge Hamilton) and this post from Oct. 27, 2014, featuring another example of egregious civil asset forfeiture, quoting a NYT story the ILB labeled as: "Don't miss reading a word of it."

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

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

Updating this ILB post from June 21st, and a long list of other ILB posts on wind farms and wind turbines, here are some recent additions:

Posted by Marcia Oddi on Thursday, July 28, 2016
Posted to Environment | Indiana Government

Ind. Decisions - 7th Circuit decided Indiana case yesterday, re sentencing conditions

In USA v. Carey Ray (ND Ind., Moody), a 15-page opinion, Judge Easterbrook writes:

[p. 10] We hold today that, whether or not it possesses jurisdiction to revise the conditions of supervised release while an appeal is pending, a district court should not exercise that jurisdiction without receiving permission under Circuit Rule 57—and it should not seek that permission in the absence of strong reasons that are lacking in Ray’s case. * * *

Sometimes it is sensible to fix problems in the super-vised-release portion of the sentence and let the rest stand. [cites omitted] Whether to proceed that way is a decision committed to this court, applying the principles developed in our precedents. That role should not be bypassed by a district judge’s unilateral decision. Circuit Rule 57 makes sure that the right body makes the decision. * * *

Instead of taking steps that delay appellate review, and perhaps prolong the imprisonment of someone who should be released quickly, a district court should wait for our decision of the appeal. Full reversal is one possible outcome. Then there would be no need for supervised release, and any dispute about the conditions of release would become moot. Reversal of some but not all counts is another possible out-come. Then the whole sentencing package, including the duration and conditions of supervised release, would need to be reviewed, and changes the district court made in the interim would be so much wasted motion. Still another possibility is affirmance across the board—that is, we might reject not only challenges to the conviction but also contentions that the conditions of supervised release are improper. That disposition would obviate a need for changes in the conditions. * * *

Because this opinion adopts a rule of practice for the cir-cuit, it was circulated before release to all active judges. See Circuit Rule 40(e). None favored a hearing en banc. * * *

In this case the district court jumped the gun and modified nine conditions while Ray’s original appeal was pending. The appropriate remedy is the same as in Thompson: a remand for full resentencing. The district court should circulate the text of all proposed conditions to the parties before the resentencing and allow each side an opportunity to make whatever objections and arguments the litigant deems appropriate. See United States v. Bloch, No. 15-1648 (7th Cir. June 17, 2016), slip op. 14–15. When resolving the parties’ contentions, the district judge will be able to consider the effect of appellate decisions that postdate the modification in September 2015.

Ray’s conviction is affirmed, but the sentence is vacated and the case is remanded for resentencing.

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

Wednesday, July 27, 2016

Courts - "Law Review Article Puts Respected (7th Cr.) Appeals Court Judge on Trial"

That is the headline to this post by Jacob Gershman in the WSJ Law Blog that begins:

One of the country’s most respected federal appeals court judges is the subject of a withering law review article that strives to paint him as a legal fabulist.

The article is by retired University of Chicago law professor, Albert Alschuler, a scholar with a “talent for regicide,” as one lawyer put it. One of his most provocative books, “Law Without Values” set out to slay one of the most towering figures of American law, Justice Oliver Wendell Holmes, whom he concluded “had a brutal worldview and was indifferent to the welfare of others.”

With similar polemical gusto, Mr. Alschuler trains his sights on Judge Frank Easterbrook of the Seventh U.S. Circuit Court of Appeals in Chicago.

The 83-page article appears in the Valparaiso University Law Review.

Posted by Marcia Oddi on Wednesday, July 27, 2016
Posted to Courts in general

Ind. Decisions - Why is this case NFP? Expands on right to resist officers' unlawful entrance into residence

A reader has called the ILB's attention to the Court of Appeals NFP opinion Monday, July 25 in Dereck D. Hendricks v. State of Indiana (mem. dec.), a reversal "that relied heavily on the Barnes Supreme Court decision to toss a resisting conviction? From the opinion, written by Judge Mathias [ILB emphasis]:

Dereck Hendricks (“Hendricks”) was convicted in Marion Superior Court of Class A misdemeanor resisting law enforcement. Hendricks appeals and raises the following dispositive argument: whether the evidence is insufficient to support his conviction because the State failed to prove that the law enforcement officers were lawfully engaged in the execution of their duties.

Concluding that the law enforcement officers were not lawfully engaged in the execution of their duties, we reverse and remand for proceeding consistent with this opinion. * * *

Hendricks argued that the officers unlawfully entered his residence without a warrant in violation of the Fourth Amendment, and therefore, he had a right to resist their unlawful entry.

We also observe that in response to our supreme court’s opinion in Barnes v. State, 953 N.E.2d 473 (Ind. 2011), our General Assembly enacted Indiana Code section 35-41-3-2, otherwise known as the “Castle Doctrine.” See Cupello v. State, 27 N.E.3d 1122, 1129 (Ind. Ct. App. 2015). * * *

One recognized exception to the warrant requirement is a valid consent to entry and search. Id. (citing Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001)). Specifically, “[t]he Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained.” Georgia v. Randolph, 547 U.S. 103, 106 (2006).

However, the United States Supreme Court created an exception to this rule in Randolph and held that “a physically present co-occupant’s stated refusal to permit entry prevails, rending the warrantless search unreasonable and invalid as to him.” * * *

In this case, Jackson opened the door to the officers to allow them inside the residence. However, Hendricks, who also occupied and had authority over the home, unquestionably refused to allow Officers Olmos and Thalheimer into his residence. This is precisely the circumstance that the Supreme Court addressed in Randolph. * * *

Importantly, Jackson was not in the home when Hendricks refused to allow the officers to enter. * * *

We conclude, under these unique circumstances, that the exception established in Randolph applies, and the officers could enter the residence only if both Jackson and Hendricks consented to the officers’ entry. We must therefore consider whether the officers’ entry was valid under the exigent circumstances exception to the warrant requirement. See Harper v. State, 3 N.E.3d 1080, 1083 (Ind. Ct. App. 2014) (stating “[t]he warrantless arrest of a person in his or her home requires both probable cause and exigent circumstances . . . that make it impracticable to obtain a warrant first”) (citations omitted). * * *

For all of these reasons, we conclude that Officers Olmos and Thalheimer acted unlawfully when they entered Hendricks’ home to arrest him. See Harper, 3 N.E.3d at 1085 (reversing Harper’s resisting law enforcement conviction because the officers were not engaged in the law execution of their duties after unlawfully entering her residence); Adkisson v. State, 728 N.E.2d 175, 178 (Ind. Ct. App. 2000) (concluding that “[b]ecause the arrest was not initiated in a public place and because no exigent circumstances existed, Deputy Spencer acted unlawfully when he forcibly entered Adkisson’s residence to arrest her” for battery); see also Cupello, 27 N.E.3d at 1131-32. Because the State failed to prove that the officers were lawfully engaged in the lawful execution of their duties at the time they arrested Hendricks, the evidence is insufficient to support Hendricks’ resisting law enforcement convictions.

Reversed and remanded for proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, July 27, 2016
Posted to Ind. App.Ct. Decisions | Why is this NFP?

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

For publication opinions today (3):

In Kevin R. Koontz v. Erin L. (Koontz) Scott , a 10-page opinion, Judge Altice writes:

Kevin R. Koontz (Father) appeals the trial court’s order requiring him to pay one-third of the costs associated with his son’s college expenses. Father contends that the trial court abused its discretion in determining that Brant Scott-Koontz (Son) had not repudiated his relationship with Father. * * *

Much of Father’s argument on appeal amounts to a request to reweigh the evidence and judge the credibility of witnesses, which we cannot do. See Lovold, 988 N.E.2d at 1151. This is not a case of a father standing with open arms and suffering “the deeply painful rejection” of his child. McKay, 644 N.E.2d at 167 (quoting Milne, 556 A.2d at 865). Based on our review of the evidence and testimony most favorable to the judgment, we cannot say that we are left with a firm conviction that a mistake has been made or that the evidence does not support the trial court’s determination that Son has not repudiated his relationship with Father. Lechien, 950 N.E.2d at 844. Judgment affirmed.

In Lisa R. Harris v. State of Indiana, a 22-page, 2-1 opinion, Judge Robb writes:
Lisa Harris appeals the trial court’s denial of her motion to suppress evidence obtained from a consent search during a seat belt enforcement stop. Concluding the officer lacked an independent basis of reasonable suspicion justifying inquiry above and beyond the seat belt violation, we reverse the trial court’s order and remand for further proceedings. * * *

Trooper Organ lacked an independent basis of reasonable suspicion that would justify further inquiry during a seat belt enforcement stop. Because his questioning violated the Act, we reverse the trial court’s order denying Harris’s motion to suppress, and we remand for further proceedings. Reversed and remanded.

Crone, J., concurs.
Najam, J., dissents with opinion. [that begins on p. 14, and concludes] Nothing about the circumstances of Trooper Organ’s investigation demonstrates that he used the seatbelt violation merely to go on a fishing expedition. To the contrary, Trooper Organ’s investigation was simply good police work. The Seatbelt Enforcement Act does not require an officer who stops a motorist to quarantine and disregard the officer’s actual knowledge of the motorist’s identity and previous conduct. And where, as here, that actual knowledge is coupled with evasive and furtive behavior, the officer may connect the dots. Accordingly, I would affirm the trial court’s denial of Harris’ motion to suppress.

In Danny Cherry v. State of Indiana , a 21-page opinion, Judge Brown writes:
[Issues] I. Whether the trial court abused its discretion by admitting Cherry’s recorded interview with police as well as documents produced by various internet and cellular providers;
II. Whether the evidence is sufficient to sustain Cherry’s convictions. * * *

The first issue is whether the trial court abused its discretion by admitting Cherry’s recorded interview with police and documents produced by various internet and cellular providers. * * *

Detective Schafer obtained multiple warrants for different companies including Facebook and the service provider for the cell phone used to access Facebook. As a result of the responses to the search warrants, he determined that a Samsung Illusion model I or I110 cell phone with a specific MEID number and IP address was used to access certain Facebook pages, that the phone was purchased at a Wal-Mart store in Huntsville, Alabama, that the phone number related to the phone had been changed multiple times, and that there were several phone numbers with a 317 area code that had been called repeatedly. He determined that the IP address was physically located at 5025 Blue Spring Road in Huntsville, Alabama, and was ultimately able to narrow down a specific apartment there. He passed this information to Detectives Fogarty and Edward Brickley. * * *

Cherry cites Ind. Evidence Rule 901 and argues that there was no evidence to link the photographs or text messages that supported the State’s argument on the counts of intimidation, child exploitation, intimidation, stalking, and dissemination of matter harmful to minors other than the documents that used the MEID. Without citation to the record, he asserts that the trial court abused its discretion in overruling his timely objection to the authenticity of the documents. He does not cite to any specific exhibit out of the seventy-nine exhibits that were admitted at trial to support his argument that the trial court abused its discretion. See Ind. Appellate Rule 46(A)(8) (governing the arrangement and content of briefs and providing that “[e]ach contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22” and that “[i]f the admissibility of evidence is in dispute, citation shall be made to the pages of the Transcript where the evidence was identified, offered, and received or rejected, in conformity with Rule 22(C)”). Accordingly, we conclude that Cherry waived this argument.

NFP civil decisions today (1):

Judith Bonaventura v. Bobby Shah (mem. dec.)

NFP criminal decisions today (4):

Talon L. Roper v. State of Indiana (mem. dec.)

William Sherman Wilder v. State of Indiana (mem. dec.)

Eddy L. Buchanan v. State of Indiana (mem. dec.)

Joshua T. Prince v. State of Indiana (mem. dec.)

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

Ind. Courts - Commercial Courts Pilot Off to Slow Start

A story today by David Stafford in the Indiana Lawyer indicates that, since the opening of the six commercial court dockets around the State on June 1, few to no cases yet have been filed in the five courts outside Indianapolis, although jurisdiction is statewide. However:

Marion Superior Judge Heather Welch told members of the Indianapolis Bar Association recently that to some degree, the way the courts function will be up to the lawyers using them. Welch is one of six judges around the state assigned to hear commercial court cases, and she said about a half-dozen such cases were filed in her court in the pilot’s first six weeks.
A month ago, a June 20th ILB post quoted Chief Justice Rush in This Week on Inside INdiana Business saying that four commercial court cases had been filed at that point with Judge Welch.

Here is an ILB graphic showing the six judges and court locations. As the ILB noted in June, it appears "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." There are no special identifiers.

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

Ind. Decisions - Pollution exclusion clause decision from ND Ind. Monday

The opinion is Old Republic Ins. v. Gary/Chicago Int'l Airport (ND Ind., 7/25/16). See the write-up here from Traub Lieberman Straus & Shrewsberry LLP - a sample:

Old Republic argued that the exclusion in its policies avoided ambiguity by being broad enough to exclude all forms of pollutants and contamination, thereby avoiding the need of specifying what particular types of contaminants are excluded. Noting that no Indiana court had interpreted an exclusion worded in the same fashion as in the Old Republic policies, the court predicted that the Indiana Supreme Court likely would reject an exclusion applicable to “any kind of pollutant whatsoever” rather than specifying what pollutants would be excluded.

Posted by Marcia Oddi on Wednesday, July 27, 2016
Posted to Environmental Issues | Ind Fed D.Ct. Decisions

Ind. Courts - Update 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, July 29th.

Here is the agenda
. The main topics of discussion will include more on posting of case financial information, plus a report on online access by case type.

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 - the Supreme Court adopted a recommendation of the Task Force and appellate motions have been available since July 1st. (minutes)

At its May 6th meeting, the group discussed the posting of trial court orders and judgments. (minutes)

At its June 3rd meeting, the group discussed the case financial records information. (minutes - not yet available)*

The next meeting is planned for September 2, 2016.

________________
*The practice of this group is not to post minutes until after the draft minutes are approved at the next meeting. The ILB has not yet attempted to obtain copies of these draft minutes, although the Public Access Counelor has ruled a number of times that draft minutes are public documents.

Posted by Marcia Oddi on Wednesday, July 27, 2016
Posted to Indiana Courts

Tuesday, July 26, 2016

Ind. Decisions - More on: "Prosecutors knew molestation accusations were false"

Updating this ILB post from July 1st, Bob Kasarda of the NWI Times is reporting this afternoon that the Porter County deputy prosecutor in the case has been fired. Some quotes from the long story by reporter Kasarda:

VALPARAISO — Porter County Deputy Prosecutor Trista Hudson said she did not intend any wrongdoing last month when she failed to reveal that one of two purported victims made up at least part of the accusations in a child molestation case.

The failure, however, resulted in the accused being acquitted on all charges and it has now cost Hudson her job with the prosecutor's office.

"Prosecutors are held to a higher standard than other attorneys," Porter County Prosecutor Brian Gensel said Tuesday in a prepared statement requested by The Times.

"The decision not to disclose exculpatory information to defense counsel in a recent case fell below the standard I expect my deputy prosecutors to maintain," he said.

Hudson said, "it was an inadvertent mistake not intended, nor meant to be malicious." * * *

Hudson said she has a strong ethical track record during her nearly 14 years with the prosecutor's office in Porter County and four years in Lake County.

Porter Superior Court Judge Bill Alexa said last month he intended to refer the matter involving Hudson to the Indiana Supreme Court's Disciplinary Commission for an ethical review. Hudson also serves on the Valparaiso City Council.

Posted by Marcia Oddi on Tuesday, July 26, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal in a SSA case

In Mikeal Cole, Jr. v. Carolyn Colvin (ND Ind., Miller), a 10-page opinion, Judge Posner writes:

In this appeal from the district court’s affirmance of the Social Security Administration’s denial of social security disability benefits, Mikeal Cole, a 41‐year‐old man who has severe pain in his arms and groin and multiple gastrointestinal conditions as well, argues that the administrative law judge assessed his credibility erroneously and failed to offer a reasoned basis for rejecting a con sulting physician’s medical opinion. Recently the Social Security Administration announced that it would no longer assess the “credibility” of an applicant’s statements, but would instead focus on determining the “intensity and persistence of [the applicant’s] symptoms.” Social Security Ruling 16‐3p; “Titles II and XVI: Evaluation of Symptoms in Disability Claims,” 81 Fed. Reg. 14166, 14167 (effective March 28, 2016). The change in wording is meant to clarify that administrative law judges aren’t in the business of impeaching claimants’ character; obviously administrative law judges will continue to assess the credibility of pain assertions by applicants, especially as such assertions often cannot be either credited or rejected on the basis of medical evidence. * * *

The administrative law judge’s decision was unreasoned, and should not have been affirmed. The judgment of the district court is therefore reversed with instructions to remand the case to the Social Security Administration for reconsideration of the plaintiff’s application for disability benefits.

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

Ind. Decisions - Supreme Court decides one today, re auto insurance policy

In State Farm Mutual Automobile Insurance Company v. Carol Jakubowicz, individually and as Parent and Legal Guardian of Jacob Jakubowicz and Joseph Jakubowicz, minors, a 9-page, 5-0 opinion, Justice David writes:

This matter involves the interpretation of an automobile insurance policy in the context of a personal injury lawsuit involving an underinsured motorist (UIM) claim. The policy at issue requires that a UIM claim be brought within three (3) years of the accident and also requires that the insured fully comply with all provisions of the policy prior to bringing suit. One such provision is that State Farm will only pay if the underinsured motorist’s insurance has been exhausted. Because the provision requiring an insured to bring suit within three (3) years is in direct conflict with the policy’s exhaustion requirement, we hold that the policy is ambiguous and thus, must be construed in favor of the insured. Accordingly, we affirm the trial court’s denial of State Farm’s motion for summary judgment. * * *

The Court of Appeals accepted State Farm’s discretionary interlocutory appeal and reversed the trial court, concluding that Jakubowicz’s insurance policy was unambiguous and further, that she failed to comply with the policy’s three (3) year limitation period for filing the UIM claim. State Farm Mut. Auto. Ins. Co. v. Jakubowicz, 45 N.E.3d 500, 506 (Ind. Ct. App. 2015), vacated. Jakubowicz sought transfer, which we granted, thereby vacating the Court of Appeals opinion. Ind. App. Rule 58(A). * * *

Jakubowicz’s State Farm policy is substantially similar to the policy in Wert. Like the policy in Wert, Jakubowicz’s policy is ambiguous to extent that it contains conflicting provisions. As the trial court observed, the policy could have just stated that suit must be brought within three (3) years. The policy also could have called for exhaustion of the policy limits prior to filing a UIM claim against State Farm without a limitation on the time to do so. Instead, the policy contained a limitation period as well as additional conditions. Those conditions- that “[l]egal action may not be brought against us until there has been full compliance with all the provisions of this policy” and “[w]e will pay only if the full amount of all available limits of all bodily injury liability bonds, policies, and self-insurance plans that apply to the insured’s bodily injury have been used up by payment of judgments or settlements, or have been offered to the insured in writing” conflict with the three (3) year limitation period. (Appellant’s App. at 177, 159.)

As State Farm observed, the insured has no control over whether or when the tortfeasor offers policy limits. Thus, there are situations, like in this case, where the insured cannot both exhaust the tortfeasor’s policy limits and file a UIM suit within the three (3) year limitation period. Ambiguous insurance policies are construed against the insurer. Accordingly, we affirm the trial court’s denial of State Farm’s motion for summary judgment and remand the matter for further proceedings consistent with this opinion.

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

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

For publication opinions today (3):

In Jerry W. Young v. State of Indiana, an 8-page opinion, Judge Bradford writes:

In 2012, Appellant-Defendant Jerry Young raped A.B. In 2015, Young was convicted of Class A felony rape, Class A felony criminal deviate conduct, and Class D felony intimidation. Young was also found to be a repeat sexual offender and a habitual criminal offender. The trial court merged the convictions for rape and criminal deviate conduct and sentenced Young to an aggregate ninety-year term. On appeal, Young argues that the trial court erred by enhancing his rape conviction twice. The State concedes the trial court erred in this regard but argues that the trial court should have reduced the criminal deviate conduct charge to a lesser-included offense and applied one of the enhancements to that conviction. We reverse and remand with instructions. * * *

The trial court erred by merging Young’s convictions for rape and criminal deviate conduct and by applying two enhancements to a single conviction. On remand, we order the trial court to enter judgment of conviction for Class B criminal deviate conduct. With regards to sentencing, Young’s fifty-year sentence for rape, and thirty-year habitual offender enhancement, remain unchanged. Young’s repeat sexual offender enhancement will be attached to his criminal deviate conduct conviction with both sentences running concurrent to the rape conviction for an aggregate sentence of eighty years.

In Clayton Doctor v. State of Indiana, a 19-page opinion, Judge Riley writes:
Doctor presents one issue on interlocutory appeal, which we restate as follows: Whether the trial court erred in denying his motion to suppress the evidence seized during the course of a traffic stop.

The State raises one issue on cross-appeal, which we restate as follows: Whether Doctor’s interlocutory appeal should be dismissed because he did not timely file his Notice of Appeal. * * *

Based on the foregoing, we conclude that Doctor has not forfeited his right to appeal based on an untimely Notice of Appeal; therefore, the State’s motion to
dismiss is denied. We further conclude that the basis for the traffic stop did not violate Doctor’s constitutional rights; therefore, the trial court appropriately denied his motion to suppress.

In Lamont Perkins v. State of Indiana, an 11-page opinion, Sr. Judge Sharpnack writes:
Perkins challenges the sufficiency of the evidence supporting his conviction of possession of paraphernalia with a prior conviction. Perkins claims that because the State was required to prove that he intended to use the syringe needles to introduce a controlled substance into his body, its failure to offer evidence of track marks on his arms or evidence of past drug use, renders the evidence insufficient. Further, he claims that even though heroin residue was found in the bottle cap inside the cigarette pack, the State failed to introduce evidence of heroin residue in or on the syringe needles. In addition, he highlights what he describes as a lack of evidence that the amount of heroin found in the bottle cap was sufficient for him to inject into his body. Further, he claims that the possession of the syringe needles, plus what he describes as an insufficient amount of heroin in the bottle cap, cannot sustain his conviction because there is insufficient evidence that there was a “controlled substance . . . otherwise nearby or available in the locked facility where Perkins was returning.” * * * Affirmed.
NFP civil decisions today (0):

NFP criminal decisions today (3):

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

Hugo Hernandez-Diaz v. State of Indiana (mem. dec.)

Herbert Cox III v. State of Indiana (mem. dec.)

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

Ind. Gov't. - "Dunes pavilion work halted" [Updated]

Adding to a lengthy list of earlier ILB posts, Amy Lavalley of the Gary Post-Tribune reported Friday in a story that begins:

The Indiana Department of Natural Resource's plans to have Pavilion Partners begin renovation work on the interior of the pavilion at Indiana Dunes State Park this fall appears to be in jeopardy because the project has not yet been approved by the National Park Service.

The state park has received grant money through the federal Land and Water Conservation Fund Act, which stipulates that land in the program be open for public use in perpetuity, and any changes in that land use require review by the National Park Service.

Although the ILB has been covering the Dunes Pavilion story since 2006, this is the first we've heard of the involvement of federal money in the pavilion renovation. More from the story:
The state park received its first grant under the Land and Water Conservation Fund Act in 1972, for $174,862 to renovate the first floor of the pavilion. Seven additional grants have been received through 1987, some in conjunction with money awarded to other DNR parks, according to information provided by Kelly Pearce, a project officer with the NPS office in Omaha.

"They're given those grants for park purposes, to provide parks for their citizens and community, and we ask for that use in perpetuity," said Christine Powell, associate regional director for the park service's Midwest region office in Omaha.

If a grant recipient, which in this case is the DNR, wants to change how they're making use of their facilities, the NPS must take another look.

"If there's a change in use, we make sure access to parkland is made to the public, and that's the case here," she said.

Under a public-private partnership, Pavilion Partners is leasing the pavilion from the state park, with plans to turn the interior into a fine dining restaurant, among other amenities. Plans also call for a 17,000-square-foot banquet center adjacent to the pavilion. * * *
[A] June 14 letter from Roger Knowlton, acting chief of recreation grants for the National Park Service's Omaha office, to Cameron Clark, director of the DNR, states that further work at the pavilion cannot take place without the federal agency's approval. The interior of the pavilion was gutted last year and a comfort station with showers and restrooms was constructed.

"You inquired about moving forward with the pavilion restoration project. We informed you that work may not continue until the IDNR submits the project for approval to the NPS as either a Public Facility or Conversion of Use … We understand that IDNR would like to allow Pavilion Partners to start work in the fall, therefore we encourage IDNR to develop a proposal as soon as possible so that compliance with the LWCF program can be maintained," Knowlton wrote.

The DNR is working with the park service for the necessary approvals to move forward with the project as either a public facility or a conversion, Bortner said,

"We plan to commence the NEPA (National Environmental Policy Act) process upon receiving guidance from NPS regarding the appropriate process," he said, which includes an environmental assessment and a historical preservation review.

The plans will be made public and there will be an opportunity for public comment, he said.

The pavilion use would be considered a public facility, Pearce said, "as long as there's a net gain to the recreational benefit of the park." If that's not the case, the DNR will be required to provide property to make up for what's been lost for recreational use. The land does not have to be in a nearby location, NPS officials said, though that's preferred if it's available.

[Updated 78/1/16] "Dunes pavilion work stoppage not expected to delay opening" - that is the headline to a July 30th AP story by Tom Coyne, that concludes:
Dan Bortner, director of the DNR's Division of State Parks and Reservoirs, said the DNR is waiting to hear from the Park Service on whether the renovated pavilion will be considered a public use facility, meaning it won't have to replace it with other park land. The DNR will submit the plan from Pavilion Partners once the Park Service makes a decision.

"This should all come together once we get some answers," Bortner said.

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

Ind. Decisions - "Indy civil forfeiture lawsuit will proceed"

Updating this ILB post from July 22nd (last Friday) reporting on Marion Superior Judge Carroll's July 19th order denying Indianapolis motion to dismiss, the Indianapolis Star this morning reports on the ruling in a story by Justin L. Mack headed "Indy civil forfeiture lawsuit will proceed." The long story begins:

A lawsuit involving Indianapolis' civil forfeiture practices will proceed after a Marion County judge's order this past week.

The lawsuit, which aims to change how local police and prosecutors handle seized funds and property, accuses Indianapolis officials of "policing for profit" and following unconstitutional practices.

On July 19, Marion Superior Judge Thomas Carroll rejected a motion to dismiss the lawsuit.

More from the story:
The complaint states that Marion County law enforcement agencies received an average of $888,112 in forfeited funds annually from 2003 to 2010. That number reached about $1.5 million in 2011.

Two of the plaintiffs, Jeana and Jack Horner, said they spent nearly a year trying to get their two vehicles back after they were seized in 2013.

In that case, officials seized the Horners' 2008 Jeep Grand Cherokee and 2003 Ford F150 in August 2013, after investigators suspected that Jeana Horner's son, who was borrowing the vehicles, used them to transport marijuana. The Horners did not know about the drugs and did not face any criminal charges.

In 2014, the court ruled in the Horners' favor, but it took three weeks before they got their vehicles back, and one had been drained of its oil, Horner previously told IndyStar.

The Class D felony possession charge against her son was eventually dropped, court records show.

“We did nothing wrong, but we spent more than nine months fighting Indianapolis’ attempt to take our cars,” Horner said in a statement. “No one should lose their property without being convicted of a crime. Hopefully this lawsuit will mean fewer people have to go through the pain and frustration we endured.”

ILB: Here is the docket for the lawsuit, Jeana M. Horner, Dennis Jack Horner, Jennifer K. Thompson et al v. Terry R. Curry, Marion County Prosecutor's Office, Consolidated City of Indianapolis/Marion County,et al (49D06-1602-PL-004804). It indicates that a Motion to Certify Order for Interlocutory Appeal was filed yesterday, July 25th.

Posted by Marcia Oddi on Tuesday, July 26, 2016
Posted to Ind. Trial Ct. Decisions

Monday, July 25, 2016

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

Updating this July 7th ILB post, reporting that applications to fill the vacancy for the Indiana Utility Regulatory Commission were due by close of business on Wednesday, July 20, 2016, the Governor's Office has now announced:

... the names of 10 people who will be interviewed to serve as a commissioner at the Indiana Regulatory Commission. The candidates to be interviewed are:
  • Laura Arnold
  • Keith Beall
  • Jeb Bardon
  • Sarah Freeman
  • Jeff Golc
  • Tim Jeffers
  • David Johnston
  • Mayra Jones
  • Shawn Kelly
  • Christopher Starkey
Ronald Turpin has withdrawn his application.

The Nominating Committee is evaluating candidates to fill one current vacancy on the Indiana Utility Regulatory Commission created by the appointment of Commissioner Carolene Mays-Medley to be the Executive Director of the White River State Park Development Commission. The Committee will present Governor Mike Pence with a list of three qualified candidates from which he will select one to serve the remainder of Mays-Medley’s term. Commissioner Mays-Medley’s term expires December 31, 2017.

Interviews will be conducted on Friday, August 5, 2016, in the Indiana Statehouse, Room 319.

Members of the Nominating Committee are Committee Chair Allen Paul, Eric Scroggins, John Blevins, Larry Buell, Win Moses, Michael Evans, and Michael Mullett.

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

Ind. Gov't. - Update on "No tax break for feminine hygiene products or diapers"

That was the heading to this Jan. 28, 2016 story in the Fort Wayne Journal Gazette, reported by Niki Kelly. Some quotes:

Indiana House Republicans on Thursday turned back attempts to give Hoosiers a sales tax break when buying feminine hygiene products or diapers.

Nationally, a movement against the so-called tampon tax has popped up recently but it was a first for Indiana.

Indianapolis Democrat Rep. Christina Hale offered both amendments to a bill that provided a similar sales tax exemption for buying gold and silver bars.

She said women must buy these products every month of their lives and it can be expensive and burdensome. Hale said giving a tax break to people who like to purchase gold bars is evidence the state can do this.

But the amendment failed - with all Republicans voting against it.

A separate amendment for diapers received five Republican votes but still failed decisively. Rep. Casey Cox, R-Fort Wayne, did support the amendment.

Rep. Scott Pelath, D-Michigan City, said the base bill creates a tax break so a guy can hug his gold bar in a shelter. He encouraged them to add the amendment and it could be a bill for "prepper and pampers."

Shari Rudavsky had this story in the Indianapolis Star, also on Jan. 28. Some quotes:
Who deserves a tax break: Those who buy gold bullion, women who menstruate and buy feminine hygiene products, or families who buy diapers for their youngsters?

For a moment Wednesday, the Indiana House had the opportunity to exempt all of the above items from state sales tax.

The tax-break fervor began with a bill that addressed would-be bullion buyers, adding Indiana to a list of 34 states that provide a sales tax exemption for purchases of precious metal currency such as gold and silver coins.

Rep. Christina Hale, D-Indianapolis, proposed amendments that would extend the exemption to feminine hygiene products and diapers, hopping on to the bandwagon of a national movement to ban the so-called tampon tax. Only a handful of states deem these items necessities and tax-exempt.

With one in six women and girls in Indiana living in poverty, Hale argued that they and other women were just as deserving of a tax break when it comes to buying feminine hygiene products as are those who deal in precious metals.

In March of this year, Lucy Westcott of Newsweek reported that "Five Women Sue to End New York ‘Tampon Tax.’" Some quotes:
On Thursday, five women filed a class action against the New York State Department of Taxation and Finance and its commissioner, Jerry Boone, urging state lawmakers to lift the tax on tampons and other feminine hygeine products. The lawsuit claims that the four percent New York state tax collected on tampons and sanitary pads, which are not considered medical items under state law, “violates the Equal Protection Clauses of the United States and New York Constitutions.”

The plaintiffs—Margo Seibert, Jennifer Moore, Catherine O’Neil, Natalie Brasington and Taja-Nia Henderson—say that while New York state doesn't tax items deemed “medical,” including Rogaine, dandruff shampoo and lip balm, tampons and sanitary pads—items used only by women and classed as “general merchandise”—are taxed.

The defendants “should be required to follow the law, and return the many millions of dollars they took illegally at the expense of women’s health,” the suit states.

“It is a vestige of another era, and now is the time to end it,” the lawsuit says. Tampons and sanitary pads “are not luxury items, but a necessity for women’s health,” it goes on to say.

The federal Food and Drug Administration (FDA) classes tampons and pads as “medical devices,” according to the lawsuit. The products help prevent illnesses, the suit states. * * *

New York Governor Andrew Cuomo said on Thursday that the tax should be repealed. Earlier this year, Manhattan Assemblywoman Linda Rosenthal introduced a bill seeking to end the state's taxation on tampons and pads.

Several U.S. states, including Pennsylvania and Minnesota, have successfully stopped the tax, while Connecticut and Illinois are considering changes to the law. Earlier this month, an all-male panel of lawmakers in Utah voted against removing the tax on feminine hygiene products. President Barack Obama in January said he doesn’t agree with the tax.

Here is a copy of the lawsuit.

Last week, (July 21st) Abrigal Jones of Newsweek reported, in a story headed "New York Terminates the Tampon Tax,"

New York became the 11th state without a tax on menstrual products when Governor Andrew Cuomo signed legislation eliminating local and state sales taxes on them.

“This is a regressive tax on essential products that women have had to pay for far too long and lifting it is a matter of social and economic justice,” Cuomo said in a statement. The new law, which goes into effect on September 1, 2016, includes panty liners and newer products such as period underwear. * * *

Of the 10 other states that don’t tax menstrual products, five have no sales tax in the first place (Alaska, Delaware, Montana, New Hampshire and Oregon) and five exempt menstrual products (Maryland, Massachusetts, Minnesota, New Jersey and Pennsylvania).

Since the start of 2016, 15 states have introduced legislation or initiated legislative debate to eliminate the tampon tax. It’s a dramatic turn for an issue that was barely even whispered about one year ago. “I hope that of the 15 states that took up this issue this term, more of them will feel the pressure or the will to see it through next legislative session,” says Jennifer Weiss-Wolf, a leading writer and advocate for menstrual equity. In addition to New York, Illinois and Connecticut have both seen legislative success in repealing the tampon tax.

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

Courts - "Appeals courts split on seizing assets connected to state terror sponsors" 7th and 9th Circuits

That is the heading of this long July 22nd Reuters "One the Case" column by Alison Frankel. Here are a few quotes:

It is exceedingly difficult for U.S. victims of state-sponsored terrorism to collect money, even when they’ve won default judgments against Iran, Syria and the Sudan. * * *

In 2008, Congress wanted to knock down some of the barriers to collection for antiterrorism plaintiffs holding judgments against state sponsors. One of the biggest obstacles was the U.S. * * * Congress amended FSIA in 2008, apparently in response to the Supreme Court’s so-called Bancec doctrine. But the language of the amendment wasn’t exactly clear on whether the amendment created a new and independent right, outside of FSIA restrictions, for terror victims trying to enforce judgments against state sponsors or whether the new provision just eliminates the Bancec requirements but leaves intact other FSIA restrictions.

This week, the 7th Circuit
issued a ruling on just what seizures the amendment authorizes – and it reached precisely the opposite conclusion as the 9th Circuit in a decision last month on the same question. What’s more, the 7th Circuit panel – Judges Diane Sykes and William Bauer and U.S. District Judge Michael Reagan of East St. Louis, sitting by designation – specifically overruled two previous 7th Circuit opinions cited in last month’s contrary decision by the 9th Circuit. The 7th Circuit’s new ruling, in a case captioned Rubin v. Islamic Republic, creates a clear split between two appellate circuits on U.S. terror victims have a freestanding right to execute on judgments regardless of whether the assets they want to seize would otherwise be shielded under the Foreign Sovereign Immunities Act.

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

Ind. Decisions - More on: Purvi Patel feticide conviction vacated

Updating this ILB post from Friday, which included a summary of the opinion, here are some news rep[orts on the Court of Appeals' ruling:

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

Ind. Decision - Indiana case decided by 7th Circuit on July 22nd

In Janet Riley v. Elkhart Community Schools (ND Ind., Nuechterlein, Magistrate Judge), a 14-page opinion, Judge Bauer writes:

Plaintiff‐appellant, Janet Riley, sued defendant‐appellee, Elkhart Community Schools (“ECS”), for discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 (“ADEA”), and violation of her equal rights under 42 U.S.C. § 1981. Riley roots her causes of action in ECS’s failure to promote her to various positions during her career as a teacher with the school district. The district court granted summary judgment for ECS on all claims, based on procedural bars and insufficient evidence. We affirm.

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

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

For publication opinions today (1):

In Darrell Birge and Sandra Birge v. Town of Linden, Indiana , a 13-page opinion, Judge Robb writes:

Darrell and Sandra Birge own farmland in Montgomery County, Indiana. In 2014, the Birges filed a complaint against various governmental entities and independent contractors after modifications to an existing drainage system caused flooding on their property. The complaint named the Town of Linden (“Town”) as a defendant. The Town filed a motion to dismiss for failure to state a claim, which the trial court granted. The Birges now appeal the dismissal of their claims against the Town. Concluding the trial court erred in dismissing the Birges’ complaint for failure to state a claim, we reverse and remand. * * *

The complaint asserts claims for nuisance, civil conspiracy, and inverse condemnation. In granting the Town’s motion to dismiss for failure to state a claim, the trial court concluded it was clear on the face of the complaint that discretionary function immunity applies in this case and the Birges failed to allege facts supporting a claim for civil conspiracy. We conclude otherwise.

[A. Discretionary Function Immunity] * * * We express no opinion as to the ultimate resolution of the immunity issue, but to the extent the trial court concluded immunity under the ITCA would bar the Birges’ claim for inverse condemnation, the trial court erred. * * * If the Town is entitled to discretionary function immunity in this case, immunity will extend only to tort claims brought under the ITCA.

[B. Civil Conspiracy] * * * In its order granting the Town’s motion to dismiss, the trial court recognized the pleaded facts may support an underlying claim for nuisance1 but concluded the tort of nuisance does not constitute an “unlawful” purpose or means. See App. at 61 (noting the Birges “label the planning and construction [of the storm drain] as ‘wrong’ because of the alleged result of nuisance, not because of an unlawful purpose or means”). This conclusion was error. An allegation of civil conspiracy is merely an assertion of concerted action in the commission of a tort causing damage to the Birges. Accordingly, the trial court erred in concluding the Birges failed to allege facts supporting a claim for civil conspiracy.

NFP civil decisions today (0):

NFP criminal decisions today (2):

Shannon C. Blankenship v. State of Indiana (mem. dec.)

Dereck D. Hendricks v. State of Indiana (mem. dec.)

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

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/25/16):

Next week's oral arguments before the Supreme Court (week of 8/1/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/25/16):

Monday, July 25

Tuesday, July 26 Wednesday, July 27

Next week's oral arguments before the Court of Appeals (week of 8/1/16):

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, July 25, 2016
Posted to Upcoming Oral Arguments

Sunday, July 24, 2016

Law - "Deep dives into realities of sex offender registries two decades after they started to proliferate"

Sentencing Law and Policy recommends:

... two lengthy new pieces looking at the realities of sex offender registries:
  • "Why the sex offender registry isn’t the right way to punish rapists" [from Vox]

  • "I'm a public defender. My clients would rather go to jail than register as sex offenders." [also from Vox]

Posted by Marcia Oddi on Sunday, July 24, 2016
Posted to General Law Related

Courts - "Lyle Denniston’s SCOTUSblog Exit Interview"

This is a quite interesting interview with Lyle Denniston of SCOTUSblog, conducted by Casey Sullivan of Bloomberg Law. Recommended.

Posted by Marcia Oddi on Sunday, July 24, 2016
Posted to Courts in general

Friday, July 22, 2016

Ind. Decisions - Purvi Patel feticide conviction vacated

In Purvi Patel v. State of Indiana, a 42-page opinion, Judge Crone writes:

Thirty-two-year-old Purvi Patel managed her father’s restaurant in Mishawaka. A relationship with a restaurant employee resulted in her pregnancy. In June 2013, she purchased mifepristone and misoprostol online from a Hong Kong pharmacy and used those drugs to terminate the pregnancy at home. On the evening of July 13, she delivered a live baby of approximately twenty-five to thirty weeks gestation who died shortly after birth. She drove to the restaurant, put the baby in a nearby dumpster, and drove herself to the emergency room.

The State charged Patel with class A felony neglect of a dependent, alleging that she failed to provide any medical care to her baby immediately after its birth, which resulted in its death. The State also charged Patel with class B felony feticide, alleging that she knowingly terminated her pregnancy with the intention other than to produce a live birth or to remove a dead fetus. A jury found her guilty as charged. The trial court sentenced Patel to thirty years of imprisonment for neglect of a dependent, with twenty years executed and ten years suspended, and a concurrent executed term of six years for feticide.

On appeal, Patel argues that her neglect of a dependent conviction should be overturned because it is not supported by sufficient evidence. She also argues that her feticide conviction should be overturned because the feticide statute is either inapplicable or unconstitutional as applied to her.

As for the neglect conviction, we hold that the State presented sufficient evidence for a jury to find that Patel was subjectively aware that the baby was born alive and that she knowingly endangered the baby by failing to provide medical care, but that the State failed to prove beyond a reasonable doubt that the baby would not have died but for Patel’s failure to provide medical care. Therefore, we vacate Patel’s class A felony conviction and remand to the trial court with instructions to enter judgment of conviction for class D felony neglect of a dependent and resentence her accordingly.

As for the feticide conviction, we hold that the legislature did not intend for the feticide statute to apply to illegal abortions or to be used to prosecute women for their own abortions. Therefore, we vacate Patel’s feticide conviction. * * *

[Section 2.3 – "The legislature did not intend for the feticide statute to apply to women who have abortions" - pp. 39-42]

Conclusion. We vacate Patel’s convictions for class A felony neglect of a dependent and feticide. We remand to the trial court with instructions to enter judgment of conviction for class D felony neglect of a dependent and resentence Patel accordingly.

ILB: The ILB has had many posts involving or mentioning the Purvi Patel case - access the list here.

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

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (6):

In Gregg Appliances, Inc., and HHGregg, Inc. v. Dwain Underwood, on behalf of himself and all others similarly situated, a 9-page opinion, Judge May writes:

Dwain Underwood and other senior managers at HHGregg, Inc. (“Gregg”) brought a class action after Gregg did not pay them bonuses based on Gregg’s 2012 earnings before interest, taxes, depreciation, and amortization (“EBITDA”). Gregg asserted its EBITDA was below the threshold level for payment of the bonuses, but its calculation of EBITDA excluded nearly forty million dollars in life insurance proceeds it received after its executive chairman died. The trial court granted summary judgment for Underwood after determining a Total Rewards Statement (“TRS”) Gregg provided, indicating what level of EBITDA would result in bonuses, required the EBITDA to include the insurance proceeds. As the life insurance proceeds Gregg received that year were properly excluded from EBITDA, Gregg was not obligated to pay the bonuses.
We therefore reverse and direct entry of summary judgment for Gregg.
In Richard Wilson and Hollie Wilson v. Charles M. Huff and Bonnie M. Huff, an 11-page opinion, Judge Najam concludes:
The trial court did not err in imputing knowledge of the Huffs’ leasehold interest in the Property to the Wilsons and holding that the Wilsons failed to prove their counterclaim alleging fraudulent misrepresentation. Thus, we affirm the trial court’s judgment for the Huffs on their claim and the Wilsons’ counterclaim.
In Santiago Valdez v. State of Indiana , an 18-page opinion, Judge Baker writes:
Santiago Valdez appeals his convictions for Class B Felony Attempted Rape1 and Class C Felony Criminal Confinement.2 He argues that the trial court made evidentiary errors and that the State engaged in prosecutorial misconduct. During closing arguments, the prosecutor hinted to the jury that the defense counsel improperly influenced an expert witness outside of the trial. We find that these statements constituted prosecutorial misconduct, but that a prompt admonishment from the trial court prevented Valdez from being placed into grave peril. We also find that the trial court did not make evidentiary errors. Consequently, we affirm. * * *

Our adversarial system of justice can only function when based on a certain level of respect and decorum, and will quickly break down if attorneys hurl wild, baseless accusations of misconduct at each other. To engage in such conduct is to enter a race to the bottom, where the attorneys who are willing to make such accusations against other attorneys will sound authentic and honest (Deputy Prosecutor Hoffman made sure to preface his misconduct with, “I’ll just tell you I’ll call it as I see it,” tr. p. 1423), while more circumspect and honorable attorneys who are not willing to make such accusations will sound like they are hiding something. We cannot countenance a trial environment in which respectful attorneys have an inherent disadvantage. We admonish Mr. Hoffman to refrain from such conduct in the future.

In David Anthony Jordan v. State of Indiana , a 14-page opinion, Judge Pyle writes:

David Anthony Jordan (“Jordan”) appeals the trial court’s order revoking his probation and ordering him to serve part of his previously suspended sentence. Jordan does not challenge the sufficiency of the evidence underlying his probation violation or the trial court’s ruling that he serve twelve years of his previously suspended sentence. Instead, he challenges the validity of the probation itself. Specifically, he argues that: (1) the special judge did not have authority to enter the revocation order; (2) the original judge, who had previously recused himself from the case, did not have authority to place him on probation; and (3) his probation revocation counsel was ineffective because counsel failed to challenge the validity of Jordan’s probation on the basis that it was imposed by the previously-recused judge. Concluding that Jordan has waived his challenges to the judges’ authority and has failed to meet his burden on his ineffective assistance of counsel claim, we affirm the trial court’s order revoking Jordan’s probation.
In Mark A. Conley v. State of Indiana , a 7-page opinion, Judge Najam concludes:
This evidence demonstrates that Officer Sinks did, by visible means, order Conley to stop fleeing. Under these facts and circumstances, we hold that a reasonable person would have interpreted Officer Sinks’ hand gesture as a visual command to stop. And Officer Sinks’ testimony supports a reasonable inference that Conley saw that gesture but proceeded to run from Officer Sinks. The State presented sufficient evidence to support Conley’s resisting law enforcement conviction. Affirmed.
Purvi Patel v. State of Indiana - ILB summary here

NFP civil decisions today (1):

Michael Moore v. Brittney Baker (mem. dec.)

NFP criminal decisions today (8):

Dereck Worthington v. State of Indiana (mem. dec.)

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

Denna Kay Kinser v. State of Indiana (mem. dec.)

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

Calvin Castillo v. State of Indiana (mem. dec.)

Victor Karp v. State of Indiana (mem. dec.)

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

Morice Ervin v. State of Indiana (mem. dec.)

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

Ind. Decisions - Still more on: Institute for Justice files suit challenging Indy civil forfeiture system - suit will move forward

Updating this ILB post from Feb. 10, 2016, and this follow-up from the next day, last evening the Institute for Justice send out a news release headed "Challenge to Policing for Profit in Indianapolis Will Move Forward: Marion County judge rejects city and state’s request to dismiss case." Here are some quotes:

Indianapolis—Earlier this week, Judge Thomas Carroll of the Marion County Superior Court rejected the government’s effort to dismiss a lawsuit challenging the power of police and prosecutors in Indianapolis to “police for profit.” The ruling brings the six Indianapolis-area plaintiffs one step closer to ending local law enforcement’s practice of seizing private property and keeping the proceeds for its own budget.

The Indiana Constitution states that “all forfeitures” must go to support the state’s schools, but that has not stopped police and prosecutors in Indianapolis from keeping 100 percent of civil forfeiture proceeds for themselves. This multi-million-dollar constitutional violation has been going on for years, fueling aggressive forfeiture practices in Indiana’s capital city.

In February, the plaintiffs—three Hoosier families, represented by the Institute for Justice—filed suit to put an end to this misuse of civil forfeiture. Following the case’s filing, Indianapolis and the State of Indiana moved to dismiss the case, arguing that neither the plaintiffs nor any other private citizen had the right to challenge their misuse of forfeiture money. In its July 19 ruling, the court rejected those motions, meaning that the lawsuit will move forward.

Here is the group's website. It includes a link to the 26-page complaint.

This week's ruling by Judge Carroll has not yet been posted.

Posted by Marcia Oddi on Friday, July 22, 2016
Posted to Ind. Trial Ct. Decisions

Thursday, July 21, 2016

Ind. Courts - Courtroom 216 at Birch Bayh Federal Building and U.S. Courthouse Named in Honor of Judge Sarah Evans Barker

From a news release from the U.S. District Court, Southern District of Indiana today:

INDIANAPOLIS, Indiana (July 21, 2016): On July 14, 2016, in recognition of District Judge Sarah Evans Barker’s more than 32 years of devoted service to the United States District Court for the Southern District of Indiana and the wider community, Chief Judge Richard L. Young announced that Courtroom 216 at the Birch Bayh Federal Building and United States Courthouse has been named in Judge Barker’s honor.

President Ronald Reagan, with the support of then-United States Senators from Indiana Richard G. Lugar and Dan Quayle, appointed Judge Barker to the bench on March 14, 1984. She was the first woman appointed to the federal court in Indiana, filling the vacancy created by the death of Cale J. Holder. Judge Barker assumed senior status on June 30, 2014, but has maintained a full caseload while awaiting the confirmation of her successor. * * *

Chief Judge Richard L. Young remarked on behalf of the Court, “Judge Barker has served the citizens of the Southern District of Indiana with great distinction over the course of her entire legal career. She epitomizes all of the best qualities of a judge: fair, impartial, patient, and well-reasoned. I can think of no better way to honor her legacy than to name the courtroom she has presided in since she joined the court 32 years ago after her. All those who enter the Sarah Evans Baker Courtroom in the years to come will reflect on the many contributions Judge Barker has made to the bench, the bar, and the wider community.”

An event celebrating the naming of Judge Barker’s courtroom will be held in the fall, at which time a plaque will be placed inside the courtroom, along with two smaller plaques at the courtroom entrances.

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

Ind. Decisions - Supreme Court decides dispute re teachers' collective bargaining

In Jay Classroom Teachers Association v. Jay School Corporation and Indiana Education Employment Relations Board, a 12-page, 4-1 opinion, Chief Justice Rush writes:

In 2011, our Legislature made significant amendments to statutes addressing collective bargaining for teachers and their employers. Pursuant to these amendments, when the parties fail to reach a collective bargaining agreement (“CBA”) regarding salaries, wages, and related fringe benefits, the Indiana Education Employment Relations Board (“IEERB”) appoints a mediator. If mediation also fails to produce a CBA, the parties must exchange their last best offers (“LBOs”). The IEERB then appoints a factfinder, who considers certain statutory factors—such as whether an LBO will cause the school corporation to engage in deficit financing—and accordingly selects which side’s LBO to adopt as the CBA for that year. The adopted LBO may not include a provision that conflicts with state or federal law, and a party may appeal the factfinder’s decision to the IEERB.

Here, a teachers association appealed a factfinder’s decision to adopt the school’s LBO. The IEERB affirmed the factfinder, approving a contract provision allowing a superintendent to place teachers hired mid-school-year on any line of an established, bargained-for salary scale. In so doing, the IEERB rejected the teachers association’s claim that the salary flexibility provision unlawfully gave the superintendent unilateral and unfettered discretion over late-hires’ salaries, thereby conflicting with the association’s statutory right to bargain collectively to establish salaries. Given the deferential standard of review afforded to agency action, we conclude the IEERB’s affirmance was lawful. We find that the adopted LBO, including the salary flexibility provision, was, in fact, collectively bargained and that important checks limited the superintendent’s discretion. * * *

The Court of Appeals
agreed with the Association and reversed the trial court, holding the salary flexibility provision “unambiguously, impermissibly conflicts with the Association’s statutory right to collectively bargain to establish salaries.” Id. The School and the IEERB sought transfer, which we granted, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A). * * *

We hold the Association failed to meet its burden under the AOPA, as it did not show that the IEERB’s decision adopting the School’s LBO was invalid. Rather, we defer to the IEERB’s conclusion that the salary flexibility provision was not unlawful, noting both that the provision in question was collectively bargained and that important checks limited the superintendent’s discretion in establishing late-hires’ salaries. Consequently, we affirm the trial court.

David, Massa, and Slaughter, JJ., concur.
Rucker, J., dissents with separate opinion. [that reads in full] I respectfully dissent. Indiana Code section 20-29-4-1 provides in relevant part: “School employees may . . . participate in collective bargaining with school employers through representatives of their own choosing . . . to establish, maintain, or improve salaries, wages, salary and wage related fringe benefits . . . .” And Indiana Code section 20-29-6-2(a)(2) provides in relevant part: “Any contract may not include provisions that conflict with . . . school employee rights set forth in IC 20-29-4-1 . . . .” As the Court of Appeals points out the LBO provision authorizing the Superintendent to determine unilaterally the salary of teachers hired after the school year begins “unambiguously, impermissibly conflicts with the Association’s statutory right to collectively bargain to establish salaries under Section 20-29-4-1 and thus violates Section 20-29-6-2(a)(2).” Jay Classroom Teachers Ass’n v. Jay Sch. Corp., 45 N.E.3d 1217, 1226-27 (Ind. Ct. App. 2015). I agree and would thus join my Court of Appeals colleagues in reversing the judgment of the trial court.

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

Environment - "Drowning reports show Lake Michigan is the deadliest Great Lake"

This lengthy, informative story, reported by Marwa Eltagouri, appeared July 16th in the Chicago Tribune. A few quotes:

While all the Great Lakes can be dangerous, metrics point to Lake Michigan being the deadliest — it has had nearly as many drownings and water rescues as the four other Great Lakes combined since 2010. * * *

Experts said the distinctive shape of the lake, which is 307 miles long with parallel, uninterrupted shores running north to south, makes it susceptible to dangerous currents. Lake Michigan is also the Great Lake with the sandiest shores, drawing more visitors and creating tides along sandbars that are deceptively strong and prone to risky currents.

"People go out there, unaware of the risk. Then those waves come and beat you up. They're relentless, and that's something that's radically different from what the ocean has," said Mark Breederland, an educator with the Michigan Sea Grant Extension. "Oceans have long, periodic waves. Our waves are every three seconds. Here comes another one and another one and another one."

There is much more information in this valuable story.

Posted by Marcia Oddi on Thursday, July 21, 2016
Posted to Environment

Ind. Decisions - Supreme Court disbars Goshen attorney, the second attorney disbarred this week

In In the Matter of: Joseph C. Lehman, a 3-page, 5-0, per curiam attorney disciplinary action, the Court writes:

We find that Respondent, Joseph Lehman, engaged in conduct in contempt of this Court by repeatedly engaging in the practice of law while suspended. For his contempt, we conclude that Respondent should be disbarred. * * *

Respondent’s repeated contemptuous acts over the years have resulted in fines, imprisonment, and the suspension of his law license. None of the sanctions previously imposed has deterred Respondent from continuing to engage in the practice of law in defiance of his suspension order, and Respondent’s repeated violations of that order have exposed the public to the danger of misconduct by an attorney who has yet to prove his remorse, rehabilitation, and fitness to practice law through the reinstatement process. Under these circumstances, the Court concludes that disbarment is warranted.

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

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (4):

In Manee Edler v. Regions Bank, and Jenner Properties, LLC, an 11-page opinion, Judge Barnes writes:

Manee Edler appeals the denial of her motion to correct error, which sought to set aside the payment of mortgage foreclosure surplus proceeds to Regions Bank (“Regions”). We reverse and remand.

The sole issue we address is whether the trial court’s disbursement of the foreclosure sheriffs’ sale surplus proceeds complied with applicable statutes. * * *

The trial court misinterpreted or misapplied the law regarding disbursement of surplus sale proceeds following a sheriff’s foreclosure sale. As such, it abused its discretion in denying the Edlers’ motion to correct error. We reverse the denial of that motion and remand with instructions that the surplus sale proceeds be disbursed to Manee.

In Maureen Maynard, as Personal Representative of the Estate of Frank Cavazos v. Golden Living in its own capacity and d/b/a Golden Living Center-Sycamore, et al., and Anonymous M.D., et al., a 14-page opinion, Judge Mathias writes:
Maureen Maynard (“Maynard”) as personal representative of the Estate of Frank Cavazos (“Cavazos”) filed a complaint in Howard Superior Court alleging negligence and breach of contract by GGNSC Kokomo LLC d/b/a Golden LivingCenter-Sycamore Village and Hendricks Regional Health d/b/a Golden LivingCenter-Sycamore Village (“Golden Living”). Golden Living filed a motion to dismiss, demand for arbitration, and motion to compel arbitration, which the trial court later granted after a hearing on the matter was held. Maynard now brings this interlocutory appeal and argues that the trial court erred in granting Golden Living’s motion to dismiss, demand for arbitration, and motion to compel arbitration. We affirm.
In William Hunter v. State of Indiana , an 8-page opinion, Judge Bailey writes:
In light of the nature of his offense and his character, we cannot conclude that Hunter’s statutory maximum sentence, with five years to be served on in-home detention, is inappropriate.

“Recommendation of Plea”

We write additionally, sua sponte, to note an unusual and concerning facet of this case. The trial court here was presented with a document captioned as a “Recommendation of Plea” and signed by counsel for both parties and by Hunter himself. The trial court apparently viewed the Recommendation of Plea as something other than a plea agreement, and thus believed it lacked any discretion over whether to accept or reject Hunter’s plea and the State’s dismissal of the remaining charges in exchange for the plea. * * *

The Recommendation of Plea document set forth a quid pro quo arrangement whereby Hunter agreed to enter a guilty plea on one charge, with the State agreeing to dismiss other charges “in exchange therefor.” (App’x at 62.) The document went on to recite—as would a plea agreement—the various representations and waivers ordinarily present in a plea agreement. This included the following text: “I understand that the Court is not bound by this Recommendation of Plea.” (App’x at 62.)

“James Whitcomb Riley (1849-1916), our celebrated ‘Hoosier Poet,’ is widely credited with the origination of the Duck Test; as he expressed it, ‘[w]hen I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.’” Walczak v. Labor Works-Ft. Wayne, LLC, 983 N.E.2d 1146, 1148 (Ind. 2013). This Recommendation of Plea is a duck—or, caption aside, a plea agreement. Trial courts have discretion to accept or reject plea agreements. [cites omitted] Generally, the substance of a pleading or motion governs over its form. [cites omitted] The trial court would, then, have been able to exercise its discretion to decide whether to accept or reject the plea agreement.

In Mikel An Krueger v. State of Indiana , a 7-page opinion, Judge Barnes concludes:
We acknowledge that there were differing expert opinions presented here and that some witness testimony conflicted with other witness testimony. However, resolving those conflicts was the jury’s responsibility. On appeal, we cannot reweigh the evidence or judge the credibility of the witnesses. Bailey, 907 N.E.2d at 1005. We conclude that the State presented sufficient evidence to show that Krueger knowingly or intentionally placed A.G. in a situation that endangered his life or health and resulted in serious bodily injury.

Conclusion. The evidence is sufficient to sustain Krueger’s conviction for Class B felony neglect of a dependent. We affirm.

NFP civil decisions today (1):

B.L. v. J.S. (mem. dec.)

NFP criminal decisions today (5):

Michael C. Stollings v. The State of Indiana (mem. dec.)

Clarence Stout a/k/a Larry Cornell v. State of Indiana (mem. dec.)

Jacoby Sanders v. State of Indiana (mem. dec.)

George Dixon v. State of Indiana (mem. dec.)

Jeremy Michael Neloff v. State of Indiana (mem. dec.)

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

Courts - "Courts grapple with jurors' social media privacy"

Sudhin Thanawala of the AP has a good article surveying varying positions on the practice of attorneys "mining prospective jurors' Facebook, Twitter and other social media accounts." A few quotes from the lengthy story [here is another link to the same story]:

The American Bar Association has said the searches are ethical, and a ruling by the Missouri Supreme Court bolstered arguments that attorneys have a duty to do online research of prospective jurors. Still, some judges have deemed the online searches invasive and banned them.

Now, a federal judge's ruling in a copyright battle between Silicon Valley heavyweights Oracle and Google has reignited debate about the practice while also offering a potential middle ground.

U.S. District Judge William Alsup, raising concerns about prospective jurors' privacy, said attorneys could research the jury panel but would have to inform it in advance of the scope of the online sleuthing and give the potential jurors a chance to change online privacy settings.

Otherwise, they had to agree to forego the searches.

Alsup said prospective jurors are not "celebrities or public figures ... but good citizens commuting from all over our district, willing to serve our country."

This article by Eriq Gardner in the March 28th Hollywood Reporter includes a copy of the March 25, 2016 opinion in Oracle v. Google.

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

Ind. Gov't. - The Right to Hunt and Fish Amendment will be on the November Ballot

As the ILB posted on April 16, 2015:

Ind. Gov't. - "Hoosiers to decide whether 'right to hunt' belongs in Constitution"

The headline pretty much says it all; SJR 2 has now been passed by two General Assemblys and will go on the statewide ballot at the November [2016] general election. Here is Dan Carden's story in the NWI Times. It includes the language of the proposed constitutional amendment.

The NRA's Institute for Legislative Action has now begun a campaign urging Indiana voters to ratify this proposed amendment to the Indiana Constitution when they vote this Novemeber.

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

Ind. Decisions - 7th Circuit decided one Indiana case yesterday, disqualifying the district court judge

In Robertson Fowler, III v. Keith Butts (SD Ind., Magnus-Stinson), a 12-page opinion, Judge Easterbrook writes [ILB emphasis]:

Robertson Fowler pleaded guilty in Indiana to unlawful possession of a firearm by a “serious violent felon” who was also a habitual offender. The judge sentenced him to 30 years’ imprisonment: 15 for the possession offense and 15 extra on account of his criminal history.

While his case was on appeal, the Supreme Court of Indiana held that a prior conviction used to establish status as a “serious violent felon” cannot also be used to establish status as a habitual offender. Mills v. State, 868 N.E.2d 446 (Ind. 2007). Fowler’s appellate lawyer did not bring Mills to the attention of the intermediate appellate court, which affirmed his sentence. Fowler v. State, 2007 Ind. App. LEXIS 2015 (Aug. 31, 2007). On collateral review the same court held that it would not have done any good to rely on Mills, because Fowler’s plea bargain waived reliance on the approach that Mills adopted. Fowler v. State, 977 N.E.2d 464 (Ind. App. 2012). Fowler then filed a federal collateral attack under 28 U.S.C. §2254, contending that he had received ineffective assistance of counsel in his initial appeal. The district court denied this petition, relying on the state judiciary’s conclusion that Fowler had waived the benefit of Mills, and that given the waiver Fowler did not suffer any prejudice from counsel’s omission. 2015 U.S. Dist. LEXIS 6419 (S.D. Ind. Jan. 21, 2015). Fowler contends in this court that the state’s 2012 appellate decision was wrong: that he had not waived the benefit of the Mills theory, and that a careful lawyer therefore would have relied on Mills in the initial appeal.

We do not address the substance of Fowler’s argument, because a procedural problem takes precedence. District Judge Magnus-Stinson, who denied Fowler’s federal collateral attack, also was the person who sentenced Fowler during her time on the state’s bench. We held in Weddington v. Zatecky, 721 F.3d 456, 461–63 (7th Cir. 2013), that reasonable observers would doubt the impartiality of a former state judge who is asked to assess the validity of her own decision after coming to the federal bench, and that 28 U.S.C. §455(a) therefore requires the case to be heard by a different federal judge. * * *

For the reasons given above and in Weddington, “all” is better than “none”: a federal judge al-ways is disqualified from hearing a collateral attack on a judgment he or she entered or affirmed as a state judge. Judge Magnus-Stinson should have turned this proceeding over to a different judge. Indiana maintains, however, that Fowler forfeited his opportunity to have the case heard by someone else, because he did not ask this court to issue a writ of mandamus that would have prevented Judge Magnus-Stinson from deciding the case. * * *

The Supreme Court has allowed litigants to seek disqualification despite the absence of a protest in the court where the disqualified judge sat. See Nguyen v. United States, 539 U.S. 69 (2003). Both Nguyen and the recent Williams v. Pennsylvania, 136 S. Ct. 1899 (2016), treat the participation of a disqualified judge as a form of structural error, which may be noticed at any time. In both Nguyen and Williams the disqualified judge participated in an appellate court that decid-ed the case unanimously. The Supreme Court reversed both judgments even though both cases likely would have come out the same way with a different complement of judges.

It follows from this discussion that Ruzzano, Johnson, and any similar decisions in this circuit must be, and are now, overruled to the extent they forbid appellate review of judicial-disqualification issues in the absence of a motion in the district court.

Because this opinion overrules two lines of decisions in this circuit, it was circulated before release to all judges in active service. See Circuit Rule 40(e). None of the judges fa-vored a hearing en banc.

The judgment is vacated, and the case is remanded for decision by a different district judge.

Posted by Marcia Oddi on Thursday, July 21, 2016
Posted to Ind. (7th Cir.) Decisions

Wednesday, July 20, 2016

Ind. Courts - "DCS to Appeals Court: You Can't Make Us Hire More Caseworkers"

This morning a Court of Appeals panel (Judges Riley, Kirsch and Robb) heard oral argument in the case of Mary Price v. Indiana Department of Child Services.

49A05-1602-PL-00380 is the case docket, from which you may download the briefs, but not the trial court ruling. You may watch the archived video of the oral argument here.

Brandon Smith of Indiana Public Media attended the argument and posted this story this afternoon. Some quotes:

Indiana law says the Department of Child Services must provide enough caseworkers so that the average caseload doesn’t exceed 17 children.

All but one of the 19 regions in the state exceeds that standard. Caseworker Mary Price oversees 43 children.

The ACLU of Indiana sued DCS on Price’s behalf, trying to force the agency to hire more caseworkers. A trial court judge ruled that Price had no right to bring the suit and should use administrative channels.

In front of the Court of Appeals, attorney for DCS Frances Barrow, in an exchange with Appellate Judge Margret Robb, argued that even if Price can sue, DCS is already doing everything it can to meet the standards.

And Barrow says there’s nothing a court could further order them to do -- even as Judge Robb expressed skepticism:

“You’re saying it’s reasonable to ask them to do two-and-a-half to three times what the statute says they should be doing,” Robb asked Barrow.

“They are doing probably the most difficult job in state government,” Barrow responded.

But ACLU legal director Ken Falk says only the court system can provide a legitimate remedy.

“DCS’ failure to comply obviously hurts us all but it specifically injures the family case managers, whose caseloads are directly benefitted by the statute, if it would be complied with,” Falk says.

Reporter Smith also posted over a dozen informative tweets during the argument itself, which you may access at @brandonjsmith5.

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

Ind. Courts - Porter County Courthouse vandalized

Here is a photo from the story by Bob Kasarda in the NWI Times.

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

Ind. Gov't. - "Dunes pavilion alcohol plan moving forward"

Updating this ILB post from July 11th, here are some quotes from Dan Carden's NWI Times report yesterday:

INDIANAPOLIS — A state administrative rule change required for alcohol to be sold in a renovated pavilion at Indiana Dunes State Park has cleared its first hurdle.

The Indiana Natural Resources Commission unanimously gave preliminary approval Tuesday to the revised rule that permits alcohol in the pavilion, a potential adjacent banquet center and up to 100 feet into the parking lot. * * *

The pending rule change now goes to the governor's Office of Management and Budget for review of its financial impact on the state — a process likely to take two to six months.

Once evaluated by OMB, it will return to the Natural Resources Commission for a final public hearing prior to a vote on adoption.

Norman Hellmers, of Valparaiso, speaking on behalf of Dunes Action!, a group opposed to alcohol in the park, urged the committee to short-circuit that process by refusing to even preliminarily accept the rule.

He warned that alcohol at the Dunes will lead to a return of the bad old days where gangs ran rampant throughout the park.

"There are not masses of people saying we want this. People are saying we don't want this," Hellmers said. "10,000 people have signed petitions against alcohol and against the banquet center." * * *

The rule change process is separate from DNR obtaining Indiana Alcohol and Tobacco Commission approval for vendors to sell beer, wine and liquor in nine state parks, including Dunes.

John Davis, deputy DNR director, said the agency plans to apply for those permits in August or September.

A new state law mandates the ATC issue "state park" alcohol permits to DNR, upon request, and without being subject to local review or approval, after the Porter County Alcoholic Beverage Commission twice denied Pavilion Partners, the company renovating the Dunes pavilion, the alcohol sales permit it said is needed to run a successful operation.

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

Ind. Courts - Mandatory pro bono for SD Ind. practitioners

Effective Sept. 1, 2016, Local Rule 87 - Representation of Indigent Litigants. This requirement to provide indigent litigants with pro bono legal services will allow the federal district court for the SD Ind. to recruit counsel to represent an indigent litigant "using the Voluntary Panel or the Obligatory Panel." More:

(1) Voluntary Panel. The Voluntary Panel consists of attorneys who have applied for membership and who are willing to volunteer to represent litigants who are unable to afford representation. Any attorney who is a member of this court’s bar may join the Voluntary Panel.

(2) Obligatory Panel. The Obligatory Panel consists of attorneys who are members of this court's bar and have appeared in a threshold number of civil cases in this district during the previous calendar year.

More:
The threshold number of appearances entered in 2015 to qualify for the 2016 Obligatory Panel is 10.

The threshold number of appearances to qualify for the Obligatory Panel in all subsequent calendar years is 5. This number may be adjusted by way of future General Order.

Posted by Marcia Oddi on Wednesday, July 20, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Duffy is now deceased and so beyond our jurisdiction"

That is from Chief Judge Wood's July 19th opinion in LIGHTSPEED MEDIA CORP. v. ANTHONY SMITH, et al., out of the SD Ill., that begins:

When last we considered John Steele and Paul Hansmeier’s challenges to contempt sanctions imposed on them, we gave them some friendly advice: stop digging. See Lightspeed Media Corp. v. Smith, 761 F.3d 699 (7th Cir. 2 Nos. 15‐2440 & 15‐2682 2014) (Lightspeed I). Apparently they did not realize that we meant what we said. Hoping to avoid paying additional sanctions, they dissembled to the district court and engaged in discovery shenanigans. Anthony Smith, a defendant in the underlying litigation, found out what was going on and moved for yet more contempt and discovery sanctions against Steele, Hansmeier, and Paul Duffy. (We occasionally refer to them collectively as the Attorneys.) Although the district court initially denied his request, it granted Smith the requested sanctions on a motion for reconsideration. Duffy is now deceased and so beyond our jurisdiction. Hansmeier and Steele have appealed, arguing that the district court erred in (1) revisiting its initial ruling on Smith’s motion; (2) finding the Attorneys in contempt; and (3) sanctioning the attorneys for discovery misconduct. With regard to Steele, we affirm the district court’s discovery sanction and vacate its contempt sanction. We dismiss Hansmeier’s appeal.

Posted by Marcia Oddi on Wednesday, July 20, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Barbara Hill, individually and as guardian of Charles Hill, incapacitated, and as next friend of Alexandra Hill, a minor, and Macey Hill, a minor, et al. v. Erich E. Gephart, et al., a 5-page opinion on rehearing, Judge Mathias concludes:

Therefore, Charles’s testimony creates a genuine issue of material fact as to whether he was contributorily negligent in walking on the right side of the road instead of the left side as Indiana Code section 9-21-17-14 requires. Again, it is Charles’s burden at trial to rebut the presumption that he was contributorily negligent and acted reasonably in violating the statute.

Because Investigator Senefeld’s declaration and photos were admissible and we relied on Charles’s testimony to conclude that a genuine issue of material fact existed as to his contributory negligence, we grant Appellee’s motion for rehearing for the limited purpose of clarification and affirm our May 6, 2016 opinion in all other respects.

Kirsch, J., concurs.
Brown, J., would grant rehearing for the purpose of affirming the trial court, in accordance with her dissent expressed in the May 6, 2016 opinion.

In Milbank Insurance Company v. Indiana Insurance Company, et al. , a 20-page opinion, Judge Robb writes:
Milbank Insurance Company filed a declaratory judgment action seeking to determine, as between its personal auto policy and Indiana Insurance Company’s business auto policy, which policy was primary and which insurer owed a duty to defend and indemnify Sydney Mireles in an underlying personal injury action against her. On summary judgment, the trial court determined the Milbank policy was primary. Milbank now appeals, raising several issues which we consolidate and restate as whether the trial court erred in determining the Milbank policy was primary. Concluding Milbank’s appeal is untimely, but that regardless, the trial court did not err, we affirm.
NFP civil decisions today (2):

In the Matter of the Termination of the Parent-Child Relationship of S.F., Father, and G.F. and S.S., Children, S.F. v. Indiana Department of Child Services (mem. dec.)

M. Jewell, LLC v. Ezeguiel Garcia and William Shoemaker (mem. dec.)

NFP criminal decisions today (2):

Isaac Perez v. State of Indiana (mem. dec.)

Larry W. Scroggins, Jr. v. State of Indiana (mem. dec.)

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

Ind. Decisions - Supreme Court disbars Timothy Durham

In In the Matter of: Timothy S. Durham, a 3-page, 5-0, per curiam attorney disciplinary action, the Court writes:

We find that Respondent, Timothy Durham, engaged in attorney misconduct. For this misconduct, we conclude that Respondent should be disbarred. * * *

In March 2011, Respondent was indicted in federal court on twelve felony counts rooted in a complex scheme of securities and wire fraud. Respondent was convicted on all counts following a jury trial in June 2012 and later was sentenced to fifty years in prison. * * *

Turning to the issue of appropriate discipline, we agree with the hearing officer’s assessment in this case that “Respondent’s fraudulent actions over an extended period of time . . . suggest a level of greed which knew no bounds and displayed a total lack of concern for the thousands of customers Respondent financially ruined.” (HO’s Report at 5). In Matter of Page,
8 N.E.3d 199 (Ind. 2014), we concluded that a suspension of at least two years without automatic reinstatement was appropriate discipline for an attorney convicted of a single count of aiding and abetting wire fraud, where the crime had not resulted in loss or injury and the attorney had not violated a position of trust.

In sharp contrast, Respondent’s convictions on ten felony counts involved an ongoing scheme of wire and securities fraud that spanned several years and caused over $200 million in losses to thousands of victims. We have consistently imposed disbarment where an attorney exhibits a pattern of conversion of client funds. See, e.g., Matter of Johnson, ___ N.E.3d ___, 2016 WL 2897399 (Ind. May 18, 2016); Matter of Antcliff, 693 N.E.2d 525 (Ind. 1988). We see no reason to reach a different result with respect to Respondent’s fraudulent looting of funds entrusted to him by investors.

The Court concludes that Respondent violated the Rules of Professional Conduct by defrauding thousands of investors of over $200 million. Respondent already is under an order of interim suspension in this case as well as a separate suspension order for nonpayment of dues. For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state, effective immediately.

Posted by Marcia Oddi on Wednesday, July 20, 2016
Posted to Ind. Sup.Ct. Decisions

Tuesday, July 19, 2016

Ind. Law - IU-McKinney's Indiana Law Review Vol. 49 now available

And it looks like it contains a lot of good reading. Here is the TOC.

The lead article is on a topic, judicial notice in the age of the internet, that has been a focus of the ILB in a number of past posts (e.g. Dec. 8, 2015 on independent research by judges). From the intro to the article, which is authored by Indiana Court of Appeals Judge Robb and three of her clerks:

In an age when nearly every person carries a personal mini-computer at all times and thinks nothing of immediately running a search for any question that crosses her or his mind, the parameters of judicial notice are more important than ever before.23 This Article provides an overview of judicial notice as a doctrine, how Indiana appellate courts have handled judicial notice in the past, how that informs the taking of judicial notice currently, and how courts could consider the use of judicial notice in the future.
The volume contains a selection of tributes to now-retired 7th Circuit Judge John Tinder.

Taking up the bulk of the volume, as this is the annual survey of Indiana law issue, are numerous valuable articles on recent Indiana development in statutory and case law.

The final article is "Selected Developments in Indiana Criminal Sentencing and Death Penalty Law (1993-2012)," by Frank Sullivan, Jr.

Posted by Marcia Oddi on Tuesday, July 19, 2016
Posted to Indiana Law

Courts - "Letting Prosecutors Write the Law: It’s more common than you think" [Updated]

That is the headline of this article by Andrew Cohen of The Marshall Project. (h/t @adamliptak) It begins:

After we published our “Case in Point” story of Doyle Lee Hamm, an Alabama death row inmate whose judge signed off on a vital 89-page opinion without apparently ever reading it, we received a wave of emails from defense attorneys. Representing clients in Georgia, Louisiana, Kentucky, South Carolina, and Ohio, they wanted us to know that this had happened to them, too, and that they believed from their long experience practicing in their jurisdictions that such “ghostwriting” was a routine part of capital practice in those states.

Ghostwriting occurs when prosecutors or state attorneys draft substantive opinions or orders that state judges then quickly sign, often without altering a single word or fixing typos, thus elevating to case law one side’s naturally biased view of the facts and the law of a case. The practice exists even though the Supreme Court has frowned on it and state bar officials have disciplined judges for it. It exists even though it undermines one of the more fundamental premises in our justice system; that judges will undertake an independent evaluation of contested issues in a case and not just take one side’s word for things. The result is that capital defendants remain on death row, or are executed, based on findings of fact and conclusions of law generated by the very people trying to execute them.

We are not talking about instances where a judge asks the attorneys in open court to help expedite the resolution of a case by drafting a brief order memorializing what the judge already has ruled. That type of bureaucratic “ghostwriting” is commonplace and makes the legal system more efficient.

[Updated at 2:00 pm] The ILB has received this note:
Marcia,

I saw your post concerning “ghostwriting” and appreciate you posting that. Our Supreme Court has addressed this issue in the PCR context. See Stevens v. State, 770 N.E.2d 739, 762 (Ind. 2002) (noting that “[w]hile near verbatim reproductions may appropriately justify cautious appellate scrutiny, we decline to hold that the post-conviction court’s utilization of the State’s proposed findings in the present case constituted a failure to provide the defendant with a full, fair and unbiased adjudication of his post-conviction claims.”), reh'g denied, cert. denied, 540 U.S. 830 (2003).

Sincerely,

Scott L. Barnhart, Partner
Keffer Barnhart LLP

ILB: See section 5(a), near the end of the above-cited case.

Posted by Marcia Oddi on Tuesday, July 19, 2016
Posted to Courts in general

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):

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

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

Law - "Justice department 'uses aged computer system to frustrate Foia requests'"

That is the headline to an interesting story July 16th in The Guardian, reported by Sam Thielman. The story begins:

A new lawsuit alleges that the US Department of Justice (DoJ) intentionally conducts inadequate searches of its records using a decades-old computer system when queried by citizens looking for records that should be available to the public.

Freedom of Information Act (Foia) researcher Ryan Shapiro alleges “failure by design” in the DoJ’s protocols for responding to public requests. The Foia law states that agencies must “make reasonable efforts to search for the records in electronic form or format”.

In an effort to demonstrate that the DoJ does not comply with this provision, Shapiro requested records of his own requests and ran up against the same roadblocks that stymied his progress in previous inquiries. A judge ruled in January that the FBI had acted in a manner “fundamentally at odds with the statute”.

Now, armed with that ruling, Shapiro hopes to change policy across the entire department. Shapiro filed his suit on the 50th anniversary of Foia’s passage this month.

Posted by Marcia Oddi on Tuesday, July 19, 2016
Posted to General Law Related

Ind. Gov't. - More on "ALEC to hold national meeting in Indianapolis"

Updating this brief ILB post from July 7th, about the upcoming 43rd annual meeting of the American Legislative Exchange Council (ALEC) in Indianapolis on July 27 to 29, the group has now announced that Vice Presidential Candidate Mike Pence will speak at the annual meeting. Here is the complete agenda.

Here is a long list of other ILB posts on ALEC.

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

Ind. Gov't. - Newspaper denied access to surveillance video from school gym cameras

Here is a new informal opinion issued by the Indiana Public Access Counselor, 16-INF-21: Complaint against the Northeast Dubois School Corporation. (It is apparently erroneously dated July 21, 2016.) The informal inquiry was filed by the Dubois County Herald. Some quotes from the PAC response:

This is in response to your informal inquiry regarding whether the Northeast Dubois School Corporation (“Corporation”) violated the Access to Public Records Act. As of the writing of this opinion, the Corporation has not responded to your inquiry, despite an invitation by this office to do so. * * *

BACKGROUND You seek a determination as to whether the Corporation violated the APRA. On April 19, 2016 a complaint was made to the Corporation regarding a coach at Dubois Middle School. The Coach allegedly threw volleyballs at a student during practice. You sought a copy of the surveillance video from gym cameras (as did the mother of the student) and were told by the school corporation attorney the records were considered educational records deemed confidential under FERPA (Family Educational Rights and Privacy Act). * * *

[T]he U.S. Department of Education has some limited issued guidance regarding surveillance videos * * *

According to this unofficial guidance, the mother of the students would have standing to request the video and share with the Herald at her discretion. It does not appear as if the DOE would consider the Herald have the same standing. If they are not educational records, however, neither FERPA nor Indiana Code § 20-33-7-1 would apply. Given this unofficial guidance was subsequent to the PAC opinion in 2006, this Office’s position is general surveillance videos are not germane to a student’s performance and are not intended to be considered educational videos. (See also Formal Opinion of the Public Access Counselor 14-FC-272).

While Indiana Courts have not ruled on the matter, other states have found that surveillance videos are not educational in nature and are public record (Rome City School Dist. v. Grifasi, 806 N.Y.S.2d 381 (N.Y. Sup. Ct. 2005) (Video surveillance tape not an education record under FERPA, and therefore subject to disclosure); Lindeyan v. Kelso School Dist., 172 P.3d 329 (Wash. 2007) (Video subject to disclosure under state law).

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

Ind. Decisions - Possessing parlay cards not against the law, trial court rules

Stan Maddux of the NWI Times reports today:

MICHIGAN CITY — Charges have been dropped against four members of an alleged Michigan City sports betting ring.

In his July 11 decision, LaPorte Superior Court 1 Judge Michael Bergerson ruled it's not against the law to have parlay cards and there were no specific allegations in the case they were being used specifically for gambling or any other crime.

Prosecutors were given permission to amend the charging information to reflect criminal violations were occurring, but failed to meet a June deadline imposed by the judge for doing so, Bergerson said. * * *

According to court documents, the investigation into illegal sports wagering on professional and college football games headed up by the Indiana Gaming Commission began in 2010 and was revived in 2013 when information developed about "bookies" in the Michigan City area.

It was alleged Biela printed the parlay cards listing the upcoming games for the week and the odds of those match ups.

According to authorities, the cards were picked up from Biela by four men and distributed to bars and restaurants for customers to place bets.

The men returned the following week to give out more cards and to collect the payouts, authorities said.

In his ruling, Bergerson said the defendants were charged with either printing or possessing parlay cards, but neither is a crime since Indiana law doesn't consider parlay cards a gambling device.

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

Monday, July 18, 2016

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

Here is the Clerk's transfer list for the week ending Friday, July 15, 2016. It is two pages (and 24 cases) long.

One transfer were granted last week:

In addition, there were two cases last week where transfer was denied by a 3-2 vote:

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

Ind. Courts - Four Court of Appeals judges are up for retention in November

The filing deadline was July 15th and all four of the Court of Appeals judges who are up for retention this year have filed to stand for another 10-year term. Indiana Courts has now sent out this release:

Four Court of Appeals judges are up for retention on Election Day in November. Voters will decide “yes” or “no” on whether to retain each appellate judge. A website has been designed by the Supreme Court’s Office of Judicial Administration as a way for voters to make informed decisions about the judges on the ballot. The website can be found at courts.in.gov/retention.

Here are the appellate judges on the retention ballot in 2016:

  • Judge Terry A. Crone, Court of Appeals of Indiana – Third District

  • Judge James S. Kirsch, Court of Appeals of Indiana – Second District

  • Judge Edward W. Najam, Jr., Court of Appeals of Indiana – First District

  • Judge Patricia A. Riley, Court of Appeals of Indiana – Fourth District
The website includes biographical information, video of oral arguments, and the ability to search decisions written or voted on by the judges. Later this year, the Indiana State Bar Association will release evaluations of each of the judges from a survey of its members. The results will be available on the retention website.

Indiana has used a merit selection process to choose and retain its appellate judges for the past 44 years. Once appointed, a judge must stand for retention at the first statewide general election after the judge has served for two full years. If retained, the judge is on the retention ballot every 10 years. The retention system is designed to allow appellate judges to decide cases fairly and impartially, free from campaign finance considerations, and without influence by partisan politics.

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

Ind. Decisions - Supreme Court imposes sanctions on Louisville attorney

In In the Matter of: Michael L. James, a 2-page "Published Order Finding Respondent in Contempt of Court and Imposing Sanctions," the Court writes in part:

Moreover, the case records before us reflect that Respondent’s suspended status was called to his attention by the judge in a Hendricks County case in August 2013. Even assuming Respondent had believed up until that point that he had been reinstated in Indiana, he was put clearly on notice in August 2013 that he remained in suspended status, and indeed he acknowledged in a notice filed with the court the need to “either resolve the licensure issue or secure substitute counsel.” Yet, several of the remaining cases referenced in the Commission’s verified petition involve actions by Respondent unquestionably constituting the practice of law that occurred later in 2013, in 2014, and even as late as September 2015. Accordingly, we find that Respondent has violated this Court’s orders suspending him from the practice of law in Indiana and that he is guilty of indirect contempt of this Court.

The sanctions this Court may impose for contempt include ordering a fine, disgorgement of ill-gotten gains, imprisonment, and extension of an attorney’s suspension or removal from practice. See Matter of Haigh, 7 N.E.3d 980, 990 (Ind. 2014); Matter of Freeman, 999 N.E.2d 844, 846 (Ind. 2013); Matter of Nehrig, 973 N.E.2d 567, 569 (Ind. 2012).

The Court ORDERS that Respondent be fined the sum of $1,000. Respondent shall remit this amount within 60 days of the date of this order to the Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court.

For his pattern of contempt, the Court also ORDERS that Respondent’s current reciprocal suspensions are converted to a suspension of at least two years without automatic reinstatement, effective immediately.

Posted by Marcia Oddi on Monday, July 18, 2016
Posted to Ind. Sup.Ct. Decisions

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

In Fresenius USA Marketing, Inc. v. Indiana Department of State Revenue, a 9-page opinion filed July 15th, Judge Wentworth writes:

Fresenius USA Marketing, Inc. has appealed the Indiana Department of State Revenue’s denial of its claim for refund of gross retail (sales) tax remitted on its sales of durable medical equipment and supplies to Indiana clinics between January 1, 2004, and October 31, 2007 (the Period at Issue). The matter, currently before the Court on the parties’ cross-motions for summary judgment, presents one dispositive issue: whether the Department is bound by its published ruling interpreting the exemption provided by Indiana Code § 6-2.5-5-18(a). * * *

The Department argues first that it is bound by Indiana Code § 6-8.1-3-3(b) only when it interprets a statute by promulgating a regulation. (See Hr’g Tr. at 57-63.) Accordingly, the Department maintains that because the 1998 Ruling is not a regulation, it is not bound to follow it. The Court is not persuaded by the Department’s argument for two reasons. * * *

Next, the Department claims that Fresenius cannot rely on its interpretation of the Durable Medical Equipment Exemption in its 1998 Ruling because regulation 45 IAC 15-3-2(d)(3) states that “‘only the taxpayer to whom the ruling was issued is entitled to rely on it.’” (See Resp’t Reply Br. at 7 (citation omitted).) The Department’s argument fails, however, for three reasons. * * *

Finally, the Department claims that its own regulation indicates that the taxpayer to whom a ruling is issued is alone entitled to rely on it. (See Resp’t Reply Br. at 7 (citing 45 I.A.C. 15-3-2(d)(3)).) The Department’s claim, however, relies on only one isolated portion of its regulation, ignoring the remainder of the provision that expressly permits other taxpayers than the taxpayer to whom the ruling was issued to rely on its rulings * * *

Even though the 1998 Ruling was not issued to Fresenius, it was entitled to rely on it because it demonstrated factual similarity. Because it did not rebut Fresenius’s showing of similarity, the Department is bound by its interpretation in its 1998 Ruling. Consequently, while the Department is not entitled to summary judgment on this basis, Fresenius is.

Posted by Marcia Oddi on Monday, July 18, 2016
Posted to Ind. Tax Ct. Decisions

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

For publication opinions today (0):

NFP civil decisions today (2):

Pinnacle Properties Development Group, LLC v. Sarah Oliver (mem. dec.)

In the Termination of the Parent-Child Relationship of Ja.V. (Minor Child) and J.V. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (2):

Desmond Aaron v. State of Indiana (mem. dec.)

Vino Mason v. State of Indiana (mem. dec.)

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

Ind. Gov't. - "Indiana can fix gerrymandering"

Adding to earlier ILB posts on redistricting, Julia Vaughn of Common Cause and Debbie Asberry of League of Women Voters of Indiana had a long letter in the Sunday issue of the Indianapolis Star. A few quotes:

This year, the General Assembly districts our legislature drew for themselves will deprive voters of choices at the ballot box. Voters in 46 percent of state legislative districts will see only one major party candidate on the ballot because no candidate from the other party decided that it was even worth trying to win. Election Day is still four months away and the results in almost half of our state legislative races have already been decided.

Gerrymandering has troubling consequences for Indiana’s democracy and economy. Last year, the legislature passed the so-called “Religious Freedom Restoration Act,” which allowed greater discrimination against members of the LGBT community. The reaction in Indiana and around the country was immediate and embarrassing. Thanks to the actions of extremist legislators representing districts designed to be uncompetitive, Indiana appeared to be the national capital of intolerance and bigotry. Businesses have threatened to pull conferences and major sporting events out of the state while demanding a legislative fix that would prohibit discrimination. In response, legislators have done nothing. Good jobs in addition to millions of dollars in business and tourism revenue remain at risk because the General Assembly has no political incentive to fix their costly mistake.

Indiana can do better. Other states have devised solutions that take power away from the politicians and give it back to the people. Across the nation, Americans standing up for fair representation now have the wind at their backs. In Indiana, we have a major opportunity for reform through the Special Interim Committee on Redistricting, which is a group of legislators and citizens currently working to write a reform proposal for introduction during the 2017 legislative session.

Posted by Marcia Oddi on Monday, July 18, 2016
Posted to Indiana Government

Courts - "SCOTUS Citation Raises Concerns Over Potential 'Link Rot' " - this is incorrect

Technologist has a July 15th story by Jonathan R. Tung which reports:

The recent SCOTUS decision of Utah v. Strieff was notable in at least two ways. First it was noteworthy because of Justice Sotomayor's almost Scalia-esque (in terms of passion, if not form) dissent. Some have called it the Court's "Black Lives Matter" moment.

But the Strieff opinion is also noteworthy because it may be the first time in the Court's history in which a URL-link "shortener" was used in place of the real address. Justice Kagan's separate dissent included a citation to http://goo.gl/3Yq3Nd, and that leaves some worried. * * *

The fact that a shortened link just became part of official record of the Supreme Court has some concerned. Google controls the link and Google is a private party. So what happens if Google decides to change a link? Or worse, to get rid of it altogether?

The ILB in the past has had a number of posts about link rot. However, as the latter part of this Oct. 14, 2015 post (quoting Adam Liptak) reported, the SCOTUS has addressed the problem. It now downloads all external documents linked in its opinions and saves them at a dedicated page.

Here is the SCOTUS page
for the 2015 term. The last case listed is Utah v. Strieff. All external cites contained in the opinion are listed, including, at the end of the list, goo.gl/3Yq3Nd, the shortened link. But the SCOTUS has downloaded and saved the linked document for posterity, explaining: "Because some URLs cited in the Court's opinions may change over time or disappear altogether, an attempt is made to capture, as closely as possible, the material cited in an opinion at the time of its release."

Posted by Marcia Oddi on Monday, July 18, 2016
Posted to Courts in general

Environment - "Agricultural weed killer products found in groundwater"; Wis. manure spreading rules

A long story in the July 14th Muncie Star-Press, reported by Seth Slabaugh, begins:

MUNCIE — Agricultural weed-killer breakdown products were found in 68 of 398 groundwater samples collected from private residential water wells and small public water supply wells statewide, the Indiana Department of Environmental Management (IDEM) has announced.

About 1.6 million Hoosiers, or 26 percent of the population, obtain their water from private, domestic wells, which are not required to be tested on a regular basis for quality.

The herbicide degradation products (degradates) were detected in one of the four wells sampled in Delaware County and in one of the eight wells sampled in Henry County.

The state's annual groundwater monitoring program also found detectable levels of nitrates in two of the nine wells sampled in Wayne County, though they were not above the federal government's maximum contaminant level for drinking water.

The major sources of nitrates in drinking water are runoff from fertilizer use, leaking septic tanks and erosion of natural deposits.

It was degradates of acetochlor and alachlor — herbicides commonly used in Indiana to control broadleaf and grassy weeds in corn and soybeans — that were found in Delaware and Henry county wells. No maximum contaminant levels in drinking water have been established for herbicide degradates.

From Wisconsin, the Milwaukee Journal-Sentinel reported on July 15th in a story that begins:
Under pressure from citizens and environmental groups, state officials took a step this week in advancing regulations that would impose stricter controls on manure spreading on Wisconsin's most vulnerable soils.

The Department of Natural Resources released plans for new rules to limit manure use in certain zones where animal waste poses a greater chance of polluting streams and groundwater.

Currently, Wisconsin has uniform standards for manure spreading, but if the changes are made, farmers in some regions would be required to limit their spreading more.

"This is the first time that we would have different practices for specific areas," said Russ Rasmussen, who is leading DNR efforts on manure issues.

Posted by Marcia Oddi on Monday, July 18, 2016
Posted to Environment

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/18/16):

Next week's oral arguments before the Supreme Court (week of 7/25/16):

Webcasts of Supreme Court oral arguments are available here.


Next week's oral arguments before the Court of Appeals (week of 7/18/16):

Wednesday, July 20

Next week's oral arguments before the Court of Appeals (week of 7/25/16):

Monday, July 25

Tuesday, July 26 Wednesday, July 27 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, July 18, 2016
Posted to Upcoming Oral Arguments

Friday, July 15, 2016

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

For publication opinions today (2):

In South Indiana Propane Gas, Inc. v. John Caffrey and Leola Caffrey , a 12-page opinion, Judge Pyle writes:

Appellant/Defendant, South Indiana Propane Gas, Inc. (“SIPG”) appeals the trial court’s order requiring it to pay a portion of the attorney fees of Appellees/Plaintiffs, John Caffrey (“John”) and Leola Caffrey (“Leola”) (collectively, “the Caffreys”) on their breach of contract claim. The trial court held that the Caffreys could recover their attorney fees because SIPG’s defense to its breach of contract was unreasonable, groundless, or in bad faith. On appeal, SIPG argues that its defense was not unreasonable, groundless, or in bad faith because: (1) the issue of whether it was required to pay attorney fees was worthy of litigation; and (2) it performed under the contract within thirty days of learning of its failure to perform. Because we are not persuaded that SIPG’s defense was not unreasonable, groundless, or in bad faith, we affirm.
In Larenz Jordan v. State of Indiana , a 13-page opinion, Judge Bailey writes:
Jordan raises two issues for our review, which we restate as:
I. Whether the juvenile court abused its discretion when it granted the State’s motion to waive jurisdiction over Jordan’s case; and
II. Whether Jordan’s sentence was inappropriate and requires revision under Appellate Rule 7(B). * * *

Jordan’s specific allegation of error centers on the court’s use of the phrase “criminal thinking” in its findings concerning the “beyond rehabilitation” element of the waiver statute. Jordan contends that for the court to have entered findings concerning “criminal thinking,” as used in the waiver order, the record required evidence related to “criminogenic traits” as those are understood to apply within the context of evidence-based practices in sentencing and rehabilitation. (Appellant’s Br. at 12.) Jordan notes that “no data was presented regarding criminogenic traits, testing of said traits, or criminal thinking as an area of relevant inquiry.” (Appellant’s Br. at 11.) Absent such evidence, Jordan insists, “the juvenile court had no basis to conclude that Jordan’s criminal thinking presented a bar to his successful rehabilitation within the juvenile justice system.” (Appellant’s Br. at 11.) Thus, Jordan argues that the court’s waiver order was defective as a matter of law. * * *

There is no error associated with the juvenile court’s use of the phrase “criminal thinking” without reference to evidence-based measures of criminogenic behavior where, as here, the elements of the waiver statute are otherwise properly addressed and supported by evidence from the record of the waiver hearing. The juvenile court did not abuse its discretion where there was no evidence related to criminal thinking as that term is used in evidence-based practices assessing criminogenic behavior.

NFP civil decisions today (4):

Pinnacle Properties Development Group, LLC v. David Daily (mem. dec.)

In the Matter of Al.G., As.G., and J.D., Jr. (Minor Children), Children in Need of Services, and C.G. (Mother) and J.D. (Father) v. Ind. Dept. of Child Services (mem. dec.)

Brian L. Boyland, Jennifer K. Boyland, et al. v. Kenneth Hedge, et al. (mem. dec.)

In State of Indiana v. Monroe Liberty, LLC (mem. dec.), a 9-page opinion, Judge Crone writes:

The State of Indiana brings this interlocutory appeal in an eminent domain action involving the taking of real property owned by Monroe Liberty, LLC, for the extension of I-69 from Evansville to Indianapolis. This action is in the damages phase, which has yet to be tried by the jury. The subject of this appeal is the “Trial Order for June 23, 24, 2015” (“the Order”), denying the State’s motion in limine. On appeal, the State contends that the trial court erred in refusing to exclude certain evidence and testimony. Specifically, the State asserts that certain evidence and testimony pertaining to the highest and best use and/or the value of Monroe Liberty’s property is inadmissible because that evidence and testimony are based wholly or partly on the construction and completion of I-69, the project for which the property is being taken.2 Because we conclude that the evidentiary issues raised by the State are not ripe for our review, we dismiss the State’s appeal.
NFP criminal decisions today (9):

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

Tamara Kalinowski Johnson v. State of Indiana (mem. dec.)

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

Keith Hosea v. State of Indiana (mem. dec.)

Ricky D. Wessel v. State of Indiana (mem. dec.)

Dolphus Ballinger v. State of Indiana (mem. dec.)

Oliver Furnell Clemmons v. State of Indiana (mem. dec.)

jesse T. Buchanan v. State of Indiana (mem. dec.)

Mark D. Priest v. State of Indiana (mem. dec.)

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

Ind. Courts - "State Supreme Court sides with judge in dispute with prosecutors" [Updated]

Bob Kasarda reports today in the NWI Times:

The Indiana Supreme Court has sided with Porter Superior Court Judge David Chidester over county prosecutors in a dispute over how certain drunk driving cases are handled.

The Supreme Court ruled 3-2 Thursday that it would not prohibit Chidester from ordering prosecutors to file police reports with specific drunk driving cases where there is a breath test refusal.

Porter County Prosecutor Brian Gensel said Friday morning he will comply with the order. * * *

Before the dispute found its way to the Indiana Supreme Court, Chidester had scheduled a hearing for Gensel and three deputy prosecutors to appear before him to explain why they should not be held in contempt of court for failing to comply with his original order. The hearing was delayed just a few days before to allow consideration by the higher court.

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 argued 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 Indiana Attorney General’s Office stepped in to represent the prosecutors before the state Supreme Court.

There is much more in the long story. The Supreme Court order, filed yesterday afternoon, July 14th, states in full:
The Relator, Brian Gensel, by counsel, filed a verified petition for a writ of mandamus and prohibition, seeking relief under the rules governing original actions. A Respondent, the Hon. David L. Chidester, filed a brief opposing issuance of the writ. The Court has reviewed the materials filed in this matter. Each Justice has had the opportunity to voice that Justice’s views on this matter in conference with the other Justices, and each Justice has voted on the petition.

Being duly advised, the Court DENIES the petition for writ of mandamus and prohibition. Motions to reconsider or petitions for rehearing are not allowed. Ind. Original Action Rule 5(C).

All Justices concur, except Rush, C.J., and Slaughter, J., who vote to grant the writ.

ILB: Like the order in the IBM case issued July 5th, also involving a Petition for Writ of Mandamus & Writ of Prohibition, the Court here simply rules, without setting forth reasoning.

For more in the Porter County dispute, see also these earlier ILB posts:

Ind. Courts - Updating "Porter Co. Prosecutor faced with contempt in dispute with judge"
Updating this ILB post from June 27th, which links to the documents in the dispute now docketed before the Supreme Court, Kevin Nevers of the Chesterton Tribune yesterday had a long story headed "Judge Chidester responds to Gensel in flap...
Posted in The Indiana Law Blog on July 1, 2016 09:13 AM

Still more on "Porter Co. Prosecutor faced with contempt in dispute with judge"
Updating these two posts from earlier this month: 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... [This post includes links to the briefs, posted by the ILB]
Posted in The Indiana Law Blog on June 27, 2016 02:42 PM

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...
Posted in The Indiana Law Blog on June 10, 2016 05:03 PM

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...
Posted in The Indiana Law Blog on June 9, 2016 05:46 PM

[Updated] Here is a July 15th story in the Chesterton Tribune, reported by Luke Nevers, headed "Judge Chidester prevails in legal flap with Gensel over police reports."

Posted by Marcia Oddi on Friday, July 15, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Disciplinary charges filed against COA Sr. Judge Garrard

From a Courts news release:

The Judicial Qualifications Commission (JQC) has filed disciplinary charges against Court of Appeals Senior Judge William I. Garrard. JQC alleges 2 counts of judicial misconduct related to an Operating While Intoxicated conviction. Judge Garrard has 20 days to file an answer to the charges.

The 6-page "Notice of the Institution of Formal Proceedings and Statement of Charges" is public record and has been filed with the Appellate Clerk’s Office. The charges are brought by the 7-member Commission which investigates alleged ethical misconduct by judges. They are separate and distinct charges from any criminal or civil proceedings in the trial court system.

Generally, the disciplinary charges assert Judge Garrard violated judicial canons which require judges to respect the law, avoid impropriety, and promote confidence in the judiciary. In June 2016 Judge Garrard pled guilty in case 55D01-1511-CM-1619 to Operating a Vehicle While Intoxicated Endangering a Person, a Class A misdemeanor. The conviction stems from a Morgan County car crash. Law enforcement reported Judge Garrard stated he would lose his job, and he asked that the drunk driving be forgotten and he be taken home.

ILB: Here is the 6-page notice of charges.

Posted by Marcia Oddi on Friday, July 15, 2016
Posted to Indiana Courts

Ind. Decisions - Two disciplinary orders posted today by Supreme Court

Both disciplinary orders werefiled July 14th:

Posted by Marcia Oddi on Friday, July 15, 2016
Posted to Ind. Sup.Ct. Decisions

Environment - Mich. Gov. Snyder appoints BP lobbyist to head state environmental agency

A long editorial today in the Detroit Free Press begins:

In the wake of the Flint water crisis, amid profound concerns over an aging oil pipeline under the Great Lakes, with an ongoing, urgent need to decrease pollution and improve air quality and public health in southwest Detroit, Gov. Rick Snyder has appointed ... wait for it ... a former oil-industry lobbyist, Heidi Grether, to head the state's Department of Environmental Quality.

It's a stunning look into the way the governor views the state's responsibility to protect Michigan's environment, and Michiganders' health.

And in the aftermath of the Flint water crisis, it's like Snyder is rubbing the noses of his constituents in his own mess. The move is astoundingly tone-deaf to Michiganders, who rely on the state's environmental regulatory agency to keep us safe. It's also a tacit announcement that Snyder no longer finds rebuilding Michiganders' trust in government, something nearly everyone agreed was paramount after the Flint crisis, to be particularly important.

Posted by Marcia Oddi on Friday, July 15, 2016
Posted to Environment

Law - "What sharia law actually means"

That is the title to a Feb. 26, 2011 article by Justin Elliott in Salon.

And today, this story in Atlantic, authored by Jeffrey Goldberg and titled: "Sharia Does Not Mean What Newt Gingrich Thinks It Means: One country that officially endorses the Muslim legal system is one of the politician’s favorites—Israel."

From July 29, 2013, this article in the Huffington Post by Omar Sacirbey, headed "Sharia Law In The USA 101: A Guide To What It Is And Why States Want To Ban It."

Posted by Marcia Oddi on Friday, July 15, 2016
Posted to General Law Related

Courts - "Election Cases Move Toward SCOTUS, Risking Deadlocks"

Important story today in Bloomberg, from Greg Stohr. It begins:

At the shorthanded U.S. Supreme Court, the next deadlock may affect the November election.

A group of voting-rights cases is making its way to a court that’s all but guaranteed to have a lingering vacancy through the election. The divisive nature of the issues may leave the eight justices unable to decide who can cast the ballots that will determine control of the White House and Congress.

The disputes involve voter-identification requirements in Texas, Virginia and Wisconsin; an early-voting period in Ohio; a variety of restrictions in North Carolina; and proof-of-citizenship laws elsewhere. The cases pit Democrats and civil-rights groups claiming discrimination against Republicans arguing the steps are warranted to prevent voter fraud.

"They affect the rights of voters to be able to cast an effective ballot that will be counted accurately," said Rick Hasen, an election-law professor at the University of California, Irvine.

ILB: Prof. Hasen writes the "must follow" Election Law Blog.

Posted by Marcia Oddi on Friday, July 15, 2016
Posted to Courts in general

Ind. Courts - Senate now in recess for 5 weeks, without floor vote on 7th Cir. or SD Ind. vacancies

From a June 16th story at Law360:

The Senate’s Judiciary Committee advanced the nominations for two district judges for Louisiana, one for Indiana and one for the Seventh Circuit Thursday, in the first committee votes on judicial nominees since May.
The 7th Circuit nominee is Wisconsin attorney Donald Karl Schott, the nominee for the SD Indiana is Winfield D. Ong.

However, no floor vote has been set for these two, nor for numerous other nominees pending a confirmation vote by the Senate.

Tuesday, as reported in the WiscNews by Mark Sommerhauser:

As congressional Democrats hammer Republicans for blocking President Barack Obama's choice for the U.S. Supreme Court, U.S. Sen. Tammy Baldwin is scolding her Senate colleagues for leaving another judicial vacancy unfilled: this one on the federal appeals court that covers Wisconsin.

Baldwin, D-Madison, urged fellow senators this week to vote to confirm Donald Schott for the 7th Circuit Court of Appeals.

The Chicago-based court covers Illinois, Indiana and Wisconsin, and a vacancy for a Wisconsin judge was created in 2010. Since then the court, missing an 11th judge, has split 5-5 on key votes, including a request to reconsider a legal challenge to Wisconsin's voter ID requirement. [ILB emphasis]

Posted by Marcia Oddi on Friday, July 15, 2016
Posted to Indiana Courts

Thursday, July 14, 2016

Ind. Decisions - More on: The opinion effectively denying public access to legislative emails, CAC v. Indiana House, is now final

Supplementing this ILB from July 13th, the Fort Wayne Journal Gazette today has an editorial labeled "Email arrogance: Court rulings offer public conflicting conclusions."

The editorial draws not only on CAC v. Koch and on the Hillary Clinton email controversy, but also on the ruling Tuesday by the July 5th District of Columbia U.S. Circuit Court of Appeals about which the ILB wrote extensively in this post (which included quotes from a number of earlier ILB posts on the question of the public's access to the emails of government officials when it is kept in private accounts). That ILB post was updated July 11th with quotes from an Alison Frankel "On the Case" column for Reuters.

Posted by Marcia Oddi on Thursday, July 14, 2016
Posted to GA and APRA | Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In Fireman's Fund Insurance Company v. Matthew W. Ackerman, a 15-page opinion, Judge Barnes writes:

Fireman’s Fund Insurance Company (“Fireman’s Fund”) appeals the trial court’s denial of its motion for summary judgment regarding a claim by Matthew W. Ackerman. * * *

We conclude that, given Indiana Code Section 27-7-5-1.5(b), Fireman’s Fund was not required to provide UM/UIM coverage in the 2008 Evansville Marine policy. Fireman’s Fund was entitled to judgment as a matter of law and there were no genuine issues of material fact. The trial court erred by denying Fireman’s Fund’s motion for summary judgment.
Conclusion

The trial court erred by denying Fireman’s Fund’s motion for summary judgment regarding the UM/UIM coverage issue. We reverse and remand.

In Randy Faulkner & Associates, Inc. and Randall W. Faulkner v. The Restoration Church, a 21-page opinion, Judge Robb writes:
RFA and Faulkner present four issues on appeal and the Church presents one issue on cross-appeal. We consolidate the issues into two dispositive issues: 1) whether the trial court erred when it found that RFA had waived its right to receive thirty days’ written notice of the Church’s intent to renew the parties’ lease agreement; and 2) whether the trial court clearly erred when it concluded that RFA’s and Faulkner’s evidence of damages on their claim for tortious interference with a business relationship was speculative.

We conclude the trial court’s determination that RFA had waived its right to receive written notice of the Church’s intent to renew the parties’ lease agreement is not supported by sufficient evidence. We also conclude the trial court’s determination that RFA’s and Faulkner’s evidence of damages on their tort claim was speculative is not clearly erroneous. Accordingly, we reverse the trial court’s judgment for the Church on the Church’s breach of contract claim and vacate the corresponding damage award, affirm the trial court’s judgment that RFA and Faulkner are entitled to no damages on their tort claim, and remand for further proceedings.

In State of Indiana v. John K. Sturman , a 37-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court abused its discretion by dismissing Counts 1-3 on the basis that the trial court failed to state an offense in the Information, and by dismissing Count 1 as being barred by the statute of limitations. We further conclude that the trial court did not abuse its discretion by denying Sturman’s motion to dismiss Counts 1-6 and 8-19 on the basis that the charges do not state the alleged offenses with sufficient certainty; nor did the trial court abuse its discretion by denying Sturman’s motion to dismiss Counts 4-19 on the basis that Indiana Code section 16-42-19-20 is unconstitutionally vague. Affirmed in part, reversed in part, and remanded.
NFP civil decisions today (0):

NFP criminal decisions today (3):

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

Sammuel Willis v. State of Indiana (mem. dec.)

Edward A. Young v. State of Indiana (mem. dec.)

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

Ind. Decisions - More on "Wis. Supreme Court to Rule on Predictive Algorithms Used in Sentencing"

Joe Palazzolo of the WSJ Law Blog wrote late yesterday in a story headed "Court: Judges Can Consider Predictive Algorithms in Sentencing," updating his June 5th story, quoted here in the ILB. A few quotes from yesterday's long WSJ blog post:

Sentencing judges may take into account algorithms that score offenders based on their risk of committing future crimes, Wisconsin’s high court ruled on Wednesday.

The Wisconsin Supreme Court, in a unanimous ruling, upheld a six-year prison sentence for 34-year-old Eric Loomis, who was deemed a high risk of re-offending by a popular tool known as COMPAS, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs.

The judge who sentenced Mr. Loomis referenced his COMPAS score before issuing the punishment. * * *

Wednesday’s decision 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.”

Here are the 2010 Indiana opinions.

Posted by Marcia Oddi on Thursday, July 14, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Man guilty in I-69 road workers' deaths"; Ind. law on reckless driving

Sara Salinas of the Indianapolis Star reported yesterday afternoon:

A jury on Wednesday found Jordan Stafford guilty in the deaths of two construction workers in May of 2014, a spokeswoman with the Marion County prosecutor's office said.

The verdict came after a three-day trial determined the Fortville man's actions constituted recklessness.

Stafford was convicted of two counts of reckless operation of a vehicle in a highway work zone and two counts of failure to obey a traffic control device or flagman in a highway work zone.

Stafford was driving the truck that hit a construction arrow board on I-69 at about 5:45 a.m. on May 9, 2014, killing construction workers Coty DeMoss, 24, Noblesville, and Kenneth Duerson Jr., 49, Indianapolis.

The two men were removing construction barriers at the end of a work zone. The arrow board was instructing drivers to change lanes.

Defense Attorney Courtney Benson-Kooy argued that videos taken by other drivers that morning, entered as evidence by the state, indicated that multiple cars were speeding.

"Is his speed a substantial deviation from the acceptable norm? No," Benson-Kooy said during closing arguments Wednesday. "The law says not, was he speeding, but was he reckless?"

"He tried to get over, he didn’t barrel into — head on — that arrow board," Benson-Kooy said of Stafford. "He tried to brake and he couldn't. That's an accident."

Prosecutors contested that the actions of other drivers did not make Stafford's actions acceptable.

"Is there a reasonable way to run into an arrow board?" Prosecutor Matthew Bigler asked. "Is there an acceptable way to do that?"

Both sides referenced skid marks created by Stafford's truck as evidence in the case. Defense attorneys claimed the skid marks indicated Stafford tried to avoid the collision. Prosecutors said they were evidence he was driving in excess of 70 mph.

"Things like this don't just happen. Dead construction workers is not the cost of business," Bigler said. "This is not the norm."

Prosecutors argued that Stafford was driving fast enough to push the 10,000-pound construction truck 28 feet and that the collision went beyond a normal car crash.

IU-McKinney Law Professor Joel Schumm comments that "Whitaker v. State, 778 N.E.2d 426 (Ind. Ct. App. 2002), is especially instructive in explaining Indiana law on reckless driving" and points to this language from the 2002 opinion:
... relatively slight deviations from the traffic code, even if they technically rise to the level of “reckless driving,” do not necessarily support a reckless homicide conviction if someone is subsequently killed. Some gross deviations from the traffic code, however, may under certain circumstances be such a substantial departure from acceptable standards of conduct that they will support a reckless homicide conviction, such as ignoring traffic signals at a high rate of speed, driving on a dark road at night without headlights, or intentionally crossing the centerline without a legitimate reason for doing so. Speed may support a reckless homicide conviction, but only greatly excessive speeds, such as twenty or more miles per hour over the posted speed limit, or where inclement weather and poor road conditions render higher speeds greatly unreasonable.

Posted by Marcia Oddi on Thursday, July 14, 2016
Posted to Ind. App.Ct. Decisions | Ind. Trial Ct. Decisions | Schumm - Commentary

Wednesday, July 13, 2016

Ind. Gov't. - "Indiana will pick new attorney general this year: Elkhart Co prosecutor, former Lake Co judge on ballot"

That's the headline to this story today in the South Bend Tribune, reported by Kevin Allen.

Indiana's attorney general, as the last 12 years attest, is not only the criminal prosecutor in chief, but also generally determines the State of Indiana's legal position in all civil lawsuits (when to sue, when to appeal, when to settle, when to join national lawsuits, when to submit amicus briefs on behalf of the State of Indiana in other state and federal appeals, etc.). The AG is charged with advising and representing all the state's agencies, as well as elected officials. The Attorney General must approve any other attorneys acting on behalf of the State. The Attorney General (which is not a constitutional office) is separately elected and thus at times the AG and the Governor may be of different parties. On occasion, rare in the past 12 years, their positions may diverge even when of the same party.

The AG's office also has a consumer affairs division, created by statute.

From today's SBT story:

The open race gives voters a choice between two candidates with extensive legal backgrounds, compelling family stories and different visions for the attorney general’s office.

Lorenzo Arredondo, the Democratic candidate, is a former Lake County Circuit Court judge. He served on the bench for more than 30 years before retiring in 2010.

Curtis Hill, the Republican candidate, is currently the Elkhart County prosecutor, having first been elected to that position in 2002 and re-elected in 2006, 2010 and 2014.

Arredondo said one of his top priorities will be protecting Hoosiers from consumer fraud. “The attorney general is the people’s lawyer,” he said.

Arredondo also is a former teacher and has given lessons to kindergartners as well as judges — and all ages in between. He wants to continue efforts to teach Hoosiers about the attorney general’s office and the services it provides to help the public. “It’s the teacher in me,” he said. “I always try to make everything an educational experience.”

Hill lists preventing consumer fraud among his priorities as well, and both candidates talk about addressing the growing problems associated with prescription painkillers, heroin and methamphetamine.

Hill also said the attorney general’s position provides an opportunity to address “many of the challenges that are not being met at the national level” and assert states’ rights on issues such as health care and firearms.

“Congress certainly should be the first line of defense,” Hill said, “but the states are the last line of defense when it comes to issues of federalism and making sure we don’t have mandates from Congress that are unfunded or executive agencies operating around Congress in order to dictate to the state and people what they want. That’s not the purpose of the Constitution.”

That’s one area where the two candidates differ. Arredondo said lawsuits the state has filed regarding the Affordable Care Act and the Religious Freedom Restoration Act have not been good uses of the public’s money.

Posted by Marcia Oddi on Wednesday, July 13, 2016
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (4):

In Sony DADC US Inc. and Bradley J. Brown v. Mark Thompson , a 17-page opinion, Judge Kirsch writes:

This case originates from a complaint filed by Mark Thompson (“Thompson”) alleging negligence and vicarious liability against Bradley J. Brown (“Brown”) and his employer, Sony DADC US Inc. (“Sony”). Thompson worked as a security guard for Securitas, a private contractor, and provided building security for Sony at its Terre Haute, Indiana facility. While walking across the parking lot at Sony on March 23, 2012, Thompson was struck by a car driven by Brown, who had clocked out for the day, but had yet to leave the Sony property because he was planning to place personal items in the recycling area provided by Sony. In a pretrial order, the trial court found as a matter of law that Sony was vicariously liable for Thompson’s injuries because Brown was within the scope of his employment at the time of the accident. Following a jury trial, Sony appeals the trial court’s order, raising the following restated and consolidated issues for our review:
I. Whether the trial court erred when it denied Sony’s motion for summary judgment and granted Thompson’s motion for partial summary judgment as to the issue of whether Brown was acting within the scope of his employment at the time of the accident; and
II. Whether the trial court erred in allowing Thompson to present a claim for lost earning opportunity and in giving a jury instruction on lost earning capacity. * * *

We, therefore, conclude that the designated evidence presented genuine issues of material fact as to whether Brown was acting in the scope of his employment at the time of the accident with Thompson. The trial court erred in granting summary judgment in favor of Thompson on this issue, and we remand to the trial court for a new trial, where the issue of vicarious liability is presented to the jury. Reversed and remanded.

In City of Indianapolis v. Bradford Bentley, a 17-page opinion with a separate concurring opinion, Judge Baker writes:
An Indianapolis Police sergeant was demoted to patrol officer. He sought judicial review of the demotion. During the litigation, the City of Indianapolis (the City) filed the required transcript over six months late and its summary judgment response and designated evidence over four months late. The trial court struck all of the untimely filed documents and found in favor of the officer. The City now appeals. Finding no error, we affirm. * * *

Brown, J., concurs.
May, J., concurs in result with a separate opinion. [which begins, at p. 10] I agree that we must affirm the trial court’s decision to reinstate Officer Bentley with back pay because the City filed its transcript too late. However, I write separately to explain why I believe our resolution of this matter of first impression is correct. * * *

[W]hen the governmental agency acting as the defendant does not do what it is required by law to do when an individual appeals an administrative board decision, the trial court should have authority to levy appropriate sanctions, including ordering entry of a result opposite that reached by the administrative board. Therefore, I respectfully concur in result.

In Jack A. Enslen v. Area Plan Commission of Grant County Indiana, a 10-page opinion, Judge Altice writes:
A home owned by Jack Enslen has been uninhabitable, and indeed uninhabited, since 2002. He obtained building permits in 2009 and 2012 with the stated intention of bringing the home up to code, but no actual work was ever started on the property due to Enslen’s continued lack of finances. The Grant County Area Plan Commission (the APC) eventually filed a complaint for civil zoning violation against Enslen. Following a bench trial, the trial court issued an order directing Enslen to raze the structure within thirty days. Enslen asserts a number of arguments on appeal that all boil down to a claim that the trial court’s judgment is clearly erroneous. We affirm.
In Jason L. Forshee v. State of Indiana , a 10-page opinion, Judge Kirsch writes:
Jason L. Forshee (“Forshee”) pleaded guilty to Class C felony dangerous control of a child, and at the sentencing hearing, the trial court identified aggravating and mitigating circumstances and then sentenced Forshee to four years of incarceration, with six months suspended. Forshee appeals and raises the following restated issue: whether the trial court abused its discretion in sentencing Forshee because it considered as an aggravating circumstance that the victim was in Forshee’s “care, custody, or control,” which was an element of a dismissed charge. We affirm.
NFP civil decisions today (3):

Jose L. De La Garza v. M.C. (mem. dec.)

James Long v. Gordon Homes, Jr. (mem. dec.)

Star Property Solutions, LLC and Indy Drains, LLC v. Pine Financial, LLC, and T.Tad Bohlsen (mem. dec.)

NFP criminal decisions today (8):

Paul S. Freeman v. State of Indiana (mem. dec.)

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

Krysti I. LaVanway v. State of Indiana (mem. dec.)

Amanda N. Gonzales v. State of Indiana (mem. dec.)

Lamont Escoe v. State of Indiana (mem. dec.)

Marcus T. Conner v. State of Indiana (mem. dec.)

Gerald L. Doll v. State of Indiana (mem. dec.)

Kore Buchanan v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, July 13, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - The opinion effectively denying public access to legislative emails, CAC v. Indiana House, is now final

The Supreme Court yesterday denied rehearing in the case of Citizens Action Coalition of Indiana, et al. v. Indiana House Republican Caucus, et al. and the 3-1 April 19th Supreme Court opinion was certified as final by the Clerk of the Courts. The one-line ("Appellant’s Petition for Rehearing is hereby DENIED.") order was also 3-1 ("All Justices concur, except Rucker, J., who votes to grant rehearing.
Slaughter, J., not participating.")

Here is the docket. Here are earlier ILB posts, under the category "GA and APRA."

Posted by Marcia Oddi on Wednesday, July 13, 2016
Posted to GA and APRA | Ind. Sup.Ct. Decisions

Ind. Gov't. - "Some police ditch body cams after Indiana's new law"

Jill Disis has the long report today in the Indianapolis Star - some quotes:

"The new law is putting a large burden on the taxpayers — and us," Evansville Police Department Capt. Andy Chandler said. In March 2014, Evansville became one of the first departments in the state to equip its officers with body-worn cameras. "It's requiring us to do so much more."

Although there is no mandate in the law for departments to buy body cameras, Chandler, who said he did not believe his department was consulted about the law, pointed to many new requirements that will significantly raise the cost of such programs. One provision that requires agencies to obscure private information, such as the identities of minors and victims of sexual crimes, means police will have to spend money on image-altering software and training for officers to use it.

"Most of these body cam manufacturers made their software tamper-proof so when it was introduced into court and evidence, you couldn’t say that we had tampered it or altered it in any way," Chandler said. "Now, the law is requiring us to do just that.

"I don’t think that our legislature was very smart in what they did, and I don’t think they consulted with police departments that were utilizing body cams before they initiated the law."

Officials from the Clarksville Police Department — which, along with Jeffersonville, recently suspended its program — projected a cost of about $100,000 for expanded storage had they kept the cameras.

The new law requires local departments to store all footage for 190 days, or enough time for a citizen to file a tort claim. Clarksville stored footage for 30 days. * * *

IMPD Chief Troy Riggs said the department hopes to introduce cameras by the end of 2016 after it finishes its bidding process for a camera vendor.

Elkhart Police Department officials say their guidelines are already in line with what the new law requires. The agency has had body cameras since late 2015. * * *

Chandler, meanwhile, said Evansville won't suspend its camera program, but he warned that the department might have to curtail other services.

"It’s definitely a hardship," he said. "We are already scrambling trying to figure out how we’re going to pay and cover these."

Chandler said his department also expects to require a $150 fee, the maximum allowed under the law, to produce video for people who request it — a significant increase from the $25 charged now. Last week, Lafayette council members approved the same fee for that city's police department.

Showing just how tricky the balance is for lawmakers, [Steve Key, executive director of the Hoosier State Press Association, which supported the final version of the law] said the $150 fee will be a deterrent to citizens, civil rights groups and media outlets attempting to obtain copies of potentially questionable video. He said that concern is amplified by other stipulations built into the law, such as a rule that says a person's only recourse is to file a lawsuit if a police department initially says no to releasing video.

"All those things are conspiring to make public access to police body cameras not a very strong reality," Key said.

Posted by Marcia Oddi on Wednesday, July 13, 2016
Posted to Indiana Government

Law - "Decision to ban colander from driver's license photo strains belief"

Yes indeed, it is a BIG week for Indiana political news, but not for law news. However, there is this long column by Eric Zorn in today's Chicago Tribune, about a woman "who is being denied the right to appear on her driver's license wearing a noodle strainer on her head." A few more quotes from the long column that ends up making a serious point - read the whole thing:

The distinctive headgear is a symbol for those who claim membership in the Church of the Flying Spaghetti Monster, a loose affiliation of skeptics whose purported belief system satirizes claims made by conventional religions. * * *

Illinois secretary of state guidelines allow for religious exemptions to the general prohibition against hats or other head-coverings in driver's license photos — Jews who wish to wear yarmulkes, for instance, or Muslim women who wish to wear a hijab. But when the central office discovered that employees had relented and allowed Hoover to be photographed with the strainer on her head, administrators drew the line, even though her face was clearly visible.

They told Hoover her license will be revoked July 29 unless she gets a new, strainer-free photo taken. She is exploring her legal options.

State officials are "just trying to use a little common sense," secretary of state spokesman Dave Druker told Tribune freelance reporter Lee V. Gaines. "It almost looks like Pastafarians are a mockery of religion."

There's no "almost" about it. The Church of the Flying Spaghetti Monster (FSM for short) is a broad spoof on all supernatural belief systems that ask for special treatment by citing the constitutional guarantee of free exercise of religion.

Implicit in the spoof is a challenge: What makes FSM's claims about the invisible force that controls the universe any less plausible or less deserving of legal protection than those of established faiths? Popularity? Longevity? Earnestness?

The Constitution is appropriately silent on such considerations, as one of the principles undergirding the First Amendment is that government shouldn't referee religious matters.

Your belief that inspires you to want to wear something on your head for your driver's license photo is valid. But another person's is not.

Several states have played along. Utah in 2014 and Massachusetts in 2015 allowed Pastafarians to pose for driver's license photos with colanders on their heads. But New Jersey rejected such an attempt in 2013, and earlier this year a federal judge in Nebraska dismissed a suit filed by a Pastafarian state prison inmate demanding the right to hold FSM worship services and to wear a pirate costume (don't ask).

U.S. District Judge John Gerrard's 16-page ruling creditably wrestled with trying to distinguish the plaintiff's expressed beliefs from those espoused by those of mainstream faiths. "This case is difficult because FSM-ism, as a parody, is designed to look very much like a religion," he wrote. But "it is evident to the court that FSM-ism is not a belief system addressing deep and imponderable matters. ... The only position it takes is that others' religious beliefs should not be presented as science."

Posted by Marcia Oddi on Wednesday, July 13, 2016
Posted to General Law Related

Law - Copyrighting rules and statutes in the news again; this time the ABA is involved

Here are some quotes from a column by Mike Masnick of TechDirt:

You would think that "the law" is obviously part of the public domain. It seems particularly crazy to think that any part of the law itself might be covered by copyright, or (worse) locked up behind some sort of paywall where you cannot read it. Carl Malamud has spent many years working to make sure the law is freely accessible... and he's been sued a bunch of times and is still in the middle of many lawsuits, including one from the State of Georgia for publishing its official annotated code (the state claims the annotations are covered by copyright).

But there's another area that he's fought over for many years: the idea that standards that are "incorporated by reference" into the law should also be public. The issue is that many lawmakers, when creating regulations will often cite private industry "standards" as part of the regulations. So, things like building codes may cite standards for, say, sheet metal and air conditioning that were put together by the Sheet Metal and Air Conditioning Contractors National Association (SMACNA), and say that buildings need to follow SMACNA's standards. And those standards may be great -- but if you can't actually read the standards, how can you obey the law. At one point SMACNA went after Malamud for publishing its standards. And while they eventually backed down, others are still in court against Malamud -- including the American Society for Testing & Materials (ASTM), whose case against Malamud is set to go to trial in the fall.

Okay, none of that should be new to ILB readers, but now check out the next part (ILB emphasis added):
In the midst of all of this, various standards making bodies, along with the American National Standards Institute (ANSI), have been working over time to get the American Bar Association to adopt a proposal that limits publication of standards that are incorporated by reference. ANSI has pushed for a solution it prefers called "reasonable availability," in which the standard-makers decide by themselves how best to make the standards "available." ANSI, for example, hosts a bunch of incorporated by reference standards on its website -- but the only way to read them is to install a special kind of DRM (Windows and Mac only) that makes the documents purely read only. You are not allowed to save them. You are not allowed to download them permanently. You are not allowed to print them. And it's not all standards that are incorporated by reference. Why do they do this? Well, most of them sell their standards to professionals who need to buy them, and they don't want to give up on that revenue source (especially once those standards are incorporated by reference because at that point they become mandatory).

Either way, there was an attempt to push through a bad proposal at the ABA, getting it to take an official stance on standards that were incorporated by reference, but the first attempt was denied when various parts of the ABA pointed out that only a small group had worked on the issue. A larger task force was formed, but oddly, that task force was amazingly one-sided, including a number of people connected to ANSI or its supporters
(including its former chair, Oliver Smoot, and its General Counsel, Patricia Griffin). Malamud asked multiple sections of the ABA if he could be a part of the working group and was denied.

Not surprisingly, the final recommendation, which the ABA is about to consider next month, does not recognize that standards incorporated by reference should be widely and freely available, since they are the law. Instead, it takes a much more restrictive approach, whereby such standards would need to be made available (an improvement from the current situation), but that availability can still be in a very restrictive and locked down manner (such as with DRM and limitations).

And further down in the lengthy article:
Malamud's packet is impressive in the details and evidence that it presents. But his major complaint is that the ABA is making a huge mistake in trying to "balance" the interests of standards bodies that get money from locked up standards and the public. There's no need for balance here. General common sense says the public should win here and the law itself should be public and freely accessible.
ILB: Here is a list of some of the ILB's earlier posts on this topic.

Posted by Marcia Oddi on Wednesday, July 13, 2016
Posted to General Law Related

Tuesday, July 12, 2016

Law - Use by police of stingray technology, roadside drug tests

Stingray Technology. The ILB has a number of earlier posts on this topic. In a story yesterday John Diedrich of the Milwaukee Journal Sentinel reported:

Antonio Smith's attorney, Tom Erickson, has filed a motion alleging the government illegally obtained evidence in the case by using a so-called stingray to find Smith last summer.

The stingray is a 10-year-old technology that mimics a cellphone tower and captures all calls in a certain area, raising concerns among privacy advocates that information is illegally obtained.

Erickson said use of the stingray constitutes an illegal "dragnet" search and anything found during his arrest should be thrown out.

Assistant District Attorney Karl Hayes responded that the police use of a stingray to find Smith was allowed because a judge signed a warrant authorizing it. Hayes wrote he assumes police used the stingray but he is not certain.

To use the technology, local law enforcement agencies have to promise the FBI they will not disclose that use, even to judges who might inquire, without a written OK from the FBI.

Hayes wrote that the defense cites examples from other states that don't apply in this case because there was a warrant signed to use the stingray.

"Therefore, use of the stingray by definition was not a warrantless search in this case," he wrote.

Roadside Drug Tests. Sunday's NYT Magazine featured a lengthy article by Ryan Gabrielson and Topher Sanders, staff reporters at ProPublica, "How a $2 Roadside Drug Test Sends Innocent People to Jail." The subhead:"Widespread evidence shows that these tests routinely produce false positives. Why are police departments and prosecutors across the country still using them?" Some quotes:
Police officers arrest more than 1.2 million people a year in the United States on charges of illegal drug possession. Field tests like the one Officer Helms used in front of Amy Albritton help them move quickly from suspicion to conviction. But the kits — which cost about $2 each and have changed little since 1973 — are far from reliable.

The field tests seem simple, but a lot can go wrong. Some tests, including the one the Houston police officers used to analyze the crumb on the floor of Albritton’s car, use a single tube of a chemical called cobalt thiocyanate, which turns blue when it is exposed to cocaine. But cobalt thiocyanate also turns blue when it is exposed to more than 80 other compounds, including methadone, certain acne medications and several common household cleaners. Other tests use three tubes, which the officer can break in a specific order to rule out everything but the drug in question — but if the officer breaks the tubes in the wrong order, that, too, can invalidate the results. The environment can also present problems. Cold weather slows the color development; heat speeds it up, or sometimes prevents a color reaction from taking place at all. Poor lighting on the street — flashing police lights, sun glare, street lamps — often prevents officers from making the fine distinctions that could make the difference between an arrest and a release.

There are no established error rates for the field tests, in part because their accuracy varies so widely depending on who is using them and how. In Las Vegas, authorities re-examined a sampling of cocaine field tests conducted between 2010 and 2013 and found that 33 percent of them were false positives. Data from the Florida Department of Law Enforcement lab system show that 21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positives were not any kind of illegal drug at all. In one notable Florida episode, Hillsborough County sheriff’s deputies produced 15 false positives for methamphetamine in the first seven months of 2014. When we examined the department’s records, they showed that officers, faced with somewhat ambiguous directions on the pouches, had simply misunderstood which colors indicated a positive result.

No central agency regulates the manufacture or sale of the tests, and no comprehensive records are kept about their use. * * *

Field tests provide quick answers. But if those answers and confessions cannot be trusted, Charles McClelland, the former Houston police chief, says, officers should not be using them. During an interview in March, McClelland said that if he had known of the false positives Houston’s officers were generating, he would have ordered a halt to all field testing departmentwide. Police officers are not chemists, McClelland said. “Officers shouldn’t collect and test their own evidence, period. I don’t care whether that’s cocaine, blood, hair.” * * *

Last year, Devon Anderson, the current Harris County district attorney, prohibited plea deals in drug-possession cases before the lab has issued a report. The labs issue reports in about two weeks, but defendants typically wait three weeks before they can see a judge — enough time to lose a job, lose an apartment, lose everything. And yet since Anderson implemented the rule, case dismissals have soared 31 percent, primarily because the lab has proved defendants not guilty.

People plead guilty when they’re innocent because they see no alternative. People who have just been arrested usually don’t know their options, or even that they have an option. “There’s a fail-safe in there, and it’s called the defense lawyer,” says Rick Werstein, the attorney now representing Albritton as she seeks to finalize her exoneration. Defense lawyers can demand a lab analysis, and they exist to help defendants navigate the consequences of the jail time while they wait, even as they explain the even higher costs of a felony conviction. They are fully authorized to pursue alternative deals.

Posted by Marcia Oddi on Tuesday, July 12, 2016
Posted to General Law Related

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

For publication opinions today (2):

In In re the Guardianship of Hellen Kinney Morris: Mary M. Kinney and Patrick Kinney v. Paul Kevin Kinney, a 12-page opinion, Chief Judge Vaidik writes:

After six siblings disagreed about how to take care of their elderly mother with dementia, one faction of siblings filed a petition to appoint guardians for their mother while the other faction maintained that a power of attorney in effect was sufficient to care for their mother. The trial court found that the mother is incapacitated and appointed all six siblings as co-guardians over different areas of their mother’s life. The losing siblings now appeal, arguing that their mother is not incapacitated and that guardians are not necessary.

The record supports the trial court’s finding that the mother is incapacitated because there is evidence that she requires assistance to manage her property and provide self-care due to dementia and that she is unable to do either one without substantial around-the-clock help. However, because the mother’s attorneys in fact are different than her guardians, according to Indiana Code section 30-5-3-4(b) the attorneys in fact are in control, and the guardians do not have any power with respect to their mother’s property and health care. But because it does not appear that the trial court considered the effect of the power of attorney when it determined that guardians were necessary, we reverse and remand this case for the trial court to determine whether guardians are necessary in light of the power of attorney and, if so, to give due consideration to the matters listed in Indiana Code section 29-3-5-5, including the mother’s wishes and her existing attorneys in fact. We therefore affirm in part and reverse and remand in part.

In Adrian Anthony v. State of Indiana, a 26-page opinion, Judge Brown writes:
Adrian Anthony appeals his convictions for two counts of rape, three counts of criminal deviate conduct, attempted criminal deviate conduct, robbery, and burglary as class A felonies, robbery and three counts of carjacking as class B felonies, and robbery as a class C felony, all stemming from his involvement in a home invasion and assault. He appeals his aggregate sentence, and raises three issues which we revise and restate as:
I. Whether the evidence is sufficient to support four of his convictions under a theory of accomplice liability;
II. Whether his two convictions for rape violate double jeopardy principles; and
III. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender. * * *

For the foregoing reasons, we affirm the judgment of the trial court in part, reverse in part, and remand with instructions to reduce Anthony’s conviction for robbery as a class A felony on Count XVIII to a class B felony and reduce his aggregate sentence to 268 years of incarceration.

NFP civil decisions today (3):

In re the Adoption of K.C.: C.C. v. S.H. and L.H. (mem. dec.)

Edward Hearn v. Anna Hearn (mem. dec.)

Gateway West Townhouse Association v. George Palmer (mem. dec.)

NFP criminal decisions today (3):

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

Roy Chaoran Sun v. State of Indiana (mem. dec.)

Regina N. Miller v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, July 12, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisons - Supreme Court decides one today

In Victor Roar v. State of Indiana, a 2-page, 5-0, per curiam opinion, the Court agrees with the majority analysis in the 2-1 COA's April 21st split:

Rejecting its prior precedent in C.L. v. State, 2 N.E.3d 798 (Ind. Ct. App. 2014), the Court of Appeals affirmed the trial court. * * *

We agree with Judge Najam’s analysis and the result reached by the Court of Appeals majority in the present appeal. We therefore grant transfer, adopt and incorporate by reference that portion of the Court of Appeals’ opinion addressing the sufficiency of the evidence in accordance with Indiana Appellate Rule 58(A)(1), and affirm the trial court. We summarily affirm that part of the Court of Appeals’ opinion addressing the admission of other evidence. See App. R. 58(A)(2).

Posted by Marcia Oddi on Tuesday, July 12, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending July 8, 2016 [Updated]

No transfer list for the week ending July 8th has yet been posted by the Court.

[Updated July 18, 2016] Just this morning the Court site has announced that there were no transfer dispositions for the week ending July 8th.

Posted by Marcia Oddi on Tuesday, July 12, 2016
Posted to Indiana Transfer Lists

Environment - SCOTUS ruled this term that Army Corps jurisdictional determination (JD) is "final" under APA

The opinion, issued May 31, 2016, is U.S. Army Corps of Engineers v. Hawkes Co. From SCOTUSblog:

Holding: 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.
A long opinion analysis posted at SCOTUSblog by Miriam Seifter begins:
On one hand, United States Army Corps of Engineers v. Hawkes Co. was a gift to an eight-Justice Court: a case with a straightforward legal question and compelling facts that could be decided narrowly, leaving harder issues for another day. In a majority opinion authored by Chief Justice John Roberts, the Court unanimously and predictably concluded that jurisdictional determinations issued by the Army Corps of Engineers under the Clean Water Act constitute final agency action under the Administrative Procedure Act, meaning they can be reviewed in court immediately. On the other hand, as the decision’s three separate concurrences reflect, the devil is in the details, and the details here are quite interesting as a matter of administrative law.

Posted by Marcia Oddi on Tuesday, July 12, 2016
Posted to Courts in general | Environment

Monday, July 11, 2016

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

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (1):

Shawn M. Sobolewski v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, July 11, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - All quiet so far ...

Nothing as of 2PM from Indiana Supreme, COA or Tax courts. Nothing from federal district courts or 7th Circuit ... And no transfer list.

Posted by Marcia Oddi on Monday, July 11, 2016
Posted to Indiana Decisions

Courts - More on: "U.S. Court of Appeals for the D.C. Circuit: Private-account email can be subject to FOIA"; other examples from ILB archive

Updating this ILB post from July 5th, an Alison Frankel "On the Case" column for Reuters on July 6th was headed "Federal officials can’t hide documents on private servers: D.C. Circuit." A quote:

But thanks to a ruling Tuesday by the District of Columbia U.S. Circuit Court of Appeals, it is no longer possible for the head of a federal agency to evade FOIA requests by using a private email account. The decision, oddly enough, did not come in litigation against Hillary Clinton or the State Department, but rather in a FOIA case that the libertarian group Competitive Enterprise Institute brought against the Office of Science and Technology Policy, after the federal agency refused CEI’s request for emails maintained in its director’s private account. The impact of the appellate court’s holding, though, should resound throughout the federal government: “An agency cannot shield its records from search or disclosure under FOIA by the expedient of storing them in a private email account controlled by the agency head.”

It’s apparently a weird coincidence that the D.C. Circuit issued its decision in the CEI case on the same day that the FBI director announced the recommendation against charges in the Clinton email matter. The opinion, by Judge David Sentelle for a panel that also included Judges Harry Edwards and Sri Srinivasan, said the D.C. Circuit has never before considered a case involving an agency head’s private emails. It makes no mention of Secretary Clinton, but flatly rejected Justice Department arguments that federal agencies do not control the private emails of high-ranking agency officials so those documents do not have to be produced to FOIA requesters.

“The Supreme Court has described the function of FOIA as serving ‘the citizens’ right to be informed about what their government is up to,'” the D.C. Circuit opinion said. “If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served. It would make as much sense to say that the department head could deprive requesters of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.”

Posted by Marcia Oddi on Monday, July 11, 2016
Posted to Courts in general

Ind. Courts - "Lake County judiciary has had a drinking problem"

Great, l-o-n-g story this weekend by Bill Dolan of the NWI Times! Some quotes:

Lake County's system of justice for drunken driving is receiving a new sobriety test.

State police recently began gathering records and conducting interviews into whether someone in Lake Station City Court intentionally withheld alcohol-related convictions over a four-year period from the Indiana Bureau of Motor Vehicles for inclusion on drivers' records — and all the consequences that imposes.

No one has yet been charged with criminal wrongdoing in that case. In Indiana, the charge is called operating while intoxicated, or OWI.

But three decades ago, an investigation by state and federal police called Operation Bar Tab bagged Lake County Court judges, a county clerk, a deputy prosecutor, a former director of the county court's alcohol counseling service and several minor court officials and attorneys.

They were convicted for their roles in fixing driving tickets, the bulk of them for drunken driving, for political favors.

Bar Tab, in connection with Operation Lights Out, a simultaneous federal investigation of non-court corruption, resulted in the conviction of more than 15 elected officials and county government employees.

Shaken Democrats at the time beheld the state replace two judges and the county clerk with Republicans, the first to occupy countywide offices in half a century. * * *

"(State) troopers noticed they were arresting drunken drivers who they had arrested just six months earlier who shouldn't have had a license. Further checking showed one guy pleaded guilty, but nothing showed up on the police record."

They tracked the problem to Lake County Courts, created in the mid-1970s to put on the bench judges who had formal legal training. They replaced justices of the peace, quasi-judicial officials who weren't required to have law degrees to handle traffic violations.

However, these new judges, unlike their Superior Court counterparts, were elected through Lake's powerful Democratic party with all the partisan influences and obligations that come with having to marshal campaign funds and voter support.

Posted by Marcia Oddi on Monday, July 11, 2016
Posted to Indiana Courts

Ind. Gov't. - NWI Times has fun with proposed ordinance

The story by Ed Bierschenk of the NWI Times, headlined "Proposed rule on saggy pants dropped," begins:

GARY — The City Council’s interest in a proposed ordinance to combat the wearing of sagging pants in public appears to have bottomed out and it doesn’t appear members will take a crack at passing one this year.

Posted by Marcia Oddi on Monday, July 11, 2016
Posted to Indiana Government

Ind. Gov't. - "Can Indiana trade overcrowded jails for treatment reform?"

That is the headline to this very long Sunday Indianapolis Star story by Madeline Buckley and Kristine Guerra, subheaded: "Indiana's sweeping criminal justice reform is 2 years old. Is it working?" A few quotes:

The sweeping changes, passed in 2014, aim to make punishments more proportional to the crime by keeping nonviolent offenders out of prison. Instead, treatment programs would help defendants recover from mental health and substance abuse problems while serving their sentences in local communities.

The goal is to turn Indiana from a state that simply incarcerates to one that also rehabilitates. But is it working? * * *

So far, treatment programs remain underutilized in many counties. And too many inmates simply trade an Indiana Department of Correction prison cell for one in a county jail, where it is more expensive to house offenders — potentially costing the state hundreds of thousands of dollars.

Yet lawmakers, state officials and experts are urging Hoosiers to give the reform time to work.

Some of the reform's goals — such as not sending nonviolent offenders to prison — have been achieved, said Andrew Falk, senior fellow of the Sagamore Institute in Indianapolis, who is studying the effects of the sentencing reforms.

"But the goals that most Indiana citizens and legislators care the most about — crime rates, rehabilitation of ex-offenders and our prison population — are harder to measure in the short term," Falk said, adding that it will take several years before the public sees any tangible impact of the reform.

The kind of change that Indiana has set out to achieve is also seen on the national level, as lawmakers try to pass legislation that would reduce sentences for nonviolent federal drug offenses. Change of this magnitude not only takes time to materialize; it's also expensive. In Indiana, the price tag has reached millions, and that's just the beginning.

And as with any kind of change, let alone a massive one, there are growing pains. That includes an overcrowding problem that has put Marion County Jail, the state's largest jail, in "crisis mode."

Posted by Marcia Oddi on Monday, July 11, 2016
Posted to Indiana Government

Courts - "Peter Doig Says He Didn’t Paint This. Now He Has to Prove It"

Fascinating story from the Sunday print version of the NY Times, reported by Graham Bowley. The long story begins:

O.K., Peter Doig may have tried LSD a few times when he was growing up in Canada during the 1970s. But he still knows, he said, when a painting is or isn’t his.

So when Mr. Doig, whose eerie, magical landscapes have made him one of the world’s most popular artists, was sent a photograph of a canvas he said he didn’t recognize, he disavowed it.

“I said, ‘Nice painting,’” he recalled in an interview. “‘Not by me.’”

The owner, however, disagreed and sued him, setting up one of the stranger art authentication cases in recent history.

The owner, a former corrections officer who said he knew Mr. Doig while working in a Canadian detention facility, said the famous painter indeed created the work as a youthful inmate there. His suit contends that Mr. Doig is either confused or lying and that his denials blew up a plan to sell the work for millions of dollars.

But Mr. Doig, 57, has compelling evidence he was never near the facility, the Thunder Bay Correctional Center, about 15 hours north of Toronto.

“This case is a scam, and I’m being forced to jump through hoops to prove my whereabouts over 40 years ago,” he said.

To Mr. Doig’s surprise, though — and the astonishment of others in the art world — a federal judge in Chicago has set the case for trial next month at United States District Court for Northern Illinois.

Posted by Marcia Oddi on Monday, July 11, 2016
Posted to Courts in general

Ind. Gov't. - More on: Liquor consumption and possession at Dune Pavilion authorized as of July 1st. What of liquor sales?

Updating this ILB post from July 6th, which pointed out that under the law passed this spring, a controversial 3-way liquor permit may now by granted to the Dunes Pavilion with no notice whatsoever, Dan Carden reports today in the NWI Times in a long story that begins [ILB emphasis]:

INDIANAPOLIS — Northwest Indiana residents will have a final opportunity to tell state officials their thoughts on a plan to allow alcohol sales at a renovated Indiana Dunes State Park pavilion.

A state law that took effect July 1 requires the Indiana Alcohol and Tobacco Commission, without public input, to automatically grant the Department of Natural Resources a permit for beer, wine or liquor sales at any state park if the DNR asks for one.

However, during legislative debate on the new statute, DNR officials promised lawmakers the agency would present its alcohol in the parks plan to the 12-member Indiana Natural Resources Commission, the regulatory board that oversees the DNR, before requesting the permits.

That presentation [to the Indiana Natural Resources Commission] is set for 9 a.m. Region time July 19 in the ballroom at Fort Harrison State Park, 6002 N. Post Road, Indianapolis.

“There will be an opportunity for public comment to commission members at that time. That’s not a requirement of the new law, but it’s something we said would be done,” said Phil Bloom, DNR communications director.

The commission does not appear to have the authority to permanently block Dunes alcohol sales, since the law mandates DNR receive an alcohol permit if it requests one, but the commission’s response and public reaction to the plan could influence the agency’s decision to seek a permit.

“We’ll take any guidance we get from the commission, and take into account the public comment, in consideration of when we then apply to the ATC for the state park alcohol permit,” Bloom said.

Earlier this year, nearly 10,000 Region residents signed petitions urging the Republican-controlled General Assembly and Gov. Mike Pence, also a Republican, to reject the plan for alcohol at the Dunes pavilion, citing the potential for drunks on the beach, increased drownings and new competition for nearby businesses.

After Pence signed the measure into law, Dunes Action!, a coalition of Northwest Indiana residents opposed to alcohol in the park and the possibility that a banquet center will be constructed next to the pavilion, condemned Pence for “selling out family-friendly state parks for booze.”

Pavilion Partners, which has a 35-year lease with the DNR to renovate the historic Dunes pavilion and operate various dining and event spaces there, twice was denied an alcohol sales permit last year by the Porter County Alcoholic Beverage Commission.

State Sen. Karen Tallian, D-Ogden Dunes, whose district includes the park, said Pence is wrong to send the message that if you can’t win with local officials who know what their communities need, come to the state and you’ll get it, anyway.

Posted by Marcia Oddi on Monday, July 11, 2016
Posted to Indiana Government

Ind. Courts - Judges named to temporarily fill Henry Circuit Court vacancy to result from Judge Willis' July 22nd resignation

Following from this ILB post of June 17th headed "Judge Mary Willis named Court's first Chief Administrative Officer (CAO)," the Supreme Court has just named transitional judges to fill the upcoming Henry Circuit Court 1 vacancy until a Governor's appointee assumes office. Here is the order, filed July 8th and posted today. It begins:

The Honorable Mary G. Willis, Judge of the Henry Circuit Court, has notified the Court of her resignation from the office effective at the end of business on July 22, 2016. Judge Willis has tendered her resignation so that she may join the Court as its new Chief Administrative Officer.

We find that in the interest of continuing the orderly administration of justice alternative arrangements for a judicial officer in Henry Circuit Court are necessary until a successor is named by the Governor. The Court has been advised that Senior Judge Jack Tandy is willing to serve as senior judge in Henry Circuit Court on a part-time basis commencing August 1, 2016. Further, the Executive Director of State Court Administration, pursuant to IC 33-24-6-10, has recommended that Judges Kit C. Dean Crane and Bob A. Witham be temporarily transferred to Henry Circuit Court 1 to facilitate the judicial work of the court. The Court has been advised that Judges Crane and Witham are willing to serve at such times that Judge Tandy is not available.

Posted by Marcia Oddi on Monday, July 11, 2016
Posted to Indiana Courts

Ind. Decisions - ACLU challenge to DCI staffing levels, dismissed by trial court, to be heard by COA on July 20

See this morning's ILB Upcoming Oral Arguments post.

For background, see this Feb. 22 ILB post, which includes a link to the 12-page opinion by Marion Superior Court Judge Heather Welch in the case, Mary Price v. Indiana DCS.

Here is the docket, which includes links to the briefs.

Posted by Marcia Oddi on Monday, July 11, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 7/11/16):

Next week's oral arguments before the Supreme Court (week of 7/18/16):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/11/16):

Monday, July 11

Next week's oral arguments before the Court of Appeals (week of 7/18/16):

Wednesday, July 20

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, July 11, 2016
Posted to Upcoming Oral Arguments

Friday, July 08, 2016

Ind. Decisions - 7th Circuit decides Indiana bankruptcy appeal

In Arlington Capital, LLC v. Bainton McCarthy, LLP and Smith, Gambrell & Russell, LLP (ND Ind., Springmann), a 6-page opinion, Judge Williams writes:

The appellees in this case, who we refer to as the “Law Firms,” performed legal services for a bankrupt estate and asked the bankruptcy court to approve their fees. The appellant, Arlington Capital, LLC, is a general unsecured creditor of the estate. Arlington objected to the fee petitions, arguing that the Law Firms should not be paid because their work never had a chance of benefiting the estate. The bankruptcy court approved the petitions and the district court affirmed. Arlington wants us to reverse but it has not shown that it stands to benefit if the Law Firms’ fees are denied. So we remand and instruct the district court to dismiss the case for lack of standing. * * *

Oral argument revealed that Arlington’s true goal has nothing to do with its general unsecured claim for $5,000. Arlington hopes to file a separate lawsuit against the Law Firms for their role in bringing the § 363(n) suit, and thinks it would be useful to have an opinion from us saying that the § 363(n) suit was pointless. Whatever the merits of its con-templated suit, Arlington is not entitled to—and indeed we lack the authority to offer—an advisory opinion to be used as a sword in independent litigation.

III. CONCLUSION. The judgment is VACATED and the case is REMANDED to the district court with instructions to dismiss for want of jurisdiction.

Posted by Marcia Oddi on Friday, July 08, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Indiana does not recognize a private right of action for failure to report child abuse"

That is a quote from a Court of Appeals opinion, Kelli Sprunger v. John A. Egli, M.D., which the ILB quoted in its Sept. 11, 2015 case summary:

Kelli Sprunger, Guernsey’s biological mother, subsequently filed a medical malpractice action against Dr. Egli alleging failure to diagnose and report child abuse. Concluding that Indiana does not recognize a private right of action for failure to report child abuse, the trial court granted summary judgment in favor of Dr. Egli on August 7, 2014.

Sprunger now appeals, arguing that her claim is premised not on a failure to report, but rather a failure to make a correct diagnosis. We agree with the trial court’s conclusion that Sprunger essentially alleges a failure to report child abuse and hold that the characterization of the claim as medical malpractice does not escape the threshold question of whether the reporting statutes confer a private right of action. As we have already determined that there is no private right of action for failure to report child abuse in Indiana, C.T. v. Gammon, 928 N.E.2d 847, 853-54 (Ind. Ct. App. 2010), we affirm the trial court’s grant of summary judgment in favor of Dr. Egli. [ILB: See C.T., pp. 9-12]

Both Sprunger and C.T. came to mind today as I read Kristine Guerra's Indianapolis Star story headed: "Judge: Doctor accused of not reporting child abuse can't be sued." The story begins:
A doctor accused of not reporting suspected abuse of a child who was later killed cannot be sued for medical malpractice, a Marion County judge ruled.

Dr. Chris Loman was facing a lawsuit accusing him of not informing the Indiana Department of Child Services that one of his patients was being abused at home, as required by Indiana law. One-year-old Jayden Noel had a cut on his upper lip and bruises on the right side of his face when Loman examined him in July 2011.

He was beaten to death six months later.

The boy's father, Jerraco Noel, sued Loman and other defendants in March 2013, a little more than a year after his son's death.

In his ruling issued last month, Marion Superior Judge Timothy Oakes cited another medical malpractice lawsuit against a physician who, like Loman, was accused of failing to report and diagnose suspected child abuse. The Indiana Court of Appeals dismissed the case because Indiana law does not allow private parties to sue for failure to report abuse.

"At the end of the day, the claim brought by Jerraco Noel is not recognized under Indiana law," Oakes wrote.

Posted by Marcia Oddi on Friday, July 08, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Illinois case, but of interest to toll road users

Jeffrey D. Cochran v. Illinois State Toll Highway involves an Ohio driver who used the Illinois Toll Road and was unfamiliar with the Illinois periodic toll system. Some quotes from p. 2:

Plaintiff, an Ohio resident, is accustomed to driving on Ohio’s tollways. He alleges that Ohio assesses a toll only when a driver exits a highway. Illinois’ toll system, however, functions differently, assessing periodic tolls as a driver continues on the highway. It also allows drivers to use electronic transponders which automatically charge motorists for tolls. This eliminates the need for drivers to stop at toll booths and allows them to pass through toll plazas at full speed. Thus, Illinois has two sets of lanes at each toll plaza: full‐speed lanes to the left for transponder users and lanes to the right for drivers who stop and pay cash to a toll booth attendant. The tollway has signs informing drivers that they are approaching a toll plaza and indicating which are transponder lanes and which are cash lanes. If a driver without a transponder uses a full‐speed transponder lane, the system records the fact that the driver failed to pay a toll.

Posted by Marcia Oddi on Friday, July 08, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, a 2-1 opinion

In Sheet Metal Workers International v. Horning Investments, LLC(SD Ind., Magnus-Stinson), a 17-page, 2-1 opinion, Chief Judge Wood writes:

Horning Investments, LLC, is a roofing company, but this case is about a floor—in particular, the lower limit on wages and benefits imposed by the federal Davis‐ Bacon Act. The dispute concerns a construction project for the U.S. Department of Veterans Affairs. Horning was a subcontractor for the project; its workers are represented by Local 20 of the Sheet Metal Workers International Association (the Union). Believing that Horning had paid its workers less than the Davis‐Bacon Act requires, the Union sued. Interestingly, however, it did not pursue relief directly under Davis‐Bacon; instead, it filed a qui tam action under the False Claims Act, 31 U.S.C. §§ 3729–3733—the statute at issue in the Supreme Court’s recent decision in Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016).

By choosing the False Claims route, the Union undertook to show that Horning knowingly made false statements (or misleading omissions of the type described in Universal Health Services) that were material to the government’s payment decision. We conclude that the Union did not proffer enough evidence to permit a reasonable jury to conclude that Horning acted with the requisite knowledge. We thus affirm the judgment of the district court in Horning’s favor.

[J.Posner's dissent begins on p. 14, and concludes] In short, it is premature to exonerate Horning.

Posted by Marcia Oddi on Friday, July 08, 2016
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Ariel Gomez v. State of Indiana, Judge Brown writes:

The next issue is whether Gomez’s three convictions for domestic battery as class A misdemeanors violate the continuous crime doctrine. Gomez argues that he and Chavez “were engaged in a three minute tussle as Gomez sought to terminate her illegal entry into his property,” that “[e]ach step did not constitute a separate act of battery, but was a whole act of pulling her hair and engaging in an effort to remove her from the house, knocking into walls as they headed for the door,” and that, “[i]f [he] committed domestic battery as charged, it was one instance of battery, and the injuries were the product of the one continuous act.” Appellant’s Brief at 15. He further argues that Chavez “answered positively when asked whether he was continuing to try to get her out of the house while she was resisting getting pushed out of the house.” Id. He also contends that he “should not have been charged for every scrape and bruise resulting from their tussle” and that two of his convictions should be vacated. Id. * * *

Based upon the record and considering Chavez’s testimony describing Gomez’s acts while trying to push her out of the house, we conclude that the acts alleged in Counts II, III, and IV were sufficiently compressed in terms of time, place, singleness of purpose, and continuity of action so as to constitute a single transaction for purposes of the continuous crime doctrine. * * * Accordingly, we reverse Gomez’s convictions on Counts III and IV.

In Brad L. Sullivan v. State of Indiana , a 12-page opinion, Judge Brown writes:
Brad L. Sullivan appeals the revocation of his community corrections placement. Sullivan raises one issue which we revise and restate as whether the trial court abused its discretion in revoking his placement in community corrections. We reverse and remand. * * *

Sullivan asserts that the predetermined sanction in his plea agreement that he serve his entire sentence in jail for any rule violation was improper as a matter of law and deprived him of a number of his constitutional rights including his right to due process. He further argues that the court abused its discretion in enforcing the provision, that he did not purposefully violate community corrections’ rules, that circumstances beyond his control created the situation which led to the minor rule violation, and that the State presented no compelling facts to justify implementation of such a harsh sentence. He also argues that he had taken steps to be hooked up on home detention, that he was in a mental health hospital on the day he was to report, that he and his social worker contacted his trial attorney, that his trial attorney believed he had faxed commitment information to the prosecutor’s office, and that community corrections was still willing to accept Sullivan into the program. * * *

Based on the totality of the circumstances, including the nature of the violation and sanction, we conclude the trial court abused its discretion in finding that Sullivan’s violation warranted revoking his community corrections placement and in ordering him to serve eighteen months in the DOC.

NFP civil decisions today (5):

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

Anthony G. Boyer v. State of Indiana (mem. dec.)

L.M. v. Review Board of the Indiana Department of Workforce Development, et al. (mem. dec.)

Jeffrey M. Kaetzel, Marcia Kaetzel d/b/a J&M Construction v. Donald L. Woods, II and Kori M. McBrayer Woods (mem. dec.)

Mark Smith v. Robert Bowling (mem. dec.)

NFP criminal decisions today (2):

Jeremiah Barnaby Ricks v. State of Indiana (mem. dec.)

Sauntio Carter v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, July 08, 2016
Posted to Ind. App.Ct. Decisions

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

On Feb. 2, 2016, the ILB had a long post on HB 1267, including this quote from the Fort Wayne Journal Gazette:

Hawkins Family Farm surely fits the image most Hoosiers have of an Indiana farm. Four generations have worked the 99-acre Wabash County farm, most recently nurturing a growing business raising and processing poultry for area restaurants.

But a bill before the General Assembly would prohibit Hawkins from selling to restaurants, ostensibly in the name of food safety.

House Bill 1267 is an effort to protect the market for Big Ag, though. It threatens both the growing farm-to-fork movement and the appeal of farming for a new generation of Hoosiers committed to smaller and safer farming methods.

Here is the final, as passed, version of HEA 1267.

The ILB doesn't know for sure if HB 1267 was amended to take care of all the concerns expressed in the Feb. 2nd post.

But yesterday Hoosier Ag Today published the complete news release of the Indiana State Board of Animal Health (BOAH), proposing rules to allow expanded sales of products from small farms that meet new food safety standards.

Posted by Marcia Oddi on Friday, July 08, 2016
Posted to Indiana Government

Law- - "Texas to require burial or cremation of aborted fetuses"

Paul J. Weber of the AP has the story. Some quotes [ILB emphasis]:

AUSTIN, Texas (AP) — Texas intends to require aborted fetuses to be buried or cremated come September, adding new abortion regulations after the U.S. Supreme Court struck down the state's restrictive clinic laws.

Republican Gov. Greg Abbott ordered state health officials to propose the changes, his office said Thursday, which were quietly put out for public comment this month.

Similar fetal remain rules in Indiana are on hold after a federal judge granted a temporary injunction last week against that state's sweeping new anti-abortion law. That bill, signed in March by GOP Gov. Mike Pence, more notably also banned abortions due to genetic abnormalities.

Texas, however, isn't waiting for lawmakers to pass a bill regarding fetal remains. Abbott had been talking with the Texas Health and Human Services Commission for months about making a change, Abbott spokeswoman Ciara Matthews said.

ILB: Here is some of what Judge Tanya Walton Pratt wrote when enjoining similar restrictions in Indiana's challenged law:
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.

Posted by Marcia Oddi on Friday, July 08, 2016
Posted to General Law Related | Ind Fed D.Ct. Decisions | Indiana Law

Ind. Gov't. - "Leaders eye legislative redistricting reforms"

That is the headline to Dan Carden' story today in the NWI Times. Some quotes:

A state commission is continuing its work toward a November decision on whether to recommend changes in Indiana's process for drawing congressional and legislative district boundaries.

On Thursday, the 12-member Special Study Committee on Redistricting heard testimony from Michael Li, a New York University expert who analyzes redistricting across the country, and Ed Cook, a nonpartisan Iowa official who oversees that state's redistricting system.

They both emphasized the need for Hoosiers to decide what they want to prioritize in redistricting since it's not possible to have a "perfect map" with fully competitive districts that never break up communities of interest, are equal in population, contiguous and compact.

Li said getting redistricting right is more important than ever, since new mapping technology and greater access to consumer databases make it easy for politicians to effectively select individual voters and place them in specific districts.

"We have a political process that's driven in part by attempts to rig the process for maximum partisan advantage," Li said.

Cook noted that Iowa has combated that instinct for four decades by setting rigorous redistricting parameters in state law, including no protection for incumbent legislators and a requirement that each Senate district contain two House districts. * * *

Former Indiana Supreme Court Justice Ted Boehm, a member of the study committee, said that redistricting produced an "unrepresentative legislative body" because most Statehouse seats now are safely held by either political party, and the winner often is decided in primary elections.

As a result, many legislators hew toward partisan extremes, since they need to win the primary to remain in office, and voter apathy and cynicism are at all-time highs, because most Hoosiers feel like they don't have a meaningful say in who represents them, he said.

Any redistricting changes recommended by the commission ultimately must win approval by the Legislature and potentially Hoosier voters, if a constitutional amendment to implement the change is required.

The next Indiana redistricting will occur in 2021.

ILB: Here is the website for the Special Interim Study Committee on Redistricting. The video of yesterday's meeting has been archived and is available here, as is the video from the May 5, 2016 meeting.

Here is an ILB post on the first meeting of the commission, which took place in 2015.

Posted by Marcia Oddi on Friday, July 08, 2016
Posted to Indiana Government

Thursday, July 07, 2016

Ind. Courts - Supreme Court creates a Tax Court Advisory Committee

Updating this ILB post on the May 1st report of the Tax Court Task Force (which links to the document), and this June 27th ILB post quoting from an Indiana Chamber of Commerce article on the Report, the Supreme Court has now issued an Order Creating an Indiana Tax Court Advisory Committee:

... formed to work with, advise, assist, and assess progress by the Indiana Tax Court in implementing the reforms and improvements recommended by the Task Force, and to provide periodic written progress reports to this Court.

The following persons are appointed to the Advisory Committee:
1. Senior Judge Brent E. Dickson
2. Judge Robert R. Altice, Indiana Court of Appeals
3. Judge Thomas C. Perrone, Cass Superior Court #1
4. Mary G. Willis, Chief Administrative Officer, Designee, Indiana Supreme Court
5. James F. Maguire, Staff Attorney, Indiana Supreme Court
Senior Judge Brent Dickson will serve as the Chair.

Posted by Marcia Oddi on Thursday, July 07, 2016
Posted to Ind. Sup.Ct. Decisions | Ind. Tax Ct. Decisions | Indiana Government

Ind. Decisions - Supreme Court decides one today, re a police entry

In Timmie Bradley v. State of Indiana, an 8-page, 5-0 opinion, Justice David writes:

This case involves whether Bryant Beatty had apparent authority to consent to police entry into Defendant, Timmie Bradley’s, home. Specifically, does a houseguest, who happens to answer the door to a home shortly after he knocked to gain entry himself, have the apparent authority to consent to police entry? Under the facts and circumstances of this case, we hold that he does not.
2
Bradley also challenges the protective sweep of his home that occurred after police entered. However, we need not address the merits of his argument regarding the protective sweep. Because police did not have a warrant, or warrant exception, to justify entry into the home in the first place, the subsequent warrantless police searches, including the protective sweep, were unlawful and thus, the fruits of those searches must be suppressed. Accordingly, we reverse the trial court’s denial of Bradley’s motion to suppress all evidence seized in the search of his home.

Posted by Marcia Oddi on Thursday, July 07, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "ALEC to hold national meeting in Indianapolis"

Niki Kelly of the Fort Wayne Journal Gazette is reporting:

The American Legislative Exchange Council is having its 43rd annual meeting in Indianapolis July 27 to 29.

The nonpartisan group is an organization of legislators from around the country focusing on limited government, free markets and federalism.

ALEC pushes model legislation nationwide, including efforts in the past to institute voter ID, Stand Your Ground, fracking and Right to Work laws.

The Indiana state chairs are Rep. David Wolkins, R-Warsaw, and Rep. David Frizzell, R-Indianapolis.

The group comes with its share of controversy, as it has been criticized for accepting private corporate donations to push specific legislation. ALEC is legally a tax-exempt charity.

The agenda for the upcoming meeting includes discussion of model legislation relating to online lodging marketplaces -- aka Airbnb -- as well as a Next Generation Charter Schools Act.

The ILB has had a number of posts relating to ALEC, including this one from Dec. 16, 2013.

Posted by Marcia Oddi on Thursday, July 07, 2016
Posted to Indiana Government

Ind. Courts - " ACLU, Planned Parenthood Challenge New Ultrasound Requirements"

From a news release issued this morning:

Indianapolis - New ultrasound requirements passed into law on July 1 are being challenged today in a federal lawsuit filed by the American Civil Liberties Union of Indiana, national ACLU and national Planned Parenthood on behalf of Planned Parenthood of Indiana and Kentucky. The new restrictions, for which there is no medical justification, create an undue burden on a woman's right to obtain an abortion protected by the Fourteenth Amendment to the U.S. Constitution.

As of July 1, Indiana Code § 16-34-2-1.1(a)(5) imposes a new requirement on women in Indiana seeking an abortion: that an ultrasound be obtained 18 hours in advance of the procedure and at the same time a woman receives other mandatory information also required by law. The new 18 hour requirement changed prior law that allowed the ultrasound to occur when the woman obtained an abortion. The new law will force many women to make two potentially lengthy and burdensome trips to specific PPINK health centers that provide surgical or medication abortion instead of going to a clinic in their community. There are only four such centers in the state.

"The requirement that women obtain an ultrasound at least 18 hours before an abortion, as opposed to allowing PPINK to continue its practice of providing one immediately prior to the abortion, provides no health benefit to women and serves only to place a substantial obstacle to obtaining an abortion," said Ken Falk, ACLU of Indiana legal director. "This law, therefore, is an unconstitutional undue burden on abortion access."

Last week a federal judge granted Planned Parenthood's request for a preliminary injunction, blocking other key features of an anti-abortion measure that would have gone into effect July 1 and would have imposed unprecedented, unconstitutional restrictions on women seeking abortions and their health care providers.

"Last week, the Supreme Court [ILB: In the Texas case, Whole Women's Health] made perfectly clear that restrictions that serve no purpose except to put obstacles in the path of a women trying to end a pregnancy cannot stand," said Jennifer Dalven, director of the Reproductive Freedom Project with the ACLU. "Make no mistake about it, this Indiana law is just another example of an unnecessary restriction that is blatantly unconstitutional."

"Ultrasounds are an essential part of our medical practice," said Betty Cockrum, President and CEO of PPINK. "We wish Indiana's politicians would leave the practice of medicine to doctors and health care providers rather than interfering yet again. The 18-hour requirement is unduly burdensome and adds no value in a state already fraught with difficult and unnecessary regulations regarding a truly safe and legal procedure."

The case, Planned Parenthood of Indiana and Kentucky. v. Commissioner, Indiana State Department of Health; Prosecutors of Marion, Lake, Monroe and Tippecanoe Counties, Case 1:16-cv-1807-TWP-DML,was filed in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on July 7, 2016. Attorneys on the case include Kenneth J. Falk, Gavin M. Rose and Jan P. Mensz, American Civil Liberties Union of Indiana; Jennifer Sandman Planned Parenthood Federation of America; and Jennifer Dalven, American Civil Liberties Union.

Here is a copy of the 10-page complaint.

Posted by Marcia Oddi on Thursday, July 07, 2016
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

In the Matter of the Term. of the Parent-Child Relationship of: K.B., Minor Child, and L.B., Father v. The Ind. Dept. of Child Services (mem. dec.)

Richard K. Ray v. Ellyn E. Ray (mem. dec.)

NFP criminal decisions today (3):

Bruce W. Powell v. State of Indiana (mem. dec.)

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

Kendrick Morris v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, July 07, 2016
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from June 22nd, the Governor's Office has just announced:

Indianapolis – The Indiana Utility Regulatory Commission Nominating Committee is soliciting applications from persons interested in filling one current vacancy on the Indiana Utility Regulatory Commission (IURC) created by the appointment of Commissioner Carolene Mays-Medley to be the Executive Director of the White River State Park Development Commission.

Applications will be accepted today through close of business on Wednesday, July 20, 2016. Applications must be received in the Governor’s Office by close of business on Wednesday, July 20, 2016. After the close of the application period, the Nominating Committee will schedule and conduct a public meeting on Friday, August 5, 2016 to interview applicants. The Nominating Committee will present Governor Mike Pence with a list of three qualified candidates from which he will select an individual to fill the remainder of Commissioner Mays-Medley’s term. Commissioner Mays-Medley’s term expires December 31, 2017.

Members of the Nominating Committee are Committee Chair Allen Paul, Eric Scroggins, John Blevins, Larry Buell, Win Moses, Michael Evans, and Michael Mullett.

Applications for the position may be obtained by emailing boardsandcommissions@gov.in.gov, by calling 317-232-4567, by hard copy in Statehouse, Room 206, or from www.in.gov/gov/2682.htm. Completed applications should be returned to: Allen Paul, Chair, IURC Nominating Committee, c/o Office of the Governor, Statehouse, Room 206, Indianapolis, IN 46204. To be considered timely, applications must be received in the Governor's Office and not simply postmarked by close of business on Wednesday, July 20, 2016.

Posted by Marcia Oddi on Thursday, July 07, 2016
Posted to Indiana Government

Wednesday, July 06, 2016

Ind. Gov't. - Liquor consumption and possession at Dune Pavilion authorized as of July 1st. What of liquor sales?

The 2016 General Assembly passed HEA 1386, which, according to a March 8, 2016 NWI Times story by Dan Carden:

...allows the Department of Natural Resources to obtain "state park" alcohol permits, for any or all of its parks, without having to follow most of the procedures typically required to get state permission to sell beer, wine or liquor — including local review.
With no fanfare that the ILB is aware of, DNR has now authorized alcoholic beverage consumption and possession at the Indiana Dunes State Park, effective July 1st. This was accomplished by the passage of an Emergency Rule by the Natural Resources Commission, which requires no notice or approval, other than adoption the Commission. It is published in the July 6th Indiana Register.

This new rule, however, is not the state park alcohol permit (in lieu of a liquor license) provided for by the 2016 General Assembly - the digest to HEA 1386 reads in relevant part:

Provides that the department of natural resources (department) may apply for a three-way permit for a state park. Provides that the commission shall issue a permit to the department for a state park without: (1) publication of notice or investigation before a local board; and (2) regard to quota provisions. Provides that an annual permit fee for a three-way permit for a state park is $250.
The resultant new State Park Liquor Permits chapter, IC 7.1-3-17.8, is located at SECTION 10 of HEA 1386, beginning at p. 8.

What confuses the ILB, is that the new emergency rule provides that "A person may possess or consume an alcoholic beverage at Indiana Dunes State Park pursuant to IC 7.1-3-17.8" (which is the new law allowing the DNR to grant a 3-way permit). But so far, no liquor permit has been granted at the Dunes State Park. Or has it? Has a stealth permit already been granted?

Under the new State Park Liquor Permits law, effective July 1, the DNR may apply for a three-way permit for one or more state parks. Then, according to the new IC 7.1-3-17.8-4:

Upon application, the [alcohol and tobacco] commission shall issue a permit to the department of natural resources for a state park without:
(1) publication of notice or investigation before a local board; and
(2) regard to the quota provisions of IC 7.1-3-22.
So that is it. No public notice at all is required.

For earlier ILB entries on the Dunes pavilion issue dating back to 2006, see this list.

Posted by Marcia Oddi on Wednesday, July 06, 2016
Posted to Indiana Government

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

For publication opinions today (1):

In James E. Rogers v. State of Indiana, a 24-page opinion, Judge Kirsch writes:

During the pre-trial discovery phase of this criminal action, counsel for defendant James E. Rogers (“Rogers”) took the audio-taped statement of a woman named Amy Wallace (“Wallace”), and, during the questioning by Roger’s counsel, Wallace’s counsel directed Wallace not to answer four questions on the basis of counselor/client privilege. Rogers filed a motion to compel, seeking an order that Wallace be ordered to answer the questions, and the trial court denied the motion after a hearing. Rogers filed this interlocutory appeal and raises four issues that we consolidate and restate as: whether the trial court abused its discretion when it denied Rogers’s motion to compel on the basis that the information sought was privileged under Indiana Code section 25-23.6-6-1. We reverse and remand. * * *

Finding as we do that the counselor/client privilege of Indiana Code section 25-23.6-6-1 does not include communications with unlicensed social workers, we hold that the trial court erred in denying Rogers’s Motion to Compel on that basis, and we reverse and remand for further proceedings consistent with this opinion.[12]
__________________
[12] * * * Although the State urges us to find that Rogers has not made the adequate showing that the information sought is material to his defense, is calculated to lead to admissible evidence, or can be obtained elsewhere, we make no determination on those matters. Rather, we find only that the four questions that deponent Wallace did not answer are not included in the counselor/client privilege, and we defer to the trial court on remand to assess if and to what extent the information is discoverable, whether in-camera as the State suggests, or otherwise.

NFP civil decisions today (3):

In the Matter of B.W. (Minor Child) A Child in Need of Services, K.W. (Mother) v. Indiana Department of Child Services (mem. dec.)

Allied Professionals Insurance Company, a Risk Retention Group, Inc. v. Neff Realty, LLC (mem .dec.)

In Re: the Visitation of L-A.D.W., R.W. v. M.D. and W.D. (mem. dec.)

NFP criminal decisions today (5):

Jairo Armas v. State of Indiana (mem. dec.)

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

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

Rodrigo Hernandez v. State of Indiana (mem. dec.)

Jamar Sheets v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, July 06, 2016
Posted to Ind. App.Ct. Decisions

Environment - "Kankakee River gets national designation"

Updating this ILB post from June 13th, which was headed "The Kankakee, "Indiana's drainage ditch and Illinois' river"," Javonte Anderson of the Gary Post-Tribune reported July 5th in a story including:

The Kankakee River Water Trail was one of three National Water Trails officially designated by the U.S. Department of the Interior last month and only one of 20 nationwide. It is the only one in Indiana.

The 133-mile trail follows the Kankakee River from South Bend and runs through Lake and Porter counties before merging with the Illinois River near Joliet, Ill.

The national designation was the culmination of a two-year effort from the NWIPA, and numerous partners in both Indiana and Illinois.

The June 13th ILB post contained links to several other stories about the designation.

Posted by Marcia Oddi on Wednesday, July 06, 2016
Posted to Environment

Ind. Gov't. - News of Lake Michigan and the Dunes

"Erosion continues to batter Ogden Dunes, Portage shores" is the headline to Joyce Russell's July 5th story in the NWI Times, with several photos. Some quotes:

Erosion is continuing to batter the Lake Michigan shores of Ogden Dunes and Portage this summer.

As lake levels rise, beach along the two communities continues to disappear, affecting the Portage Lakefront and Riverwalk and residents in Ogden Dunes.

Officials, however, say moves have been made to find a long-term solution to the problem, which will ultimately be a plan for continuous nourishment of the beach west of the Burns Waterway Small Boat Harbor.

In April both Ogden Dunes and Portage signed on to be nonfederal sponsors intending to raise matching funds for a U.S. Army Corps of Engineers feasibility study to develop a beach nourishment plan. * * *

Steve Davis, Indiana Department of Natural Resources Lake Michigan coastal specialist, explained that man-made break walls along Lake Michigan's shore have stopped sand from its natural flow towards Portage and Ogden Dunes. The break walls, which protect industry along the lake and the mouth of the small boat harbor, in essence, starve beaches immediately to their west while sand tends to build on their east sides.

Davis told the group the situation will continue as long as the break walls remain in the lake.

The situation has been exacerbated in recent years by rising lake levels. According to the Corps of Engineers' report, Lake Michigan's levels were 2 inches higher in May than in April and 9 inches higher than lake levels of May 2015. They forecast the levels to continue to rise slightly through July and then dip through November, but end the year higher by 5 to 7 inches from the 2015 level.

"LaPorte County Residents Battle Over Lakefront Walls, Beach Access" is the heading to this July 1st WBAA story by Nick Janzen. Listen to the 3-minute story here. From the intro:
Along the Lake Michigan shoreline in LaPorte County, groups of residents are battling over the consequences of building sea walls -- which keep water from encroaching on land.

Indiana Public Broadcasting’s Nick Janzen reports the fight may turn on what “private property” actually means.

See also this July 5th opinion in NUVO, posted by David Hoppe, headed "The trouble with beautiful places."

Posted by Marcia Oddi on Wednesday, July 06, 2016
Posted to Environment | Indiana Government

Ind. Gov't. - Urban chickens in the news: Valpo, Anderson, Columbus

Three recent stories of urban chickens:

ILB update: So what happened last night with the Columbus vote? Jessica Yarvin of Indiana Public Media reports this morning:
On Tuesday evening, the Columbus City Council voted 6-to-1 to table a decision that would ban homeowners from keeping chickens in residential areas.

The decision was preceded by nearly two hours of public comment. * * *

The proposed ordinance would classify chickens as farm animals, which would ban the animals from living within the city limits.

The next hearing is scheduled for October 4.

Posted by Marcia Oddi on Wednesday, July 06, 2016
Posted to Indiana Government

Tuesday, July 05, 2016

Ind. Decisions - More on: Supreme Court decides one today, re State's Petitions in IBM case [Updated]

Updating this ILB post from this morning, Rick Callahan of the AP now has posted a brief story, that reads in part:

Indiana's highest court has granted the state's request for a new judge to oversee its long-running fight with IBM Corp. over the company's failed effort to privatize state welfare services.

The Indiana Supreme Court found Tuesday that the state is entitled to a change of judge, and said its opinion "is final."

The high court did not detail its reasoning, but its order says it "has exclusive, original jurisdiction" over Indiana's courts.

Indiana sought a new judge in May after a Marion County judge decided not to award the state any damages in the case.

[Updated at 5:30 PM] AP reporter Rick Callahan has now revised and expanded his earlier report.

Posted by Marcia Oddi on Tuesday, July 05, 2016
Posted to Ind. Sup.Ct. Decisions

Courts - "U.S. Court of Appeals for the D.C. Circuit: Private-account email can be subject to FOIA"; other examples from ILB archive

This afternoon Josh Gerstein reports in Politico that the:

D.C. Circuit [has] ruled in the dispute involving Obama science adviser John Holdren and an account he kept on a server at the non-profit Woods Hole Research Center in Massachusetts.

After the conservative Competitive Enterprise Institute filed suit over a request for work-related emails sent to or from that private account used by Holdren, U.S. District Court Judge Gladys Kessler ruled last year that the government had no duty to search an email account that wasn't part of OSTP's official system.

But the three D.C. Circuit judges who ruled Tuesday all said Kessler was too rash in throwing out the suit and they agreed the case should be reinstated. * * * "If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served. It would make as much sense to say that the department head could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control," Judge David Sentelle wrote in an opinion joined by Judge Harry Edwards. Judge Sri Srinivasan wrote separately, but came to much the same conclusion: that the fact a different domain name was used was not a sufficient basis—standing alone—to defeat a FOIA lawsuit.

The question of the public's access to the emails of government officials when it is kept in private accounts has been addressed in a number of ILB posts in the past - here is a list of some of them.

Ind. Gov't. - "Secrecy, corruption and conflicts of interest pervade state governments"

That is the heading to this lengthy story in USA Today by Nicholas Kusnetz, Center for Public Integrity. There is much of note in the story (Indiana received a grade of D), including several references to abuse of email:[I]n New...

Posted in The Indiana Law Blog on November 9, 2015 11:13 AM

Courts - More on: Chicago Tribune sues Mayor Emanuel over use of private email

Supplementing this ILB post from Oct. 12th, quoting a Chicago Tribune story, SFGate on Oct. 11th had this AP story by John O'Connor, dateline Springfield, Ill. The first thing you see is a photo with this heading:FILE - In this...

Posted in The Indiana Law Blog on October 13, 2015 10:15 AM

Courts - Chicago Tribune sues Mayor Emanuel over use of private email

The subhead of this Sept. 24th Chicago Tribune story by Steve Mills: "Tribune asks judge to order mayor to comply with FOIA request for emails, texts." A few quotes:he Chicago Tribune filed a lawsuit Thursday alleging that Mayor Rahm Emanuel...

Posted in The Indiana Law Blog on October 12, 2015 01:17 PM

Ind. Gov't. - "Univ. of Illinois officials used personal email to hide discussions"; More

Jodi S. Cohen and Christy Gutowski reported August 7th in the Chicago Tribune:University of Illinois senior administrators used personal email accounts to discuss sensitive and controversial issues, and then failed to disclose the records when they were requested by the...

Posted in The Indiana Law Blog on August 9, 2015 02:35 PM

Law - Use of private or secret email accounts by government officials to avoid public access

The ILB posted in January about private email accounts being used by state officials in New Jersey to circumvent public records laws, and in February about Gov. Scott Walker and a secret email system. Yesterday Tim Cushing at TechDirt reported...

Posted in The Indiana Law Blog on July 31, 2014 10:27 AM

Ind. Gov't. - "Private e-mail accounts: State and federal officials, regardless of political party, have sidestepped public records laws meant to keep government activities transparent"

The AP's Jack Gillum had a story Jan. 11th headed "Christie aide is latest to use private emails." Some quotes from the long story (access quickly, a companion story is already gone):WASHINGTON (AP) — Personal emails at the center of...

Posted in The Indiana Law Blog on January 16, 2014 11:41 AM

[Updated at 2:09 PM] How Appealing has collected stories about today's ruling.

Posted by Marcia Oddi on Tuesday, July 05, 2016
Posted to Courts in general

Ind. Decisions - Why is this ruling today classed as Not for Publication?

The ILB has received a note, subject line "Why is this NFP?", about the Court of Appeals NFP decision today in In the Matter of the Civil Commitment of L.V. v. Eskenazi Health (mem. dec.):

Civil commitment case, moot because commitment over, decided on the merits despite mootness because it is a matter of “great public interest.” If it is a matter of public interest, why is it NFP?

Jay Chaudhary, JD

Posted by Marcia Oddi on Tuesday, July 05, 2016
Posted to Why is this NFP?

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

For publication opinions today (1):

In John Green v. Stephen Robertson, Commissioner, Indiana Department of Insurance, a 29-page opinion, Judge Robb writes:

John Green filed a petition for excess damages from the Indiana Patient’s Compensation Fund (“PCF”) after settling a medical malpractice claim against Health and Hospital Corporation of Marion County d/b/a Wishard Memorial Hospital (“Wishard”) and Emergency Medical Group, Inc. (“EMG”). The trial court awarded Green an additional $300,000.00. Green appeals, raising several issues, which we consolidate and restate as whether the findings and judgment of the trial court are clearly erroneous. Concluding the trial court’s findings and judgment are not clearly erroneous, we affirm.
NFP civil decisions today (2):

In the Matter of the Civil Commitment of L.V. v. Eskenazi Health (mem. dec.)

In re the Matter of the Termination of the Parent-Child Relationship of K.B. (Minor Child) and A.E. (Mother) v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (0):

Posted by Marcia Oddi on Tuesday, July 05, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending July 1, 2016

Here is the Clerk's transfer list for the week ending Friday, July 1, 2016. It is one page (and 12 cases) long. All three trasnfers were decided by the COA on March 15, 2016.

Three transfers were granted last week:

Oral argument was held, with transfer pending, in both the Day and Ellis cases on June 30th (last Thursday). You may watch the oral arguments here.

Posted by Marcia Oddi on Tuesday, July 05, 2016
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court decides one today, re State's Petition for Writ of Mandamus & Writ of Prohibition in IBM case

In State of Indiana, Acting on Behalf of the Indiana Family & Social Services Administration v. The Marion Superior Court and The Hon. David J. Dreyer, as Judge Thereof, a 2-paragraph per curiam order just filed, the Supreme Court by a 4-0 vote, Massa not participating, states: "The Court’s majority concludes the State is entitled to a change of judge."

For background, start with this June 21st ILB post.

Posted by Marcia Oddi on Tuesday, July 05, 2016
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "The judiciary is subject to the APRA (Access to Public Records Act) as if were any other public agency"

That is a quote from PAC advisory opinion 16-FC-101, issued June 13, 2016, where the complainant asked for "a court calendar and Chronological Case Summary files for cases set the same day as your case." However, the request was directed to the county clerk, rather than the trial judge. From the opinion:

The records you requested are administrative court records and are likely not in the custody of the Clerk’s Office. Your request would need to be addressed directly to Madison Circuit Court 4 for the records you seek. It is unclear based on the information provided whether the Clerk acknowledged your request within seven (7) days and denied it based upon Indiana Code § 5-14-3-9.1 The CCS entry denying your request is the only such documentation provided to this office.

Your request was conspicuously marked as a request for public records and not as a pleading or a discovery request under the trial rules or a motion to produce documentation. Therefore, I am curious as to why it was treated as a discovery device under the Trial Rules.

This office has stated on several occasions the Public Access Counselor will not interfere with the judiciary’s sovereign jurisdiction to adjudicate discovery requests under the trial rules. Indeed, the discovery process would be frustrated if an executive branch official were to preempt the court’s authority by issuing an opinion on production of documents.

However, your request was for administrative public records and not evidentiary documents from a litigant or third-party. The judiciary is subject to the APRA as if it were any other public agency. See Indiana Code § 5-14-3-2(n)(2)(c). The fact litigation is occurring should not preclude you from requesting documents under the APRA. It is my opinion you have standing to request these records in a manner in which any other citizen may do so. Therefore, your request falls outside trial procedure or litigation and should be fulfilled. It is my hope the Court takes this opinion into advisement and reconsiders its position.

For more, see this story in Indiana Economic Digest.

Posted by Marcia Oddi on Tuesday, July 05, 2016
Posted to Indiana Courts | Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 7/11/16):

Webcasts of Supreme Court oral arguments are available here.


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

Wednesday, July 6

Next week's oral arguments before the Court of Appeals (week of 7/11/16):

Monday, July 11

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

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


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

Posted by Marcia Oddi on Tuesday, July 05, 2016
Posted to Upcoming Oral Arguments

Friday, July 01, 2016

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

In Richard Bell v. Cameron Taylor (SD Ind., Pratt), a 20-page opinion, Judge Flaum writes:

Richard Bell sued several defendants for copyright infringement, alleging that they impermissibly displayed a photo belonging to Bell on websites promoting their respective businesses. Bell sought damages as well as in-junctive and declaratory relief in federal district court. The district court granted summary judgment for defendants, first on damages and later on injunctive and declaratory relief. Bell also filed a second copyright infringement lawsuit against some of the defendants in the same court. The district court granted defendants’ motion to dismiss the second case based on res judicata. Bell appeals the grant of summary judgment for defendants in the first case and the grant of defendants’ motion to dismiss in the second case. For the reasons that fol-low, we affirm the judgment of the district court in both cases.

Posted by Marcia Oddi on Friday, July 01, 2016
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 0 NFP memorandum decision(s))

For publication opinions today (2):

In Richard J. McVey v. State of Indiana, a 14-page opinion, Chief Judge Vaidik writes:

Richard J. McVey was convicted of Class C felony child molesting for molesting his half-sister in 2001. After the molestation, the legislature amended the Indiana Sex Offender Registration Act to require lifetime registration for offenders like McVey, as opposed to the previous requirement of ten years. It also enacted the unlawful-entry statute, which makes it a crime for a person who is required to register as a sex offender and who is convicted of child molesting to enter school property. McVey contends that both enactments, as applied to him, violate the Indiana Constitution’s prohibition against ex post facto laws. We agree with McVey as to the lifetime-registration requirement but not as to the unlawful-entry statute. We therefore affirm in part and reverse in part.
In Adrian Anthony v. State of Indiana, a 7-page opinion, Judge Bradford writes:
Anthony argues that using the victims’ ATM cards did not qualify as “uttering” a written instrument for purposes of the forgery statute. * * *

Using a debit card to withdraw money from an ATM is essentially the same as writing oneself a check to cash at the bank. If an individual steals a victim’s checkbook, forges the victim’s signature, and attempts to cash a check, then the individual is clearly guilty of forgery. The same logic applies to an ATM transaction. Like a signature, a personal identification number is a means by which the bank can attempt to verify a person’s identity and assure that they are authorized to access the account. By using the victims’ PINs, Anthony was attempting to defraud the bank by purporting to be the victims. We agree with the State that distinguishing ATM transactions as Anthony suggests would allow defendants to avoid criminal liability due to advances in technology.

The judgment of the trial court is affirmed.

NFP civil decisions today (0):

NFP criminal decisions today (0):

Posted by Marcia Oddi on Friday, July 01, 2016
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Mold To Gold: Distillery Lawsuit Settlement Money Up For Grabs"

That was the heading of this Feb. 2, 2016 story by Mike Perleberg of EagleCountry 99.3FM. Some quotes:

In 2005, a class action lawsuit was filed by William Klepper and other Lawrenceburg and Greendale property owners whose property was damaged by ethanol emissions from the distillery. The emissions can even come from ethanol that escapes as it evaporates through barrels used in the spirits aging process – also known as the “angels’ share”.

According to class counsel F. Ronalds Walker of Indianapolis law firm Plews Shadley Racher & Braun, the fungus is known as baudoinia compniacensis. It’s affects can be observed by anybody driving or walking by the distillery and surrounding homes as a blackish, dirt-like coating on the buildings. Walker said there have similar cases around the country, including in areas near distilleries in Kentucky.

A Dearborn County judge ordered a $1.23 million judgement against former distillery owners Pernod Ricard in 2009. Just recently, claim notices and forms were mailed to about 7,000 property owners in Dearborn County.

Today another story by reporter Perleberg, this one headed “'Angels’ Share' Mold Lawsuit Awards Determined; Checks Hitting The Mail." Some quotes:
(Greendale, Ind.) – Checks – some of them worth thousands of dollars – will soon be hitting the mailboxes of mold-stricken properties in Lawrenceburg and Greendale.

In 2005, a class-action lawsuit was filed against former distillery owner Pernod Ricard over the black mold that grows on homes and businesses near the distillery. The suit resulted in a $1.23 million judgement against the company in 2015. That money is now in the process of being distributed to property owners, says attorney F. Ronalds Walker with Indianapolis law firm Plews, Shadley, Racher & Braun, LLP.

On June 17, a Dearborn County judge approved payments of $4,000 for affected property owners in a designated high impact zone surrounding the distillery. Those in a low impact zone are getting $500. * * *

About 2,000 properties were eligible for a share of the settlement funds. Roughly 1,100 property owners submitted claim forms prior to the April 30 deadline, Walker says. * * *

William Klepper, the local property owner who was the first to bring the lawsuit and its class representative, will receive a special $10,000 award. The Dearborn Community Foundation is also being awarded $10,000. The attorneys will receive $61,722.82.

The mold is easily spotted on homes and businesses surrounding the distillery. It is caused by alcohol that evaporates from barrels of whiskey stored at the distillery, sometimes called “the angels’ share”. The mold does not pose a health risk to humans, Walker has said previously.

Posted by Marcia Oddi on Friday, July 01, 2016
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Updating "Porter Co. Prosecutor faced with contempt in dispute with judge"

Updating this ILB post from June 27th, which links to the documents in the dispute now docketed before the Supreme Court, Kevin Nevers of the Chesterton Tribune yesterday had a long story headed "Judge Chidester responds to Gensel in flap being heard by Indiana Supreme Court," that summarizes the positions of the two sides.

Posted by Marcia Oddi on Friday, July 01, 2016
Posted to Indiana Courts

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

Updating yesterday's post linking to federal district court Judge Pratt's opinion in Henderson v. Adams, Dave Bangert of the Lafayette Journal & Courier has this long story today. Some quotes:

There were moments in the 16 months since Ashlee and Ruby Henderson sued the state so both of their names could be on their toddler son’s birth certificate – so, they believed, they could be recognized as full-fledged parents to Landon – when they thought the risk of waiting for a judge’s ruling was too much. * * *

On Thursday, U.S. District Court Judge Tanya Walton Pratt agreed with the Hendersons, ruling that Indiana’s laws were unequal when it came to same-sex parents and the state’s assumption that their children are born out of wedlock. The case was among the first to challenge Indiana laws in the wake of the legalization of same-sex marriage, settled a year ago by the U.S. Supreme Court.

In her ruling, Pratt concluded: "Given Indiana’s long-articulated interest in doing what is in the best interest of the child and given that the Indiana legislature has stated the purpose of (the family law section of the Indiana Code) is to protect, promote and preserve Indiana families, there is no conceivable important governmental interest that would justify the different treatment of female spouses of artificially-inseminated birth mothers from the male spouses of artificially-inseminated birth mothers." * * *

Yet to be seen is what the ruling means for when Ashlee Henderson can get her name on Landon’s birth certificate and Ruby Henderson can get her name on their daughter’s birth certificate a month from now. * * *

The Hendersons filed their lawsuit in February 2015, after they’d been told at the Tippecanoe County Health Department that only the name of Ruby, the birth mother, could be included on their son’s birth certificate. Tippecanoe County’s response was to stick with guidance out of the state health department. Seven other same-sex couples joined the challenge against the state, which allowed only a mother and a father to be named on birth certificates.

Only the birth mother, who carried the child, could be listed as a parent. The state did not recognize two mothers, even in cases where they were legally wed, and even in a case where one woman donated the embryo that her wife eventually carried.

“Indiana’s law restricting the presumption of parenthood to men and bastardizing children born to women in same-sex marriages,” the suit claimed, “publicly stigmatizes persons in a same-sex marriage and sends a hideous message to their children.”

There are more complexities - read the story and/or the opinion.

Posted by Marcia Oddi on Friday, July 01, 2016
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Prosecutors knew molestation accusations were false"

That is the headline to this story late yesterday from Bob Kasarda of the NWI Times. The long story begins [ILB emphasis]:

VALPARAISO — A Portage man, who has sat in jail for the past three years without bond, was acquitted Thursday morning on four counts of child molesting after it was discovered one of the two purported victims made up at least part of the accusations and the prosecutor did not share that information with the defense.

Porter Superior Court Judge Bill Alexa ordered 39-year-old Eric Knowles released immediately from jail on his own recognizance while awaiting disposition of a final molestation count involving a third child.

Alexa also said he is referring the matter involving Deputy Prosecutor Trista Hudson to the Indiana Supreme Court's Disciplinary Commission for an ethical review. Hudson also serves on the Valparaiso City Council.

Porter County Prosecutor Brian Gensel issued a statement following the acquittal that says in part, "The lapse was inadvertent and the State accepts the Court's ruling."

Defense attorney Larry Rogers said he discovered one of the purported victims lied, at least in part, while he was questioning the 12-year-old boy Wednesday on the witness stand.

The boy admitted his father told him to falsely accuse Knowles of the worst of the sex acts against him, Rogers said. The boy went on to say he revealed this to prosecutors and police last week, Rogers said, and a detective in the case confirmed that later in the day while testifying.

The story conlcudes:
When [defendant] Knowles thanked him for the acquittal, {Judge] Alexa chastised him and said it was not being done for him.

"It's for our system," he said.

Knowles has been held without bond after he was accused of molesting four different children. A jury found him not guilty in one of the cases in August and Alexa scheduled a Nov. 28 trial, and Sept. 30 and Oct. 21 hearings in the final case.

Alexa explained as he dismissed the jury the acquittal makes no determination of Knowles' guilt, but he cannot be retried on the charges.

Posted by Marcia Oddi on Friday, July 01, 2016
Posted to Ind. Trial Ct. Decisions